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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 }><irte Kennedy, 216
Reynold's Heirs v. Commissioners,
81, 82, 462
Rhinelander v. Seaman, 823, 914
Rich V. Boulton, 366, 367, 544
Richards i\ Gauffret,
130
V. McGratli,
719
Richardson v. Copeland,
952, 959
I'. Pond,
1074
RiciinKmd v. Gray,
178
Riddle r.,Welden,
682, 692
Ridgeway Stove Co. ?'
Way, 953,
955, 957
Ridgley i-. Stillwell,
35
1, 352. 353,
362, 619
Rinehart v. Ohvine,
205
Rising V. Stannard,
17,
1145,1146
Ritzier v. Raetlier,
491
Roatii ('. Driscoll,
1094
Robbins ?'. Mount,
283
Roberts r. Dauphin Di
pos
Bk., 952
V. Sims,
593
V. Smith,
048
V. Tarver,
1132
V. Wiggin,
60, 61
Robertson v. I'liillips,
956
Robeson /•. Pittenger,
1074, 1075
Robie IK Smitii,
475
Robinson v. Crummer,
1197
V. Deering,
352
V. Ketteltas,
147,159
V. Lehman,
648
r. Perry,
387, 413
IK Wlieeler,
92i)
V. Wriglit,
957
V. Zollinger,
05, m
Roby ('. PlieloM,
71
Rodman v. Rodman,
461
Rogan V. Dockery,
283
TABLE OF AMERICAN CASES.
XXV
Roger V. Roger,
Rogers v. Crow,
V. Dickey,
V. Siiwin,
Roget V. Merritt,
Rollins V. Moody,
V. jMooers,
Ross V. Gill,
V. Swaringer,
Roth V. Williams,
Rotzler v. Rotzler,
Roussin V. Benton,
Rowand v. Anderson,
Rowe V. Granite Br. Co.
Royce v. Guggenheim,
Rubbottom v. Morrow,
Russell V. Buckley,
V. Doty,
V. McCartney,
V. Richards,
Rutgers v. Hunter,
Ryan v. Kirchberg,
Ryder v. Robinson,
Ryerss v. Farwell,
Salisbury v. Shirley,
Sampson v. Henry,
V. Stearns,
Sanders v. Partridge,
Sanford v. Ilarvey,
Sanger v. Fincher,
Sargent v. Courrier,
Saunders v. Hanes,
Savory v. Stocking,
Sawyer v. Lufkin,
Say V. Stoddard,
Scarlett v. Lamarque,
Sclice ?'. Wiseman,
Schell IK Simon,
Scbieffelin v. Carpenter,
Schlemmer v. North,
Schlichter v. Phillipy,
Schmitt V. Cassilius,
Schneider v. Staihr,
Scliool Directors v. McBride,
Schott V. Harvey,
Schuyler v. Leggett,
r. Smith,
Scott V. Hale,
V. McEwen,
V. Russell,
V. Simons,
Scully ?'. Murray,
Seaman v. Smith,
Sears v. Smith,
Seaver v. Coburn,
V. Phelps,
Secor V. Pestana,
Seem v. McLees,
PAGE
PAGE
lOG
Selby r. Robinson, 414,
415,
426, 817
958
Selden v. Williams,
225
694
Settle V. Hanson,
1197
1074
Seymour v. Lynch,
203
149
Shaffer v. List,
77
352, 481, 8.S0
I'. Sutton,
354, 058
1132
Shanagan v. Shanagan,
348
(58
Shapiria v. Barney,
952
205
Sharp I'. Cutlibert,
130
225, 048
V. Robertson,
62
648
Sheerer v. Stanley,
404, 435
1118
Sheets r. Selden's Lessee,
247, 531
956
Slienk V. Mundorf,
935
1083
Shepherd a. Cummings,
351
283, 630, 631,
Sherboneau v. Beav. Fire
Lis. Co., 956
632, 824, 911
Sherburne v. Jones,
1145
459
Sherman v. Fall Riv. Iron W., 1086
708, 720, 722
V. Fitch,
24
709
V. Seaman,
283, 284
252, 470, 543
V. Williams,
630
952
Sliields V. Arndt,
1080
5, 578
Shindlebeck v. Moon,
1128
482
Shipman c. Mitchell,
359
170, 188
Shirreff v. Vye,
694
830
Shoenberger r. Lyon,
289
Shondy v. School Dist.,
1197
266, 415
Shook V. Colohan,
1083
1132
Shouse V. Krusor,
459, 593
1133
Shrewsbury &c. I'. Northwest R.Co., 28
388
Shrunk v. Schuylkill Nav. C
0., 1001,
541, 543
1082
822
Shumway v. Collins,
297,
410, 498,
205
630, 632
5
Shutt V. Carlos,
68
446
Sluittleworth v. Shaw,
816
76
Siefke i'. Koch,
1010
353, 306
Silsby V. Allen,
353
1275
Siniers v. Saltus, 88
,481
630, 631
462
Sinnnons v. Campbell,
140
155, 191
204
V. Sines,
1072
481, 482
Simonds' Adm'r v. Beauchamp, 272,
957
274
1081
Simonton v. Loring,
.1128
205
Sims V. Everhardt,
60,61
61, 02
V. Hampton,
247
Jride, 214
Sinclair v. Jackson,
52
1128
Singer Mfg. Co. v. Lamb,
59,61
351
Skally V. Shute,
630
354, 358, 373
Slay V. Milton,
684, 709
917, 930
Sleeper v. Parrish,
083
683
Sloan V. Biemiller,
1062, 1083
684, 709
Smiles v. Hastings,
1072
283
Smiley v. Van Winkle,
82,
414, 420,
353
403, 495
1083
Smith V. Adams,
1094
211
V. Atkins,
205, 290
308, 1010
V. Aubrey,
083
77
V. Ault,
354
, 358, 373
539
r. Benson,
952
542
V. Brinker,
388, 415
XXVI
TABLE OF AMERICAN CASES.
Smith V. Carrol,
V. Colson,
V. Grant,
V. Hoag,
V. Niver, <
V. Shepard,
V. Stewart,
V. Stis^cleman,
V. Walker,
V. Whitbeck,
Smoot V. Strauss,
Smyth V. Tankersley,
Snedeker v. Warring,
Snook V. Sutton,
Snyder v. Kuukleman,
V. Warren,
Sobey v. Brisbee,
Sornbergger v. Berggren,
Souders v. Vansickle,
Southbridge Sav. Bk. v.
Works,
Southport & W. Lan
V. Tliompson,
Spalding v. Mayhall,
V. Vandercook,
Sparks r. State Bank,
Spear v. Orendorf,
Speekels v. Sax,
Spellman v. Bannigan,
Sprague v. Baker,
Spring V. Uussell,
Springfield v. Harris,
Squires v. Huff,
Stackhouse v. Halsey,
Staokpole v. Farrar,
Stacy V. Vt. Cent. R. R. Co.,
Stafford v. Roof,
Staples V. Emery,
V. Sprin
PAGE
95(3
658
229
1197
38, 481, 482
4,630
383
630
462
499, 619
657
204
954, 959
65,68
709
247, 531
211
1145
86, 657
V. Exeter
953, 955
Bank Co.
216, 375
1196, 1197
825
959
166
273
912
266
1083
1084
353
531
954, 955
383
62
87, 230
1122
Starr u. Jacks.on, 935,1118
State V. Caldwell, 1197, 1275
V. Crowder, 648
V. Elliott, 955
V. Fort, 1275
V. Franklin F. Co., 1083
V. Gilmantown, 1083
V. Jackson, 247
V. Jewell, 204
V. Jones, 204, 1274
V. Northern Cent. R. R. Co., 959
V. I'age, 202, 594
V. Tollock, 1197, 1276
V. Siiepard, 1197, 1275
V. Walker, 1197
V. Wilbourno, 648
Steaniboiit Co. v. M(!Cutchcon, 122
Steamboat Magnolia v. Marshall, 1083
Stearns v. Sampson, 11152
V. Stearns, 459
Stedman v. Mcintosh, 353, 306
PAGE
229, 290
1074
648
211
1133
1084
683
543
1018
354
204, 205, 206,
1145, 1146
V. Lanier House Co., 825
V. L. I. R. R. Co., 5, 202, 265,
414, 415, 426, 476, 495, 591
Steele r. Farber,
Stein V. Hanok,
Steinhardt v. Bell,
Steininger v. Williams,
Sterling v. Marden,
Stevens v. Kelly,
r. Lodge,
Steward v. Harding,
i: Winter,
Stewart v. Apel,
V. Doughty,
!'. Futnam,
Stillman r. Flenniken,
V, Hanier,
Stinson v. Magill,
V. Stinson,
St. John ('. Palmer,
St. L. A. & T. H. R.
Todd,
St. L. & I. M. R. R. Co
1128
958
956
415, 816
404, 459
631
R. Co. V.
270
Lud-
wig, 353, 354
St. Louis Pub. Schools v. Boat
men's Ins. Co.,
St. Michael's P. E. Church v
Behrens,
Stockton V. Guthrie,
Stockwell V. Campbell,
V. Hunter,
V. Marks,
V. Sargent,
Stoelker v. Wooten,
Stokes V. Cooper,
Stone V. Damon,
V. Malot,
V. Matthews,
V. Patterson,
Story ('. Odin,
Stott ('. Rutherford,
Stout ('. St()])pel,
Stow V. Yarwood,
Stowell V. Lincoln,
Strain r. Gardner,
Streeter v. Streeter,
Strickland v. Parker,
Strohecker v. Barnes,
Strong r. Hirchard,
r. Crosby,
V. Garfield,
V. Stebbins,
Stubbiefield r. Soule,
Sturdee v. Merritt,
Sturges V. Warren,
Stuyvesant v. Dunham,
V. WoodrnlT,
Suffern v. Townsend,
425
481
816
957
283, 476
473, 955, 957
16
648
632
77
1197
693
406, 021
1075
2, 4, 105, 281
952
822
1084
205
822
955, 959
273
631
361
831
683
823
17, 18, 354,
359, ()60
954
9:!5
1070, 1072
602
TABLE OF AMERICAN CASES.
PA(3K
Sullivan i: Carberry, 367, 474
V. Gary, 354
SuUivans v. Enders, 353
Sultphin V. Seebas, 481
Sunol V. MoUoy, 204
Sutherland v. Buchanan, 47(5
Sutphen v. Thorkelson, 1075
Suydam v. Jones, 2GG
ISwain v. Ayrcs, 140, 191
Swartswelder v. U. S. Bank, 1190
Sweetzcr v. McKenney, 5, 585
Swctt y. Cutts, 1081, 1094
Swift V. Thompson, 954, 959
Swords r. Edgar, 1122
Sylvester v. Kalston, 04, 68, 383
Synionds v. Hall, 205
Syms V. Mayor of N. Y., 5, 578
Syracuse City Bank v. Tallman, 88
T. & B. R. R. Co. V. B. H. T. &
W. Ry. Co., 122
Taffe V. Warnick, 959
Taggart v. Roosevelt, 211, 351
Tainter r. Cole, 17
Talbot V. Whipple, 481
Taliaferro v. Pry, 648
Tallniadge v. Wallis, 822
Tallman v. Coffin, 265, 270, 274, 297
IK Gashweiler,
Tapley v. Smith,
Taylor v. Bcnhani,
V. Bradley,
V. Soldati,
V. Townsend,
?;. Watkins,
Teaff V. Hewitt,
Terry v. Bale,
Tex."& Pac. R. Co. v. Baylis,
V. Bayliss,
Thamni i'. Hamberg,
Thomas v. Connell,
IK Kingsland,
V. Mirehouse,
V. Moody,
I'. Railroad Co.,
V. Sanford Steamship Co., 352,
481, 816
Thompson v. Gould, 164
V. Mead, 694
V. Rose, 264, 265, 266, 268
Thomson v. Longard, 176
Thornton v. Payne, 154, 246
V. Wilson, 650
Thurber v. Martin, 1084
Tibbitts V. Percy, 273
Tifft V. Horton, 951
Tiley v. Moers, 821, 822
Titus V. Haines, 930
Tobey v. Bristol, 147, 161
V. Webster, 1118
481
952
120
204, 205, 206
224
957
957
953, 954
459
1126
205
544, 551
262, 415, 434
912
694
1146
28
Tobias v. Francis,
Todd V. Cameron,
Tone V. Brace,
Toole V. Beckett,
Tottcn V. Pliipps,
Touchard '". Keyes,
Tousey v. Roberts,
Towle V. Swasey,
Tovvne v. Bovvers,
V. Fiskc,
Townsend v. Isenberger,
Townsley v. Charles,
Tracey v. Sacket,
Treadwell v. Mardcn,
Treat v. Peck,
Triebtr v. Knabe,
Trimble v. Pollock,
Trout V. Perciful,
Trull V. Granger,
Truss V. Old,
Trustees i\ ,
Trustees W. University v. Robin
son.
Turner v. Bachelder,
V. Ferguson,
V. Thompson,
V. Wentworth,
Tuttle V. Reynolds,
Tyler v. Decker,
V. Wilkinson,
954
817
130, 281
913
913
462
913
459
1145, 1146
957
205, 404,
1118
166
77
446
77
693
459
297
3
935
120
1055
290
2
1075
953, 957
500
957
1084
Uecker v. Koehn, 60
Uhl V. Dighton, 650, 682
Underhay v. Read, 86
Underwood v. Stuyvesant, 1072
Union v. Cleveland R. R. Co., 414
Union Bk. v. Emerson, 955
Upton V. Townend, 032
United States r. Applcton, 1075
V. Bostwick, 286, 917, 929, 930
V. Gratiol, 203
University of Vt. v. Joslyn, 817
Vai v. Weld, 283
Vallette v. Bennett, 52
Van Cortland v. Parkhurst, 356
Vandekar v. Reeves, 388, 481, 482
Vanderpoel v. Van Allen, 959
Van Doren v. Everitt, 64, 68
Van Driel v. Rosierz, 404
Van Every v. Ogg, 913
Van Horn v. Hann, 76
Van Keuran v. Cent. R. R. Co., 959
Vann v. Rouse, 481
Van Ness v. Hjatt, 87
;;. Pacard, 955, 956
Van Rensselaer v. Akin, 52
V. Bradley, 410, 425, 816
V. Jewett, 499, 593, 619
TABLE OF AIMEKICAN CASES.
Van Rensselaer v. Radcliff, 11)00
Van Rensselaer's Exts v. Gallup, 410,
414, 425, 817
Van Rensselaer's Heirs v. Penni-
man, 5,473,482
Van Schaick v. Third Ave. R. R.
Co., 308
Vassar r. Camp, 170
Vaughan v. Haldeman, 9,58
Vegeley v. Robinson, 353, 359, 481
Vehue v. Mosher, 230
Verhook v. Story, 1276
Vernam v. Smith, 281
Verplanck v. Wright, 264, 2G6
Vess V. The State, 1197
Vibbard c. Johnson, 822
Vinz r. Beatty, 212
Viterbo i: Friedlander, 3, 161, 913
Voorhees r. Burchard, 235
Voorhis r. Freeman, 952, 955
Vrooman v. McKaig, 354, 359
Wade v. Halligan, 822
Wademan v. Thorp, 952
Wadleigh v. Williams, 1126
Wad ley r. Williams, 593
Wadsworth v. Sherman, 76
V. Smith, 1083
Waggoner r. Jermaine, 918
AVagner v. Clev. & Tol. R. R., 952,
956, 959
r. L. I. R. R. Co., 1081
Wait App't, 291, 463, 648
Wait V. Maxwell, 76
Walcott V. Pomeroy, 502, 929
Waldron v. M'Carty, 631
Walker v. Board Pub. Works, 1083
V. Fitts, 204
r. Giles, 353
V. Sharpe, 541, 549
V. Sherman, 953, 954, 955,
956, 959
V. Slioemaker, . 822, 825
Walkins >\ (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<rdalen Collej^e, Oj
ford
37
Bankart ?•. Tennant,
103
V.
Matthias,
685
Banks v. Pebbeck,
237
811
V.
Owen,
3.
'), 37
Banner v. .Johnson,
280
V.
Payne,
37
Bannister v. Hyde,
462
V.
Portlantl,
204
r. Usborne,
53()
V.
Sbcflfield Gas Co.
583
Barber v. Dixon,
696
V.
Shield,
565
Barbour r. Barlow,
813
V.
Stephens,
549
Barclay, Ex. parte.
620,
641,
642
Aubin
V. Holt,
98, Oi),
108
V. Paine,
163
Aubrey v. Fisher,
617
Barden's case,
752
Au'^ustein v. Challis,
494,
496
Bargent i'. 'I'homson,
327
Aurio
r. Mills,
271,
407
Barker c. Banks,
657
Auwo
rth r. . Johnson,
597,
611
V. Bark( r.
599
A veline v. Whisson,
189
r. liichardson,
687
Avenc
11 V. Croker,
4(54
Barkworth r. Young,
88
Avery
V. Cheslyn,
Griffin,
630
110
Barlow r. 'I'eal,
V. llhodes.
33()
82
Avowry's case,
488
Barnard r. Cave,
112
Axford !'. I'errctt,
5(10
r. (Jods.aii,
261
281
V. Leigii,
270
B.
Barnes c Dowiing,
610
\\.\rn
!•. Meats,
460.
471
V. Ward,
730
Haclit
lour and Gcorg
c's
case,
404
Barnelt v. Guildford (E
arl),
132
732
TABLE OF CASES CITED.
XXXIU
[References are to the star paging.]
PAGE
Barnett v. Wheeler, 100, 243, 246
Barnfather v. Lee, 559
Barnwell v. Harris, 247
Barr v. Glover, 821
Barrett v. Bedford (Duke), 557
Barrow v. Scammell, 90
Barrs v. Lea, 5(5(5
Barry v. Glover, 313, 742
r. Goodman, 231, 2(58
Bartlett v. Baker, 73(5
V. Smith, . 187
Barton v. Banks, 247
V. Dawes, 135, 183
V. Rock, 69, 430
Barwick v. English Joint Stock
Bank, 64
d. Mayor, &c. of Richmond
V. Thompson, 215
Bascomb v. Phillips, 107, 108
Basket v. Scot, 146
Bassett v. Lewis, 151
Basten v. CJarew, 472, 836, 839
Bastin v. Bidwell, 368
Bateman v. Allen, 43
V. Farnsworth, 496
Bates V. Beaufort (Duke), 438
Batcson v. Green, 685, 697
Batli's (Bishop of) case, 153, 154, 158
Bathurst v. Burden, 613
Battishill v. Reed, 686, 700, 707, 732
Baudelay v. Brook, 141
Bauman v. Matthews, 113
Baumann v. James, 90, 91, 92,93,
103, 104
Baxter v. Taylor, 733
Bayley v. Bondley, 542
V. Bradley, 538
V. Fitzmaurice, 90, 92, 154
Baylis v. Dineley, 38, 70
V. Le Gros, 168, 198, 311, 319,
587, 593, 601
V. Usher, 405
Bayly v. Tyrrell, 118
Bayne v. Walker, 592
Baynes v. Smith, 442
Baynham v. Guy's Hospital, 364, 366,
367
Beadel v. Pitt, 119, 565
Beale v. Sanders, 128, 133, 544
V. Taylor's case, 599
Bealey v. Shaw, 712
V. Stuart, 176
Beam v. Bloom, 694
Beard v. Knight, 497
Beardman v. Wilson, 124, 258, 261,
262, 264, 539
Beardmore v. Fox, 557
Beardsworth v. Torkington, (i86
Bearpark v. Hutchinson, 288
PAGE
Beatson v. Nicholson, 101
Beattie i'. Quirey, 2(50
Beaty r. Gil)l)()n"s, 605, 755, 762
Beau"fort (Duke of) v. Bates, 612, 674
Beavan i: Delahay, 420, 438, 454,
457, 755
V. Macdonell, 45
Bock V. Denbigh, 439
V. Rebow, 629
Becke v. Beaumont, 797
Beckett v. Bradley, 214, 531
Beckham v. Drake, 392
Beddall r. Maitland, 741, 843
Bedell v. Constable, 40, 426
Bedford Union v. Bedford Com-
missioners, 556
Bedingfield v. Onslow, 738
Beechey v. Quintery, 581
Beeley v. Perry, 254
Beere v. Windebanke, 83
Bees V. Williams, 305
Beeston r. Stutely, 112
V. Weate, 713
Begbie v. Hayne, 458
Begott V. Orr, 695
Beioley v. Carter, 109
Belanev v. Belaney, 308
V. kelly, 296
Belcher v. M'Intosh, 589
Belfour v. Weston, 408, 592
Bell I'. Midland Rail. Co., 734
I'. Nixon, 81
V. Twentyman, 734
Bellasis v. Burbrick, 534
Bellingham v. Alsop, 11
Bellringer r. Blagrave, 110
Belworth v. Hassell, 247
Bendyshe v. Pearce, 429
Benham v. Keene, 192, 272
Benjamin v. Andrews, 82
Bennett's case, 492
Bennett v. Bayes, 414, 415, 416, 417
V. Herring, 2, 252, 262, 318,
593, 603
V. Ireland, 408, 552, 592
V. Lytton, 294
V. Reeve, 691
V. Robins, 429
Bennett v. Womack, 120, 122, 205,
382, 555, 664
Bennison i'. Cartwright, 687
Benson v. Chester, 81, 691
Bentley, Ex pnrfe, 642
Berkeley v. Hardy, 190, 528
Bermingham r. Sheridan, 247
Bermondsey Vestry v. Brown, 77
Bern v. MaUaire, 502
Bernard v. Meara, 105
Berrey v. Lindley, 128, 221, 339, 351
XXXIV
TABLE OF CASES CITED.
[References are to the star paging.]
Berriman i'. Peacock, . 617
Berry v. Taunton, GGl
Bertie v. Beaumont, 2o6
Beslev i-. Besley, 077
Bessell r. Landsbercr, 299, 301, 302,
o34, 541, 550
Betbell >•. 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<i3
I'. Carew,
136, 181, 314
r. Saxby,
491
r. Carter,
13, 24, 64, 228, 363,
Dod.son V. Sanmiell,
293
660
Doe i>. 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;irliri<lge r. Warwick,
H,inourt r. Wynian, 44, 100,
Harding r. Crethorn, 407, 542,741
r. ilall, 480, 484,
V. Precce, 277,
v. Wilson,
Hnnloii r. Ilesketli, 540,
Hardwickc r. Vernon,
Hiirdy r. Sever,
Hare r. lUirgess,
V. Cator,
V. (Jrovea,
V. llorton, 135, 100,
656
61
739
104
122
751
307
505
283
711
640
743
244
550
269
674,
683
119
689
173
131
712
118
161
643
175
273
305
109
62
48
320
122.
056
111
417,
461
676
127
526
70
716
535
11
704
745
, 743
540
281
142
540
78
206
360
264
40S
(ilO
FAGB
Hargrave's case, 291
Harker i'. Birkbeck, 737
Harlev v. King, 161
Harmer v. Bean, 211, 254, 400, 547
Harnett v. Maitland,
V. Yielding,
Harper v. Taswell,
Harrington v. Price,
V. Ramsey,
r. Wise,
Harris, E.r parte,
175, 610
98, 246
479
248
814
296, 313, 383
959
Harris, Ex parte. Re Richardson, 280
V. Davison, 271
V. Evans, 155
V. Goodwyn, 161, 171, 261
V. James, 737
I". Jones,
V. Pepperell,
V. Shipvvay,
V. Thirkell,
Harrison, Ex parte. Re Betts,
V. Barnby,
i\ Barry,
V. Blackburn,
V. Good,
V. Jackson,
V. AVardle,
V. AVright,
Harrow School v. Alderton,
Hart V. Leacli,
589
217
308
489
233
423
444, 479, 402
197, 298, 732,
738
668
62, 190
500
390
631
483
Windsor, 173, 174, 508
Hartcup v. Bell, 52
Hartis v. Beavan, 532
Hartnell v. Yielding, 110
Hartshorne v. Watson, 108, 258, 313,
520, 547
Harvey r. Barna'- ^s Inn, 105
v. Bridges,
V. Grabham,
I'. Harvey,
V. King,
V. Pocock,
I'. Reynolds,
Harvie v. Oswel,
Haselere r. Lemoync,
Haslet V. Burt,
Hasluck !-. Pedley,
Hassell (". (Jowthwaite,
Hastings I'nion
((Jiiardi.'ins of),
Hatch r. Hale,
Hawkins r. (.'arbines,
r. Kelly,
V. Kemp,
V. l{utt,
r. Shcrmnn,
I'. A\'alrond,
i;. AVilliams,
41
93, 753, 763
630
262
451
607, 714
324, (>62
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
<!90
135, 167
205,317
129
189, 537
How V. Kennett,
r. Whitfield,
Howard v. Hodges,
V. Lovegrove,
!'. Shaw,
V. Wemsley,
Howe v. Hunt,
V. Searrot,
V. Synge,
Howell V. Kightle}',
V. Richards,
PAGE
219, 537
203
533
601
237, 538, 546
347
97, 110
43, 428, 540
555, 565
055
391
Howells, app., Wvnne, resp., 723
Hewlett r. Tarte,' 216, 386
Howse V. Webster, 291
Howton V. Pearson, 82, 702
Hudd r. Ravenor, 487
Huddlestone r. Briscoe, 105
V. Woodroffe, 140
Hudson V. Bartram, 116
V. Buck, 246
V. Hudson, 49
?'. Temple, 116
r. Williams, 591
Hudspeth r. Yarnold, 94
Huffell V. Armitstead, 224, 339
Hugall V. McLean, 595
Hughes and Crowther's case, 157,296
A'.r parte, 78
V. Chatham, 236
V. Clark, 129
r. Hughes, 58, 268, 430
V. Lumlcy, 272
V. Macfie, 739
r. Metropolitan Rail. Co., 593
r. Palmer, 197
I'. Parker, 88, 90
1-. Robothain, 308
Hull (Mayor, &c., of) v. Horner, 686
Hulme V. Teiniant, 118
Humberstone v. Dubois, 749
Humble r. Hunter, 63
Hume V. Pejjloe, 532
r. Pocock, 246
Humfrey v. Dale, 63
V. (iery, 455, 533
Humphreys i\ Franks, 335, 351
Humphries r. Cousins, 738
llungerford r. Clay, 52, 54
Hunt r. Aligood,. ."KJl
1). Bishop, 2, 167, 169, 239, 314,
326, 595, 807
j;. Colson, 23(5
V. (\)pe, 409
V. Harris, 98, 731
V. Nove, 192, 193
V. Remnant, 2, 326, 595
V. Silk, 64
Hunter r. no]K"toun (Earl), 368
V. Nockold, 532
TABLE OF CASES CITED.
li
[References are to the Bti\T paging.]
PAGE
PAGK
Huntley v. Russell,
621
Jackson, Ex parte, Bowes, In re, 234,
Hurd V. Fletcher,
683
282
Hurry v. Pocock,
524
V. Cator,
8, 108
V. Kickman,
459
523
V. ("obbin.
664
Hurst V. Hurst, 300
392
557
762
V. Hanson,
500
Hussey v. Honie-Payne
105
V. Jackson,
113
Hutchins v. Cluunbers,
486
V. Neal,
61
V. Martin,
298
300
V. Oglander, 88
103
104, 105
V. Scott,
199
384
464
V. Pesked,
734
Hutcliinson v. Copestake,
705
V. Shillito,
700
?'. Kay,
183
640
V. Stacey,
699, 701
V. Read,
167
r. Stopherd,
648
Hutton >\ 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'Lou<!;lilan v. Craig, 401
M'Murray v. Spicer, 89
M'Nally v. Gradwell, 118
Maddison r. Alderson, 100
Maddon i\ White, 38, 220, 332, 338,
363
Maddy v. Hale, 366
Madeley r. Booth, 100, 112, 246, 265
Magdalen Hosi)ilal i'. Knotts, 20
Magee r. Atkinson, 63
Magor V. Cliadwick, 709. 712
Maitland v. Mackinnon, 141
Major r. Salisbury, 134
i'. Talhot, 532
Makin r. Watkinson, 595
Malet, In re, 217
Mallain v. Arden, 395
Malpas ('. Ackland, 35
Maltby v. Ciiristie, 6.50
Manchester College i'. Trafford, 157
Manchester Bonded Warehouse
Co. V. Carr, 592
Mann r. Lovejoy, 231
Manning i\ Greshain Hotel Co., 707
V. Lunn, 417, 555, 556, 568
V. Phelps, 455, 533
V. Wasdale, 685
Mansel r. Norton, 754
Manser v. Back, 63, 92, 112
Mansergh v. Rimniel, 795
Mansfield (Earl) v. Blackburn, 622,
((27, 637
Mantle v. Wollington, 11
Mantz r. Goring, 589
Markhani r. Stanford, 81, 545
Marlborough v. Osborn, 375, 384
Marsh i: Curteys, 313, 325
Marshall v. Berridge, 90
i\ Lynn, 93
Marston v. Dean, 549
Martin r. Gilhara, 175
V. Goble, 733
V. Ileadon, 705
v. Knowllvs, 611
V. Py croft, 91, 94, 112
V. Roe, 621, 644
V. Smith, 221, 597
V. Watts, 8, 9
PAOE
Martindale r. Booth, 270
Martyn v. Clue, 163, 168, 594
i: Williams, 252, 254, 363
Martyr v. Bradley, 631, 639, 945
V. Lawrence, 140
Marwood v. Waters, 536, 813
Mary's case, 690
Mason v. Bibby, 353
('. Corder, 247, 657
V. Farnell, 287
r. Hill, 708, 712, 714
Massey i;. Goodall, 605, 762
Master v. Hansard, 7U6
Masters r. Farris, 522
c. Poliie, 617
Mather r. Fraser, 625, 641
Matheson c. Ross, 399
Mathews r. Whetton, 60
Matthews ?•. Ba.xter, 46
r. Goodday, 263
Matthewson ?'. Wrightman, 350
Matthias i'. Mesnard, 441
Mattock r. Kinglake, 167
Matts V. Hawkins, 614
Maughan, In re, 279
Maund's case, 394, 428
Maundrell, E.r parte, Re Drake, 276
V. IMaundrell, 34
Maunsell v. O'Brien, 371
Maw r. Hindmarsh, 670
Maxwell r. Port, 107
May r. Footner, 733
Mayfield v. Robinson, 79
Mayhew r. Suttle, 31, 236, 797
V. Wardle^', 723
Mayor v. Burgess, 513
Mechelen r. Wallace, 419, 552
Meek t'. Carter, 328
Meggison r. Glamis (Lady), 418
Meiling r. Leake, 228, 229
Mellor r. Leatlier, 499, 500
V. Watkins, 266,306
Mellows V. May, 300
Mennie r. Blake, 499
Mercer r. Irving, 390
& Moore. Re, 274
^lerceroii r. Dowson, 264
Merchant Ta'ylors' Co. v. Truscott 704
Meres r. Ansell, 135
Merrill r. Frame, 677
Merry, /)( re, 34
Messenger v. Armstrong, 339, 356, 746
Messent r. Reynolds, 675
Metcalfe ;•. Scholey, 270
Metropolitan .Association v. Petch, 733
Metropolitan Counties Assurance
Co. /•. Brown, 233
Mctroi)()litaii Rail. Co. r. Defries, 238
Meynell v. Surtees, 103
Ivi
TABLE OF CASES CITED.
[References are to the star paging.]
Micklethwaite v. Winter, 179
Middleiiiore r. Goodale, 108
Middleton v. Bryan, 602
V. Gale, 723
1-. Greenwood, 113
V. Magnay, 97, 113
Miles V. Furber, 440
Mill i: Mill. 369, 371
V. New Forest Commissioners, 687
Miller v. Finlay, 100
t'. Green, 437
?•. Mavnwaring, 10, 151
V. Pafnell, 270
Millership v. Brooks, 103, 190, 537
Milliner i-. Kobinson, 12
Mills V. East London Union Guar-
dians, 595, 600
V. Goff, 348, 352
V. Ladbrook, 160
V. Trumper, 405
V. Tweed, 246
Milner v. Milnes, 285
!,•. Myers, 742
Milnes V. Grey, 113
Milward v. Thanet (Earl), 115
Miner v. Gilniore, 708
Minshall r. Lloyd, 624, 643, 728
Minton v. Geiger, 135
Mitcalfe v. Westaway, 177
Mitchell V. Lee, 396
V. Steward, 677, 678
Mitchison v. Tiiompson, 330
Modlen v. Snowball, 102, 114
Moir (•. Munilnj-, 523
Mnlineux r. Molineux, 321
Mollett r. Braync, 302, 334
Molton, In re, 389
r. Camroux, 45
Moiievpenny v. Hartland, 650
Monk !•. Cooper, 408
V. Noyes, 590
Monroe ;•. Kerry, 216
Montague's (Lady) case, 60, 61
Moodv ('. Uean and Chap, of
Wells, 569
Moon V. Webb, ()86
Moore i'. Campbell, 93,213
V. Clarke, 695, 616
V. Clench, 21
V. Culverhouse, 193
• V. Drinkwater, 438, 523
V. Greg, 21)4
V. Musgrove, 152
v. Pi V mouth (Earl), 317,718
V. I'yrke, 480
V. Hawson, 706
V. Robinson, 671
V. Webb, 708, 712
Moores r. Choat, 264, 660
PAGE
Morden v. Porter, 721, 723
Morecock v. Dickins, 195
Morewood v. Wilks, 47
Morgan v. Abergavenny, 430
V. Davies, 347, 348
V. GrifBth, 87, 500
V. Griffiths, 726
V. Hunt, 681
V. Parrv, 422
V. Rhodes, 118, 119
V. Slaughter, 656
V. Thomas, 287, 288
Morgell V. Paul, 540
Moriand v. Cook, 163
Morley v. Attenborough, 647
r. Pinconibe, 434
Morphett r. Jones, 93, 100
Morris i: Edgington, 82, 682, 703
?•. Eline, 58
1-. IMatthews, 520
V. Twist, 60
Morrison i;. Ciiadwick, 301, 401,
409, 532
Mortal V. Lyons, 62, 98, 102
Mortimer v. Shortall, 217
Morton v. Palmer, • 446
V. AVoods, 52, 58, 214, 234,
378, 425
Moselej' v. Virgin, 603
Moser, In re, 280
Moss V. Barton, 369
V. Gallimore, 13, 51, 255, 267,
424, 538
Mostyn r. West Mostyn, &c., (-o., 97,
217
Moule V. Garnett, 261
Mounsey r. Dawson, 501
r. Ismay, 686, (i89
Monntjoy's case, 381, 389
Mountiiey r. Collier, 548, 814
Mousley r. T>udlnm, 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,
<i4()
V.
Thompson,
289,
396
Thompson )'. Tomkinson,
V. Wilson,
Thomson v. Waterlow,
Thorn v. Woolconibe,
PAOB
802
302
142
258, 310, 372.
426
666
469
672
761
300, 317, 421
Thornewell i'. Johnson,
Thornton r. .Vdanis,
r. Slierratt,
Tliorpe V. Eyre,
'I'hn^r f. Barton,
Thresher v. East London W. W.
Co., 592, 637, 640
Throgmorton r. Whelpdale, 362
Thrustout V. Coppin, 50
Thunder v. Belcher, 13, 52, 232,
340, 341
Thurgood v. Richardson, 492, 494
Thursby v. Plant, 261
Thwaites r. Wilding, 446
Thynn v. Chohnley, 390
Thvnne v. Glengall, 102
Tic'kle r. r,rown, 689, 704
Tiiley r. Mollett, 95, 98, 128, 132, 595
Tidswell v. Whitworth, 556
Tildeslev v. Cinrkson, 106, 110, 111
Till, Ex parte, Mayhew, Li re, 283,
432
Tillett V. Charing Cross Bridge
Co., 113
Tiiley r. Thomas, 99,110,116
Tilvey v. Norris, 291
Timniins r. Rowlinson, 227, 345, 749
Tinckler v. Prentice, 394, 555, 562,
5()5
746
674, 679
230
276, 278, 281
7.35
323, 671
43
220
322, 382
100
702
401, 551
321
221,. ".3,3
100
460, 461
306, 611
225
537, 542
43
453
622
187
262
658
Tingrcy r. Brown,
Tisdale v. Essex,
Title ?'. Grovett,
Titterton v. Cooper,
Todd V. Flight,
Toleman ?■. Portbury,
Toler r. Slater,
Tomkins i\ Lawrence,
IK Pinsent,
Tomkinson v. Straight,
Tomlin v. Fuller,
Tondinson v. Day,
Toms (•. Wilson,
Tooker i'. Smith,
Toole V. Medlicott,
Topi is V. Grnne,
Torriano r. Young,
Towne r. Campbell,
V. D'Heinrich,
Trac3' r. Dalton,
V. Talbot,
Trappes v. Harter,
Traviss v. llargreave,
'I're:nli> 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?-<e, 605
Whittonie v. Lamb, 158, 385
Whitton V. Peacock, 253, 697
Whitty V. Lonl Dillon, 616, 650
Whitworth r. Humphreys, 801
V. Maden, 464, 520
V. Smith, 523, 525
Wickenden v. Webster, 666
Wickhani r. Bath (Marquis of), 69
V. Hawker, 179, 684, 695, 718
V. Lee, 748
Wigglesvvorth v. Dallison, 138, 175,
603, 753, 755
Wight V. Dicksons, (i73
Wilbraham v. Livesay, 6(i4
j;. Snow, 415,489
Wilcox V. Marshall, 96
V. Kedhead, 105
Wilcoxon V. Searby, 497
Wild V. Baxter, 531
Wildbor V. Rainforth, 833
Wilde r. Waters, 626, 645
Wilder r. Speer, 474
Wilkiiis r. Fry, 254
V. Wingate, 532
>: 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<r. . .
B. & B. .
Bro. Abr.
Bro. C. C.
Bro. P. C.
BuUen . .
Bull. N. P.
Bulst. . .
Buiib. . .
Burr. . .
Camp. . .
C. B. . .
C. B., N. S.
C. & E. .
Adolphus & Ellis.
Ambler.
Andrews.
Anstruther.
Atkyns.
Bacon's Abridgment.
Ball & Beatty (Irish).
Barnardiston.
Barnes's Notes.
Barnewall & Alderson.
Barnevvall& Adolphus.
Barnewall &Cresswell.
Best & Smith.
Beavan.
Bingham (Old Series).
Bingham, New Cases.
Blaekstone's Commen-
taries.
Henry Blackstone.
Sir W. Blackstone.
Bligli's House of Lords
Cases.
Bligli's New Series.
Bosanquct & Puller.
Do. — New Reports.
Bra<ll)y on Distresses
(•2d ed.).
Bridgman.
Broderip & liingham.
Brooke's Abridgment.
Brown's Chancery
Cases.
Brown's Cases in Par-
liament.
Bullen on Distress.
Bu lien's Nisi Prius.
I'ulstrode.
Hunbury.
Burrow.
Campbeli.
Common Bench T?e-
y)orts (by Maiming,
Granger & Scott).
Common Bench Re-
ports, New Series
(by Scott).
Cababe & VAUs's Nisi
I'rius Reports.
C. & J. .
C. & K. .
Car. & M.
C. & P. .
Carth. . .
Ch. Cas. .
Chit. . .
Chit. Arch.
Chit. Forms
Chit. Pi. .
Cl. & Fin.
Co. Lit. .
Co. R. . .
Cole Ejec.
Coll. C. C.
Comb. . .
Com. . .
Com. Dig.
Conn. & Law,
Cowp. . .
Cr. & Ph. .
Cro. Eliz. .
Cro. Jac. .
Cro. Car. .
C. & M. .
C, M. & R.
Dart V. & P
D. & M. .
Dcac. . .
Deac. & Chit
De(}.,F. &J
DeG. &J
DcG.,J. & S
DcCt.,M.&G
De G. & Sm.
Dick. . .
Dougl.
Dow , ,
Crompton & Jervis.
Carrington & Kirwan.
J Carrington & Marsh-
\ man.
Carrington & Payne.
Carthew.
Cases in Chancery.
Chitty's Reports.
f Chitty's Archbold's
\ Practice.
J Ciiitty's Forms (9th
I t'd.).
j Chittv on Pleading
\ (7th ed.).
Clark & Finnelly.
Coke upon Littleton.
Lord Coke's Reports.
Cole on Ejectment.
/ CoUyer's Chancery
\ Cases.
Coml)erbach.
Comyn.
Comyn's Digest.
/ Connor & Lawson
t (Irish).
Cowper.
Craig & Phillips.
Croke's Reports, vol. 1.
Croke's Hei)orts, vol. 2.
Croke's Reports, vol. 8.
Crompton & IMeeson.
/Crompton, Meeson &
\ Roscoe.
I Dart on \''endors and
\ Purchasers.
Davi.-ion & Merivale.
Deacon.
Deacon &Chitty.
De G('X,Fisher& Jones
De (lex & Jones.
De (Jex, Jones & Smith
f De (iex, Macnagiiten
\ & (lonlon.
De (Jex & Smale.
Dickens.
Douglas.
( Dow's Reports in Par-
\ liament.
LIST AND EXPLANATION OF ABBREVIATIONS. Ixxiii
Dow & CI.
Dowl. . .
Dowl. N. S.
D. & L. . .
D. & K. .
Drew. . .
Drew. &Srn.
Dru. & W.
E. & E. .
E., B. &E.
E. & E. .
Eq. Ciis. Abr,
Esp.
Excli. ,
Fitz. N. B
Fort. .
F. &F.
Freem.
Fry-. .
G. &D.
G. & J.
G. & M.
Giff. .
Godb. .
H. &C.
H. & M.
H. &N.
H. &ri.
H. & T.
Hard. .
Hawk. P. C.
Hob. . .
Holt, N. P. C
H. L. Cas.
Hud. & B.
Hut. . .
Inst. . .
Ir. Ch. . .
Ir. Eq. R. .
Ir.L. R. .
Jac. . . .
J. & W. .
Johns. .
J. & II. .
Jon. & L. ,
Jon. W. ,
Jon. T. ,
Jur. . . .
Jur., N. S.
K. & J. ,
Dow & Clnrk.
( Dowling's Practice
I Cases.
Do. — (New Series).
1 )()\vlin,<>' &, 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<lal system without, any service. 2 Blacks. Com. 104, 105; 3 Kent's Com.
498.
It is still held, however, that the sovereignty (nation, state, or common-
weal tli) is the source of the title. The right of escheat to the conmion-
wcalth and of eminent domain still remains. 2 Cooley's Blackstone (3d
ed.) sec. 102, note. Several states have exjjressly enacted that tenures shall
be allodial.
The term " fie simple " is the technical term still used for the highest estate,
Cii. I. S. 2] LEASE BY TENANTS IN FEE. *3
fit C/)-^ ^ lease of lands of whicli the lessor was seized
in fee, and of other lands of which he was seized for life
(with power of leasing) at one entire rent, but which was
not well executed according to the power, was held to be
(/) Com. nig. Estates by Grant (G. 2).
and implies an absolute and perfect title. 4 Kent's Com. 487. Although it
was originally used to distinguish lands held under feudal tenures from those
which were allodial. 2 Blacks. Com. 104, 105, lOG.
The limited or determinable fees are divided by Blackstone and Kent into
base or qualified fees, conditional fees, and fees tail. 2 Blacks. Com. 100,
109 ; 4 Kent's Com. 45.
A base or qualified fee is one having a qualification annexed to it, and is
determined when the qualification is at an end. 2 Blacks. Com. 109 ; 4 Kent's
Com. 9.
" A conditional fee at the common law was a fee restrained to some par-
ticular heirs exclusive of others." 2 Blacks. Com. 110; 4 Kent's Com. 11.
A fee tail was a conditional fee as qualified by the statute de donis. 13
Edw. 1 C. 1. This statute took away the power of alienating the estate
which it had been held tenants in tail might do after issue in tail. 2 Blacks.
Com. Ill, 112, 113. They, however, continued to alienate them by means of
recoveries, &c.
Estates tail are either in tail general or tail special. Estates in tail gen-
eral are where they are limited to one and the heirs generally of his body;
and in tail special are where they are limited to certain particular heirs to
the exclusion of others. 2 Blacks. Com. 113. An estate might be in tail
male or in tail female, or otherwise limited. But these distinctions, so far as
America is concerned, are largely historic.
1 Leases by tenants in fee; examples. — A tenant in fee may lease
for lives (with an estate at will thereafter), Van Rensselaer's Heirs r. Penni-
man, 6 Wend. (X. Y.) 569; for lives simply, Flagg ;;. Badger, 58 Me. 258;
for years with covenant of perpetual renewal, Crowe v. Wilson, 65 Md.479;
for years witli covenant to renew simply, Syms i'. Mayor of New York, 105
N. Y. 158 ; Rutgers v. Hunter, 6 Johns. Cli. 215 ; for years with a renewal
option or privilege, Austin v. Stevens, 38 Hun (45 N. Y. Supreme Ct.) 41 ;
for years with an extension option, Sweetser i\ McKenne.y, 65 Me. 225;
Kramer v. Cook, 7 Gray, 550 ; for years with a purchase option, 70 Pa. St.
64; for years with a purchase covenant, Stewart v. L. I. R. R. Co., 102 N. Y.
601 ; for term perpetual determinable only at will of lessor, Folts v. Huntley,
7 Wend. 210; for special purpose determinable upon happening of condition
subsequent, Horner v. Leeds, 25 N. J. L. 106, 115; in fee simple, absolute, or
determinable reserving rent charge, Saunders v. Hanes, 44 N. Y. 353; Watter-
son V. Reynolds, 95 Pa. St. 474; for years simply, Failing r. Schenck, 3 Hill
(N. Y.),344; also for the shorter tenancies (not technically termed leases)
as from 3^ear to year, Jackson v. Rogers, 2 Caines Cas. (N. Y.) 314, 318;
from quarter to quarter, Witt v. Mayor of N. Y., 6 Robertson (N. Y. Superior
Ct.) 441 ; from month to month, O'Neil v. Wells, 2 R. & C. (N. S.) 205; from
week to week, Macgregor v. Defoe, 14 Ont. 87, 92, per Wilson, C. J. ; at will
merely, Laxton v. Rosenberg, 11 Ont. 199, 207; or foi*a quarter, a month, a
week, or any other determinate period.
6
*3 BY WHOM TERMS GRANTED. [Cn. I. S. 3.
good after the death of the lessor for the lands held by him
in fee, though not for the other lands (^).
Sect. 3. — By Tenants in Tail.
At common law. — By the common law a tenant in tail
could make no lease which would bind his issue in tail, or
remaindermen, or the reversioner.^
Under the Fine and Recoveries Abolition Act, 1833. — By
the Act for the Abolition of Fines and Recoveries (3 & 4
Will. 4, c. 74), s. 15, "every actual teuant in tail" [i.e.,
every tenant of an estate tail which shall not have been
barred], "whether in possession, remainder, contingency, or
otherwise, shall have full power to dispose of, for an estate in
fee simple absolute, or for ant/ less estate, the lands entailed,"
as against the issue in tail, and all persons whose estates are
to take effect after the determination or in defeasance of the
estate tail. But by sect. 21, this power is not given to
expectant heirs or issue in tail.
A lease a " disposition " pro tanto. — A lease for any num-
ber of years, or for a life or lives, is a " disposition " pro tanto
within the meaning of the above act. But by sect. 34, if
there be a protector of the settlement, his consent is neces-
sary to make the lease valid, not as against the issue in tail,
but as against persons Avhose estates are to take effect after
the determination or in defeasance of the estate tail; and if
the tenant in tail making the disposition is a married woman,
the concurrence of her husband is necessary to give effect
to the same; and any deed which may be executed by her
for effecting the disposition must be acknowledged by her be-
(;/) Doe d. Vnughan v. Mcylcr, 2 M. & S. 270.
' Tenancies in tail. — E.''.t.itos tail liavc boon abolished or have become
obKokU' in most jjarts of tiie United States. "In others, wlicrc they are
Ktill retained, tiiey may be barred usually by a sim]ile deed by the tenants."
1 Washburn on Real Property (r.th ed.) p. 104; 4 Kent's Com. (13th ed.)
He,c. 14. The policy of the country is opposed to restraints on alienation. 4
Kent's Com. 17. Enfails do, iiowever, under modifications, still exist in the
United States. 4 Kent's Com. 19.
6
Ch. I. S. 3.] LEASE BY TENANTS IN TAIL. ^4
fore a judge, or before a perpetual or special commissioner
(A), or before a county court judge (/).
Inrolment, when necessary. — By sect. 41, "• no assurance by
which any disposition of lands shall be effected under this
act by a tenant in tail thereof (except a lease for any term
not exceeding twenty-one years^ to commence from the date of
such lease, or from any time not exceeding twelve calendar
months from the date of such lease, where a rent shall be
thereby reserved, which, at the time of granting such lease,
shall be a rack rent or not less than five-sixth parts of a rack
rent), shall have any operation under this act unless
it be enrolled in his Majesty's High Court * of Chan- [*4]
eery (Jc) within six calendar months after the execu-
tion thereof."
It is to be observed that a lease for less than twentj'^-one
years must be enrolled pursuant to this section, if the rent
reserved does not amount to at least five-sixth parts of a
rack rent, or if the term is not to commence for more than
one year from the date thereof. So if the lease is for a
longer term than twenty-one years, and in all other cases not
within the above exception.
A lease for years by a tenant in tail, not made in pursu-
ance of the Fines and Recoveries Act, was not absolutely
determined by his death, but the issue in tail was at liberty
either to affirm or avoid it, as he may think fit (?)• Accept-
ance by the issue in tail of the rent (m), or bringing an
action for the recovery thereof, or an action of waste, were
considered such acts as amounted to a confirmation of the
lease, because they plainly manifested an intent to continue
the lessee in possession upon the terms of his lease. A lease
at common law by the tenant in tail differs from a rent
granted by such tenant ; for the last is void by the death of
the grantor: whereas the former is only voidable by the
{h) Sect. 40 ; sect. 79, as amended the High Court ; Judicature Act, s.
by sect. 7 of the conveyancing Act, 34.
1882, 45 & 46 Vict. c. 39. (/) Bac. Abr. tit. Leases (D.).
(/) County Court Act, 1856, 19 & {m) Doe r?. Southouse y. Jenkins, 5
20 Vict. c. 108, s. 73. Bing. 469; Doe d. Phillips v. \\o\-
(A) Now the Chancery Division of lings, 4 C. B. 188.
*5 BY WHOM TERMS GRANTED. [Ch. I. S. 4.
issue in tail, whose acceptance of rent amounts to a confir-
mation (?i).
Settled Land Act. — The power of tenants in tail to grant
leases, &c., pursuant to the Fines and Recoveries Act was
unaffected by the Settled Estates Act, 1877 (40 & 41 Vict,
c. 18), but the Settled Land Act, 1882 (45 & 46 Vict. c. 38,
s. 38) confers upon a tenant in tail the same powers under
that act as that act confers upon a tenant for life, so that
leases made after that act came into operation \_t.e., after
31st December, 1882] are not subject to the operation of the
Fines and Recoveries Act, but may be made in all ways as
a lease by a tenant for life.
Leases after possibility of issue extinct. — The like is the
case with a tenant in tail after possibility of issue extinct,
that is, where one is tenant in special tail, and the person
from whose body the issue was to spring dies without issue,
or, having issue, that issue becomes extinct (o). See there-
fore the next section.
Sect. 4. — Lease hy Tenant, for Life.
At common law a tenant for his own life (not having any
special power to grant leases) can make no leases to con-
tinue longer than his own life (^p).^ This inconven-
[*5] ience to the tenant was partiall}^ modified *by the
right to " emblements " (^), for which was substi-
tuted by 14 & 15 Vict. c. 25, s. 1, the right of the lessee of
'' a farm or lands," to hold until the expiration of the year in
wliich the landlord died.^
Special powers of leasing. — The settlements, however,
whether by deed or will, under which a tenant for life holds
(n) Cruise's Dij;. tit. II. c. 2, s. 8 ; (o) 2 Blac. Com. 124.
Bro. Abr. tit. Grant, 145; 2 Ld, (/>) 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<rhlen, 20 L. H. Ir. 159.
■^ A lessee of a tenant for life is entitled to embienicnts if lease is termi-
nated by death of lessor. King »•. Foscue, 91 N. C. 110, 119.
Ch. I. S. 4.] LEASE BY TENANT FOR LIFE. *5
his estate, frequently contain "special powers of leasing,"
enabling the tenant for life to make leases binding after
his death, for a limited period, upon the parties in remain-
der. Where these powers did not exist, or were found to
be insufficient, they were in many cases conferred by private
Act of Parliament. In 1856 these private acts were in a
great measure rendered unnecessary by s. 32 of the general
"Settled Estates Act, 1856," 19 & 20 Vict. c. 120, whicli
empowered tenants for life to make leases for 21 years.
The Act of 1856 was repealed but in great part re-enacted
by the Settled Estates Act, 1877, 40 Viet. c. 18, s. 46, of
which act replaced s. 32 of the act of 1856, in terms which,
altliough therj were entirely superseded (though not expressly
repealed), as from the commencement of the Settled Land Act,
1882, by the more comprehensive enactments of that act
presently to be referred to, it is still necessary to set out
here, inasmuch as leases actually granted by tenants for life,
&c., before the commencement of the act of 1882, would be
at any rate technically invalid unless made in accordance
with such terms.
Settled Estates Act, 1877. — Leases for 21 years. — The
terms of s. 40 of the act of 1877 were as follows: — "It
shall be lawful for any person entitled to the possession or
to the receipt of the rents and profits of any settled estates
for an estate for any life, or for a term of years determinable
with any life or lives, or for any greater estate, either in his
own right or in right of his wife, unless the settlement sliall
contain an express declaration that it shall not be lawful for
such person to make such demise, and also for any person
entitled to the possession or to the receipt of the rents and
profits of any unsettled estates as tenant by the curtesy, or in
dower, or in right of a wife who is seised in fee, witJiout any
application to the court, to demise the same or any part
thereof, except the principal mansion-house and the de-
mesnes thereof and other lands usually occupied therewith,
'from time to time for any term not exceeding 21 years, to
take effect in possession at or within one j^ear next after the
making thereof ; jDrovided, that every such demise be made
by deed, and the best rent that can reasonably be obtained
9
*6 BY WHOM TERMS GRANTED. [Ch. I. S. 4.
be thereby reserved, without any fine or other benefit in the
nature of a fine, which rent shall be incident to the imme-
diate reversion ; and provided that such demise be not made
without impeachment of waste, and do contain a covenant
for the payment of the rent and such other usual and proper
covenants as the lessor shall think fit ; and also a
[*6] condition of re-entry on * non-payment of the rent for
a period of 28 days after it becomes due, or for some
less period to be specified in that behalf; and provided a
counterpart of every deed of lease be executed by the les-
see " (r).
This section did not apply to a case where trustees had
the management of an estate, of which they paid the net
annual rents to the tenant for life (^•). In such a case the
tenant for life was not even entitled to petition under the
act (0-
Demise against remaindermen, &c. — By sect. 47, every
demise authorized by the last preceding section was made
valid against the person granting the same, and all other
persons entitled to estates subsequent to the estate of such
person under or b}^ virtue of the same settlement, if the
estates be settled (?/), and in the case of unsettled estates
against the wife of any husband granting such demise of
estates to which he was entitled in right of such wife, and
against all persons claiming through or under the wife or
husband (as the case might be) of the person granting the
same.
By sect. 48, the execution of a lease by the lessor " shall
be deemed sufficient evidence " that a counterpart of such
lease has been duly executed by the lessee as required by
the act.
Concurrence of incumbrancers. — By Sect. 54, "for the pur-
I)Oscs of lliis act, a iicrson shall be deemed to be entitled to
(r) The only material alteration (.s) Taylor »•. Taylor, L. 11., 20 Eq.
was the omission of the direction that 207 ; 44 L. J., Ch. 727 ; 'Xl L. T. 8(»;^
the condition of re-entry should apply 2.'3 VV. R. 047. per .Tissel, M. U.
to non-observance of covenants, as (') Id., I.. R., 1 Ch. 1). 42(5.
well as to non-payment of rent. And («) As to concurrence in an ai)i)li-
as to the act generally, see sect. 17, cation to the court on behalf of luna-
po8t. tics, &c., see sect. 49.
10
Ch. I. S. 4.] LEASE BY TENANT FOR LIFE. *7
the possession or to the receipt of the rents and profits of
estates, although his estate may be charged or incumbered
either by himself or by tlie settlor or otherwise howsoever,
to any extent; but the estates or interests of the parties
entitled to any such charge or incumbrance shall not be
affected by the acts of the person entitled to the possession
or to the receipt of the rents and profits as aforesaid, unless
they shall concur therein."
Leases of copyholds. — By sect. 56, " nothing in this act
shall authorize the granting of a lease of any cop^diold or
customary hereditaments, not warranted by the custom of
the manor, withovit the consent of the lord, nor otherwise
prejudice or affect the rights of an}^ lord of a manor." And
by sect. 9, the powers of leasing included powers to lords of
settled manors to give licences to their copyhold or custo-
mary tenants to grant leases.
By sect. 57, " the provisions in this act contained respect-
ing demises to be made without application to the court,
shall extend only to settlements made after the \st of November^
1856 " (x^.
Settled Land Act. — The Settled Land Act, 1882 (45 & 46
Vict. c. 88), not only goes far beyond the Settled
Estates Act in the powers which it gives to * a ten- [*7]
ant for life, but is retrospective, — that is, it takes
effect whether the settlement was made before or after the
commencement of the act (sect. 2) and is compulsory, —
that is, it takes effect whether the settlor expressed a Avish
that it should take effect or not (sect. 51).
General regulations as to lease by tenant for life. — Sect. 6
of the Settled Land Act, 1882, is as follows : —
" A tenant for life may lease the settled land, or any part
thereof, or any easement, right, or privilege of any kind over
or in relation to the same, for any purpose whatever, whether
involving waste or not, for any term not exceeding,
(i.) In case of a building lease, ninety-nine years :
(ii.) In case of a mining lease, sixty years :
(iii.) In case of an}^ other lease, twenty-one years."
(a-) Tliis bein<:r the date of the & 20 Vict. e. 120), the 4-tth section of
original Settled Estates Act, 185(3 (19 wliich contained a similar saving.
11
*7 BY WHOM TERMS GRANTED. [Cn. I. S. 4.
And by sect. 7 " (1) every lease shall be by deed, and be
made to take effect in possession not later than twelve
months after its date.
" (2) Every lease shall reserve the best rent that can
reasonably be obtained, regard being had to any fine taken,
and to any money laid out, or to be laid out, for the benefit
of the settled land, and generally to the circumstances of the
case.
" (3) Every lease shall contain a covenant by the lessee
for pa3'ment of the rent, and a condition of re-entry on the
rent not being paid within a time therein specified not ex-
ceeding thirty days.
" (4) A counterpart of every lease shall be executed by
the lessee and delivered to the tenant for life ; of which
execution and delivery the execution of the lease by the
tenant for life shall be sufficient evidence.
" (5) A statement contained in a lease, or in an indorse-
ment thereon, signed by the tenant for life, respecting any
matter of fact or of calculation under this act in relation
to the lease, shall, in favour of the lessee and those claiming
under liim, be sufficient evidence of the matter stated."
By sect. 12, the power of leasing under the act extends to
the making of a lease either (1) in pursuance of a contract
for lease by a predecessor in title, or (2) for giving effect to
a covenant of renewal, or (3) a lease for confirming a pre-
vious void or voidable lease.
Mansion-house. — By sect. 15, however, the " principal
mansion-house on any settled land, and the demesnes thereof,
and other lands usually occupied therewith" may not be
leased without the consent of the trustees of the settlement,
or an order of the court, i.e., by sects. 2, sub-sect. 9, and 246
of the act, the Chancery Division of the High Court.
Building and mining leases. — Special regulations respect-
ing building and mining leases are provided by sects. 8-11,
the more important of which are, that in the case of a build-
ing lease, " a peppercorn rent, or a nominal or other rent
less than the rent ultimately payable, may be made pay-
able for the first live years, or any less part of the term "
(sect. 8, sub-sect. 2), that in tlie case of a mining lease, the
12
Ch. I. S. 4.] LEASE BY TENANT FOR LIFE. *8
rent may vary according to the * quantities of min- [*8]
eral gotten (sect. 9), and that, in the case of either
kind of lease, the court may authorize, in accordance with
the proved circumstances of the district, leases " for any
term, or in perpetuity, at fee farm or other rents, secured by
condition of re-entry or otherwise, as in the order of the
court expressed."
Leases under express po-wers. — A tenant for life, with
express power to grant leases for any limited term, of
building, repairing, or mining leases, &c., subject to certain
restrictions and conditions, may grant any such lease in
accordance with the power (?/), if such power be larger
than the power he would have under the Settled Land Act ;
but if such power be more limited than his power under the
act, then the act prevails, and enlarges such power (2).
Notice to trustees. — It is provided by sect. 45 of the Set-
tled Land Act, 1882, as amended by sect. 5 of the Settled
Land Act, 1884, that a tenant for life, when intending to
make a lease, &c., shall give one month's notice (which may
be general, and need not be confined to any particular trans-
action), to the trustees of his settlement of such intention ;
but it is provided by sub-sect. 3 of sect. 45 of the act of 1882,
that " a person dealing in good faith with the tenant for life
is not concerned to inquire respecting the giving of any such
notice as is required by the section," and no leave of the
court is necessary to enable him to grant any such lease.
But where the settlement creates no such power, and it is
wished to grant a lease not warranted by the Settled Land
Act, the authority of the court must be obtained pursuant to
the provisions of that act. Sometimes a private act of par-
liament may still be necessary.
Confirmation by remainderman. — A lease by a tenant for
life, except as authorized by the Settled Estates Act, or by
the Settled Land Act, or by some express powers in the set-
tlement or will from which he derives his title, is absolutely
void against a remainderman, and cannot be confirmed by
such remainderman's acceptance of rent, suffering the tenant
(2/) See Chap. V., sect. 19. («) Settled Land Act, 1882, ss. 55-57.
13
*9 BY WHOM TERMS GRANTED. [Ch. I. S. 4.
to remain in possession (a), or even by a grant of the free-
hold treating the lease as valid (6) ; but in a case where
the remainderman lay by, and suffered an assignee of an
invalid lease to lay out money in re-building, and might be
presumed to have had notice of the fact. Lord Hardwicke
directed a new lease, with proper covena7its, to be granted
to the assignee for the remainder of the term (c) ;
[*9] and subsequent * acceptance of rent, or other ac-
knowledgment of tenancy, may be evidence of a
new demise from year to year by the remainderman (cZ) ;
the lessee being a mere tenant by sufferance in the inter-
val (e). It was also held, prior to the Settled Estate Acts,
that the lessee was not estopped from showing that the
estate had determined by the death of the lessor (/) ; but
that if a tenant for life, seised also of the remainder in fee
expectant on an intervening estate tail in the premises, made
a lease, the demise, though defeated by his death as to his
life estate, might ultimately take effect for the residue of
the term out of his remainder in fee, by the decease of the
tenant in tail without issue, and without his having acquired
the fee by a proper mode of assurance Q/^ ; that if a tenant
for life granted a lease for years, and then surrendered or
forfeited his estate, the lease would remain good during his
life, if the years so long continued (7i) ; and that a lease
executed by a tenant for life, in which the reversioner, who
(a) Doe d. Simpson v. Butcher, 83; Roe c?.. Jordan r. Ward, 1 II. Blac.
Doug. 50 ; Jenkins d. Yates v. 96 ; Roe d. Brune ;;. Prideaux, 10
Church, Cowp. 482; James d. Au- East, 187; Doe d. Collins t-. Weller,
bray i'. Jenkins, Bull. N. P. 9G; Doe 7 T. K. 478 ; Doe d. Tucker v. Morse,
d. Martin v. Watts, 7 T. K. 83; 2 Esp. 1 B. & Adol. 3(55; Doe d. Pennington
501 ; Doe d. Collins v. Weller, 7 T. v. Taniere, 12 Q. B. 998 ; Cornish v.
R. 478 ; Jones d. Cowper v. Verney, Stubbs, L. 11., 6 C. P. 334.
Willes, 169. (e) Preston v. Love, Noy, 120 ; Roe
(6) See Smith v. Widlake, L. R., 3 d. Jordan v. Ward, 1 H. Blac. 96.
C. P. D. 10; 47 L. J., C. P. 282; C. (/) Brudnell v. Roberts, 2 Wils.
A., 26 W. R. 52, reversing judgment 143; Neave v. Moss, 1 Bing. 360;
of Cockburn, C. J. Whittome i'. Lamb, 12 M. & W. 813;
(c) Stiles V. Cowper, 3 Atk. 692; Weld r. Baxter, 11 Exch. 816; 1 H.
compare East India Co. f. Vincent, 2 & N. 568.
Atk. 83 ; Jackson v. Cator, 5 Ves. 688 ; (g) Taylor v. Stibbert, 2 Ves. jun.
Dunn V. Spurrier, 7 V^s. 231, 235, 437. 442; 3 & 4 Will. 4, c. 74, s. 40.
236. (/i) Sutton's case, 12 Modd. 557,
(rf) Doe d. Martin t-. Watts, 2 T. R. 558.
14
Cii. I. S. 5.] LEASE BY TENANT FOE, LIFE OF ANOTHER. *10
was then under age, was named as one of the lessors, but
which was not executed by him, was void on the death of
the tenant for life, and an execution of it by the reversioner
afterwards was no confirmation so as to bind the lessee, for
it was not his covenant (i).
Covenant to pay for improvements. — Prior to the Settled
Land Act, it was held in Oakley v. Monck (ji') that a re-
mainderman was not bound by a covenant in a life tenant's
lease to pay the lessee, a nurseryman, at the end of the term
for trees planted during the term (there being no evidence
that there was a continuing tenancy on the terms of the
lease), but it is conceived that the effect of the Settled Land
Act would be to bind a remainderman by such a covenant
in the same manner as if the lease had been made by him-
self; and further, that the effect of that act is to bind a
remainderman by any covenants made by the life-tenant with
a lessee acting in good faith, and by any lease omitting any,
however usual, covenants with a lessee so acting (^), pro-
vided only that s. 6 of the act has been complied with.
Sect. 5. — Lease hy Tenant for Life of another.
Where a person holds for the term of another's
life, he is called * tenant pur autre vie ; leases made [*10]
by him, of course, determine on the death of the ces-
tui que vie,^ or person during whose life he holds (Z), or in
the case of a farm, at the end of the then current year of the
tenancy (w), but not on his own death Qti) ; and a lease by
(0 Ludford v. Barber, 1 T. R. 86. (/) Blake v. Foster, 8 T. R. 487;
(./) L. R., 1 Ex. 159; 35 L. J., Ex. Roe d. Jackson v. Ramsbottoin, 3 M.
87 ; Ex. Ch. & S. 516 ; Fcniier v. Duplock, 2 Bing.
(k) See ss. 20, 53, 54 of the act. 10; Hill i'. Saunders, Id. 112; S. C,
As to binding of remainderman by in error, 4 B. & C. 529 ; Doe d. Strode
contracts for leases, see s. 31 of the v. Seaton, 2 C. M. & R. 728; Cole
act ; and as to powers to agree for Ejec. 217.
improvements under Agricultural (?«) 14 & 15 Vict. c. 25, s. 1.
Holdings Act, see s. 42 of that act, (n) Com. Dig. tit. Estates (E. 1);
post, Appendix A. 2 Blac. Com. 136.
1 Perry v. Aldrich, 13 N. H. 343.
15
*10 BY WHOM TERMS GRANTED. [Ch. I. S. 7.
him may be made to commence after his death (o). The
cases and statutes affecting the "lease for lives " are consid-
ered hereafter (j^).
Sect. 6. — By Tenants hy the Curtesy^ Tenants in Dower or
Jointure.
Tenants by the curtesy or in dower may grant leases pur-
suant to the Settled Estates Act, in like manner as tenants
for life (c[)^
Leases granted by any such tenants, not ma^e in pursu-
ance of the above act, become absolutely void at their
death (f)? or, if the holding be agricultural, at the end of
the then current year of the tenancy (s). If the lessee then
holds over he becomes tenant on sufferance ; but a new ten-
ancy at will, or from year to year, may be created with the
express or implied assent of the reversioner, or by his ac-
ceptance of subsequent rent. That, however, will not con-
firm the original lease for the term therein expressed to be
granted (i), but will only create a new tenancy. If a tenant
in dower lease for years, and marry, her second husband's
executors are entitled to the arrears of rent due at his
death (u).^
Sect. 7. — By Joint Tenants and Tenants in Common.
Joint tenants and tenants in common may, according to
the interest they have, join or sever in making leases ; ^ and
(o) Utty Dale's case, Cro. Eliz. Miller ;•. Mnynwarinf^, Cro. Car. .399.
182. (s) 14 & 15 Vict, c' 25, s. 1.
(p) Post, Ch. v., sect. G (c). (0 Bac. Abr. tit. Leases (I. 1) ;
(9) Ante, Sect. 4. Miller v. Maynwaring, Cro. Car. 399.
(r) Bac. Abr. tit. Leases (I. 1) ; («) Anon., Moor, ])1. 25.
1 Seizin of a wife in law is sufficient in this country to entitle her husband
to a tenancy by the curtesy, althouji;h she is not seized in fact. Wass v.
Bucknani, .38 Me. .'558.
■^ Lease by guardian of tenant in dow^er is terminated by her death.
Stockwcll V. Siir^ent, 'M Vt. Hi.
•' Rent in arrears at death of tenant in dower who lias not remarried, goes
to her executors and not to her husband's heirs. 2 Scribner on Dower (2d ed.)
p. 781.
* Tiio common law favored joint tenancies, construing titles to be joint
unless otiierwisc expressed. Joint tenancies are odious in America on account
16
Ch. I. S. 7.] LEASES BY JOINT TENANTS, ETC. *11
such leases bind, whether made to commence in prrcsenti or
in fiituro (.r). If joint tenants join in a lease, there is l)ut
one lease, and the}^ all make but one lessor, for they have but
one freehold; but if tenants in common join in a lease, there
are several leases of their several interests ( //) ; ^ for although
tenants in common cannot make a joint lease of the
whole of their * estate (2), yet if they join in a lease [*11]
for years by indenture of their several lands, it is
the lease of each for their respective parts, and the cross
confirmation of each for the part of the other, and no es-
toppel on either part, because an actual interest passes from
each respectively («). There is no doubt that a demise by
(.r) Co.Lit.18Ga; Com. Dig. Leases ton, 1 A. & E. 750; Biirne v. Cam-
(L 5) ; Bac. Abr. tit. Joint Tenants bridge, 1 Moo. & K. bH9.
and Tenants in Common (H. 1) ; Bro. («) Com. Dig. tit. Estates (K. 8) ;
Abr. Grant, 154. Bac. Abr. tit. Joint Tenants and Ten-
(y) 8 Ander. 16; Jurdain r. Stcere, ants in Common (H. 1); Mantle v.
Cro. Jac. 83; Com. Dig. tit. Estates Wollington, Cro. Jac. 166; Brooks v.
(G. 6).- Foxcroft, Clayton, 136 ; 1 Roll. Abr.
(z) Heatherly d. Worthington v. 877, 1. 48, 52.
Weston, 2 Wils. 232 ; Doe t'. Erring-
of survivorship, and they have been generally abolished except where ex-
pressly created and except as to executors, trustees and mortgagees (what
would otherwise be joint tenancies being held to be tenancies in common).
4 Kent's Com. (13tli ed.) sec. 361 ; 1 Washburn on Real Property (5th ed.)
pp. 676, 677, and note. Though joint tenants may terminate their tenancies
as by conveyance from one to another or to a stranger ; yet, if they jointh'
demise the premises, they cannot sue separately for the rent, their interests
being joint. 1 Wash, on Real Prop. pp. 679, 680; 4 Kent's Com. sec. 364.
A surviving joint tenant may sue for rent upon a demise made by liis co-
tenants in name of all, although he himself did not sign the lease. Wall v.
Hinds, 4 Gray, 256, because the interest and covenants are joint.
1 Leases by tenants in common. — Tenants in common may join in
demising the entire estate or each may separatel}^ demise his own interest.
Sturdee v. Merritt, 3 Kerr's (N. B.) 641 ; Duke v. Hague, 107 Pa. St. 57. In
order to convey the full title all must join. Tainter r. Cole, 120 Mass. 162, 164.
A lease by part is valid against everybody except the co-tenant and those
claiming under him. Grundy r. Martin, 143 Mass. 270; Cunningham r.
Pattee, 09 Mass. 248 ; Rising r. Stannard, 17 Mass. 282. A lease by one in
name of all is (except as above stated) the lease of all. , Wenger v. Raymond,
104 Pa. St. 33. A lease made by a single tenant may be ratified by his co-
tenant, and then the latter will be estopped to deny that it is the lease of all.
A demand of rent will constitute such an implied ratification. Keyes r. Hill,
30 Vt. 759. A subsequent release made by a tenant to a co-tenant will con-
firm the validity of a prior lease made by hhn. Cunningham v. Pattee, 09
Mass. 248 ; Johnson v. Stevens, 7 Cush. 431, 433. If they demise jointly they
must sue jointly for rent, though it is said they need not join in an avowry.
17
*11 BY WHOM TERMS GRANTED. [Ch. I. S. 7.
tenants in common, thougli joint in its terms, operates as a
separate demise bj each tenant in common of his undivided
share, and a confirmation by each of his companions (6).
Where joint tenants concur in granting a lease, the interest
of the lessee continues, notwitlistanding the decease of either
of tlie lessors, and the survivor is entitled to the whole
rent (c?).^ So, if the lease be at will, the death of one of
the lessors does not operate as a countermand of the tenancy
even for a moiety ; all survives to the other, and if the
lessee continue his possession, the survivor may maintain
an action for the Avhole rent (t7). But though each joint
tenant is considered entitled to the whole while the joint
tenancy continues, and is said to be seised " per my et per
tout " (e),2 yet for the purposes of alienation, each has an
exclusive right to and dominion over, his own share or pro-
portion ; and, therefore, if one of two joint tenants make a
lease of the whole, his moiety only will pass (/)• So a lease
purporting to be made by both, and executed by one only,
is a good lease for the moiety of him only who has exe-
cuted (^).
If one joint tenant make a lease of his moiety for years,
and die before the lessee's entry, the lease will bind the sur-
vivor, and the lessee will retaiii his interest in the moiety
demised until his term expire. And so one joint tenant
may make a lease to commence after his death, and his co-
tenant, if he survive, will be bound by it (7i).
(b) Thompson i'.Hakcwill, 19 C.B., (e) Lit. s. 288; Co. Lit. 186 a; 2
N. S. 713 ; 35 L. J., C. P. 18; Ecclo- Blac. Com. 182.
stonr. Clipsham, 1 Wms. Saund. 153; (/) Co. Lit. 180 a ; Bcllingliam v.
2 Roll. Abr. 04 ; Siiep. Touch, 85 ; Alsop, Cro. Jac. 52.
Ileatlierly d. Worthington v. Weston, ((f) Cartwright's case, cited 1 Vent.
2 Wils. 232. 13(!".
(c) Henstead's case, 5 Co. R. 10 I); (/() Lit. s. 289; Grute v. Locroft,
Doe (/. Aslin r. Summersett, 1 B. & Cro. Eliz. 287; Ilarbin v. Barton
Ad. 135. Moor. 395; Whitlock v. Ilorton, Cro.
(d) Henstead's case, 5 Co. R. 10 b. Jac. 91 ; Bellingham r. Alsop, Cro.
Jac. 52 ; Clerk v. Clerk, 2 Vern. 323.
4 Kent's Com. (13th cd.) .^ec. 309; LeCain r. Hosterman, 2 R. & C. (N. S.)
229. An<l certainly they niny distrain sei)arateiy where they demise sepa-
rately. Sturdee r. Merritt, 3 Kerr's (N. B.) 041.
' C'odman r. Hall, 9 Allen, 335.
- Tenants in common are said " to be seized jwr mj but not per tout." 4
Kent's Com. 4(58.
18
Ch. I. S. 8.] LEASE RY COPARCENERS. *12
Lessees to each other. — One joint tenant or tenant in
common may make a lease for years of his part to liis com-
panion ; ^ for it only gives the latter a right of taking the
whole profits instead of the moiety; and he may contract
with his companion for that purpose, as well as he may with
a stranger (i) ; and such a lease extinguishes the
jointure for the * time (A;), and gives a right to dis- [*12]
train for the agreed rent (l)^ and also a right of
action for use and occupation in case of a holding over (m).
If there be three or more joint tenants, the lessee would
hold the share demised to him as tenant in common with the
others (w).
Expense of repairs. — One tenant in common who has ex-
pended money on repairs which are ordinary repairs only,
has no right of action against his co-tenant for contribu-
tion (o).2
Sect. 8. — Bi/ Coparceners,
Where a tenant in fee or in tail dies, leaving several
daughters and no son ; or several sisters and no issue, father
(j) Com. Dig. tit. Leases (I. 5) ; (/) Cowper v. Fletcher, supra.
Cowper V. Fletcher, 6 B. & S. 464; (m) Leigh v. Dickeson, supra and
34 L. J., Q. B. 187 ; Leigh v. Dicke- infra.
son, L. K., 12 Q. B. D. 194 ; 53 L. J., (») Jurdain v. Steere, Cro. Jac. 83;
Q. B. 120 ; 50 L. T. 124 ; 32 W. R. Blackasper's case, Nov, 13.
339 ; aft", in C. A., 15 Q. B. D. 60 ; 54 (o) Leigh r. Dickeson, supra, note
L. J., Q. B. 18 ; 33 W. R. 538. (/).
(A:) Co. Lit. 186 a.
1 A tenant in common may lease to his co-tenant, and after leasing to him
he cannot maintain a suit for partition. Eberts v. Fisher, 54 Mich. 294. A
licensee of a tenant in common hoUls in submission to his licensor. Bucknam
V. Bucknam, 30 Me. 494. If one tenant in common is ousted by his co-tenant,
lie can maintain trespass cjuai-e cJausum /regit against him, Erwin r. Olmsted,
7 Cow. 229; and if tenants divide the premises between them, one can main-
tain trespass against the other if he disturb his possession, Keay v. Goodwin,
16 Mass. 1. Trespass quare clansum, however, will not lie by one tenant in
common against his co-tenant for entering upon the common premises and
carrying away the common property, neither will trover lie for conversion of
the property carried away, unless there is such a destruction or disposition of
it as to preclude the further enjoyment of it by the tenant. PerEndicott, J.,
in Warner v. Abbey, 112 Mass. 355, 360.
'^ One tenant cannot recover of his co-tenant for repairs, even though neces-
sary, without a previous request to join in the repairs, and a refusal. Mum-
ford V. Brown, 6 Cow. 475; Doane v. Badger, 12 Mass. 65.
19
*12 BY WHOM TERMS GRANTED. [Ch. I. S. 9.
or brother ; or several aunts and no issue, &c. ; lands de-
scend among all the daughters, sisters, aunts, &c., equally,
who make but one heir, and are called coparceners (jo ).i
Although they have an unity, they have not an entirety of
interest, but are properly entitled each to the whole of a
distinct share, and there is no survivorship among them {q').
Until partition is made (r), they may either join in a lease,
or each may make a lease of her own share. If they join
in a lease, it operates (as with tenants in common) as the
separate demise by each of her share, and should be so
pleaded (s). If they join a lease they hold the rent re-
served in common (^) ; the observations, therefore, made as
to leases by tenants in common (ii) apply also to leases by
coparceners. One cannot sue separately for her portion of
rent accruing to her and her fellows (;').
Sect. 9. — Sublease, by Tenant for Years.
Sublease. — A lessee or tenant for years, who is not re-
strained by his lease from subletting, may demise for any
less term than he himself has,^ at such rent, and subject to
such covenants, &c., as may be agreed on (.?•).
Rent-charge. — A rcnt-charge granted for life by a tenant
(p) Com. Dig. tit. Parceners (A. (0 2 Trost. Abstr. 74.
1), (A. 3). (») Jiute, sect. 7.
(r/) Bull, N. P. 107 ; 2 Blac. Com. (r) Decliarms v. Ilorwood, 10 Bing.
182, 188; Co. Lit. 104 a. 520.
()•) See the Partition Acts, 1808 (.r) Bac. Abr. tit. Leases; Rex ?-.
and 1870 (31 & 32 Vict. c. 40, and 39 Wilson, 5 M. & Ky. 157 n. See fur-
& 40 Vict. c. 17). ther Ch. VIL, Sect. 7, post, tit. Sub-
(s) Milliner v. Robinson, Moor. pi. Lease.
939.
1 The "technical distinction between coparcenarj' and estates in common,
may be considered as essentially extinguished in the United States." 4
Kent's Com. sec. 307.
-Sublease. — A transfer by lessee reserving the last day of the term is a
sublease. Davis v. Morris, 30 N. Y. 509. If tlie lessee's transfer terminate at
midnight of one day, and the principal lease at noon of the next, the lessee's
transfer is a sublease. Peoj)le r. Robertson, 39 Barb. 9. It has been held that
a transfer of the entire term, but with covenants for re-entry and surrender,
was a sublease. Ganson r. Tifft, 71 N. Y. 48, &c. As to the power of a lessee
for years to resign, sec post.
20
Ch. I. S. 10.] SUBLEASE BY TENANT, ETC. *13
for years is not void, but is good as a chattel interest ; and
the goods of a stranger not shown to hold the premises by
title paramount to the rent-charge (as by a priOr demise)
may be distrained for the arrears (y).
*Sect. 10. — Sublease^ hy Tenant for less than Years. [*13]
Tenants for less periods than for years, but who are
possessed of a certain quantity of interest, may alienate the
whole, or any part of it, unless expressly restricted from
so doing. In fact every tenant, except a tenant at will or at
sufferance, has a right, in the absence of a contract to the
contrary, to make a sub-tenancy, as incident to his tenancy.
By tenants from year to year. — A tenant from year to year,
therefore, may assign his term, or may underlet part of it, as
for three-quarters of a year, or so many months, &c. ; but he
cannot by underletting grant an interest exceeding his own
in point of duration. If he grant a lease by deed for twenty-
one years, such term will continue in force during his own
yearly tenancy (^). If he underlet from year to year, the
sub-tenancy will take effect during his own tenancy, and he
will have a sufficient reversion to enable him to distrain for
the rent (a).
A tenant for a less term than one year, as for half a year,
a quarter, or a month, or the like, may grant his interest, or
any portion of it, to another, unless some agreement subsists
between him and his lessor, which expressly restricts him
from making such disposition.
By tenants at will. — A tenant at will cannot demise, for
that would amount to a determination of his estate at
will (^);^ but a demise by a tenant at Avill, with possession
thereunder, will create a tenancy by estoppel as between
(ij) Saffery v. Elgood, 1 A. & E. (n) Pike i-. Eyre, 9 B. & C. 909;
191. Curtis I'. Wheeler, Moo. & M. 493.
(~) Mackay v. Mackretli, 4 Doug. (b) 1 Inst. 57 ; Moss v. Galliniore,
213; Oxley v. James, 13 M. &. W. 1 Dout;. 279; 1 Smith L. C. 029 (7th
209. ed.) ; Birch v. Wright, 1 T. K. 382.
1 Reckhow v. Schanck, 43 N. Y. 448 ; Campbell v. Procter, 6 Greenl. (Me.) 12.
21
*14 BY WHOM TERMS GRANTED. [Ch. I. S. 11.
him and his lessee (c), and will be as good as against him-
self (^).i
By tenants on sufferance. — A tenant on sufferance cannot
demise (e) ; but a demise by such tenant, with possession,
will create a tenancy by estoppel (/).
Sect. 11. — Lease by the Croivn.
Restrained by statute. — The sovereign is a corporation sole,
and at common law might have granted leases for lives or
for years to any extent, and have thereby bound the succes-
sors (^).^ But by 1 Ann. stat. 1, c. 7, s. 5, ever}- grant and
lease by the crown of any lands and tenements thereto be-
longing (except advowsons and vicarages) shall be void,
unless made foa' a term not exceeding one-and-thirty
[*14] years, or three lives, or for some term * of years
determinable upon one, two, or three lives, to com-
mence from the date or making thereof ; and if made to take
effect in reversion or expectancy, the same, together with
the estate or estates in possession, not to exceed three lives,
or the term of one-and-thirty years in the whole: the tenant
to be liable to punishment for waste : the ancient or most
usual rent or more, or such other rent as in the said act
mentioned, to be reserved and made payable during the
whole term. By sect. 6, where the greatest part of the
yearly value of any such crown lands consists of buildings
thereon which want to be repaired or re-edified, a lease
thereof may be granted for any term not exceeding fifty
(c) Ante, 2. (?) Thunder d- Weaver v. Belcher,
(<f) Blunden v. Bough, Cro. Car. 3 East, 490; Cole Ejec. 456.
302; Doe d. Goody v. Carter, 9 Q. B. {f) Ante, 2.
805; Cole Ejec. 449. (g) Com. Dig. Grant (G. 3).
' Leases by tenant at will ; estoppel. — Cook x\ Cook, 28 Ala. 660 ;
Ililhourn ;-. Fogg, 90 M.tss. H. But a tenancy hy estoppel will not arise if
tiie lessee do not take possession. Wright i'. Graves, 80 Ala. 410. Tlie prin-
cipal lessor may eject the sublessee of his tenant at will without giving him
notice to quit, for there is no privity between them, Kcckhow v. Schanck,
43 N. Y. 448 ; or he may sue him in trespass, Campbell v. Procter, 6 Grecnl.
(Me.) 12.
-' The Queen r. Miller, 4 K. & G. (N. S.) 301.
22
Cn. I. S. 11.] LEASE BY THE CROWN. • *14
years or three lives, subject to similar restrictions and con-
ditions to those above mentioned (/t).
Leases by the commissioners of •woods and forests. — In
modern times most of the crown lands have been placed under
the management of the Commissioners of Woods, Forests,
and Land Revenues, who act under the orders, directions,
instructions and rules of the Lords of the Treasury (i).
Proviso for re-entry. — They may grant losses for any term
not exceeding thirty-one years (A;), or building leases for any
term not exceeding ninety-nine years (Z), subject in each
case to certain restrictions and conditions (m), amongst
which there is a restriction that "in each such lease there
shall be contained " a proviso for re-entry on non-pajanent of
rent, or non-observance, or non-performance of the cove-
nants (m) ; a survey and report as to the value, &c., must
be previously made (o), and the lease must be enrolled in
the office of Land Revenues, Records, and Inrolments (jo).
Dean Forest, mines and quarries. — -Leases of mines, miner-
als, and quarries of the crown in Dean Forest, Gloucester-
shire, are granted b}^ the Commissioners of Woods and
Forests, pursuant to 1 & 2 Vict. c. 43, as amended by 24 &
25 Vict. c. 40 {q).
Duchy of Lancaster. — Lands belonging to the crown, in
right of the Duchy of Lancaster, may be demised pursuant
to 48 Geo. 3, c. 73 ; 1 & 2 Geo. 4, c. 52 ; which are not
repealed by 10 Geo. 4, c. 50, so far as they relate to the
Duchy of Lancaster. As to sales and purchases of lands on
behalf of the Duchy, see 18 & 19 Vict. c. 58.
(h) See also 1 Geo. 3, c. 1 ; 34 Geo. (A,) 10 Geo. 4, c. 50, ss. 22, 26. See
3, c. 75 ; but none of the restrictions Cliit. Stat. vol. ii. tit. Crown Lands,
contained in any of these acts apply (/) Sects. 23, 24, 26.
or extend to the private estates of her (w) Sects. 27-33.
Majesty, which are regulated by 25 (7?) Sect. 27.
& 26 Vict. c. 37. (o) Sect. 61.
(0 10 Geo. 4, c. 50; 2 & 3 Will. 4, {]>) 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 & 0 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. 0 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, 0 (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, 0 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, 2<J L. J., Ex.
274 ; Doe d. Ilobbs v. Cocke!!, Id. 478. 270.
(r) Doe (I. Landsell )•. Gower, 17
Q. B. 589; 21 L. .!., Q. B. 57.
50
Cii. I. S. 17.] TRUSTEES OF SETTLED ESTATES. *32
Copyholds. — The above enactment does not apply to
copyhold land (?/).
Cottage allotments. — Where, in parishes inclosed under
acts of parliament, allotments are made for the benefit of
the poor, it is provided by 2 & 3 Will. 4, c. 42, and 8 & 9
Vict. c. 118, s. 109, as amended by the Poor Allotment Man-
agement Act, 1873 (36 Vict. c. 19), that a committee ap-
pointed b}^ the allotment trustees and parish officers, or by
the "allotment wardens," as the case may be, may let the
allotments to " industrious cottagers " or " poor inhabitants
of the parish," as the case may be. A year's rent may be
required to be paid in advance. It was provided by 2 & 3
Will. 4, c. 42, that no allotment should be made of less than
one quarter of an acre, but this j)rovision is repealed by the
10th section of the act of 1873 above referred to (a;). The
Allotments Extension Act, 1882 (45 & 46 Vict. c. 80), im-
poses further obligations upon the trustees to let the land in
allotments (^).
Sect. 17. — By Trustees of Settled Estates?-
The extensive powers of leasing conferred by the Set-
tled Land Act, 1882, upon tenants for life [ante, sect. 4].
(«) Doe d. Bailey v. Foster, 3 C. B. premises by proceedings before jus-
215. tices, Chap. XXII., Sect. 3 (b) post.
(,r) See further as to these acts, (^) See post, Sect. 18.
and the power to recover the demised
1 Leases by trustees ; power depends on quantity of estate and
purposes of trust. — Whether trustees can grant leases depends upon the
nature of their estates. If they have unqualified legal fees, they can grant
leases upon any terms they please good at law, but subject, to be set aside in
equity if inconsistent with the purposes of tlie trust. Greason v. Keteltas, 17
N. Y. 491, 494, 495; Newcomb v. Ketteltas, 19 Barb. (N. Y. Supreme Ct.)
608, 012, 013, 029 (and see opinions of Mitchell and Gierke, JJ., that if the
fee is a determinable one, the trustee has full power so long as it remains
undetermined). If a trustee who has a life estate or any other estate less than
a fee grant a renewable lease, he cannot renew it after the exjiiration of his
estate. Bergengren v. Aldrich, 139 Mass. 259. Whether trustees having less
than a fee can grant leases, and if so what kind of leases they can grant, de-
pends upon the construction of the trust instrument and the purposes of the
trust. Hedges v. Biker, 5 Johns. Ch. (N. Y.) 103. If a trustee has any doubt
upon tliis point, he can apply for instructions, and lease under direction of a
court of chancery. Hedges v. Riker, 5 Johns. Ch. (N. Y.) 103. Of course
51
*33 BY WHOM TERMS GRANTED. [Ch. I. S. 17.
[*33] have rendered almost * unnecessary an}^ resort to
the court by trustees under sect. 4 of the Settled
they can grant leases if they have power either expressly or impliedly given
them by the trust instrument. Hedges v. Riker, 5 Johns. Ch. (X. Y.) 163
(per Kent, Chan.) ; Pleasonton's Appeal, 99 Pa. 362 ; Black v. Ligon, Harper's
Eq. (S. C.) 205.
Leases good at law are ezaminable in equity. — Although leases
granted by trustees having unlimited fees are "good at law whatever may be
their terms ; they are nevertheless subject to the supervisory jurisdiction . . .
of equity" (per Selden, J., in Greason v. Keteltas, 17 N. Y. 491. Whatever
may be the legal quantity of trustee's estates, and whether unlimited or quali-
fied, they cannot grant imusual leases, or leases inconsistent with the nature
and character of the trust. They will not (at least if their title is limited)
ordinarily be justified in granting leases of unopened mines, or for a long
term (as building leases). 2 Perry on Trusts (3d ed.) sec. 528. In Greason
I'. Keteltas, 17 N. Y. 491, under a devise in fee in trust to pay expenses, taxes,
&c., and to pay residue of rents and profits to testator's children and issue, it
was held trustee was impliedly authorized to grant building lease of lots in
New York City for twenty-one years, with covenant of renewal or payment of
damages upon valuation of building to be erected. In Black v. Ligon,
Harper's Eq. (S. C.) 205, the trustees of a permanent charity wliich forbade
them to alienate the land, but required them to apply the funds under penalty
of a revocation, granted a building lease for ninety-nine years (after several
unsuccessful attempts to lease for shorter term), for a verj' moderate gross
sum payable in eight years, and without any annual reservation of rent, and
the lease was held under the circumstances valid. Of this case Cliancellor
Kent saj's : "This was pushing an implied power to lease very far, and I
apprehend it went beyond the established precedents." 4 Kent's Com. (13th
ed.) sec. 107. Trustees under trusts of a continuing nature charged with the
payment of debts, annuities, &c.,but with no power of alienation, usually have
not only an implied power (2 Perry on Trusts (3d ed.) sec. 528), but a duty of
leasing, and if they do not exercise it, will be liable to removal. Pleasonton's
Appeal, 99 Pa. St. 362, 309 (per Sharswood, C. J.). L'nder circumstances,
however, they may themselves take charge of the property and operate it,
accounting for the profits. Dennis r. Dennis, 15 Md. 73. Trustees having
power " to sell and dispose of " the property have power to lease it, because
the greater power includes the less. Hedges v. Riker, 5 Johns. Ch. (N. Y)
103, 167. The trustees of property to pay debts have implied powers to sell.
Vallette v. Bennett, 09 111.032; Porter v. Schofield, 55 Mo. 56; Sharp i'.
Goodwin, 51 Cal. 219. The powers of trustees, when not restrained by the
trust instrument, extend to the sale of realty, and cestuis can only interfere by
application to equity and showing a violation of the trust. Huckabce t'. Bil-
lingsly, 10 Ala. 411.
Trustees: are joint tenants. — Trustees are joint tenants ; they have all
equal authority and must all join in conveyances. Sinclair r. .Jackson, 8 Cow.
(N. Y.) 543, 553 (and see per Savage, Ch. J.) ; Van Rensselaer r. Akin, 22
Wend. (N. Y.) 549, 552 (per Cowen, J.); Wilbur v. Almy, 12 How. 180;
licarned c. Welton, 40 Cal. 349. But a lease made by one with the sanction
of the others is the joint .■ict of all. Davis v. I.owis, 8 Ont. 1.
Personal liability of trustees. — If a trustee lease with covenants, he
will be personally lia))le. Greason i^. Keteltas, 17 N. Y. 491, 497. But he
need not make covenants (/"'• Sehlen, .1.).
5-2
Ch. I. S. 17.] TRUSTEES OF SETTLED ESTATES. *33
Estates Act, 1877 ; but as that enactment is not repealed, it
is apprehended that resort may still be had to it in particular
cases, and it may also be sometimes necessary to consider its
provisions in connection with leases prior to 1883.
Order of court. — Sect. 4 of the Settled Estates Act,
1877 (2), provides that, " it shall be lawful for the court "'
(i.e. the Chancery Division of the High Court), " if it shall
deem it proper and consistent wdth a due regard for the
interest of all parties entitled under the settlement (a), and
subject to the provisions and restrictions in that act con-
tained, to authorize leases of any settled estates (a), or of
any rights or privileges over or affecting any settled estates,
for any purpose whatsoever, whether involving waste or
not," provided five specified conditions be observed, viz.: —
Five conditions. — 1. The lease must take effect in posses-
sion at or within one year next after the making thereof,
and be for a term of years not exceeding for an agricultural
or occupation lease, twenty-one years ; for a mining lease,
or a lease of water mills, wayleaves, water-leaves or other
rights or easements, forty years ; for a repairing lease,
sixty years (6) ; and for a building lease, ninety-nine years :
but, except in the case of agricultural leases, where the
court shall be satisfied that it is the usual custom in the
district, and beneficial to the inheritance to grant leases
for longer terms, then for such term as the court shall
direct (c). 2. The best rent must be reserved that can be
reasonably obtained, to be made payable half-yearly or
oftener, without taking any fine or other benefit in the
nature of a fine. 3. If the lease be of minerals, &c., a cer-
tain portion of the rent must be set aside and invested. 4.
The felling of trees, except so far as is necessary, must not
be authorized. 5. " Every such lease shall be by deed, and
the lessee shall execute a counterpart thereof, and every
such lease shall contain a condition for re-entry on non-pay-
(2) 40 & 41 Vict. c. 18. This act "settled estates" are defined by sect,
consolidates the original Settled Es- 2.
tates Act, 185G (19 & 20 Vict. c. 120), {h) Taken from 21 & 22 Vict. c. 77,
with four amending acts, all being s. 2.
repealed by the schedule. (c) Taken from 21 & 22 Vict. c. 77,
(a) The words "settlement" and s. 4.
53
*34 BY WHOM TERMS GRANTED. [Ch. I. S. 17.
ment of the rent for a period of twenty-eight clays after it
becomes due, or for some less period to be specified in that
behalf "(tf).
With reference to the second condition, that " the best
rent shall be reserved," the same 4th section provides, that
" in the case of a mining lease, a repairing lease, or a build-
ing lease, a peppercorn rent, or any smaller rent than the
rent to be ultimately made payable, may, if the court think
fit so to direct, be made payable during all or any part of
the first five years of the term of the lease " (e).
[*34] * Special covenants. — The 5th section provides
that, "subject and in addition to the conditions
hereinbefore mentioned, every such lease shall contain such
covenants, conditions and stipulations as the court shall
deem expedient with reference to the special circumstances
of the demise."
The court cannot authorize a lease under this act, if any
one of the parties interested under the .settlement opposes
the application (/). Leases granted by trustees under the
provisions of this act must be settled in judge's chambers (^).
If an act of parliament be necessary, the court will make a
declaratory decree that it is proper that an application should
be made to parliament to extend the leasing powers (A).
Lease of mansion house, &c. — We have already seen (ante,
p. 7) that the principal mansion house &c. on a settled estate
cannot be let without the consent of the trustees of the
settlement, or an order of the court.
Leases under powers. — Where any settlement made by
deed, will, or otherwise, before or after passing of the Settled
Estates Act, 1850, contains powers to the trustees for the
time being (with the consent of the tenant for life) to grant
leases, such leases may be granted in accordance with such
powers, the i)Owers granted by the Settled Land Act, 1882,
(d) Note, that the condition for (/) In re Merry, 30 L. J., Ch. 168 ;
re-entry does not ajii)ly to breaclies 16 W. R. 307.
of covenant generally. See p. 114, {g) In re I'roctor, 20 L. J., Ch.
post. 464.
(e) Sufjpested apparently by Cust (//) Savil v. Bruce, 20 Beav. 557.
V. Middleton, 3 IJe G. F. & J. 33.
54
Ch. I. S. 17.] TRUSTEES OF SETTLED ESTATES. *35
being cumulative. The provisions of that act, however, pre-
vail in case of conflict with the provisions of the settlement,
so that the consent of the tenant for life is in every case
necessary (i).
Where lands are devised to trustees in fee upon trusts or
with powers which, in their execution, require the exercise
of judgment and discretion, such as granting leases, and the
trustees disclaim, so that the estate in fee descends to the
testator's heir-at-law, such powers or trusts cannot be exer-
cised or carried into execution by the heir, although he holds
the estate subject to the trusts of the will (k). Where the
heir of a surviving trustee is the proper party to demise, a
lease granted by the executors of such trustee is void, and
not cured by 12 & 13 Vict. c. 26 (0-
Effect of leases under powers. — When an appointment by
way of demise is made in pursuance of a power of leasing
contained in a settlement, it will take effect in preference
and priority to any long term of years limited in the settle-
ment for providing any jointure or portions for younger
children or the like. The leasing power is considered as con-
trolling and superseding such term, until it is called into
action, after which the leasing power will be put an
end to (ni). The person entitled under the * settle- [*35]
ment, whose estate is displaced or superseded pro
tanto by any such lease, is considered as the immediate rever-
sioner upon such lease, and may sue for any breach of cove-
nant therein contained (w), and may sue or distrain for the
rent thereby reserved (o).
Leases not in pursuance of Settled Estates Act, &c. — Before
the Settled Estates Act, 1856 (19 & 20 Vict. c. 120), a trus-
tee having the legal estate in lands might have made leases
which would have been valid, provided they were justified
(0 Settled Land Act, 1882, s. 56. Humphreys, 4 A. & E. 299; Maun-
(k) Robson V. Flight, 34 L. J., Ch. drell v. Manndrcll, 10 Yes. 246 ; 2
226; 13 W. R. 393. Chance on Powers, s. 1410; Carpenter
(0 Ex parte Cooper, Ee North Lon- r. Parker, 3 C. B., N. S. 231.
don R. Co., 34 L. J., Ch. 373. (n) Isherwood v. Oldknow, 3 M. &
(m) Doe d. Courtail v. Thomas, 9 S. 382.
B. & C. 288, 293 ; Doe d. Rogers v. (o) Rogers v. Humphreys, 4 A. i
Rogers, 5 B. & Ad. 704 ; Rogers i-. E. 299.
55
*35 BY WHOM TERMS GRANTED. [Cii. I. S. 18.
by the quantity of his estate although no express power of
leasing was vested in him by the settlement. But a party
taking a lease from the trustee, with notice of the trust, and
without the concurrence of the cestui que trust, was subject
to the control of equity (^). Thei-e was no general rule as
to what leases might be granted by trustees, but they were
authorized to do what was reasonable in each particular
case (5'). No lease could be safely taken from them without
the concurrence of the cestui que trust, or the sanction of
the Court of Chancery (r).
Trustees need not be parties. — Where a lease is granted
under the Settled Land Act, 1882, by the tenant for life, it
is neither necessary nor desirable that the trustees should be
made formal parties thereto.
Lease by trustees for infant. — If an infant is tenant for
life, the trustees of the settlement may act for him (s).
Sect. 18. — By Trustees of Charities.
The estates of charities are subject to the provisions of
"The Charitable Trusts Act, 1853" (16 & 17 Vict. c. 137),
as amended by 18 & 19 Vict. c. 124, 23 & 2-1 Vict. c. 136,
and 32 & 33 Vict. c. 110.
Leases, &c., authorized by charity commissioners. — By 16 &
17 Vict. c. 137, s. 26, " the leases, sales, exchanges and other
transactions authorized by such board (C) under the powers
of this act shall have the like effect and validity as if they
had been authorized or directed by the express terms of the
trust affecting the charity."
Official trustees.— By 18 & 19 Vict. c. 124, s. 15, "the
secretary for the time being of the board shall be a corpora-
tion sale, by the name of ' The Official Trustee of Charity
Lands,' for taking and holding charity lands and by that
name (instead of the name of 'Treasurer of Public Cliari-
(/)) Piatt on Leases, 345. (s) Post, sect. 19,
(7) Att.-Gcn. V. Owen, 10 Ves. 555. [t) Any two of tlie Charity Coni-
(r) Piatt on Leases, 347; Malpas missioners for England and Wales
V. Ackland, 3 Kuss. 373. sitting as a Board ; sect. 6.
56
Cn. I. S. 18.] TllUSTEES OF CHARITIES. *36
ties ') shall have perpetual succession ; and all lands or
estates or interests in land now vested in the ' Treasurer
of Public Charities' by that name shall become, upon
the passing of this act, and by virtue thereof, * vested [*36]
in like manner and upon the same trusts in ' The
Official Trustee of Charity Lands,' and all provisions of the
principal act which have reference to ' The Treasurer of
Public Charities ' shall operate as if the name of ' The
Official Trustee of Charity Lands ' had been used therehi
instead of the name of ' Treasurer of Public Charities.' "
Power to acting trustees. — By sect. 16, " the acting trustees
of every charit}^, or the majority of them, provided that such
majority do not consist of less than three persons, shall have
at law and in equity power to grant all such leases or tenan-
cies of land belonging thereto, and vested in the official
trustee of charity lands, as they would have power to grant
in the due administration of the charity if the same land
were legally vested in themselves ; and all covenants, condi-
tions and remedies contained in or incident to any lease
or tenancy so granted shall be enforceable by and against
the trustees or persons acting in the administration of the
charity for the time being, and their alienees or assigns,
in like manner as if such lands had been legally vested in
the trustees granting such lease or tenancy at the time of
the execution thereof, and had legally remained in- or had
devolved to such trustees or administrators for the time being,
their alienees or assigns, subject to the same lease or tenancy."
By the Charitable Trusts Act, 1860 (23 & 24 Vict. c. 136,
s. 16), a majority of two-thirds of the trustees of any charity
assembled at a meeting of their body duly constituted, and
having power to determine on any lease of any property of
the charity, was empowered to lease the charity property.
A clear majority was substituted for the two-thirds majority
by s. 12 of the Charitable Trusts Act, 1869, 32 & 33 Vict,
c. 110 (s. 17 of which act repealed s. 16 of the act of 1860).
Power of majority of trustees. — Section 12 of the act of
1869 is as follows: — "Where the trustees or persons acting
in the administration of any charity have power to determine
on any sale, exchange, jDartition, mortgage, lease or other
57
*37 BY WHOM TERMS GRANTED. [Ch. I. S. 18.
disposition of any property of the charity, a majority of those
trustees or persons who are present at a meeting of their
body duly constituted and vote on the question shall have
and be deemed to have always had full power to execute
and do all such assurances, acts and things as may be requi-
site for carrj'ing any such sale, exchange, partition, mortgage,
lease, or disposition into effect, and all such assurances, acts
and things shall have the same effect as if they were respec-
tively executed and done by all such trustees or persons for
the time being and by the official trustee of charity lands."
Before the act of 1860, trustees of charities might have
granted leases of the lands belonging to the charities, pro-
vided they were such in all their circumstances as were bene-
ficial to the interests of the charities ; but if other-
[*37] wise, the Court of Chancery would have set * them
aside at any distance of time (it), until protected by
the Statute of Limitations (a;). Where it was necessary to
grant a large number of building leases of charity lands in
nearly the same form, under the provisions of an act of par-
liament, and one lease had been settled in chambers, the
Court of Chancery allowed the charity to grant other build-
ing leases from time to time in the same form, without
reference to chambers, the model lease being appended to
the order (?/). Trustees of a charity have been authorized
to grant building leases for 600 years, such being the custom
of the neighbourhood, and it appearing beneficial (z).
Letting of charity land. — We liave seen (ante^ sect. 16)
that under various statutes parish officers and others are
empowered to let lands in allotments to "industrious cot-
tagers " and the like. The principle of these statutes is
applied to charity lands generally by the " Allotments Ex-
tension Act, 1882" (45 & 46 Vict. c. 80). By s. 1 of this
(u) 4 Jarm. Byth. 259, 3rd ed.; De Gex & J. 136; Att.-Gcn. i;. Payne,
Att.-Gen. v. Cross, 3 Mer. 540; Att.- 27 Beav. 1()8 ; Att.-Gcn. v. Magdalen
Gt-n. V. Owens, 10 Ves. 555 ; Att.-Gcn. Collctrc Oxford, G H. L. Cas. 189,
*;. Brooke, 18 Ves. 320; Att.-Gcn. v. 200; 20 L. J., Ch. 020.
Lord Hoiliani, 3 Kiiss. 415. (y) Att.-Gen. v. Christ Church,
(r) 3 & 4 Will. 4, c. 27, ss. 24, 25, Oxford, Giff. 514 ; 8 Jur., N. S. 989.
26, 27, which extends to charities; (s) /h re Cross, 27 Beav. 692.
Att.-Gen. v. Davey, 19 Beav. 521; 4
Ch. I. S. 10.] LEASES BY INFANTS. . *38
act "' all trustees in whom lands are vested, or by whom tlie
same are held or managed for the benefit of the poor of any
parish or place in or adjoining to that in which such lands
are situate, and whereof the rents or produce are distributed
in gifts of money doles, fuel, clothing, bread or other articles
of sustenance or necessity, shall, where such lands are not
otherwise used for the benefit of the parish in which it is situ-
ate as a recreation ground, or otherwise, for the enjoyment or
general benefit of the inhabitants, take proceedings " in man-
ner in the act mentioned " for letting such lands to cottagers,
labourers and others." By s. 10, if the trustees neglect to
comply with the act, the Charity Commissioners may compel
compliance, on the application of not less than four persons
who would be entitled to the benefit of the act. By s. 12,
rent or possession may be recovered under ss. 110, 111 of
the Inclosure Act, 1845, and by s. 13 every allotment shall
be let free of all charges " at such rent as land of the same
quality is usually let for in the same parish," and " one per-
son shall not hold any allotment exceeding one acre."
Letting to other than cottager. — By subsect. 6 of S. 13, " if at
any time the trustees are unable to let any allotment or any
portion thereof, they may let the same, or such portion thereof
as may be unlet, at the best annual rent which can be obtained
for the same, without any premium or fine, and on such
terms as may enable them to resume possession thereof
within a period not exceeding twelve months, if it should at
any time be required to be let for allotments."
* Sect. 19. — By Infants. [*38]
At common law. — At common law leases made by in-
fants are not made absolutely void, but voidable on their
attaining their majority (a),^ and that notwithstanding the
(a) Ketsey's Case, Cro. Jac. ?>20 ; 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 (</), but not before (e) ;2 or by his heir if he
(h) Slator V. Brady, 14 Ir. Com. (d) Slator v. Brady, 14 Ir. Com. L.
L. K. 01. R. (51.
(c) Zouch d. Abbot v. Parsons, 3 (e) Slator r. Trimble, 14 Ir. Com.
Burr. 1806. L. R. 342. The doctrine laid down
Yerg. 41, 02 ; Peterson v. Laik, 24 Mo. 544 ; Boody v. McKenncy, 23 Me. 523.
And see cases previously cited if implied affirmance.
When may he disaffirm. — A minor after reaching majority may (by all
authorities) avoid liis contracts within a reasonable time.
How may he disaffirm. — He may disaffirm his deed by giving anotlier
deed inconsistent therewith. Jackson v. Carpenter, 11 Johns. (N. Y.) 539;
Jackson i: Burchin, 14 Johns. (N. Y.) 124; Bool c. Mix, 17 Wend. (N. Y.)
119, 133 (per Bronson, J.) ; Lessee of Tucker?'. Moreland, 10 Pet. 58; Doe
d. Hoyle v. Stowe, 2 Dev. & Batt. (N. C.) 320; 111. Land & Loan Co. v. Beem,
2 111. App. 390, 397 (per Bailey, J.) ; Haynes v. Bennett, 53 Mich. 15; Hagley
V. Fletcher, 44 Ark. 153 ; Norcum v. Sheahan, 21 Mo. 25 ; Dixon v. Merritt,
21 Minn. 196.
A subsequent deed, unless necessarily inconsistent, will not, however, dis-
affirm the prior deed. For example: a quit claim deed given after majority
does not disaffirm a mortgage deed given during minority, because the two
deeds are consistent with each other. Singer Manuf. Co. v. Lamb, 81 Mo.
221. But a warrantee deed is inconsistent with a prior mortgage, and does
disaffirm it. Dixon v. Merritt, 21 Minn. 190. A quit claim deed given in
minority by a minor, then owning only a part interest, is not disaffirmed by a
subsequent quit claim deed, slie having subsequently acquired the remaining
interest. Leitensdorfer v. Hempstead, 18 Mo. 209.
An infant's deed may be avoided also by demand of possession and suit
of ejectment. Birch i\ Linton, 78 Va. 584; Wilson v. Branch, 77 Id. 65;
Bedinger v. Wharton, 27 Gratt. (Va.) 870; Mustard v. Wohlford's Heirs, 15
Gratt. (Va.) 329; Sims v. Everhardt, 102 U. S. 300.
Entry upon the land accompanied by assertions of disaffirmance and then
making contract to convey to third party is a sufficient disaffirmance of a
conveyance by an infant. White v. Flora, 2 Tenn. 420, 432. And aban-
donment of possession, etc., with suit to recover back consideration money,
is also a sufficient disaffirmance of a conveyance to an infant. Kerr v. Bell,
44 Mo. 120, 125 ; Baker v. Kennett, 54 Mo. 82.
An infant cannot, however, avoid liis contract without refunding the con-
sideration. Bigelow V. Kinney, 3 Vt. 353; Kerr v. Bell, 44 Mo. 120, 125 (per
Wagner, J.); Highley i\ Barron, 49 Mo. 103. And if he would avoid the
contract, he must wliolly avoid it ; he cannot retain the part beneficial to
liimself. Roberts v. Wiggin, 1 N. 11. 73.
It has been held that an iufunt feme covert, who has joined with her hus-
band in a mortgage of her ])roperty, miglit plead infancy as a defence in the
foreclosure suit, although, ordinarily, an infant cannot avoid her deeds until
she reaches majority. Schneider c. Staihr, 20 Mo. 209.
^ A contract of a minor cannot be avoided by the other contracting party.
Monaghan v. Agricultural Fire Ins. Co., 53 Mich. 238.
-Contracts as to personalty. — An infant's contracts as to personalty
61
*38 BY WHOM TERMS GRANTED. [Cn. I. S. 19
die under age (/). To avoid a lease by an infant under
which the lessee is in possession upon the lessor attaining
t^yenty-one/ some act of notoriety, ex. gr., ejectment, entry,
or demand of possession is requisite : the mere execution of
a new lease to another lessee is not sufficient to divest the
estate created by the first lease ((/). If when of age he
receives any rent payable after he became of age, he thereby
ratifies the lease from the day of its execution (e). A mort-
gage of the land to the lessee by a deed reciting the lease
amounts to a ratification (/i). Subject to the above qualifica-
tion, all gifts, grants or deeds made by infants, by matter in
deed, or in writing, which take effect by delivery of his hand,
are voidable by himself, by his heirs, and by those who have
his estate (^). The words "take effect" are the essential
part of the definition, and exclude letters of attorney, or
deeds which delegate a mere power and convey no inter-
est Qk'). An infant cannot appoint an agent, and therefore
his next friend cannot bind him. An infant appointing an
agent to make a lease is not bound by such lease, nor by his
ratification of it. The lease of an infant, to be good, must
be his owii personal act (/).
in Maddon f. Wliite,2 T. R. 159, that (0 Perk. chap. i. sec. 12; Bac.
a lease for the benefit of the .infant Abr. tit. Leases (B.) ; Baylis v.
binds him, seems to be exploded. Dineley, 3 M. & S. 477 ; 2 Prest.
See Piatt on Leases, Vol. I., p. ol. Conv. 248.
(/) 4 Cruise, 74, s. 67. (i) Zouch d. Abbot v. Parsons, 3
(//) Slator 1-. Brady, 14 Ir. Com. L. Burr. 1804.
R. 61 ; Slator v. Trimble, Id. 342. (/) Doe d. Thomas v. Roberts, 16
(h) Storry v. Johnson, 2 Y. & C. M. &. VV. 778.
386.
are voidable by him during: infancy, Stafford v. Roof, 9 Cow. 626; Bool v.
Mix, 17 Wend. 119, 132 (per Bronson, J.); lioyt v. Wilkinson, 57 Vt. 404 ;
McCarthy v. Henderson, 138 Mass. 310; Freeman v. Nichols, 138 Mass. 313
(holdinf^ that a plea of infancy is a disaffirmance). It is held that he cannot
(ordinarily) avoid his deeds of realty durinfi minority, Schneider v. Staihr,
20 Mo. 2(i9, 271 (per Scott, J., althouf,di he held infancy oi feme covert, might
be set up as defence to suit to foreclose mortgage). Bool v. Mix, 17 Wend.
(N. Y.) 119, 131 (per Bronson, J.) ; Stafford v. Roof, 9 Cow. (N. Y.) 02(i (per
Jones, Chan.). The heirs anil other legal representatives of a minor may dis-
affirm his contracts during mitiority. Siiarp v. Robertson, 76 Ala. 343; III.
Land & Loan Co. v. Bonner, 75 111. 315, 321, 322.
'The age of majority. — By tlie common law twenty-one is the age of
majority for both sexes, in some American states women become of age at
eighteen, as Illinois, Iowa, Minnesota, Missouri, Nebraska, Nevada, Ohio^
62
Ch. I. S. 19.] LEASES BY INFANTS. *39
Leases in gavelkind, — By the custom of gavelkind an in-
fant seised of land in socage may at the age of fifteen years
make leases for years, which bind him after he comes of age,
inasmuch as the custom makes the age of fifteen his full aofe
for that purpose (^»)-
Leases under direction court. — The legal and practical
difficulties attaching to leases by infants at common law (%)
were almost entirely cured by the act 11 Geo. 4 & 1 Will.
4, c. 65, under which (ss. 16 and 17) infants were
empowered *to grant renewals of leases under the [*39]
direction of the Chancery Division of the High
Court, obtained on their own petition or that of their guard-
ians (o) ; and the court was authorized to direct leases of
land belonging to infants when it was to the benefit of the
estate (p). In either case there was no restriction upon the
term to be granted to the lessee, which might be such as
the court should direct.
By sect. 31 of the act, leases granted under it were as
valid as if the infant had been of full age. The court had
power under this act to sanction a building lease of an
infant's freehold estate when he was seised in fee simple in
reversion after a life estate by the courtesy vested in his
father (5').
This act is not expressly repealed, and is expressly re-
ferred to in an Order of Court (R. S. C, 1883, Order LV.,
rule 2) made after the commencement of the Settled Land
Act, 1882. But ss. 59 and 60 of that act appear to impliedly
repeal it so far at all events as the term for which the lease
may be made. We will presently consider the effect of this
and other acts, but must first deal shortly with leases by
guardians.
(m) Co. Lit. 45 b. (p) Re Spencer, 37 L. J., Ch. 18;
(n) See Smith, L. & T., 2d ed., p. 17 L. T., N. S. 200.
61; Piatt on Leases, Vol. I., p. 29. (9) Re Letchford, L. R., 2 Ch. D.
(0) Judicature Act, 1873, s. 34 ; R. 719; 45 L. T., Ch. 530.
5. C. Ord. LV., r. 2, sub-r. 9.
Oregon, and Vermont. In some instances it is declared that women shall be
deemed of age on being married. Tyler on Infancy and Coverture (2d ed.)
sec. 3.
63
*39 BY WHOM TERMS GRANTED. [Ch. I. S. 20.
Sect. 20. — By Guardians.
Division of subject. — Guardians are either : — 1. Guar-
dians in socage or by the common law ; ^ 2. Testamentary
cfuardians under the statute 12 Car. 2, c. 24 ; 3. Guardians
by nature ; 4. Guardians for nurture ; 5. Guardians by elec-
tion ; 6. Guardians appointed by the Chancery Division of
the High Court. Of these the Guardians appointed by the
Court are of the first practical importance, and testamentary
guardians come next ; guardianship of any of the other kinds,
so far as regards property, has little more than a historical
value.
Leases by guardians in socage. — 1. A guardian in socar/e,^
or by the common law, is a person appointed by the law, in
respect of the freehold lands descended to the infant, so that
where no freehold lands descend there can be no such guar-
dian (r) : and tliis guardianship devolves upon such of the
next of kin to whom the inheritance cannot descend (s). It
ceases at the age of fourteen years ; ^ and the father may
also supersede the authority of the guardian by appointing a
testamentary guardian under 12 Car. 2, c. 24.*
(r) Bac. Abr. tit. Leases (I. 9) ; (.s) 1 Blac. Com. 461 ; Cole Ejcc.
Shopland r. Ryoler, Cro. Jac. 55, 99 ; 582.
1 Blac. Com. 401.
'Guardians appointed by court. — "A guardian appointed by the
Orpiiaii's Court . . . supplies the place both of a guardian for nurture and a
guardian in socage." Per Kirlvpatrick, C. J., in Van Doren v. Everitt, 5 N. J. L.
400, 402.
-Guardians in socage. — A guardian in socage might sell real estate,
and was not obliged to ajjply for directions in every particular case. Field v.
SchiellVlin, 7 Johns. Ch. (N. Y.) 150, 154 (per Kent, Ciian.). A guardian in
socage may lease the real estate of the infant. Byrne v. Van Hoesen, 5 Johns.
(N. Y.) CO, 07 {}ier Curiam); Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 160,
154 (per Kent, Chan.) ; Holmes v. Seely, 17 Wend. (N. Y.) 75, 78. A mother
who takes possession of infants' realty was held prinui ftirie to do so as guar-
dian in socage. Byrne v. Van Iloescn, 5 Johns. 00, (i7 ; Jackson ?-. Vreden-
burgh, 1 Id. 159, lO:} (per Tompkins, J.) ; Beecher v. Crouse, 19 Wend. 300;
Syiv.>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, 0 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 dissente<l to it. In ejectment brought against him by his wife's
lessor, he was estopped to deny tlie lessor's title unless he liad disallirmcd the
lease. Lucas v. Brooks, 18 Wall. 430, 451.
74
C'H. I. S. 22.] LEASES BY OR FOR MARRIED WOMEN. *45
interest in his wife's real estate during their joint lives,
created a term out of that interest, the reversion was in him
only, and not in his wife also (/).
The husband might demise his wife's leaseholds, and there-
by confer an immediate interest and possession, or he might
underlet for a term to commence even after his death (</} ,
and it was good though the wife survived (A).
Statute law prior to act of 1882. — The Fines and Recover-
ies Abolition Act (3 & 4 Will. 4, c. 74, ss. 77-88) allowed
leases to be made by wives with their husband's concurrence,
by deed acknowledged by the wives in manner directed by
that act, and the Settled Estates Act, 1877, 40 & 41 Vict. c.
18, replacing a similar provision of the Settled Estates Act,
1856, allowed a husband seised in right of his wife of any
settled estates or entitled to unsettled estates as tenant by
the curtesy or in right of a wife seised in fee, without any
application to the court to demise such lands for not more
than 21 years subject to the restrictions and exceptions in
that act mentioned.
Lease by married -woman under Settled Land Act, 1882. —
We have already seen (i) the provisions empowering tenants
for life to make leases, which are contained in the important
Settled Land Act, 1882. Special provision for the case of a
married woman who is a tenant for life is made by s. 61 of
that act, the effect of which is that if the married woman
be entitled for her separate use or under the Married Wo-
men's Property Act, 1882, she may exercise the powers of
the act without her husband, but if otherwise, then she and
her husband together may exercise those powers, and
that a restraint on * anticipation in the settlement [*45]
shall not prevent the exercise of that power.
Saving for marriage settlement. — It is provided expressly by
s. 19 of the Married Women's Property Act, that nothing in
that act shall interfere with any marriage settlement made or
(/) Harcourt v. Wyman, 3 Exch. Bac. Abr. tit. Baron and Feme (C.
817'. ' 2) ; 1 Roll. Abr. 344 ; Herbin v. Chard,
((/) Herbin v. Chard, Poph. 96; Popli. 96.
Grute V. Locroft, Cro. Eliz. 287. (/) Ante, sect. 4.
(A) Grute v. Locroft, Cro. Eliz. 287 ;
75
*45 BY WHOM TERMS GRANTED. [Ch. I. S. 23.
to be made respecting the property of any married woman ;
but the effect of the 61st section of the Settled Land Act,
1882, appears to be to allow a husband and wife to demise
without the intervention of the trustees of their married
settlement, although the settlement may expressly provide
for such intervention.
Sect. 23. — By Lunatics and their Committees.
By idiots aud lunatics. — Leases made by idiots, or persons
non compotes mentis, are prima facie binding, but may be
avoided (Jc).^ Generally speaking, a contract made by a
lunatic is binding on him, unless it be proved that the other
party knew of his insanity and took some unfair advantage
of it (I)? A lease made during a lucid interval cannot be
(h) Co. Lit. 247 a; Beverley's case, 487; 4 E.xch. 17; Beavan v. M'Don-
4 Co. R. 123; Yates v. Boen, 3 Stra. nell, 9 Exch. 309; 10 E.xch. 184; 23
1104. L. J., Ex. 94, 326; Elliott v. Ince, 7
(/) Brown v. Joddrell, 1 Moo. & M. De G. M. & G. 475.
105; Molton v. Caniroux, 2 Exch.
1 Contracts of insane, &c. — There is no such tiling? as perfect sanity or
perfect insanity. "We can not, therefore, say of any particular party tliat
he is absolutely incapable of contracting." 1 Wharton & Stille's Med. Jur.
(4th ed.) sec. 98.
A person is presumed to be sane, unless shown to be insane. Howe !•.
Howe, 99 Mass. 88; Hix v. Whittemore, 4 Met. (Mass.) 545. Where tlie
existence of habitual insanity has been once shown to exist, it is presumed
to continue; otherwise, if of a temporary character (/>t'/- 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, 0 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, 0 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, 0 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 <l. Rogers v. Cadwallader,
500. 2 B. & A(i. 473.
(/i) Powseley v. Blnckman, Cro. (A) Doe </. Parry i7. Hughes, 1 1 .lur.
Jac. 050; Brown v. Storey and I)(»e (/. 008.
Hughes V. Bucknell, supra; Rogers r. (/) Litchfield v. Ready, f» Exch. 039.
92
Ch.I.S.28.]' by mortgagors AND MORTGAGEES. *54
which he does, the mortgagor may still recover against the
tenant for the use of the furniture, for either the rent may
be apportioned, or a new agreement may be inferred to take
the house of the mortgagee, and to pay the mortgagor for the
use of the furniture (wi)*
Where a mortgagor after mortgage demised part of the land,
and then made a second mortgage, and the tenant paid rent
to the second mortgagee, who demised another part of the
land to a different tenant, and then notice was given
to both tenants of the first mortgage, who * accord- [*54]
ingly paid their rents to the first mortgagee ; it was
held in ejectment by the second mortgagee, that the tenants
might both show the prior mortgage and the notice (n}. A.,
seised, in fee, mortgaged in fee to B., and afterwards leased
to the defendant for thirty-one years. The plaintiff bought
the legal estate from B., the mortgagee, and also the equita-
ble estate from a party who derived it from A., the mort-
gagor, which party also joined in the conveyance of the legal
estate ; it was held, that the plaintiff, although he had re-
ceived rent from the defendant, was not bound by the mort-
gagor's lease to him, but might recover in ejectment after
the expiration of a notice to quit, or sue him for use and
occupation after the payment and receipt of rent (o). Where
a person who had bought premises which had not been con-
veyed to him, let his son into possession as tenant at will,
paying no rent, afterwards had the property conveyed to
him, and then mortgaged it ; it was held, that if the mort-
gage had any operation on the tenancy at will, there was no
new tenancy between the son and the mortgagee, so as to
prevent the operation of the Statute of Limitations (p}.
Where a mortgagor gave an authority to the mortgagee to
receive the rent of a tenant, under a demise subsequent to a
mortgage, and the mortgagee received the rent for some
time ; after which the authority was countermanded, and the
tenant refused to pay to either, and the mortgagor distrained,
(m) Salmon v. Matthews, 8 M. & (o) Doe d. Ld. Downe r. Thompson,
W. 827. 9 Q. B. 1037.
(n) Doe jd. Higginbotham v. Bar- (;)) Doe d. Goody v. Carter, 9 Q.
ton, 11 A. & E. 307. B. 863.
93
*55 BY WHOM TERMS GRANTED. [Ch. I. S.28.
it was held that the relation of landlord and tenant was not
created between the tenant and the mortgagee (5). A tenant
holding under the mortgagor may show that the lease was
made after the mortgage, and that he, the tenant, was com-
pelled to pay the rent to the mortgagee, and such pa^^ment
will operate as a discharge of the rent to the mortgagor,
and may be proved under a special or common plea of pay-
ment (r). If a mortgagor su3S for rent after notice given
to the tenant of the mortgage, the tenant may, at his own
expense, obtain relief under the Interpleader Act (.s).
Leases by mortgagee. — The mortgagee, in the case of a
mortgage to which the 18th section of the Conveyancing
Act does not apply, cannot before foreclosure of the equity
of redemption make a lease for years of property in mort-
gage which will bind the mortgagor, unless to avoid an
apparent loss and merely of necessity (^t). If a mort-
gagee accepts a person as a tenant, to whom the mortgagor
has granted a lease for years since the mortgage,
[*55] * that makes him only tenant from year to year to
the mortgagee (?t). Such new tenancy will be sub-
ject to the terms and conditions of the lease, so far as the
same are applicable to and not inconsistent with a yearly
tenancy (a:). But payment of the rent will not relate back
to the date or service of the notice of the mortgage, so as to
make the new tenancy commence from that time (y). For
the purpose of a notice to quit, the new tenancy will be
deemed to have commenced from the same day in the year
as the original term (2). Where a tenant attorns expressly
as from a previous specified day, at a fixed rent, a distress may
(7) Whcolcr V. Br.'inscombp, 5 Q. (»0 Doe d. Hughes p. Bucknell, 8
B..37.3; Wilton v. Diimi, 17 Q. B. 294. C. & P. 500; Doe d. Prior v. Ongley,
(r) Johnson v. Jones, 9 A. & E. 10 C. B. 25 (3(1 point) ; Carpenter i;.
809; Waddilove v. Barnett, 2 Bing. Parker, 3 C. B., N. S. 232, 235.
N. C. 638; 4 Dowl. 347; Pope i-. (r) Doe d. Thomson v. Aniey, 12
Biggs, 9 B. & C. 245; Wliitmore v. A. & E. 476; Doe d. Davenish v.
Walker, 2 C. & K. 015. Moffatt, 15 Q. B. 257, 205; Cole
(s) 1 & 2 Will. 4, c. 5H, 8. 1 ; Mur- Ejcc. 470.
dock i;. Taylor, 0 Bing. N. C. 293. (//) Evans v. Elliott, 9 A. & E. 342.
(0 Ilungerford r. Clay, 9 Mod. 1 ; (2) Doe d. Collins v. Weller, 7 T.
Franklinski r. Ball, 34 L. J., Ch. 153; K. 478; Cole Ejec. 470. .
Powell on Mori. 188.
94
Ch.I. S. 28.] BY MORTGAGORS AND MORTGAGEES. *55
be made for the rent calculated from that day (a). When
a new tenancy from year to year has been created as between
the mortgagee and the tenant, the mortgagee is thenceforth
the landlord, and may sue or distrain for the rent (6), or
maintain an action for use and occupation (c). But he
cannot maintain an ejectment against the tenant until the
new tenancy has been determined by notice to quit, sur-
render, forfeiture, or otherwise ((?), although afterwarcLs he
may (f).
Leases by mortgagor and mortgagee. — Where lands mort-
gaged before the Conveyancing Act are to be leased, the
mortgagor and mortgagee ought to concur in granting the
lease (/)• A joint action of covenant is not maintainable
against a mortgagor and a mortgagee on an implied cove-
nant, if the latter has demised, and the former, who had
merely an equitable interest, has confirmed the lease (</).
A mortgagor and mortgagee for a term joined in a deed, by
which the former leased and the latter confirmed the prem-
ises to a third party for the remainder of the term, at a rent
reserved to the mortgagor, his executors, &c. The deed
declared that nothing therein should abridge, defeat, alter,
&c., the interest of the mortgagee in the premises, which
was to remain a security for his principal and interest ; the
mortgagee was held entitled to the rent (li). A mortgagor
agreed to sell premises held by a tenant under a lease
granted by him after the mortgage, without the concurrence
of the mortgagee, who, however, was willing to concur in
the sale ; it was held that the mortgagor was able to make
a good title (i).
(«) Gladman v. Planner, 15 L. J., son, supra ; Pole v. Davis, 1 F. & F.
Q. B. 80; 10 Jur. 109. 284.
(b) Rogers v. Humphreys, 4 A. & (/) Ante, 51.
E. 299; Brown v. Storey," 1 M. & G. {g) Smith v. Pocklington, 1 C. & J.
117, 126. 445.
(c) Doe d. Ld. Downe v. Thomp- Qi) Edwards v. Jones, 1 Coll. 247.
son, 9 Q. B. 1037. {i) Webb v. Austin, 7 M. & G. 701 ;
(rf) Cole Ejec. 474, 477. Sturgeon v. Wingfield, 15 H. & W.
(e) Doe d. Ld. Downe i-. Thomp- 224.
95
*56 BY A\^HOM TERMS GRANTED. [Ch. I. S. 28.
[*56] * (b) By Mortgagor and Mortgagee under Convey-
ancing Act.
The leasing powers, both of a mortgagor in possession and
of a mortgagee in possession, under a mortgage made on or
after Jan. l.s^, 1882, are regulated in the following terms by
sect. 18 of the Conveyancing and Law of Property Act, 1881
(44 & 45 Vict. c. 41).
Lease by mortgagor. — " (1.) A mortgagor (Ji) of land (?)
while in possession shall, as against every incumbrancer (wj),
have, by virtue of this act, power to make, from time to
time, any such lease of the mortgaged land, or any part
thereof, as is in this section described and authorized.
Lease by mortgagee. — " (2.) A mortgagee (h^ of land (J)
while in possession shall, as against all prior incumbrancers,
if any, and as against the mortgagor, have, by virtue of this
act, power to make, from time to time, any such lease as
aforesaid.
What leases. — " (3.) The leases which this section author-
izes are : —
(i.) An agricultural or occupation lease for any term
not exceeding twenty-one years ; and
(ii.) A building lease for any term not exceeding ninety-
nine years.
" (4.) Every person making a lease under this section
(Jc) By s. 2, sub-s. (vi.), of the act, appears, includes real and personal
"mortgage includes any charge on property, and any estate or interest
any property for securing money or in any property, real or ])ersonal, and
money's worth, and mortgagor in- any debt, and anything in action, and
eludes any person from time to time any other right or interest."
deriving title under the original niort- (w) By s. 2, sub-s. (vii.), of the act,
gagor, or entitled to redeem amort- "incumbrance includes a mortgage
gage, according to his estate, interest, in fee, or for a less estate, and a trust
or right, in the mortgaged jiroperty ; for securing money, and a lien, and a
and mortgagee in possession is, for charge of a portion, annuity, or other
the purposes of this act, a mortgagee cajjital or annual sum ; and incum-
who, in right of the mortgage, lias brancer has a meaning corresjjonding
entered into, and is in possession of with that of incumbrance, and in-
the mortgaged property." eludes every person entitled to the
(/) By s. 2, sub-s. (ii.), of the act, benefit of an incumbrance, or to re-
" land, unless a contrary intention quire jiaynK'nt or discliarge thereof."
OG
Ch. I. S. 28.] BY MOllTGAGORS AND MORTGAGEES. *57
may execute and do all assurances and things necessary or
proper in that behalf.
" (5.) Every such lease shall be made to take effect in
possession not later than twelve months after its date.
Rent. — " (6.) Every such lease shall reserve the best rent
that can reasonably be obtained, regard being had to the cir-
cumstances of the case, but without any fine being taken.
" (7.) Every such lease shall contain a covenant by the
lessee for payment of rent, and a condition of re-entry on
the rent not being paid within a time therein specified, not
exceeding thirty days.
Counterpart. — "(8.) A counterpart of every such lease
shall be executed by the lessee, and delivered to the lessor,
of which execution and delivery the execution of the lease
by the lessor shall, in favour of the lessee, and all persons
deriving title under him, be sufficient evidence.
Building lease. — " (9.) Every such building lease shall
be made in consideration of the lessee, or some person by
whose direction the lease is granted, having erected, or
agreeing to erect, within not more than five years
* from the date of the lease, buildings, new or addi- [*57]
tional, or having improved or repaired buildings, or
agreeing to improve or repair buildings within that time, or
having executed, or agreeing to execute, within that time,
on the land leased, an improvement for or in connection
with building purposes.
" (10.) In any such building lease, a peppercorn rent, or
a nominal or other rent less than the rent ultimately payable,
may be made payable for the first five years, or any less part
of the term.
" (11-) Delivery of counterpart. — In case of a lease by the
mortgagor, he shall, within one month after making the
lease, deliver to the mortgagee, or, where there are more
than one, to the mortgagee first in priority, a counterpart of
the lease, duly executed by the lessee ; but the lessee shall
not be concerned to see that this provision is complied with.
"(12.) Specific performance. — A contract to make or
accept a lease under this section may be enforced by or
97
*58 BY WHOM TERMS GRANTED. [Ch. I. S. 28.
against every person on whom the lease, if granted, would
be binding.
" (13.) This section applies only if, and as far as a con-
trary intention is not expressed by the mortgagor and mort-
gagee in the mortgage deed, or otherwise in writing, and
shall have effect, subject to the terms of the mortgage deed, or
of any such writing, and to the provisions therein contained.
" (14.) Nothing in this act shall prevent the mortgage
deed from reserving to or conferring on the mortgagor or
the mortgagee, or both, any further or other powers of leas-
ing, or having reference to leasing; and any further or other
powers so reserved or conferred shall be exercisable, as far
as may be, as if they were conferred by this act, and with
all the like incidents, effects, and consequences, unless a
contrary intention is expressed in the mortgage deed.
" (15.) Nothing in this act shall be construed to enable
a mortgagor or mortgagee to make a lease for any longer
term or on any other conditions than such as could have
been granted or imposed by the mortgagor, with the con-
currence of all the incumbrancers, if this act had not been
passed.
" (16.) Section not retrospective. — This section applies
only in case of a mortgage made after the commencement
of this act ; but the provisions thereof, or any of them, may,
by agreement in writing made after the commencement of
this act, between mortgagor and mortgagee, be applied to
a mortgage made before the commencement of this act, so,
nevertheless, that any such agreement shall not prejudicially
affect any right or interest of any mortgagee not joining in
or adopting the agreement.
"(17.) Contract for lease. — Tlie provisions of this section
referring to a lease sliall be construed to extend and apply,
as far as circumstances admit, to any letting, and to an
agreement, whether in writing or not, for leasing or letting."
[♦.GS] * Sect. 29. — By Tenants hif Elegit, ^c.
Leases l)y tenants under executions, as tenants by elegit,
are conditional, and may be determined by payment or satis-
98
Cii. I. S. 30.] LEASES BY RECEIVERS. *58
faction of the debt and costs (w). Until so determined they
remain as valid as any other demises (o). Where a fieri
facias has issued against the property of a debtor, his term
for years remains in him until the sheriff has actually assigned
it; therefore until such assignment the purchaser of the
term cannot make a valid lease of it (jt>). With respect to
leases made b}^ the debtor before the execution of a writ of
elegit, the tenant by elegit (i.<?., the execution creditor) is
a mere assignee of the reversion, and may, without any
attornment, sue or distrain for the rent which becomes due
after the filing of the writ and the inquisition thereon {q)^
provided the inquisition be valid, but not otherwise (r). He
cannot eject a previous tenant until after his term expires
or becomes forfeited, or is determined by notice to quit or
otherwise (/).
Sect. 30. — By Receivers.
Leases by receivers. — Receivers appointed by the High
Court cannot demise without the authority and direction of
the court (^).^ They are bound to obtain the best terms (u).
(n) Price v. Varney, 3 B. & C. 733 ; (r) Arnold v. Ridge, 13 C. B.
Cole Ejec. 566. 745.
(o) But see Doughty v. Stiles, Rep. (s) Doe d. Da Costa ;•. Wharton, 8
temp. Finch, 115. T. R. 2 ; Cole Ejec. 566.
(/)) Playfair v. Musgrove, 14 M. & (0 Morris v. Elnie, 1 Yes. jun. 130.
W. 239 ; 3 D. & L. 72 ; Doe d. Hughes A receiver may be appointed by any
V. Jones, 9 M. & W. 372 ; 1 Dovvl., N. Division of the High Court (.Judlca-
S. 352; Cole Ejec. 569. ture Act, 1873, s. 24).
(7) Ramsbottom v. Buckhurst, 2 (m) Wynne v. Ld. Newborough, 1
M. & S. 565; Lloyd v. Davies,2 Exch. Ves. jun. 164.
103 ; Cole Ejec. 566.
1 A receiver of a railroad may under direction of the court, prior to
foreclosure sale, continue to operate a connecting road leased to the mort-
gagor road. Milteiiberger r. Logansport Ry. Co., 106 U. S. 286, 313.
And he may be authorized to take leases of other railway lines, and oper-
ate them as a part of tlie road already in his hands, where the exercise of
such power is for the best interest of all parties concerned. Gibert v. Wash.
City, Virginia Midland, &c., R. R. Co., 33 Gratt. (Va.) 586; Beach on
Receivers, sec. 357.
"A court of equity having in charge the mortgaged property ... is
authorized to do all acts that may be necessary within its corporate power to
99
*59 BY WHOM TERMS GRANTED. [Oh. I. S. 31.
A lease under seal granted by a receiver in a cause wherein
A. B. is plaintiff and C. D. is defendant, for a term of four-
teen years, and reserving rent to the receiver and to any
future receiver in the cause, would create a tenancy by
estoppel as between him and the lessee, and give a right to
distrain for rent (a;).
Effect of attornment to a receiver. — An attornr»ent to a
receiver creates a tenancy by estoppel between the tenant
and the receiver, which the court applies to the purpose of
collecting and securing the rents till a decree can be pro-
nounced, taking care that the tenant shall be protected, both
while the receiver continues to act, and when by the authority
of the court he is withdrawn (^). It does not oper-
[*59] ate as an attornment to the parties * interested so as
to enable any of them to distrain, for thereby the
object of the court in appointing the receiver would often
be effectually defeated (2).
It may be mentioned here, that a receiver of rents from
sub-tenants may be appointed pending an action by a landlord
for recovery of land (a).
Sect. 31. — By Lords of Manors and Copyliolders.
By the lord. — Every one having a lawful interest in a
manor may make voluntary grants of copyholds escheated or
come to his hands, as well as admittances, according to the
custom of the manor, rendering the ancient rents and ser-
(.t) Dancer v. Hastings, 4 Bing. 2; Trustees, 20 Beav. 332; 24 L. J. Ch,
cited in Morton v. Woods, L. R., 3 Q. 640.
B. 058, 0(i8. (2) Evans v. Mathias, 7 E. & B.
(//) Ilufclies V. Hughes, 1 Ves. jun. 500; see White v. Small, 22 Beav. 72;
161; Evans v. Mathias, 7 E. & B. 26 Id. 191 ; Barton i;. Rock, 22 Beav.
G02; 26 L. J., Q. B. 300; Jolly v. 81.
Arbutlinot, 4 De G. & J. 224 ; 28 L. J., («) Gwatkin v. Bird, 52 L. J., Q. B.
Ch. 547 ; Ames v. Birkenhead Docks 262.
|)rescrve the property and to give it additional value," &c. {per Christian, J.,
in GiV)ert v. Wash., &c., R. R. Co., 33 Gratt. 586).
A receiver of a lessee will not he i>ersonally liahlc if he waive the term,
except to the extent of assets in iiis hands. Martin v. Black, 0 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 ; 0 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, 0 Hare, 443. (d) Collon r. Wriiriit, 7 E. & B.
(h) Combe's case, 0 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) 0 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.!; 0
(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 (</). Where an infant rented a house, and exer-
cised his trade as a barber therein, it was held that it was
properly left to the jury to decide whether it Avas as a neces-
sary of life, or a mere incident to his trade (7<). In the lat-
ter case, as an infant is incapable by law of trading, he would
not be liable ; in the former case he would (i).
Election to avoid — when made. — The election to avoid a
lease must be made by the infant within a reasonable time
after he attains his full age (/) ; and an acquiescence of
four months after majority has been held to preclude an
infant from afterwards disaffirming a lease (/c). An acqui-
(e) Walker v. Tliclmrdson, 2 M. & (7) Hands v. f>]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 (</).^ She may,
however, avoid it after his death (r). A married woman
living separate from her husband may, at common law, by
taking a lease, bind her separate estate for payment of the
rent and performance of the covenants (s), and it is expressly
provided by the Married Women's Property Act, 1882, 45
«fc 46 Vict. c. 75, sub-s. 3 and 4, not only that " every con-
tract entered into by a married woman shall be deemed to be
a contract entered into by her with respect to and to bind
her separate estate, unless the contrary be shown : " but also
that " every contract entered into by a married woman with
respect to and to bind her separate property shall bind not
only the separate property which she is possessed of or
entitled to at the date of the contract, but also all separate
property which she may thereafter acquire."
Lease's to husband and wife. — If a lease be made to a hus-
l>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<l at their peril to take
notice of the legal limits of those powers, per Gray, C. J., in Davis i'. Old
Colony R. R., 131 Mass. 258, 260.
See further as to the n\etiiods of acting and doctrine of ultra vires, ante,
ch. 1, sec. 12, notes.
122
Ch. II. S. 10.] LEASES TO PARISH OFFICERS. *74
gate cannot take a lease from the corporation (/c). A corpo-
ration sole cannot make a lease to himself in his natural
capacity (^) ; but there is no objection to such a lease being
made in trust for the grantor. One member of a corporation
aggregate cannot make a lease of corporate lands to another
member ; thus, a dean cannot make a lease to his chapter (/c),
nor vice versa. But a lease may be made by the dean and
chapter to one of the prebendaries, as a prebendary is not an
integral part of the body politic (A;). Where land
was let to the churchwardens and * overseers of the [*74]
poor, jointly with the surveyors of the highways, and
their successors, it was held that it was not within 59 Geo. 3,
c. 12, s. 12, though let at a vestry meeting and for the pur-
poses of the poor ; and that therefore the parties were indi-
vidually liable (Z).
Canal companies. — By 21 & 22 Vict. c. 75, s. 3, made per-
petual by 23 & 24 Vict. c. 41, canal companies being also
railway companies, may not accept a lease of a canal or rail-
way, except under the authority of a special act.
Sect. 10. — To Parish Officers.
Leases for workhouses. — The 9 Geo. 4, c. 7, s. 4, and 59
Geo. 3, c. 12, ss. 8, 9, authorize parishes to purchase or hire
houses for the purposes of lodging the poor, and to build
workhouses thereon : and to resell what may be no longer
(k) Salter i;. Grosvenor, 8 Mod. (/) Utliwatt v. Elkins, 13 M. & W.
;50;J. 772.
Leases to members. — Corporations may (in America) make valid
contracts with their members tlie same as witli strangers. Angel & Ames on
(Corporations (lltli ed.) sec. 2o3, citing Worcester Turnpike v. Willard, 5
Mass. 85 {per Parsons, C. J.) ; Gilmore v. Pope, 5 Id. 491 ; Berk's Turnpike
Co. V. Myers, 0 S. & R. (Pa.) 12; Gordon v. Preston, 1 Watts (Pa.) .385;
Central Railroad r. Clagliorn, 1 Speers Eq. (S. C.) 545; Ely v. Spraguc, 1
Clarke Ch. (N. Y.) 351.
The United States Supreme Court held in Bank of Augusta v. Earle, 13
I'et. 519, 587, thnt a corporation was an entirety and (in the language of
Taney, C J.) its contracts were not contracts "of the individual members,"
but " of the artificial being created by the charter." Upon this broad princi-
ple a lease by a corporation to one of its members stands upon the same
footing as a lease to a stranger.
123
*75 TO WHOM TERMS GRANTED. [Ch. II. S. 10.
wanted. Such assurances, if made for value, are not chari-
table, nor affected by the Statutes of iNIortmain (»«)•
Guardians of unions ma}', by order of the Local Govern-
ment Board and with consent of ratepayers, hire buildings for
union workhouses, &c., pursuant to 4 & 5 Will. 4, c. 76, s. 23.
Temporary hirings. — By 30 & 31 Vict. c. 106, s. 13, "guar-
dians may, with the approval of the Poor Law Board, hire or
take on lease, temporaril}', or for a term of years not exceed-
ing five, any land or buildings for the purjDose of the relief
or employment of the poor and the use of the guardians or
their officers, without smy order of the said board under seal."
Not more than twenty acres. — By 59 Geo. 3, C. 12, s. 12,
churchwardens and overseers may, with the consent of the
vestry, purchase, or hire or take on lease for and on account
of the parish, any suitable j)ortion or portions of land within
or near to tlie parish not exceeding twenty acres in the
whole, and employ paupers to cultivate the same (w). By
sect. 17, all such land is to be conveyed, demised and assured
to them and their successors, and they are to take and hold
the same " in the nature of a body corporate for and on behalf
of the parish." Any such assurance should be made to them
"and their successors," not to them, their heirs and as-
signs (m). Where land was let to the churchwardens and
overseers of the poor, jointly with the surveyors of the high-
wa3^s, and their successors, it was held that it was not a case
within the above act though let at a vestry meeting and for
the purposes of the poor, and that therefore the ])arties were
individually liable (<?). A demise to churchwardens and
overseers in their name of office would be good, and
[*7o] no * acceptance thereof under any common seal
need be alleged in pleading (jo). They are not ex-
actly a corporation, but only a quasi corporate body of a
peculiar kind (*/).
Lease to overseers. — By 24 & 25 Vict. c. 125, " the over-
()ft) Rurnaby r. Harsby, 1 II. & N. (/)) Smith v. Adkin.«, 8 M. & W.
32fj ; 28 L. J., Kx. .'JiiG. 302 ; 1 Dowl., N. S. 120.
(n) As to letting sucli land, see (7) Gouldsworth v. Knight, 11 M.
ante, Chap. I., Sect. Ifl, \^. .'51. & W. 337.
(0) Uthwatt V. Elkins, 13 M. & W.
772.
124
Cii. II. S. 11.] TRUSTEES OF FRIENDLY SOCIETIES. • *75
seers of any parish in Eng'land, the population whereof shall
exceed 4,000 persons according to the census for the time
being, with the consent of the vestry, called after due notice,
and with the consent of the Poor Law Board, signified by
an order under their seal, may hire any room, or purchase or
take upon lease or exchange any land or building, or sell
land belonging to such parish, and invest the proceeds of
such sale in the pitrchase of other land and building, or erect
a suitable building on any land acquired as aforesaid, for the
purpose of an office for the transaction of the business of the
parish" (?').
Sect. 11. — To Trustees of Friendly Societies.
Leases under Friendly Societies Act. — By the Friendly
Societies Act, 1875 (38 & 39 Vict. c. 60, s. 16), "a society"
[registered under that act, see sect. 8], "or any branch of a
societ}^, may, if the rules so provide, hold, purchase or take
on lease in the names of the trustees for the time being of
such society or branch, in every county where it has an
office, any land, and may sell, exchange, mortgage, lease or
Imild upon the same (with power to alter and pull down
buildings and again rebuild) ; and no purchaser, assignee,
mortgagee or tenant shall be bound to inquire as to the
authority for any sale, exchange, mortgage or lease by the
trustees ; and the receipt of the trustees shall be a discharge
for all monej^s arising from or in connection with such sale,
exchange, mortgage, or lease ; and for the purpose of this
section no branch of a registered society need be separately
registered.
Not more than one acre. — Provided that nothing herein
contained shall authorize any benevolent society " [/.e., a
society for any benevolent or charitable purpose, see sect. 8]
"to hold land exceeding one acre in extent at any one time."
This enactment is considerably wider than the corresponding
sect. 63 of the repealed act of 1855 (18 & 19 Vict. c. 63),
which allowed land not exceedinor one acre to be held for
the purpose of building only, the restriction of quantity
(?) The Act contains other clauses for carrying the above into effect.
125
*76 • TO WHOM TERMS GRANTED. [Ch. II. S. 13.
being general, and not confined to benevolent societies.
The act of 1875 is a consolidating one (s).
[*76] * Sect. 12. — To Trustees of Public Baths and Wash-
houses.
By 9 & 10 Vict. c. 74, intituled " An Act to encourage
the Establishment of Public Baths and Wash-houses," after
providing in what manner the act may be adopted by munici-
pal corporations, or (with the approval of one of lier Majes-
ty's principal secretaries of state), by any parish in England
not within any such incorporated borough, and for the
appointment of commissioners for carrying that act into exe-
cution in any such parish ; sect. 27 enacts, " that the council
of any such borough, and the commissioners, with the ap-
proval of the vestry of any such parish, may, if they shall
think fit, contract for the purchase or lease of any baths and
wash-houses already or hereafter to be built and provided in
any such borough or parish, and appropriate the same to the
purposes of this act, with such additions or alterations as
they shall respectively deem necessary : " and the trustees
of any such public baths and wash-houses, with such consent
as therein mentioned, are authorized to sell and lease the
same to the said council or commissioners (i).
When a municipal corporation provides baths and wash-
houses under the provisions of this act, the property becomes
vested in the body corporate with all incidental liabilities,
and not in the council (u).
Sect. 13. — Of Land for Free Public Libraries^
Museums, ^c.
Lease to town council. — 15y " The Public Libraries Act,
1855 " (a:) (18 & 19 Vict. c. 70, s. 18), " the council of any
(s) See Duvi.'i on Friendly Societies, (u) Cowley v. Mayor, &c., of Sun-
A.D. 187(5. (krland, 0 II. & N. Gfif).
(0 Sec also 10 & 11 Vict. c. 31, ss. (.») Aniended by 34 & Sf) Vict. c.
130-142. 71, the Public Libraries Act, 1871.
126
Ch. II. S. 14.] PvATEPAYERS FOR TUBLIC IMPROVEMENTS. *77
borough and the board of any district respectively may from
time to time, with the approval of her Majesty's treasury,"
for the purposes of that act, " rent any lands or any suitable
hidldings ; " and the council and board and commissioners
respectively may, upon any lands so rented, "erect any
building suitable for public libraries or museums or both, or
for schools for science or art, and may apply, take down,
alter and extend any buildings for such purposes, and re-
build, repair and improve the same respectively, and fit up,
furnish and supply the same respectively with all requisite
furniture, fittings and conveniences."
*Sect. 14. — To Rate:payers for Public Improvements. [*77]
Lease to ratepayers. — By 23 & 24 Vict. c. 30, intituled " An
Act to enable a Majority of Two-Thirds of the Ratepayers of
any Parish or District, duly assembled, to rate their District in
aid of Public Improvements for general Benefit within their
District" (sect. 1), ••' it shall be lawful for the ratepayers of any
parish maintaining its own poor, the population of which, ac-
cording to the last account from time to time taken thereof by
the authority or parliament, exceeds five hundred persons, to
purchase or lease lands^ and to accept gifts and grants of land,
for the purpose of forming any public ivalk^ exercise or play-
ground, and to levy rates for maintaining the same, and for
the removal of any nuisances, or obstruction to the free use
and enjoyment thereof, and for itnproviny any open walk
or footpath, or placing convenient seats or shelters from rain,
and for other purposes of a similar nature." By sect. 2,
"this act may be adopted for any borough, or for any parish
having a population of five hundred or upwards (according
to the last account taken by authority of parliament), in the
same manner as the act of the 9 & 10 Vict. c. 74, may be
adopted in such borough or parish." By sect. 7, any rate
under the act may not exceed sixpence in the pound.
To inhabitants. — A lease cannot generally be made to the
inhabitants of a parish or township, because they cannot take
127
*78 TO WHOM TEEMS GRANTED. [Ch. II. S. 16.
as such, not being a corporate body (^). But a grant from
the crown to the inhabitants of a parish, would in effect incor-
porate them, though for the purpose of such grant only (z).
Sect. 15. — To Trustees of Renewable Leaseholds.
Renewal of leases by trustees. — By 23 & 24 Vict. C. 145, S. 8,
" it shall be la'U'f ul for any trustees of any leaseholds for lives
or years which are renewable from time to time, either under
any covenant or contract or by custom or usual practice, if
they shall in their discretion think fit ; and it shall be the duty
of such trustees, if thereunto required by any person having
any beneficial interest, present or future or contingent, in such
leaseholds, to use their best endeavours to obtain from time to
time a renewed lease of the same hereditaments on the accus-
tomed and reasonable terms, and for that purpose it shall be
lawful for any such trustees from time to time to make
[*78] or concur in making such surrender of *the lease for
the time beinor subsistinq;, and to do all such other
acts as shall be requisite in that behalf ; but this section is
not to apply to any case ♦where by the terms of the settle-
ment or will the person in possession for his life or other
limited interest is entitled to enjoy the same without any
obligation to renew the lease or to contribute to the expense
of renewing the same." By sect. 9, money required for
renewal of leases, &c., may be raised by mortgage.
A trustee, whose duty it was to renew leaseholds out of
the rents, applied them to his own use : — Held, that the
tenant for Hfe, and not those in remainder must bear the
loss (a).
Sect. 10. — To Agents and Trustees.
Leases to agents. — With respect to agents and other per-
sons whose duties are to protect their principals and to pre-
(y) Weekly i'. WiUlman, 1 Ld. C. P. 210. Hut sec Vestry of Ber-
Raym. 405, 407 ; Abbot i-. Weekly, 1 niondsey v. Hrown, 14 W. R. 213.
Lev. 170; Loekwood v. Wood (in (r) WiHini,'aU' r. Maitland, L. R., 3
error), 6 Q. B. 62 ; Constable i^. Nich- Eq. 103, 100 ; 3<5 L. J., Ch. fi4.
Olson, 14 C. B., N. S. 230 ; 32 L. J., (a) Solley i-. Wood, 29 Beav. 482.
128
Ch. II. S. 16.] LEASES TO AGENTS AND TRUSTEES. *78
vent the property from being let at an undervalue, Courts of
Equity view with considerable jealousy contracts entered
into for leases to them. It is incumbent on a person in the
situation of an agent to show that the transaction is perfectly
fair and reasonable, and that a just consideration has been
given by him for a lease obtained fiom his principal (/*).
The same observation also aj)plies to persons in the situation
of debtor and creditor, solicitor and client, and mortgagor
and mortgagee (c)
Lease to trustee. — If a lease be made to a trustee, he is
personally liable for the rent and covenants (J), and the les-
sor has no remedy at law against the cestui que trust in
respect thereof. The trustee, however, where he holds lease-
hold property for a tenant for life and remaindermen, has a
duty to the remaindermen to keep it free from risk of forfeit-
ure, and is entitled to have the rent employed in so keeping
it (g), and further, except in case of personal default, would
seem to have a right to be indemnified out of the trust
fund (/).
If there be a personal default on the part of the trustee,
he would seem to have no right to be indemnified.
A lease by a trustee to himself seems to stand on the same
footing as a sale by trustee to himself ; ^.g., it is a transaction
of the greatest nicety, and one which the courts will watch
with the greatest jealousy (^).
(h) Ld. Kingsland v. Barncwell, 4 ing Co.. 5 De G., M. & G. 629; 25 L.
Bro. P. C. 154; Ld. Hardwicke v. J., Ch. G;].3.
Vernon, 4 Ves. 411; Lady Ormond i\ (e) Fowler, Tn re, L. R. 16 Ch. D.
Hutchinson, 16 Ves. 94; Grosvenor 72:]; 44 L. T. 99 ; 29 W. H. 891, per
V. Sherratt, 28 Beav. 659 ; post. Chap. Fry, J.
IX., Sect. 4. (/) Lewin on Trusts, 7th ed. p.
(c) Gubbins v. Creed, 2 Sch. & 217.
Lef. 214; Webb v. Ilorke, Id. 661; (g) See Lewin on Trusts, 7th ed.
Fisher, s. 873; poxt, Cli. IX., Sect. 4. pp. 4;}8-451 ; ch'mg Ex parte Hujrhes,
(c?) Walters v. Northern Coal Min- 6 Ves. 617 ; Att.-Gen. v. Earl of Clar-
endon, 17 Ves. 491.
129
[*79] * CHAPTER III.
OF WHAT TERMS MAY BE GRANTED.
8BCT. PAGE
1. Corporeal and Incorporeal
Hereditaments 79
2. Advowsons 79
3. Tithes and Tolls ..... 80
4. Commons and Estovers . . 81
SECT. PAGE
5. "Ways 82
6. Franchises 82
7. Annuities 83
8. Right of Sporting .... 83
9. Chattels 83
Sect. 1. — Corporeal and Incorporeal Hereditaments.
Leases of corporeal hereditaments. — Leases for life, or for
years, or from year to year, may be made of anythiiif^ cor-
poreal or incorporeal which lies in livery or grant (a).^
Corporeal hereditaments consist wholly of substantial and
permanent objects, as land, houses, &c., and were, before
the 8 & Vict. c. 106, said to lie in livery ; but, by sect. 2 of
that act, " all corporeal tenements and hereditaments shall,
(a) Shep. Touch. 2G8.
^ Examples of leasable property. — The following are a few examples
of property, corporeal or incorporeal, subject to be leased, viz. : —
A mill with water-power macliinery and tools. Dexter r. ^lanlcy, 4 Cush.
14; land with connected easements, incjluding foot path, Alexander r. Tol-
leston Club, 110 111. 05 ; a water-power, Blanchard v. Ames, 00 N. H. 404 ; a
ferry, Macdoneil v. I. & G. N. Ry. Co., GO Tex. 590; Eraser i;. Drynan, 4
Allen (N. B.) 74; rigiit to collect wliarfage, Mayor v. Mabie, 13 N. Y.
151; a town wharf, Inlibts. of Hingliam w Sprague, 15 Pick. 102; a min-
ing and oil privilege, Duke v. Hague, 107 Pa. St. 57 ; the exclusive riglit
to cut ice from a pontl, Ricliards ?-. Gauffret, 145 Mass. 480; motive power
to be generated by steam upon adjoining premises, Sliarpe v. Cutlibert, 4
Q. B. D. (Queb.) 211; a seat in a theatre, 22 Fed. Rep. 380; a wagon,
Fairbank v. Phiips, 22 I'ick. 535. Railroad and francliises may be demised
under special statutory authority. See ante, cli. 1, sec. 12, notes, and ch. 2,
sec. 9, notes, &c.
A lease for years is held not to be a conveyance of real estate. Perkins
V. Morse, 78 Me. 17; Tone v. Brace, 11 Paige (N. Y.) 5(50. A demise of
right to collect wliarfage for one year is not a conveyance of real estate.
Mayor v. Mabie, 13 N. Y. 151.
130
Ch. III. S. 2.] LEASES OF ADVOWSONS. *80
as regards the conveyance of the immediate freehohl thereof,
be deemed to lie in grant as well as in livery."
Definition. — An incorporeal hereditament is a right issuing
out of a thing corporeal (whether real or personal), or con-
cerning, or annexed to, or exercisable within the same (5).
Incorporeal hereditaments are principally these : viz.^ advow-
sons, tithes, and tolls, commons and estovers, ways, offices,
franchises, corrodies and pensions, and annuities (c). They
are, generally speaking, capable of being demised ; but such
demise, even for less than three years, must be by deed, for
they lie in grant and not in livery ((:?). But a right of way
appurtenant to land will pass by a parol demise of the
land (e), and so will a right to dig turf, or other easement,
although not specially mentioned (/) ; so a market, with the
right to take the tolls, may be demised without deed (^).
Where there is a demise of premises, and an entire rent re-
served, if any part of the premises cannot be legally demised,
the whole is void (A).
Sect. 2. — Advoivsons.
Lease of advowsons. — An advowson (advocatio) is the right
of presentation to a church or ecclesiastical benefice.
Although it has been said that an advowson * cannot [*80]
properly be the subject of a demise, on the ground
that as no profit is permitted to acci'ue, no rent can be re-
served, nor any services performed to the proprietor (?') ; yet
this does not seem to be quite correct ; for a lease may be
made not only of lands, but of all other hereditaments (A:),
such as advowsons, tithes, offices not concerning the admin-
istration of justice, and the like (V) ; and the lessee of tithes,
{b) Co. Lit. 19 b, 20 a. (^) Bridgland v. Shapter, 5 M. &
(c) Rex V. Alresford, 1 T. R. 358; W. 375.
Musgrave v. Cave, Willes, 323 ; 1 (A) Doe d. Griffith v. Lloyd, 3 Esp.
Inst. 9. 78.
(c?) Mayfield v. Robinson, 7 Q. B. (/) Com. Dig. tit. Advowson
486; Wood v. Lcadbitter, 13 M. & W. (C. 2). ■
839. (A-) Bac. Abr. tit. Leases (A.).
(e) Skull V. Glenister, 16 C. B., N. (/) 2 Cruise, ss. 22, 24 ; Bousher v.
S. 81 ; 32 L. J., C. P. 185. Morgan, 2 Anstr. 404 ; Cox v. Brain,
(/) Dobbyn v. Somers, 13 Ir. Com. 3 Taunt. 95.
L. Rep., N. S. 293.
131
*80 OF WHAT TERMS GRANTED. [Ch. III. S. 3.
advowsons, or any incorporeal hereditaments, Avould be liable
to an action for the rent agreed upon (i7i). An advowson is
a tenement (ji). Where a lessee for years of an advowson
was presented to the benefice by the lessor, it was adjudged
to be a surrender to his term (o).
Sect. 3. — Tithes and Tolls.
Leases of tithes. — By 5 Geo. 3, c. 17, persons having any
spiritual or ecclesiastical promotions are enabled to grant
leases of tithes, tolls or other incorporeal inheritances, solely
and without any lands or corporeal hereditaments, for one,
two or three life or lives, or for any term not exceeding
twenty-one years, which shall be "as good and effectual in
law against such archbishop, bishop, masters and fellows, or
other heads and members of colleges or halls, deans and
chapters, precentors, prependaries, masters and guardians of
hospitals, and other persons so granting the same, and their
successors and every of them, to all intents and purposes, as
any lease or leases already made or to be made b}^ any such
archbishop, &c.," b}^ virtue of the stat. 32 Hen. 8, c. 28, or
any other statute then in being ; and actions of debt may be
brought by such lessors for rent in arrear, as in the case of
any other landlord or lessor. Leases of tithes must be by
instriiment under seal, as incorporeal hereditaments only lie
in grant {p). A parson may grant his tithes for years ((^),
so he may lease them for so long a term as he sliall continue
parson (r) ; and rent may be reserved on such lease (s) ;
or the parson may demise them without any rent, if he
pleases {t). Under the settlement of an estate with a power
to the tenant in possession to let all or any part of the
(m) 2 Woodd. 09 ; Tio<r. Ecc. L. 17 ; (/)) Gardiner v. Williamson, 2 B. &
Co. Lit. 119 1). Ad. .r.d.
(n) Kcnsey r. Lanfjliam, Gas. tomp. (7) Shop. Touch. 241.
Talbot, 144 ; Co. Lit. 10, 20; 2 Hlac. (;) Brewer v. Hill, 2 Anst. 413.
Com. 17; Robinson i'. Tongue, 3 P. (.s) T) Geo. 3, c. 17.
Wms. 4(!1. (t) Walker v. Wakcman, 1 Ventr.
(o) Gybson v. Searls, Cro. Jae. 84, 204 ; 2 Lev. 150; 3 Keb. 597.
176.
132
Ch. III. S. 4.] LEASES OF COMMONS AND ESTOVERS. *81
premises, so as the usual rents be reserved, a lease of tithes
which had never been let before was held void (u).
* By the Tithe Commutation Act (G & 7 Will. 4, [*81]
c. 71), the lessees of tithes commuted to rent-charges
may surrender and avoid their leases, on certain terms, as to
compensation and apportionment of rent, to be settled by the
commissioners. Until they do so, they continue liable to
pay the rent reserved by their leases (a;).
Tolls maybe let or mortgaged (^).
Leases of tolls. — By 3 Geo. 4, c. 126, s. 57, all contracts or
agreements for letting of turnpike tolls, signed by the trus-
tees or their clerk, and the lessee or farmer, and his sureties,
shall be valid notwithstanding the same may not be by deed
or under seal. It has been held that an agreement for the
letting of tolls signed by the clerk of the trustees and by the
lessee or farmer of the tolls was valid, and therefore could
be enforced by the trustees notwithstanding it had not been
signed by the sureties ; their execution of the agreement
being a formality for the benefit of the trustees, which they
might waive without prejudice to their rights against the
lessee or farmer of the tolls (3). Where a lessee of turn-
pike tolls compounded with a person using the road for tolls
for three years, it was held that such agreement was not
prohibited by 3 Geo. 4, c. 126, s. 55 (a).
Sect. 4. — Commons and Estovers.
Leases of commons. — Rights of common may be demised
by deed (6). With respect to commons, the 13 Geo. 3, c. 81,
s. 15, empowers the lord of any manor, with the consent of
three-fourths of the persons having right of common upon the
(«) Pomcry v. Partington, 3 T. R. C. 24 ; Shepherd v. Hodsman, 18 Q.
6G5. v.. 316 ; Markliam v. Stanford, 14 C.
(x) Tasker v. Bulhnan, 3 Exch. B., N. S. 370 ; Gunning on Tolls, 140.
351. (?) Markham v. Stanford, 14 C. B.,
{y) Fairtitle d. Mytton v. Gilbert, N. S. 376.
2 T. R. 160 ; 3 Geo. 4, c. 126 ; 4 Geo. (a) Stott r. Clegg, 13 C. B., N. S.
4, c. 95, s. 51 ; Bell v. Nixon, 9 Bing. 619 ; 32 L. J., C. P. 102.
393 ; Pearse v. Morrice, 3 B. & Ad. (h) Sury v. Brown, Latch, 99.
396 ; Olroyd i-. Crampton, 4 Bing., N.
133
*82 -OF WHAT TERMS GRANTED. [Cn. III. S. 5.
wastes and commons within the manor, at any time to demise
or lease, for any term or number of years not exceeding four
years, any part of such waste and commons not exceeding a
twelfth part thereof, for the best and most improved yearly
rent that can by public auction be got for the same ; and
directs that the clear net-rent shall be applied to drain, fence
and otherwise improve the residue of the waste and commons.
When the lord of the manor conveys away a part of the
wastes to a third person, though the right of ownership of
the soil changes hands, the right of common still subsists in
the commoners iis well over that part of the wastes that the
lord has conveyed away, as over that part which he retains
in his own hands (c). A common will not pass without
express words (cZ).
[*82] * Leases of estovers. — Estovers may be leased ; the
grantee, therefore, house-bote, or hay-bote, may let it
to another (c). Estovers to be burned on land demised will
not pass without express words (/).
Sect. 5. — Wai/s.
Leases of ways. — A right of way legally appurtenant to
land is demisable with the land (//), and will pass with it
without being expressly mentioned (/i), even by a parol
demise (Q ; so will a right to dig turf, or other pre-existing
easement (7c). But after a way or other easement has been
extinguished by unity of ownership, it cannot be revived by
a grant or lease of the dominant tenement containing gen-
eral words, such as " rights, members, easements and appurte-
nances thereunto belonging or appertaining" (Q. But it
(c) Benson v. Chester, 8 Tr. 396, 190 ; Staple v. Ileydon, 6 Mod. 1, 3 ;
401. Howton V. Fearson, 8 T. R. 50, 56 ;
(rf) Clark V. Coggc, Cro. Jac. 170, Bac. Ahr. tit. Offices (H.).
190. (0 Skull V. Glenister, 16 C. B., N.
(e) Sliep. Touch. 222 ; Bac. Abr. S. 81 ; 32 L. J., C. P. 185.
tit. Leases (A.). (A) Dohbyn v. Somers, 13 Ir. Com.
(/) Clark .;. Cogge, Cro. Jac. 170, L. Rep., N. S. 293.
190. (/) Barlow v. Rhodes, 1 Cr. & M.
(fj) O-sborne v. Wise,? C. & P. 701. 439, 448.
(h) Clark v. Cogge, Cro. Jac. 170,
134
Ch. III. S. 6.] LEASES OF FRANCHISES AND CORRODIES. *83
may pass by the words " or therewith usually held, occupied
or enjoyed " (m). And if it be a way of necessity it will pass
with the principal subject-matter of the grant or demise,
without any mention of ways or appurtenances (?i). So will
a watercourse or other necessary easement (o).
Sect. 6. — Franchises and Corrodies.
Leases of franchises. — Franchises may be demised by
deed (p), except indeed in some few particular cases (as
where the franchise is a personal immunity, &c.) ; thus a fair
or market, either with or without the right of taking toll,
either there or at any other public places, as at bridges,
wharfs, or the like, may be demised (^). A market, with a
right to take the tolls, may be demised without deed (r).
A franchise granted to one cannot be bestowed on another
to the prejudice of a former grant (s). Every fair is a mar-
ket, but every market is not a fair (t). A market which is
held on the wrong day (Saturday instead of Friday) is not a
market "legally established " (?t). The right to a market
may be barred by the Statute of Limitations (.z;)-
* A corrody is a right of sustenance, originating in [*83]
the endowment of lands : in lieu of which, especially
when due from ecclesiastical persons, a pension or sum of
money was sometimes substituted; and these were charge-
able on the person of the owner of the inheritance in respect
thereof (y). A corrody was either certain or uncertain, and
might not only be for life or years, but in fee. If one had a
corrody for life, he might let it to another, or to the grantor
himself (z).
(?n) James v. Plant (in error), 4 A. (s) 2 Roll. Abr. 191.
& E. 749 ; Kooystra v. Lucas, 5 B. & (0 2 Inst. 221, 406.
A. 830 ; Bradsliaw v. Eyre, Cro. Eliz. (») Benjamin v. Andrews, 5 C. B.,
570. N. S. 299.
(n) Morris v. Edgington, 3 Taunt. (.r) Holcroft v. Steel, 1 Bos. & P.
24 ; Davies v. Sear, L. R., 7 Eq. 427. 400.
(o) Sury V. Pigot, Popham, 166. (//) 2 Blac. Com. 40.
(p) Duke of Somerset v. Fogwell, (~) Bac. Abr. tit. Leases (A.) ; R.
5 B. & C. 875. V. Nicholson, 12 East, 3-30 ; Peter v.
(7) 2 Inst. 221, 406. Kendal, 6 B. & C. 703; Beere v.
(7) Bridgland v. Shapter, 5 M. & Windebanke, Sid. 80.
W. 375.
135
*84 OF WHAT TERMS GEAjSTTED. [Ch. III. S. 9.
Sect. 7. — Annuities.
Leases of annuities. — An annuity is an annual sum of
money granted to another in fee, for life, or years, which
charges the person of the grantor only ; or it may be due by
prescription, which always implies a grant. Such annuity
may be demised by way of assignment (a). Rents may also
be granted by way of lease (?>).
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; 0 A. & E. Lewis, 0 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 secti<m of the (e) L. R., 21 Ch. D. 9; 52 L. J.,
vStatute of Frauds included "suit"; Ch. 2; 40 L. T. 858; 31 W. R. 109;
but, however this may be, courts of C. A.
equity, even before the statute, would
1 By the 4th section of the Statute of Frauds as re-enacted in America
the same distinction pointed out in the text between tlie requirements as to
leases and agreements for leases, has been established here, as exists in Eng-
land.
The agreement for a lease, or a memorandum of it, must in all cases be in
writing (subject to the doctrine of part performance of course).
139
*86 AGREEMENT FOR LEASE. [Ch. IV. S. 1.
would be granted is not a tenant from year to year only,
but a tenant holding under the lease itself.^ In this case the
defendant agreed to grant and the plaintiff to accept a lease
at a jEixed rent payable in advance, and for this rent in
advance, after entry by the plaintiff and part payment of
rent, the defendant distrained, and the court granted an
injunction restraining the distress upon the terms that the
rent should be paid into Court. It is to be observed that
the plaintiff having entered and paid rent would, even at
law as a tenant from year to year, have been liable to dis-
tress (/) and that if the dictum of Jessel, M. R., be correct,
the Stat. 8 & 9 Vict. c. 106, whereby leases for more than
three years must be by deed, is rendered practically inopera-
tive. The dictum has been twice approved of (^) ; but it
is submitted that it is still doubtful whether the case is one
in which before the Judicature Act there was a conflict
between the rules of law and the rules of equity in respect
to the same matter.
Uselessness of agreement. — However this may be, it is
suggested that an agreement for a lease may well be dis-
pensed with in most cases, and that it would be better for
both parties that a tenant should be let into possession upon
an actual lease. The agreement has no advantage in saving
any stamp duty (/7^, but some short binding contract may
sometimes be required for the reason that each party wishes
to bind the other in a shorter time than would be occupied
by the negotiations as to the terms of a lease. In such cases
it would frequently suffice that ths intending tenant should
either enter on an express contract of tenancy from year to
year only, leaving the terms of the lease to be settled by
after negotiations, or should pay a small deposit in return
for the privilege of more prolonged negotiations.
(/) See Knipht v. Bennett, 11 Chitty, J., in Alllmsen v. Brooking,
Moore, 222, and 410, post. L. R. 26 Ch. D. at p. 505.
(ff) By Field, J., in MauRlian in (g) See post, Sect. 2.
re, L. R. i4 Q. B. D. at p. 058, and by
' Lease in equity. — "An aKreement for a lease is a lease in equity," ;;cr
Mowat, V. C, in Simmons v. Campbell, 17 Cliy. (Ont.) (512, (>17.
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., 0 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, 0 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., 0 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 <lenied in Massachusetts, Kidder r\ Hunt, 1 Pick.
r.Ma8s.)328; Thompson r. Gould, 20 Id. 134; Adams r. Townsend, 1 Met.
(Mass.) 483; Jacobs v. Peterborough, &c., R. R. Co., 8 Cush. (Mass.) 223;
Buck V. Dowley, 1(5 Gray, 555; tlio cases being i)laced upon two grounds, viz.:
that tliey were within tiie Statute of Frauds, and that the powers of the
court were limited to "specific performance " of "written" contracts. Rev.
Sts., Ch. 81, sec. 8.
The equity powers were sufficiently enlarged in 1857 (St. 1857, Ch. 214) ;
and full equity powers were granted by St. 1877, Ch. 178, sec. 1, now Pub.
104
Cii. IV. S. 4.] ACTION FOR SPECIFIC PERFORMANCE. *100
The principle upon which courts of equity exercise their
jurisdiction in decreeing specific performance of a parol
agreement accompanied by part peiformance, is the fraud
and injustice which would result from allowing one party to
refuse to perform his part, after part performance by the
other upon the faith of the contract ((/).
What acts are or are not sufficient. — In equity the acts of
part performance must be such as are referable to the con-
tract as alleged, and consistent with it (r) ; ^ and such as
cannot be referred to any other title than the alleged agree-
ment, nor be considered done with any other view or design
than to perform it (s). Tlierefore the mere possession Ijy
the tenant is not sufhcient, because that may be referred to
his character as tenant, under the implied tenancy created
by entry (f)? So the expenditure by the tenant of monies
(7) Buokmaster v. Harrop, 7 Vcs. L. J., Ch. 441 ; affirmed, Dom. Proc.
340; Munday v. Joliffe, 5 Myl. & Cr. 14 L. T., N. S. 110; Nunn v. Fabian,
177 ; Gregory v. Wilson, 2 Hare, 690 ; L. R., 1 Ch. Ap. 35, 40 ; 35 L. J., Ch.
Fry, s. 338; Dart V. & P. (558, 6G0; 140.
Wilson V. West Hartlepool R. Co., .34 (s) See Maddison v. Alderson, 8
L. J., Ch. 241 ; 13 W. R. 361 ; L. JJ. App. Cas. 473 ; 52 L. J., Q. B. 737 ;
Caton V. Caton, L. R., 1 Ch. Ap. 137, 49 L. T. 303 ; 31 W. R. 820.
148; Addison on Contr. 392 (7th (0 Wills r. Stradling, 3 Ves. 378;
ed.). Morphett v. Jones, 1 Swans. 181;
(r) Fry, s. 386 ; Tomkinson f. Faulkner v. Llewellyn, 31 L. J., Ch.
Straight, 17 C. B. 697 ; Faulkner v. 549 ; 12 W. R. 193 ; 5 Vin. Abr. 323,
Llewellyn, 31 L. J., Ch, 549; 11 W. pi. 41 ; but see Pain v. Coombs, 3 Sm.
R. 1055 ; 12 W. R. 193 ; Powell v. & Giff. 449 ; 1 De Gex & J. 24 ; 3
Lovegrove, 8 De Gex, M. & G. 357; Jur., N. S. 307, 847; Miller v. Finlay,
Price V. Salusbury, 32 Beav. 446; 32 5 L. T., N. S. 510.
Sts., Ch. 151, sec. 4. And the doctrine of part performance is now in full
force in Massachusetts. Potter i-. Jacobs, 111 Mass. 32 ; Curran v. Holyoke
Water Power Co., 116 Mass. 90.
^ Part performance, essentials of. — Payment of the entire purchase
money (alone) is not a sufficient ])art performance. Johnson v. Tlie Canada
Company, 5 Chy. (Ont.) 5-58; Barnes v. Boston & Maine R. R., 130 Mass. 388.
- Acts decisive of the character of the occupation are sufficient.
Examples : possession and payment of rent are sufficient to hold both
parties. Walsh v. Rundlette, 2 MacArthur (Supreme Ct. D. C.) 114; Clark
V. Clark, 49 Cal. 586.
Entry and making improvements are sufficient. McFarlane /-. Dickson,
13 Chy. (Ont.) 203; Lloyd's Law of Building and Buildings, sec. 92. Pos-
session and enjoyment by lessee for part of term are sufficient against liis
sureties on the rent. County of Huron v. Kerr, 15 Chy. (Ont.) 265. Con-
tinuance in possession under a contract for a new lease and payment of
165
*101 AGREEMENT FOR LEASE. [Ch. IV. S. 4.
on the farm in the ordinary course of husbandry, is no part
performance of an agreement for a lease, but attributable to
his implied tenancy (w). But possession and special expendi-
ture by the tenant, provided that it be such that would be
likely to take place only in the pursuance of such a contract
as that alleged, and it be with the privity of the other party,
is an act of part performance : as where the tenant enters
and builds, or causes expensive alterations to be made (a-).
Outlay by sub-lessee. — And an outlay by a sub-
[*101] lessee, made with the * knowledge and approval of
the party agreeing to grant the lease, has been held
to be as much part performance as if it had been the outlay
of the tenant himself (y/). The laying out of considerable
sums of money by a person who enters under an agreement
for a long term, is rationally to be referred to such agreement,
rather than to the mere tenancy at will to be implied from
(i() Brennan v. Bolton, 2 Dru. & Mundy v. Joliffo, 5 Myl. & Cr. 167 ;
^V. 349; Fry, ss. 387, 402. Surcome v. Pinniger, 3 De Gex, M. &
(x) Wills V. Stradling, 3 Ves. 378; G. 571 ; and see Farrell v. Davenport,
Stoekley v. Stockley, 1 V. & B. 23; 8 Jur., N. S. 862, 1043.
Toole r. Medlicott, 1 Ball & B. 393 ; (//) Williams r. Evans, L. R., 19
Sutherland v. Briggs, 1 Hare, 26; Eq. 547 ; 44 L. J., Ch. 319.
higher rent are sufficient. Spear v. Orendorf, 26 Md. 37 ; Story's Eq. Jur.
Sec. 763.
In case of a vendee, possession and payment of part of purchase money
are sufficient, Farquhasoii v. Williamson, 1 Ciiy. (Ont.) 93; Bomier v. Cald-
well, 8 Mich. 463; likewise possession and making improvements, Jennings
V. liohertson, 3 Chy. (Ont.) 513; Rogers r. Rogers, 2 Id. 137, 145; Arguello
V. Edinger, 10 Cal. 150, 160; or possession part payment and valuable im-
provements. Potter V. Jacobs, 111 Mass. 32; and possession with part pay-
ment by intended vendee, together witii execution without delivery of deed
by intended vendor, Dickerson v. Chrismaii, 28 Mo. 134.
Possession, payment of taxes, and labor under special circumstances are
sufficient. McCray i'. McCray, 30 Barb. (N. Y. Supreme Ct.) 633.
Mere possessi(jn by a vendee and payment of interest is not sufficient.
Townsley v. Charles, 2 Chy. (Ont.) 313.
To transform a tenant into an etjuitable vendee, it is sufficient for liim to
remain in possession, and make payments upon the puridiase money ceasing
to pay rent. Butler v. Church, 16 Ciiy. (Out.) 205. But if such acts or
imi)rovements are equivocal and consistent with tlic continuance of the
tenancy, tiu-y are insufficient to cliange the tenant into a vendee. Kankin v.
Simpson, 19 Pa. St. 471.
Acts to be a part performance of any contract must be unequivocally
referrible to that contract. Barnes v. Boston & Maine R. U., 130 Mass. 388.
IIJG
Ca. IV. S. 4.] ACTION FOR SPECIFIC PERFORMANCE. *101
such entry (2). After such expenses have been incurred on
the faith of a lease agreed to be granted, it would be fraudu-
lent and inequitable for the landlord to refuse to grant such
lease (a) ; but tliis cannot be said of the ordinary expenditure
of a tenant. Where a tenant under a term alleged the rebuild-
ing of a party-Avall, which was in a ruinous state during his
term, as part performance of an agreement by his landlord to
grant a renewed term : it was held, that the act was equivocal,
as it might have been done by him as well in respect of his
title under the old term, as under the alleged agreement for
a renewed term (J).
Payment of increased rent. — In Nunn v. Fabian, a landlord
having verbally agreed with his tenant to grant him a lease
for twenty-one years at an increased rent, with the option
of purchasing the freehold, died before the execution of the
lease. Before his death the tenant had paid one quarter's
rent at the increased rate. It was held, that this constituted
a sufficient part performance of the agreement to take the
case out of the Statute of Frauds, and specific performance
was decreed (e).
New lease, &c. — Where an agreement in writing for a
three years' tenancy reserved to the tenant the option of
requiring a twenty-one years' lease at the expiration of the
prior term, V.-C. Wigram appears to have considered that
the tenant's verbal notice of an intention to take the new
lease, accompanied by retention of possession, was binding
upon him (t?). The possession of a tenant after the expira-
tion of his lease, under an agreement for a renewed lease,
has been held a sufficient part performance (e), and so has
the possession of a stranger under an express or implied
{z) Fry, s. 402 ; Farrell v. Daven- ('■) Nunn v. Fabian, L. R., 1 Ch.
port, 3 Gift. 363; 8 Jur., N. S. 862, App. .S5 ; 35 L. J., Cli. 140. Compare
1043. this with Re National Saviiifi? Bank
(«) Frame v. Dawson, 14 Vcs. Association, Ex parte Brady, 15 W.
386 ; Lindsay v. Lynch, 2 Sch. & R. 753.
Lef . 1 ; see Williams ?•. Evans, 32 (rf") Beatson v. Nicholson, 6 Jur.
L. T. 360. 620.
(6) Frame ii. Dawson, and Lindsay (e) Dowell v. Dew, 1 You. & Coll.
i;. Lynch, supra. C. C. 345 ; Dart V. & P. 656.
167
*102 AGREEMENT FOR LEASE. [Ch. IV. S. 4.
agreement for a lease (/). It has also been held, that the
o-iving up a business, coupled with possession, was part per-
formance, although the tenant agreed to pay nothing but
ground rent, rates and taxes ((/).
Terms must be certain. — But the COUrt will not
[*102] decree a specihc performance, although * possession
has been taken, unless the terms of the contract are
clearly proved (A) ; nor if any of the terms are uncertain (i) ;
although vagueness of language in a contract may sometimes
be cured by evidence of surrounding circumstances, and of
the subsequent conduct of the parties (^). The doctrine of
part performance of a parol agreement is not to be extended
by the court, and it is inapplicable in a case where a trustee
has a power to lease at the request in writing of a married
woman, which has not b^en made Q).
Execution of repairs. — In Shillibeer V. Jarvis, after an offer
had been made by a plaintiff to take a lease of a farm from
the defendant a draft was prepared by the defendant's solici-
tors, and approved of by the plaintiff with some alterations,
and was afterwards altered by the defendant himself, and
left by him with his solicitors, for the purpose of its being
ascertained whether the plaintiff would agree to the altera-
tions. On their submitting it to him he agreed to the altera-
tions, but no agreement was signed. A part of the terms
was, that the plaintiff should execute certain repairs before
the lease was granted. The plaintiff was put into possession
by the dhcction of the defendant's solicitors, and executed
some repairs. It was held, that although the plaintiff might
(/) Fry, ss. 397-400; Gregory v. (/) Reynolds v. Waring, 1 You.
Migliell, 18 Yes. 328 ; Vain v. Coombs, 34() ; Price v. Asshoton, 1 Y. & C.
3 Sm. & Gif. 449 ; 1 I)c Gex & J. 34, 441.
40; 3 Jur., N. S. 307, 847. (/>) Oxford v. I'roband, L. Jl., 2 P.
(</) Coles V. Pilkiiigton, L. R., 19 C. C. 135; Coupland v. ArrowsTiiith,
Eq.' 174 ; 31 L. T. 422. 18 L. T., N. S. 75').
(h) Mortal V. Lyons, 8 Ir. Cli. R. (/) l'iiillii)s v. Edwards, 33 Beav.
112. 440.
1 I'arkimrst v. Van Cortlandt, 1 Johns. Ch. fN. Y.) 273; Morton v. "Dean.
13 Met. (Mass.) 385, 388; Gill r. 15icknell, 2 Ciish. (Mass.) 355, 358, 359 (;«'r
Shaw, C. J.).
An agreeinont to take a lease does not hind the intended lessee to take
one containing unusual covenants. Hayden v. Lucas, 18 Mo. App. 325.
I(i8
Ch. IV. S. 4.] ACTION FOR SPECIFIC PERFORMANCE. *103
have been let into possession without authority from the
defendant, there was a concluded agTcenient for a lease on
the part of the defendant, and a sufficient part performance
to take the case out of the Statute of Frauds, and specific
performance was decreed (w). Where the plaintiff and the
defendant entered into an agreement, that when a certain
house belonging to the plaintiff should be completed and
finished fit for habitation, the plaintiff would grant to the
defendant a lease of such house for twenty-one years, and
the defendant took possession before the house was com-
pleted, and occupied it for a year ; but refused to pay rent
or execute the lease until the house should be comi)leted
and finished fit for habitation : whereupon the plaintiff filed
a bill for specific performance, and moved that the defendant
might be ordered to pay the year's rent into court ; the
motion was refused with costs (w) .
Oral agreement must be definite. — Of course the oral agree-
ment, of which the part performance is relied on, must be of
such a nature, i.e. so definite and unobjectionable, that if it
had been in writing, and duly signed, the court would have
decreed specific performance of it (o).
* (b) There must be a Complete Contract. [*103]
Whether the contract be proved by one or more writ-
ings (/>), 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,
0 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 (</).
Counter-proposal. — An acceptance of a proposal or offer,
subject to any new term or other variation, amounts only to
a counter-proposal, which must be accepted purely and
simply before there will be any complete agreement (t?).
Where the proposal or offer is agreed to, but a different day
is named for possession to be given that is not sufficient as
an acceptance (e). The acceptance of a proposal for
a lease, adding, "We hope to give you * possession [*104]
at half-quarter day," has been held sufficient, the
latter words having no legal operation (/). But there is no
complete contract if terms be offered for a lease and accepted
for a sub le^se (^), or if a particular covenant, such as not to
assign without licence, be not agreed to (A), or if even the
questions as to the costs of the counterpart, and by whom it
should be engrossed, are left open (t).
After a counter-proposal. — After a counter-proposal the
party making it cannot accept the first proposal, so as thereby
to make it binding as an agreement. Therefore, where the
owner of a farm offered to sell it to A. for 1,000/. ; upon
which A, wrote offering 950Z. which was refused, and then
C") Bnumaun v. James, L. R., 3 & S. 397 ; see also Johnson v. King,
Ch. Ap. 508; 16 W. R. 877. 2 Bing. 270.
(6) See Reuss v. Pickley, L. R., 1 {g) Holland v. Eyre, 2 Sim. & Stu.
E.x. 342 ; Fry, s. 292. The acceptor 194.
however cannot hiinself be sued on (/*) Lucas v. James, 7 Hare, 410.
the parol acceptance. Fry, s. 294. (/) Forster v. Rowland, 7 H. & N.
(c) See London Dock Co. r. Sin- 103.; 30 L. J., E.x. 39G. Compare this
nott, 8 E. & B. 347 ; 27 L. J., Q. B. with Shillibeer v. Jarvis, 8 De Gex,
347. M. & G. 79, ante, 94; and see Jackson
{d) See Hoheyman ;;. Marryatt, 21 v. Oglander, 2 H. & M. 465; 13 W.
Beav. 14 ; 26 L. J., Ch. 619 ; 6 H. L. R. 936, where the lease had been set-
Cas. 112. tied on both sides and engrossed pur-
(e) Routledge v. Grant, 4 Bing. suant to an oral agreement: — held,
653. no sufficient contract.
(/) Clive V. Beaumont, 1 De Gex
171
*104 AGREEMENT FOR LEASE. [Ch. IV. S. 4.
A. signified his acceptance of the original offer : it was held,
that there was no contract between the parties, and a specific
performance was refused (/r).
Correspondence after proposal. — It not unfrequently hap-
pens that when a proposal or offer is made a correspondence
takes place upon the subject, and it is sometimes difficult to
say whether the result of such correspondence, the construc-
tion of which is for the court, not for a jury, shows a com-
plete contract or merely a series of unaccepted proposals and
counter-proposals (^). Letters will not constitute an agree-
ment which the court will specifically perform, unless the
answer is a simple acceptance, without the introduction of a
new term (wi).
Signed proposal, binding after oral acceptance. — A written
proposal or offer signed hy the defendant and accepted orally
by the plaintiff, is sufficient to satisfy the statute (?i). But
a written proposal or offer signed by the plaintiff, must be
assented to in writing hy the defendant to bind him and to
satisfy the statute (o). The acceptance of a proposal by a
corporation must generally be under their common seal, or
pursuant to the express provisions of some act of parlia-
ment, before there will be any contract (jo).^
Stamp. — A written proposal or offer, which is accepted
orally, need not be stamped as an agreement (^).
(k) Hyde v. Wrench, 3 Beav. 334. (o) Felthouse v. Bindley, 11 C. B.,
(/) See Iloneyinan i'. Marryatt, 21 N. S. 8(59.
Beav. 14; 20 L. J., Cli. 019; 0 11. L. {p) London Docks Co. v. Sinnott,
Cas. 112 ; Ridgway v. Wharton, 0 11. 8 E. & B. 327 ; 27 L. J. Q. B. 347 ;
L. Cas. 238; 27 L. J. Ch. 40; Beau- Ilaifrh v. North Brierly Union, 1 E.,
niann v. James, L. R., 3 Ch. Ap. 508; B. & E. 873, 883; 28 L. J. Q. B. 62;
10 W. R. 877. Copper Miners of Enghmd Co. v.
(m) Wright v. St. George, 12 Ir. Fo.x, 10 Q. B. 229.
Ch. R. 220. (q) Drant v. Brown, 3 B. «&- C.
(n) Reuss v. Pickslcy, L. R. 1 Ex. 005.
342 ; 4 H. & C. 688 ; 14 W. R. 924.
1 It is not now so understood in America. (?>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, 0 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 (<?). Where a stipulation is
omitted from the written agreement, upon the supposition
that it is illegal (c^), or Avhere a party having bargained for
the insertion of a particular term, knowingly, and without
being fraudulently induced thereto, executes an agreement
from which it is omitted (e), equity will hold the omission
binding.
Plaintiff no sufficient title. — By the Vendor and Purchaser
Act, 1874, sect. 2, rule 1, it is enacted that " under a con-
{x) Stevens v. Adamson, 2 Stark. 671; Dr. Bettesworth r. Dean and C.
R. 422. of St. Paul's, Select Cas. Ch. 66.
(y) Ballard v. Way, 1 M. & W. (c) Aubin v. Holt, 2 Kay & J. 70.
520 ; Fry, s. 507. {d) Ld. Irnhani v. Child, 1 Bro. C.
(s) Maxwell v. Port Tenant, &c., C. 92 ; 6 Ves. 332 ; Sug. V. & P. 173
Co., 24 Beav. 495. (14th ed.) ; Dart V. & P. 008.
(a) Lucas v. James, 7 Hare, 410, (p) Shelburne v. Inchiquin, 1 Bro.
418; Dart V. & P. 681, 695. C. C 350; Jackson v. Cator, 5 Ves.
(6) Fry, Chap. IX.; Dart V. & P. 688; Rich v. Jackson, 4 Bro. C. C.
514, 518 ; Dart V. & P. 668.
177
*108 AGREEMENT FOR LEASE. [Ch. IV. S. 5.
tract to grant a terra of years, whether derived or to be
derived out of a freehold or leasehold estate, the intended
lessee shall not be entitled to call for the title to the free-
hold,'' and b}^ the Conveyancing and Law of Property Act,
1881, 44 & 45 Vict. c. 41, s. 13, sulvs. (1), that " on a con-
tract to grant a lease for a term of years to be derived out of
a leasehold interest, with a leasehold reversion, the intended
lessee shall not have the right to call for the title to that
reversion ; " but by sub-s. (2), this section applies only " if
and so far as a contrary intention is not expressed in the
contract, and shall have effect subject to the terms of the
contract and to the provisions therein contained," and by
8ub-s. (3), " to contracts made after the commencement of
the act," i.e. (by s. 2) on or after the 1st January, 1882. If
a party agrees to let an estate, and brings an action for the
specific performance of the agreement, it will be dismissed
with costs, if, in the course of the action, it should appear
that the intended lessor had -a defective title, even though
the objections on which the refusal to take the lease was
grounded were frivolous and untenable (/).^ Where it
appears that the plaintiff is unable, from causes which he
cannot control, to make a good title, a demurrer will be
allowed, and the plaintiff will not be permitted to bring the
cause to a hearing on the chance that he may by that time,
or before certificate, be enabled to sue the defendant (,^).
A purchaser of leasehold premises will not be compelled to
complete liis contract if the title to the reversion expectant
on the lease is admittedly the subject of contest, so that
there is a strong probability of his being involved in litigation
in consequence of disputed claims to the ground-rents (1i).
(/•) Bascomb v. Phillips, 29 L. J., (/i) Peglcr v. White, 33 Beav. 403 ;
Ch. 380 ; « Jur. N. S. IJO:). 33 L. J., Ch. 5G9.
(17) Reeves V. Greenwich Tanning
Co.", 2 H. & M. 54.
' Defect ill title. — Defect in title is a <1efence in a suit upon a eontract
of sale. liichniond r. (iray, 3 Allen (Mass.) 2-i. So is a doubtful title.
Jeffries r. Jeffries, 117 Mass. 1H4 ; Butts v. Andrews, 130 Id. 221 ; Cuuninp-
ham I'. Blake, 121 Id. 333. A mere possibility that a defect in title may turn
up (as that debts against an estate may be discovered) is not sullicient. Hague
V. Harmony Grove Cemetery, 10b Mass. 400, 402.
178
Ch. IV. S. T).] REFUSAL OF SPECIFIC PERFORMANCE. *109
Tf it appear to the court that the plaintiff as sole act-
ing executrix had power to let * or sell, a specific [*109]
performance may be decreed, notwithstanding one of
the conveyancing counsel of the court has given a contrary
opinion (z). An appellate court, notwithstanding its impres-
sion in favour of the vendor's title, will not decree specific
performance in oj^position to the decision of the court below
that a good title cannot be made, unless such decision be
clearly wrong (7c). But the purchaser will be compelled to
take a title which appears to the court of appeal to be good,
although the judge of the court below was of a different
opinion, that fact not being sufficient to constitute a doubtful
title (?). Even at law there was no remedy where tlie plain-
tiff's title was so bad or doubtful that a specific performance
would not be decreed in equity (m).
Unreasonable hardship. — Where a decree for specific per-
formance would impose serious and unreasonable hardship
on the defendant the court will sometimes refuse to inter-
fere, and only award the plaintiff damages ; but much de-
pends on the nature of the hardship, and when and how it
arose (w). Thus, in Costigan v. Hastier (w), where a mort-
gagor had contracted to grant a lease, but failed to obtain the
mortgagee's consent, as he expected to do, and was also shown
to be unable to redeem, the intending tenant failed to obtain
a decree for specific performance, and only succeeded in get-
ting the contract rescinded. But in Long v. Bowring (w),
where the defendant contracted to grant a sub-lease, and to
pay to the intended sub-lessee 1,000Z. by way of liquidated
damages if he should fail to obtain the assent of his landlord
to the sub-lease, it was held that he was not entitled to refuse
to apply to his landlord for such assent, and by paying the
(«) Hamilton v. Buckmaster, L. R., & W. 8 ; and see Hamilton v. Buck-
3 Eq. 323, Wood, V.-C. ; but see master, supra.
Stevens v. Austen, 3 E. & E. 685; 30 (ni) Simmons v. Heseltine, 5 C. B.,
L. J., Q. B. 112. N. S. 554 ; 28 L. ,T., C. P. 129 ; Stevens
(k) Collier v. M'Bean, 35 L. J., Ch. v. Austen, 3 E. & E. 685 ; 30 L. J., Q.
144. But see contra, Beioley v. Car- B. 212; Jeakes v. White, 0 Ex. Ch.
ter, L. R. 4 Ch. Ap. 230, 236. 173.
(/) Beioley r. Carter, L. R., 4 Ch. (») Costigan v. Hastier, 1 Sch. &
Ap. 230; Sheppard r. Doolan, 3 Dru. Lef. 166; Long ;•. Bowring, 33 Beav.
585; Fry, Chap. VI.
179
*110 AGREEMENT FOR LEASE. [Ch. IV. S. 5.
1,000Z. to escape a decree for specific performance. And the
general rule is, that a hardsliip which arises subsequently to,
or independently of, the contract will not be taken into con-
sideration (o).
Injury to property by fire, &c. — The accidental destruction
by fire or tempest of any of the property agreed to be de-
mised would seem to afford no defence to an action for spe-
cific performance. The rule of Paine v. Meller (j^), and
similar cases, that a party who enters into a binding contract
for the purchase of an estate, becomes in equity the owner
of it, and is entitled to any profit and subject to any loss
which may afterwards occur, is applicable to a contract for
a lease. This was clearly recognized in a case
[*110] * heard before the Judicial Committee of the Privy
Council in 1845 (^q), although the plaintiff (the in-
tended landlord) failed to obtain specific performance on the
ground of non-performance on his part of an agreement to
put the premises in repair.
Failure to give possession. — Where the intended could not
give possession on the appointed day, and time was of the
essence of the contract, his bill for a specific performance
was dismissed (r). Where the intended tenant, knowing
that the premises were greatly out of repair, stipulated for
certain specific repairs, which were done accordingly, and he
took possession after being warned that much more expen-
sive repairs were required, and it turned out on a subsequent
examination that it was necessary to take down and rebuild a
wall at great expense, specific performance was decreed (s).
Breach of trust. — Where trustees have inadvertently en-
(o) Evans v. Walshc, 2 Sch. & Lcf. time for performance, failed to re-
419; Revcll v. Ilusscy, 2 IJall & B. cover ilania<;es, is distinguishable on
280; Lavvder v. Blackford, Beat. 522; the ground tiiat tiie existence of tlie
Fry, s. 255 ; Helling f. Lumley, IJ De music hall was an implied essential
Gex & .7. 403. condition of the agreement.
(p) 6 Ves. 349. (r) Tilley >: 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 ; 0
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, 0 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; 0 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., 0 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 (</).
But the plaintiff may be entitled to an equitable lien on
the land for the sums expended on the faith of the agree-
ment, with interest thereon, and to consequential relief (A).
Where the lessor's consent or licence is necessary to an
assignment of a lease, it is the vendor's duty to obtain it,
and if he cannot do so before the commencement of an ac-
''ion for specific performance he cannot maintain such
action (i). The same rule * applies on the sale of a [*114]
{d) Millies V. Grey, 14 Ves. 450 ; ( /") Brace v. Wehnert, 25 Bcav.
Darby if. Whittaker, 4 Drew. 134 ; 348. But see Mayor, &c., of London
Tillett V. Charing Cross Bridge Co., v. Soiidigate, 38 L. J., Ch. 141.
2(5 Beav. 419; 28 L. J., Ch. 803; (y) Abbot v. Blair, 8 W. R. 672;
Fry, ss. 215, 216, 218; see also Col- Baunian v, Matthews, 4 L. T., N. S.
lins V. Collins, 26 Beav. .306 ; 28 L. J., 783, L. C.
Ch. 184 ; Jackson v. Jackson, 1 Sm. (/() Middleton v. Magnay, 2 H. &
& Giff. 184 ; Vickers v. Vickers, L. M. 233 ; 12 W. R. 706 ; Hindlcy v.
R., 4 Eq. 529 ; 36 L. J., Ch. 946. Emery, L. R., 1 Eq. 52 ; 35 L. J., Ch.
(e) Collier v. Mason, 25 Beav. 200 ; 6 ; Turner v. Marriott, L. R., 3 Eq.
Ormes v. Beadel, 2 Giff. 166 ; 30 L. 744 ; 15 W. R. 420.
J., Ch. 1 ; Blackett v. Bates, 34 L. J., (;) Forrer v. Nash, 35 Beav. 167;
Ch. 515 ; 2 H. & M. 270, 610 ; L. R., 14 W. R. 8 ; and see post, Ch. XVII.,
1 Ch. Ap. 117. Sect. 2.
185
*114 AGREEMENT FOR LEASE. [Ch. IV. S. 5.
public house as a going concern, when the plaintiff is
not in a condition to obtain a transfer of the licences at or
before the time fixed for completion of the sale (^).
Agreement not enforcement for uncertainty. — An agreement
to take a lease of a house, if put into thorough repair, and
the drawing-room "handsomely decorated according to the
present style," is too uncertain to be enforced by a decree
for a specific performance (?) ; ^ but where a lessor agreed to
let a house, and to put it into decorative repair, and after-
wards refused to fulfil his contract, the court, at the instance
of the lessee, who had entered into possession, decreed spe-
cific performance of the agreement, with an inquiry whether
the agreement as to decorative repair had been performed ;
and if not, decreed that the lessor should compensate the
lessee in damages (?n). In Faulkner v. Llewellyn, B. agreed
with C. to take a lease of a house which C. was building,
when it was " complete, finished, and fit for habitation : " B.
took possession, but afterwards found various objections to
it, contending that it was not properly finished. The matter
being referred to an expert, he reported that, although there
might be some objections, yet the house was "complete, fin-
(k) Day ?;. Luhke, L. R., 5 Eq. 33G; M. & G. 328 ; and see Jeffery v. Ste-
37 L. J., Ch. 330 ; Claydon v. Green, phens, 6 Jur., N. S. 947; 8 \V. R.
L. R., 3 C. P. 511 ; 37 L. J., C. P. 427, M. R.
511 ; Modlen v. Snowball, 4 De Gex, (m) Samnda v. Lawford, 4 Giff. 42;
F. & J. 143. 8 Jur., N. S. 739.
(/) Taylor v. Portington, 7 De Gex,
1 Uncertainty is a fatal objection to specific performance, even though
there has been part performance. Parkhurst v. Van Cortlandt, 1 Johns. Ch.
(N. Y.) 273, 283, 28G.
Alternative covenants to renew or pay for improvement cannot be en-
forced absolutely. Hutchinson v. Boultoii, 3 Chy. (Ont.) 391.
Lessor cannot compel lessee having simple purchase option to purchase.
M'Calmont c. Mulhali, 4 Allen (N. li.j 200.
Lessee having conditional option cannot compel lessor to sell unless he first .
fulfil the conditions on his own part, Forbes v. Connolly, 5 Chy. (Ont.) 657,
the conditions in this case being covenants to pay rent, &c., and not having
been kept, bill was dismissed.
The following agreement was held to constitute an unconditional purchase
option, viz. : " And the said lessor hereby agrees to give to tlie said lessee the
first privilege of purchasing the said premises at any time witliin
at the i)rice of payable in five yearly instalments," Casey i;. llanlon,
22 Chy. (Ont.) 445; and breach of covenants of lessee were no defence to
suit for performance.
186
Ch. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *115
ished, and fit for habitation." A decree for a specific per-
formance of the agreement was granted (w). W lie re terms
for letting farms provided that all materials required for
buildings proposed to be built, or that might thereafter be
built, should be led at the expense of the tenant ; that the
landlord should drain, the tenant leading tiles ; that gates,
buildings, " &c." should be left in repair by the tenant, the
landlord finding new gates when required; and the landlord
reserved to himself all customary rights and reservations,
such as liberty to cut and plant timber, search for and work
mines or minerals, " &c." allowing the tenant for any reason-
able damages : — It was held, that these stipulations did not
render the agreement uncertain, so as to be incapable of
being enforced specifically (o).
No decree for performance of part exceptions. — The COUrt
will not decree specific performance of part of a contract (p),
unless the residue has been already performed ((/), or the
unperformed part is separable and divisible from the rest,
and does of itself form a complete contract. Thus, in Green
V. Low, the owner of a plot of ground agreed to
grant a lease of it to A. as soon as the * latter had [*115]
erected a villa thereon, but it was stipulated that if
A. should not perform the agreement on his part, the agree-
ment for a lease was to be void, and that the owner might
re-enter. A. was to insure in a particular way, and he was
to have the option of purchasing the fee within two years,
upon certain terms. A. erected the villa, but insured in a
wrong office, and in a wrong name. It was held that the
contract for a lease was independent of the option to pur-
chase, and that notwithstanding the forfeiture of the fu-st,
the latter still subsisted, and a specific performance of the
contract for sale was decreed (r). And where a landlord
agreed to give a builder leases of successive plots of land as
(n) Faulkner y. Llewellyn, 31 L. J., (p) Fry, Chap. XV.; Dart V. &
Ch. 549; 11 \V. R. 1055; 12 W. R. P. 680 ; Ogaen v. Fossick, 32 L. J.,
193. Ch. 73; 11 W. R. 128; Scottish
(o) Parker v. Taswell, 2 De G. & J. North-Eastern R. Co. v. Stewart, 3
559; 27 L. J., Ch. 812; and see Xor- Macq. H. L. Cas. 382.
ris V. Jackson, 3 Giff. 39G; 8 Jur., N. (7) Hope v. Hope, 22 Bcav. 3.")1.
S. 930. (r) Green v. Low, 22 Beav. 625.
187
*115 AGREEMENT. FOR LEASE. [Ch. IV. S. 5.
tlie houses upon each of them should be built up to a succes-
sive stage, it was held that the agreement was in its nature
separable, and could be enforced as to some of the plots by
an assignee of the builder (s). A tenant for years, with an
option of purchasing the fee, must not only give due notice
but also on the proper day pay or tender the purchase-
money; that being a condition pi-ecedent (f). Such a notice
may be given to the infant heir of the lessor, and will con-
stitute a valid contract, which may be enforced in equity
notwithstanding the infant cannot give a discharge for the
purchase-money (m).
After unnecessary delay. — Where one party to an agree-
ment trifles, or shows backwardness in performing his part
of it, equity will not decree a specific performance in his
favour,! especially if the circumstances and situation of the
other party are materially altered in the meantime (2:), or if
(s) Wilkinson v. Clements, L. E., Melton, 2 Dr. & Sm. 278; 34 L. J.,
8 Ch. 95; 42 L. J., Ch. 38; 27 L. T. Ch. 227.
834. ((0 Woods I'. Hyde, 31 L. J., Ch.
(0 Weston V. Collins, 34 L. J., Ch. 295 ; 10 W. K. 389.
353; 13 W. R. 510; Ld. Ranelagh v. (x) Hays v. Caryll, 1 Bro. 1\ C.
1 For example. — The court will not enforce a purchase option (though
unconditional) in favor of lessee who has abandoned the premises without
paying rent, and left for parts unknown, &c., if he afterward return. Young
t;. Bown, 6 Chy. (Ont.) 402.
Laches is not made out by simple delay, as where one in possession imdcr an
agreement to convey fails seasonably to call for the deed. AVestcrn R. R. v.
Babcock, 6 Met. (Mass.) 346, 357, 358.
An agreement for a lease will not be enforced in favor of a lessee upon
payment of arrearages four years after the limited time (twelve months) had
expired. Purvis v. Hume, 3 Allen (N. B.) 299.
But an agreement to renew a lease after expiration of subsisting lease is
not barred simply by lessee's waiting till expiration of sulisisting lease (four
years) and death of lessor and service of notice to quit upon him by executor
of lessor before bringing his bill for specific performance. Ryder ;•. Robinson,
109 Mass. (i7.
The court will not decree execution of a covenant of perpetual renewal,
twelve years after expiration of former lease, the lessee having meantime set
up an adverse title. Myers v. Silljacks, 58 Md. 319. A covenant for perpet-
ual renewal was said, in l^orrison v. Rossignol, 5 Cal. 04, to be contrary to the
policy of the law.
A sealed agreement to surrender February 1, and pay rent until surrender,
is not broken by failure to surrender until February 28, Dainty r. Vidal, 13
A. R. (Ont.) 47, 51 , Ilagarty, C. J., saying, " If . . . the tenant liad been actively
refusing to give possession when requested, a different question might arise."
188
Cii. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *116
the contract be in anywise unilateral, as where there is an
option to purchase, or a right of renewal, or any other con-
dition in favour of one party and not of another (y). As a
general rule, a party cannot call upon a court of equity for
a specific performance, unless he has shown himself ready,
desirous, prompt and eager (2). " It would be dangerous
to permit parties to lie by, with a view to see whether the
contract will prove a gaining or losing bargain, and accord-
ing to the event either to abandon it, or, considering time
as nothing, to claim a sjDecific performance, which is always
the subject of discretion " (a). But it is otherwise where the
defendant has entered into possession, and paid the
rent regularly for fourteen or * fifteen years (6), [*116]
although the mere payment of rent is not enough (c).
In other cases the rule will be relaxed where the strict appli-'
cation of it would work injustice (<?), as where a landlord
has sent a draft lease to a tenant who fails to return it (e),
or where any objection on the ground of delay has been
waived (/). If a vendor of leaseholds makes time the
essence of the contract, and on the daj'^ specified for the
completion of the purchase insists upon the money being
paid, he may, in the event of the purchaser's neglect, omis-
sion or refusal to comply with such request, avail himself of
a power in the contract to annul the sale (^). So where the
126; Norris v. Jackson, 1 Johns. & Qi) Sharp i\ Milligan, 22 Beav.
H. 319 ; 7 Jur., N. S. 540 ; Dart V. 606 ; 23 Beav. 419 ; Clarke v. Moore,
& P. 701, 702; Heaphy v. Hill, 2 1 Jon. & L. 723; Cartan v. Bury, 10
Sim. & Stu. 29 ; Southconib v. Bp. of Ir. Ch. R. 387 ; Fry, s. 738.
Exeter, 6 Hare, 213, 218 ; Chester- (c) Davenport v. Walker, 34 L. T.
man r. Mann, 9 Hare, 206 ; Eads v. 168 ; Powis v. Ld. Dynevor, 35 L. T.
Williams, 4 De Gex, M. & G. 691; 940.
Walters v. Northern Coal Mining Co., (c?) Walker v. Jefferys, 1 Hare,
5 De Gex, M. & G. 629 ; Sneesby v. 353 ; Jones v. Jones, 12 Ves. 188 ; 2
Thorne, 1 Jur., N. S. 1058; Fry, s. Tudor, L. C. Eq. 443 (2nd ed.).
736. (e) Shepheard v. Walker, L. R., 20
(y) Fry, s. 733, citing Brooke v. Eq. 659; 33 L. T. 17.
Garrod, 27 L. J., Ch. 226. (/) Fry, ss. 745, 750; Hudson v.
{z) Milward v. Earl of Thanet, 5 Bartram, 3 Mad. 440; King v. Wil-
Ves. 720, n. ; 2 Tudor, L. C. Eq. 443 son, 6 Beav.- 124 ; Ex parte Gardner,
(2nded.). 4 Y. &, C. Ex. 503.
(rt) Alley V. Deschamps, 13 Ves. (9) Hudson v. Temple, 29 Beav.
225; South-Eastern R. Co. i'. Knott, 536; 30 L. J., Ch. 251; 2 Tudor, L.
10 Hare, 122; Firth v. Greenwood, 1 C. Eq. 452 (2nd ed.).
Jur., N. S. 866.
189
*116 AGREEMENT FOR LEASE. [Ch. IV. S. 5.
purchaser stipulates for possession (which includes a good
title) on or before a certain day, of a leasehold house for his
own residence, if the vendor fail to make out a good title by
the day named, the purchaser may refuse to take possession,
and rescind the contract (A).
Urgency. — In contracts for the lease of working mines,
the time for completion, whether specified or not, is, from
the fluctuating nature of the property, considered as of the
essence of the contract, and the intended lessor is bound to
use his utmost diligence to complete, and in default thereof
the proposed lessee may, by notice, fix a reasonable time for
completion, and, in case of noncompliance therewith, may
rescind the contract (z).
Time will be considered of the essence of the contract in
contracts with ecclesiastical corporations for leases, because
every day changes the value and nature of the thing to be
granted, and also the persons who are to participate in the
fine or premium to be paid (^) : also in other cases where
the property is of fluctuating value (Z), or the property is
wanted for commercial purposes (iti).
When tenant has committed acts of forfeiture. — Specific
performance will not be decreed at the instance of a tenant
who, having entered into possession under an agreement for
a lease, has committed waste, or omitted to repair, or done
other acts which would clearly amount to breaches of the
covenants to be contained in the lease, and for which the
lessor would have been entitled to re-enter and determine
the lease, pursuant to a proviso for re-entry to be therein
contained (n)} But if such breaches are disputed, and
(A) Tillcy V. Thomas, L. R., 3 Ch. (m) 2 Tudor, L. C. Eq. 453 (2nd
Ap. 61; 10 W. R. 061. ed.).
(i) Machryde v. Wcckcs, 22 Roav. (n) Woathcrall v. Gecrinp:, 12 Ves.
533 ; Sharp /'. Wrifrht, 28 Beav. ir>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, 0 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. 0 ; 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. (<l) Bennett v. Womack, 3 C. & P
(a) Taylor v. Horde, 1 Burr. GO. 9G ; 7 B. & C. G27.
(e) Hampshire v. Wickens, infra.
196
Cn. IV. S. ".] DECIIEE FOR A LEASE. *121
is not a usual covenant (/), whether it be restricted by such
words as "such leave not to be Avithheld to a respectable
and responsible tenant," or not. (</)
To trade. — A covenant not to carry on a particular trade,
without the leave of the lessor, is not a usual covenant (A),
and a contract for a lease of a house to contain usual covenants
between landlord and tenant, and a covenant not to convert
the house into a school, does not imply a restrictive cove-
nant upon trading generally («').
To use for particular purpose. — In Bennett v. Womack (^),
the defendant contracted for the purchase of the lease of a
public-house described as held " upon usual and common
covenants." In an action for not completing, the judge
directed the jury to find for the plaintiff upon evidence that
six out of ten public-house leases contained the proviso for
re-entry if the lessee should carry on any other business than
that of a victualler, which proviso had been objected to by
the defendant as uncommon (¥) ; and the court refused to
enter a non-suit.
A contract for a lease (to contain usual covenants) of land
on which the lessee was to build and not to use the premises
for any other purpose than a glass manufactory, was held not
to entitle the lessor to an affirmative covenant by the lessee
to use the premises for such purpose (J).
Registration of sublease. — Where there was an agreement
to take an assignment of a public-house lease subject to cove-
nants "common and usual in leases of public-houses," and
the lease was found to contahi a condition that every under-
lease, &c., should be left with the ground landlord's solicitor,
it was held, the jury having found as a fact that the condi-
tion was not usual, that the condition was a covenant within
(/) Church V. Brown, 15 Ves. 258; (K) Propert v. Tarker, 3 Myl. & K.
Henderson v. Hay, 3 Bro. 0. C. 632 ; 280.
Vere «7. Loveden, 12 Ves. 179 ; Buck- (i) Van v. Corpe, 3 Myl. & K.
land I'. Papillon, 30 L. R., 2 Ch. 67; 269.
36 L. J., Ch. 83. {k) 7 B. & C. 627.
(7) Hampshire v. Wickens, L. R., (/) Doe d. Marquis of Bute v.
7 Ch. D. 555; 47 L. J., Ch. 243; 26 Guest, 15 M. & W. 160.
W. R. 491, per Jessel, M. R.
197
*122 AGKEEISIENT FOR LEASE. [Ch. IV". S. 7.
the contemplation of the agreement, and that the purchaser
was not bound to complete (w).
List of " usual covenants." — The whole question was con-
sidered in 1878 by Jessel, M. R., in Hampshire v. Wickens (</).
In that case the defendant agreed to accept a lease of a
dwelling-house in London " on all usual covenants and pro-
visos," but declined to accej)t the lease proposed to be
granted on the ground that such lease contained a covenant
by the lessee " that he would not, without the previous con-
sent of the lessor, assign, underlet, or part with tlie posses-
sion of the said premises, but such consent not to be withheld
to a respectable and responsible tenant," &c. Jessel, M. R.,
after ruling that " if no objection can be made to an
[*122] * unrestricted covenant against assignment, none can
be made to a covenant that is restricted," held, that
the agreement could not be specificall}^ enforced, and cited
with approval the passage from Davidson's Precedents in
Conveyancing, of which an abstract has already been
given (7i). Subsequently, in Eadie v. Addison (o), where the
defendant had agreed to grant to the plaintiff, a brewer, a
" proper " lease of a public-house, " to be drawn up with all
proper clauses," and approved of by the defendant and his
solicitor, and the defendant refused to grant a lease unless it
contained a clause against underletting, it was held, that
such a clause was not a " proper clause," and the defendant
was decreed to grant the lease without it.
Proviso for re-entry. — In Hodgkinson v. Crowe (p), it was
laid down that, as a " usual " term, the proviso for re-entry
is applicable to the breach of the covenant to pay rent, and
to the breach of no other covenant. In that case there
was an agreement for a lease of mines to contain numerous
terms succinctly statfed, and amongst them "all usual and
customary mining clauses." Bacon, V.-C, hold that the
intending landlord was entitled to have inserted in the lease
a proviso for re-entry on non-payment oi rents and royalties,
(m) Brookes 7'. Drysdiile, L. K., ?, (o) Endio v. Addison, 52 L. J., Ch.
C. r. I). 52; -.M L. T. 407 ; 20 W. U. 80; 47 L. T. 53;}; 31 W. U. 320.
8:]1. (/)) L. R., 10 Ch. 022; 44 L. J.,
(h) Ante, 120 (h). Cli. 080; 33 L. T. 388; 23 W. K. 886.
198
Ch. IV. S. 8.] SOLlClTOll's CHARGES. *123
*'or if and. whenever there should be any breach of the cove-
nants and agreements in the lease contained.*' But this rul-
ing was reversed on appeal ; and James, L. J., expressed the
opinion that the clause of forfeiture for breach of covenant
generally was "a most odious stipulation, offensive, and
oppressive beyond measure " {q}.
Re-entry ou bankruptcy. — A proviso for re-entry on the
bankruptcy of the lessee has been held to be usual in tlie
case of a contract for a lease of a hotel (r), but not of a con-
tract for a mining lease (s), or for a farming lease (0- There
is strong authority for saying that it is not " usual "' (w).
Concluding remarks on " usual covenants." — It is to be
observed that in the majority of the cases (a;) the question
was decided by an equity judge without a jury. Was it so
decided as a question of fact or of law ? Is evidence admis-
sible ? Would a judge be bound to direct a jury to find in
accordance with the equity decisions ? These are open
questions upon the authorities, but it is submitted that what
is usual must in every case be a question of fact to be
decided upon evidence if either party so require, that
*upon an action for specific performance in the [*123]
Chancery Division there would be some reason for
applying for a jury under Order XXXVL, Rule 6, and that
such a jury might find independently of the equity decisions.
Sect. 8. — Solicitor's Charges.
The Solicitors' Remuneration Order, 1882 (?/), prescribes
a scale of remuneration to solicitors for agreements for
(7) As to " Relief against For- " must be treated as distinctly over-
feiture," see Conveyancing Act, 1881, ruled " by Hodgkinson r. Crowe, supra.
s. 14, Ch. VIII., Sect. 6. But note, that in Haines v. Burnett
(r) Haines v. Burnett, 27 Beav. the words were, " such covenants as
500; 29 L. J., Ch. 289. are usually inserted in leases of prop-
(s) Hodgkinson v. Crowe, L. R., 19 ertj' of a similar description."
Eq. 691 ; 44 L. J., Ch. 238 ; 33 L. T. (x) Only in Bennett v. Womack, 7
122. B. & C. 627, and Brookes r. Drysdale,
(0 Hyde v. Warden, L. R., 3 Ex. L. R., 3 C. P. D. 52, was the question
D. 72 ; 47 L. J., Ch. 121 — C. A. submitted \o a jury.
(m) Hyde f. Warden, s«/??a ; Hamp- ((/) See so much of the Order as
shire v. Wickens, supra, where it is applies to agreements for leases and
said that Haines v. Burnett, supra, leases, post, Appendix A., sect. 13.
199
*123 AGREEMENT FOR LEASE. [Ch. IV. S. 8.
leases and leases varying in proportion to the rent, and
accordingly as 'the transaction is completed or not, but not
including stamps, counsel's fees, and other disbursements
" reasonably and properly paid " (Rule 4). The scale, which
is set out in full hereafter (?/), may be generally described
here as a 7-2- per cent, scale on the rental for the intending
lessor's solicitor, and half that amount for the intending
lessee's solicitor. A solicitor concerned for both parties is
to charge the lessor's solicitor's charges, and one-half the
lessee's solicitor's charges.
Charges for negotiations preparatory to an agreement
which resulted in a lease have been, under the order, dis-
allowed on taxation (s).
(s^ Field, In re, W. N. for May 2d, 1885— C. A., affirming Chitty, J.
200
* CHAPTER V.
THE LEASE
[*124]
8BCT. PAGE
1. Definition of " Lease " . . V2i
2. What Leases by Deed . . 127
3. Form of Lease 130
4. Construction 132
5. Description of Premises . 138
(a) Generallj^ 138
(b) " General Words " under
Conveyancing Act . . . 143
6. Term granted 144
(a) Habendum 144
(b) Lease for Life of Lessee 145
(c) " Lease for Lives " . . 146
(d) Commencement of Term 149
(e) Duration of Term . . 153
7. Reddendum 158
8. Express Covenants . . . 159
(a) Generally 159
(b) " Running with Land " . 162
(c) Dependent or Independ-
ent 166
(d) How discharged . . . 171
9. Implied Covenants . . . 172
(a) Generally 172
(b) On letting furnished
house 173
(c) On letting unfurnished
house at low rent . . . 174
10. Exceptions and Reservations 177
SECT. PAGE
11. Provisos and Conditions . 180
12. Schedules, Indorsements,
&c 183
1.3. Stamp 184
14. Execution 188
15. Registry (in Middlesex, &c.) 191
10. Cost of Lease 195
(a) By whom payable . . 195
(b) Scale of Costs .... 196
17. Entry of Lessee .... 197
18. Void or Voidable .... 197
19. Leases under Powers , . . 199
(a) Generally 199
(b) In Possession or Rever-
sion 203
(c) Usual Covenants ... 205
(d) Proviso for Re-entry . 206
(e) Lands usually Let . . 207
(f) Mode of Execution . . 209
(g) Defect in — how cured 209
20. Leases in Reversion . . . 210
21. Concurrent Leases . . . . 211
22. Estoppel 213
23. Bond for Performance of
Covenants 216
24. Rectification, &c., of errone-
ous Lease 217
25. Cancellation for Fraud . . 218
Sect. 1. — Definition of " Lease.'^
Definition. — A lease is a conveyance (a) by way of de-
mise of lands or tenements, for life or lives,i for years,^ or at
(a) In the Conveyancing Act, 1881,
the word " conveyance " includes
"lease" unless a contrary intention
appears.
1 Kenney v. Wentworth, 77 Me. 203. A lease with covenant of perpetual
renewal is not a conveyance of a fee. Page v. Esty, 54 Me. 319, .^26. But
a rent charge may be reserved in a grant of a fee. Farley v. Craig, 11 N.
J. L. 262.
2 Berridge v. Glassey, 112 Pa. St. 442.
201
*124 THE LEASE. [Ch. V. S. 1.
will,^ but always for a less term than the party conveying
himself has in the premises ; for if it be for the whole inter-
est, it is an assignment and not a lease (6). 2 A lease is
usually made in consideration of rent, or some other annual
recompense rendered to the party conveying the premises ^ —
who is called the lessor or landlord — by the party to whom
they are conveyed or let, who is called the lessee or ten-
ant (c).
Distinction between lease and licence to use. — A lease is
also a contract for the exclusive ^ possession of lands or tene-
(b) Beardman v. "Wilson, L. R., cases cited, post, Ch. VII., Sect. 5.
4 C. P. 57 ; 17 W. K. 54 ; and see the (c) Shep. Touch. 266.
1 Laxton v. Rosenberg, 11 Ont. 199, 207.
2 As, for example, where a lessee grants a sublease equal to or greater
than his own term. Stewart v. L. I. R. R. Co., 102 N. Y. 601 ; Langford v.
Selmes, 3 Kay & Johns. 220. A tenant for life cannot grant a valid lease to
continue longer tlian his own life. Wright v. Graves, 80 Ala. 416, 420 (per
Clopton, J.). And a lease for lives made by a tenant for life (not complying
with leasing power) expires with the death of the life tenant. Enright v.
O'Loghlen, 20 L. R. (Ir.) 159.
•^ A reservation of rent is not essential to the character of a lease.
— Though usually made in consideration of rent, a reservation of rent is not
essential to the character of a lease. Failing v. Schenck, 3 Hill (N. Y.) 344;
State V. Page, 1 Speers (S. C.) 408, 429 (per O'Neall, J.); Jackson v.
M'heeler, 6 Johns. (N. Y.) 272 ; McKissack v. Bullington, 37 Miss. 535, 538
(]>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, 0 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, 0 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 (</) ;
(wj) Anderson v. Miillan.l "R. Co., 8 Adol. 175; Bain v. Cooper, 9 M. & W.
E. & E. 614; .30 L. J., Q. B. 04. 701 ; Mnjor v. Salisbury, 2 D. & L.
(n) Pinero t>. .Tmlson. <i Bing. 200 ; 7()3, 7(>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 (<?).
If garden ground be let for years, and the lessee demise part
of the term to an under-tenant, who builds on it, by a grant
of the garden ground, the buildings thereon will pass (e).
It would appear that a lease of " the issues and profits " of
land would pass the land itself; for to have the issues and
profits is the same thing as to have the land itself (/) ; and
it has been held, that if a grant be made of a boilery of salt,
the land passes, for that is the whole profit Q/'). If in a lease
the demised land be mentioned and described as meadow
land, no other evidence is necessary to prove that it was
meadow land at the commencement of the term Qi). By the
grant of a forest, park, chase or warren in the soil of the
grantor, the soil as well as the privilege passes ; but it is
otherwise if the soil be another's (i) ; and a sheep walk
or a foldcourse may include the soil by the custom of the
country (^).
Fishery. — In a parish settlement case, it was held that the
lease of a fishery of a pond, with the spear sedge and the
flags and rushes growing in and about the same, passed
the soil (J').
Ferry. — If a lease of a ferry describes it as a ferry both
ways across a river, whereas it is but one way only, yet it
will pass (m). In the recent Irish case of Dwyer v. Rich (m),
the lease described the lands demised as "bounded on the
west by the river Shannon," and as containing 81^ acres or
thereabouts : it was held that half the soil of the bed of the
river passed under these words, although a map annexed to
the lease showed no boundary either on the bank or the
middle of the river.
■Way. — Where an annual sum Avas payable as tenants'
damages, besides a way-leave rent for a coal railway passing
(d) Jack I'. Mclntyre, 12 CI. &Fin. (/) Crorpwell's case, Dyer, TOO b.
151. (/.) Iluddlcstonu WooilrolTe, 2 Roll.
(«) Burton v. Brown, Cro. .Tac. 648. R. 01.
If) Tarker v. I'lunibor, Cro. Eliz. (/) Rex v. Old Alrosford, 1 T. R.
190'. 358.
(f/) Co. Lit. 4 b. (m) Pim v. Curcll, 0 M. & W. 234.
(h) Birch V. Stephenson, 3 Taunt. («) Ir. R., 0 C. L. 144, Exch.
469; tjliipwith v. Green, 1 Stra. 010.
232
Cn. V. S. 5.] DESCRIPTION OF DEMISED PREMISES. *141
through a farm, it was left to the jury to say whether
* the land covered by the railway passed by the [*141]
agreement of letting to the tenant, because if it did
the cenant, and not the landlord, was entitled to the sum
payable as tenants' damages (o). A demise of a house and
garden described the premises by boundaries which strictly
would include a portion of a piece of ground at the back and
adjoining the garden, which was laid out as a common walk
for a row of houses ; it was held, that this portion of the
common walk was included in the premises demised, though
by the lease a right was granted to the lessee of the use of
the whole of the common walk (j!?).
Effect of word " appurtenances." — The demise of a house
" with the appurtenances " will pass the house, with the
orchards, yards and curtilage and gardens, but not the land;i
esjDecially if it be at a distance, though occupied with the
house ; so the demise of a house " and the appurtenances "
will not pass an adjoining building not accounted parcel of
the house, although held with it for thirty years (9'). So a
demise of premises in Westminster, late in the occupation of
A. (particularly describing them), part of which was a yard,
was held not to pass a cellar situate under that yard, which
was then occupied by B., another tenant of the lessor; for
though prima facie the property in the cellar would pass by
the demise, yet that might be regulated and explained by
circumstances (r). Under a demise of a messuage, with all
rooms and chambers, and the appurtenances thereto belong-
(0) Wilson V. Anderson, 1 C. & K. {q) Fryan v. Wetherhead, Cro.
544. Car. 17.
(p) Curling v. Mills, 6 M. & G. (?•) Doe d. Freeland v. Burt, 1 T.
173. R. 701 ; Press v. Parker, 2 Bing. 456
1 A demise of a dwelling-house will pass a small lot of land iised with it.
Ammidown r. Ball, 8 Allen (Mass.) 293. Generally land will not i)ass as ap-
purtenant to land. Oliver v. Dickinson, 100 Mass. 114 ; Ogden v. Jennings, 62
N. Y. 526.
A water right will pass as appurtenant to a mill. Pickering v. Stapler, 5 S.
& R. 107.
A lease of part of a building will not pass by implication, other parts not
necessary to its use. Hill r. Sliultz, 40 N. J. Eq. 104. A way of necessity
will pass as appurtenant to land, but not the soil over which the way passes.
Leonard v. White, 7 Mass. 6.
233
*142 THE LEASE. [Cu. V. S. 5.
ing, is to be understood all that is occupied together as an
entire messuage at one and the same time ; therefore, such
a demise will not comprehend a room which had once formed
part of the messuage, but which had been separated from it
by means of a wooden partition, and had not been occupied
with it for many years previously to the demise (s). So a
stable will not pass under the renewed lease of a messuage
with the appurtenances, which was not originally demised
therewith and actually forms no part thereof (^). Generally
speaking, land will not pass as appurtenant to a house, but
it may sometimes do so, to effectuate the obvious intention
of the parties (w). Land cannot be appurtenant to a mes-
suage in the proper sense of the word ; nor can one species
of land be appurtenant to another, because the term is only
properly applied to the annexation of incorporeal to corpo-
real hereditaments, in those cases in which the law permits
such an union ; but land may be appurtenant to a
[*142] messuage in common parlance, as * being usually
occupied with it (:r). Whether the thing claimed as
appurtenant be parcel or not must be gathered from evi-
dence : thus where there is a conveyance in general terms
of all that acre called Blackaere, everything which belongs
to Blackacre passes with it; but whether parcel or not of
the thing demised is always matter of evidence (//). Under
a lease of premises, "together with all ways appertaining,
or with any parts thereof used or enjoyed," a right of way
was held to pass, although not expressly mentioned, upon
proof that it was used with the premises at the time the
lease was granted (2) ; but where an under-lease described
the road demised and the ways granted by the words '•'all
ways thereunto appertaining," it was held that a right of
(s) Kerslake v. White, 2 Stark. B., N. S. 463. There are cases both
G08. ways, per V. Williams, J., 7 C. B.
(/) Maitland v. Mackinnin, 1 II. & 714.
C. 007 ; n2 L. J., Ex. 4i». (x) Wilmnre v. Cain, Cro. Kliz.
('0 Hill V. Grange, Dyer, 1.30 b; 018; Anon., Moor. 221; Cro. Eliz.
rir»w. 170, S. C; Baudeley v. Brook, 10.
Cro. Jac. 189; Ilearn v. Allen, Cro. (//) Cole Ejec. 240.
Car. 07; Roe d. Walker v. Walker, 3 {:) Koopstra i-. Lucas, 5 B. & A.
Bos. & P. 375; Buck d. Whalley v. 830; James r. Plant (in error), 4 A.
Nurton, 1 Bos. & P. 53; cited 5 C. & E. 749; cmte, Ch. III., Sect. 5.
234
Ch. V. S. 5.] DESCRIPTION OF DEMISED PIIEMISES. *142
way over the original lessor's soil would not })ass hy these
words (a). A grant of a close, "together with all ways,
easements, and. appurtenances thereto appertaining, and with
the same now or heretofore used, occupied or enjoyed," will
not pass a right of way over an adjoining close used by the
grantor as owner of both closes, no such way having existed
before the unity of possession became vested in him (b).
Generally speaking, a right of way cannot pass under the
word "appurtenances" (c). But a way of necessity may so
pass (t?).^ There is a distinction betw^een easements which
are in their nature continuous and apparent, such as drains
&c., and other easements, such as ordinary rights of way, or
the right to use a pump in adjoining land — the former pass
by a devise or conveyance of the messuage without any
general words ; but the others must be created by an express
grant (e).^ According to the current of the most recent
decisions it would seem that nothing will pass under the
(a) Harding v. Wilson, 2 B. & C. Langley v. Hammond, L. R., 3 Excii.
96. 161, 169.
(6) Thomson r. Waterlow, L. R., 6 (c/) Pinnington v. Gallaiid, 9 Excli.
Eq. 36; .37 L. J., Ch. 495; Langley 1 ; 22 L. J., Ex. 348; Pheysey v.
V. Hammond, L. R., 3 Ex. 161, 169; Vicary, 16 M. & W. 484 ; Hinchcliffe
ante, Ch. III., Sett. 5. v. Earl of Kinnoul, 5 Bing. N. C. 1 ;
(c) Wortliington v. Gimson, 2 E. * Davies v. Sear, L. R., 7 Eq. 427.
& E. 618; 29 L. J., Q. B. 116 ; Clem- (e) Pyer v. Carter, 1 H. & N. 916;
ents V. Lambert, 1 Taunt. 205; "Plant Wortliington v. Gimson, 2 E. & E.
V. James, 5 B. & Adol. 791; 4 A. & 618; 29 L. J., Q. B. 116, 120; Pear-
E. 749, 761; Ackroyd v. Smith, 9 C. son v. Spenser, 1 B. & S. 571, 583; 3
B. 689 ; 10 C. B. 164 ; Dodd v. Bur- B. & S. 761 ; S. C, Polden v. Bastard,
chell, 1 H. & C. 113; 121 ; 31 L. J., 4 B. & S. 258, 263; 32 L. J., Q. B.
Ex. 364; Thomson v. Waterlow, L. 372; S. C. (in error), L. R., 1 Q. B.
R., 6 Eq. 36 ; 37 L. J., Ch. 495 ; 156 ; 7 B. & S. 130 ; 35 L. J., Q. B.
1 Leonard v. Wliite, 7 Mass. 6.
2 What easements pass by implication. — Necessary easements to
which grantor has title will pass by inij)lication. Examples : A right to take
water from a spring, HoUenbeck v. McDonald, 112 Mass. 247; a necessary
right of way, Kent ti. White, 10 Pick. (Mass.) 138; Voorhees v. Burchard,
55 N. Y. 98; even tliough it be not the only possible way, Pettingill v. Porter,
8 Allen (Mass.) 1. A right to use adjoining land may, Voorhees i'. Burchard,
55 N. Y. 98, besides others stated in text.
If a lessor orally lease certain premises agreeing to furnish steam power
from adjoining or servient premises and then convey the latter, the easement
is terminated. Brewing v. Berryman, 2 Pugs. (N. B.) 115. Demises of in-
corporeal hereditaments must be by deed. Reed on St. of Frauds, sec. 801.
235
*143 THE LEASE. [Ch. V. S. 5.
word " appurtenances " which would not equally pass by a
conveyance of the principal subject-matter, without the word
" appurtenances " (/).
[*143] * (b) " General Words "' wiplied by Conveyancing Act.
If the lease be by deed, and bear date on or after 1st Jan.,
1882, certain " general words " are implied by virtue of that
act, by s. 2, subs, (v.), of which "conveyance" includes a
lease made by deed; for s. 6 of that act enacts'as follows: —
Lease of land. — " (1) A conveyance of land shall be
deemed to include and shall by virtue of this act operate
to convey, with the land, all buildings, erections, fixtures,
commons, hedges, ditches, fences, ways, waters, water-courses,
liberties, privileges, easements, rights, and advantages what-
soever, appertaining or reputed to appertain to the land, or
any part tliereof, or at the time of the conveyance demised,
occupied, or enjoyed with, or reputed or known as part or
parcel of or appurtenant to the land or any part thereof.
Lease of buildings. — " (2) A conveyance of land, having
houses or other buildings thereon, sliall be deemed to include
and shall by virtue of this act operate to convey, with the
land, houses, or other buildings, all outhouses, erections,
fixtures, cellars, areas, courts, courtyards, cisterns, sewers,
gutters, drains, ways, passages, lights, water-courses, liberties,
privileges, easements, rights and advantages whatsoever,
appertaining or reputed to appertain to the land, houses,
or other buildings conveyed, or any of them, or any part
thereof, or at the time of the conveyance demised, occupied,
or enjoyed with, or reputed or known as part or parcel of or
appurtenant to, the land, houses, or other buildings conveyed,
or any of them, or any part thereof.
Lease of manor. — " (3) A conveyance of a manor shall be
deemed to include and shall by virtue of this act operate
to convey, with the manor, all pastures, feedings, wastes,
warrens, commons, mines, minerals, (juarries, furzes, trees,
woods, underwoods, coppices, and the ground and soil there-
(/) Cases mpra; and sec Shop. Touch. 89 ; 0 M. & W. 189.
236
Ch. V. S. 6.] TERM GRANTED (HABENDUM). *144
of, fishings, fisheries, fowlings, courts leet, courts baron, and
other courts, view of frankpledge and all that to view of
frankpledge doth belong, mills, mulctures, customs, tolls,
duties, reliefs, heriots, tines, sums of money, amerciaments,
waifs, estrays, chief rents, quit rents, rents charge, rents
seek, rents of assize, fee farm rents, services, royalties, juris-
dictions, franchises, liberties, privileges, easements, profits,
advantages, rights, emoluments, and hereditaments whatso-
ever, to the manor appertaining or reputed to appertain, or
at the time of conveyance demised, occupied or enjoyed with
the same, or reputed or known as part, parcel, or member
thereof.
Application of section. — " (4) This section applies only if
and as far as a contrary intention is not expressed in the
conveyance, and shall have effect subject to the terms of
conveyance and to the provisions therein contained.
" (5) This section shall not be construed as giving to any
person a better title to any property, right, or thing
in this section mentioned * than the title which the [*144]
conveyance gives to him to the land or manor ex-
pressed to be conveyed, or as conveying to him any property,
right, or thing in this section mentioned, further or other-
wise than as the same could have been conveyed to him by
the conveying parties.
" (6) This section applies only to conveyances made after
the commencement of this act."
Sect. 6. — Term granted.
' (a) The Habendum.
Office of habendum. — The habendum is that part of the
lease which begins with " to have and to hold," and properly
succeeds the premises : its office is to limit with certainty
the estate : it may also abridge or alter the generality of the
premises (,^) ; in short, it fixes the quality and quantity of
the estate, and ascertains the meaning of the premises, but
(g) Shep. Touch. 75 ; Com. Dig. tit. Fait (E. 9) ; 2 Prest. Conv. 439, 442.
237
*145 THE LEASE. [Ch. V. S. 6.
cannot contradict or destroy them (7«). Its operation as a
grant is merely prospective from the time of the execution
of the lease : the term is then first created (i) ; but the dura-
tion of it is to be computed from the day in that behalf men-
tioned in the habendum (^). By indenture dated and made
on 19th July, 1851, A. demised to B., to hold from 25th
December, 1849, for the term of fourteen years thence next
ensuing, determinable as therein mentioned ; provided, that
either party might determine the demise at the expiration
of the first seven years thereof by six months' notice : held
that the seven years were to he reckoned from the 25th
December, 1849, and that the lease might be determined on
25th December, 1856 (^). The word "term" in a covenant
in a lease may signify either the time or the estate granted (J).
Where a lease was made on the 10th of October, habendum
from the 20th day of November (not saying in what year)
for five years, the court held that the lease was void for
uncertainty (m). But where a lease was made for years,
to begin at the feast of our Lady JNIary (without expressing
what feast, whether of the Annunciation, Purification, &c.)»
the court held the lease to be good, and that the lessee by
his entry might determine at which of the said feasts
[*145] * the term should begin (»)• A lease to one for life,
habendum to his three sons successively, but omit-
ting to mention the sons in the ])remises of the deed, was
held to be for the life of the father only, and that tlie sons
should not take in possession, or by way of remainder ; for
it being limited to the father for his life, that was a greater
estate than for the lives of others ; and the tlu-ee sons were
(h) riowdon, ir,3 ; Cockingf v. (k) Bird v. Baker, 1 E. & K. 12; 28
Ileathcoto, Lofft, 190; Doe d. Tim- L. J., Q. B. 7.
mis V. Steele, 4 Q. B. 003 ; Bird i-. (/) Evans v. Vaiighan, 4 B. & C.
Baker, 1 E. 4 E. 12 ; 28 L. J., Q. B. 201 ; Wright d. Plowden v. Cart-
7; Smitli L. & T. 104 (2nd ed.). wri^rht, 1 Burr. 282; 1 Ld. Ken. 520;
((■) .Tervis r. Toinkiiison, 1 II. i<l N. Green r. Eihvards, Cro. Eliz. 21(5;
105, 200; Siiaw i-. Kay, 1 E.xch. 412; Cottce r. Bicliardson, 7 E.xeli. 151 ; 2
Lewis V. Milliard, 1 Sid. ;574 ; Wyburd Blac. Com. 14.'? ; Sliep. Touch. 207.
1-. Tuek, 1 B. & P. 404; Dinsdale r. (m) Anon., 1 Mod. 180.
Isles, :3 Keb. 207; 2 Lev. 88. (") Anon., 1 Leon. 227.
238
Cii. V. S. 0] TERM GRANTED (HABENDUM). *145
named as persons to have an estate, and not to make a limi-
tation of an estate (o).
Discrepancy between habendum and reddendum. — The
ordinary rule is, that where there is a discrepancy between
the habendum and the reddendum, the habendum must pre-
vail (jt>) ; 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<l
hereaftcu- rCli. IX.).
244
Ch. V. S. C] TERM GRANTED (COMMENCEMENT). *150
(c) Commencement of Terms for Years.
Certainty in commencement. — As a lease for years is a mere
chattel, it ma}^ be made to commence either presently or at
a future period, at a date to come, as at Michaelmas next, or
at three or ten years after, or after the death of the lessor, or
of J. S. (p).^ A lease to commence upon the expiration of a
previous lease conveys only an interesse termini until the
expiration of the previous lease, and does not amount to an
assignment of the reversion expectant on such lease (^q).
After the day appointed for the commencement of the term,
an interesse termini is sufficient to support an entry or eject-
ment (r). All leases for years, whether they begin in prse-
senti or in futuro, must be certain : that is, they must have
a certain beginning and a certain ending, and so the
continuance of * the term must be certain : other- [*150]
wise they are not good (s). Unless the time of the
commencement of the lease be stated it cannot be known
when the rent is to become due or when the landlord is
entitled to distrain for it.^ But though the commence-
ment of a term must be fixed with certainty, it will be suf-
ficient if it be so fixed when the lease is to take effect
in interest or possession ; for until that time it may depend
upon an uncertainty, viz., either a possible contingency,
which is to precede the interest or possession, or upon
( /)) Shep. Touch. 273. N. S. 96, 103, 105 ; L. R., 1 C. P. 441 ;
((/) Smith V. Day, 2 M. & W. 684 ; 34 L. J., C. V. 201; 35 Id. 141.
Blatchford, app., Cole, resp., 5 C. B., (r) Cole Ejec. 72, 287, 459.
N. S. 514; Lock v. Furze, 19 C. B., (s) 2 Blac. Com. 144 j Shep. Touch.
267, 272.
1 Commencement of term. — A lease, like a deed, Jackson v. Phipps, 12
Johns. (N. Y.) 418; Jackson v. Dunlap, 1 Johns. Cas. (N. Y.) 114, takes
effect upon delivery and acceptance. Witthaus v. Starin, 12 Daly (N. Y.
Super. Ct.) 226.
If the term commence In futuro, yet the interest vests presently. Whitney
V. Allaire, 1 N. Y. 305. If lessor meantime let premises to third party, lessee,
when time arrives, can eject him or sue lessor for damages. Trull v. Granger,
8N. Y. 115.
The date of the loftse is primCi fane, but not conclusive evidence of the
time of delivery. Meagher v. Coleman, 1 Russ. & Geld. (N. S.) 271.
'■^ The time of commencement of a tenancy may be impliedly fixed, without
any date being stated. Billings v. Canney, 57 Mich. 425.
245
*150 THE LEASE. [Cn. V. S. 6.
a limitation or condition subsequent ; but where it is to be
reduced to a certainty upon a precedent contingency, such
contingency must happen in the lives of the parties (t^.
Commencement after prior lease. — A lease to commence
after the determination of a prior lease begins at once, if the
previous lease be void at law : so a lease intended to com-
mence in future, which misrecites the prior lease on which it
depends in a material point, begins immediately Qu). But if
the new lease had misrecited a lease to A., and had then
been made for twenty-one years, to commence after the
expiration of the term of A., the misrecital would be unim-
portant, and the new lease would begin from the determina-
tion of A.'s term (.r).
Lease commences from date ordinarily. — If no date is fixed
for the commencement of the tenancy, it is usually taken to
commence at the date of the lease. ^ This, however, may be
negatived by internal evidence, as where a lease dated on the
20th of December was held, from the fact that the first pay-
ment of a quarterly rent was to be on the 25th of March, to
commence on 25th of December (?/). The words " from the
day of the date " mean either inclusive or exclusive, according
to the context and subject-matter ; and the court will con-
strue them so as to effectuate the intention of the par-
ties C^)-'^ Generally speaking, a lease from the 25th March
(0 Slicp. Touch. 272, 27.",; Doe d. C. P. 377 ; 44 L. J., C. T. 216 ; 32 L.
Hall V. IJichanlson, 3 T. R. 462. T. 30!t ; 23 W. R. 473.
(h) Co. Lit. 46 b. (z) Pugh v. Duke of Leeds, Cowp.
(.r) Foote V. Berkeley, 1 Lev. 235 ; 714 ; Ackland v. Lutley, 9 A. & E.
Woodhouse's case, Dyer, 1)3 b. 870; Bac. Abr. tit. Leases (L. 1);
(if) Sandiil v. Franklin, L. R., 10 Sniitii L. & T. 104, 105 (2nd ed.).
^ Day of date ; indivisible. — In computing time from the date of the
lease, the day of tlie dati' is ordinarily t» be regarded as indivisible.
"The day on whi(di the event hai)i)ened may l)e regarded as an entirety, or
a point of time, and so be excluded from the coiniintation," per Bronson, Cli.
J., in Cornell r. Moulton, 3 Denio, 12, l(i ; and Wihle, J., in Bigelow v. Will-
son, 1 Pick. (Mass.) 48.^), V.)\.
- "From the day of the date." — Generally in America, these words are
exclusive of the date. For example : A lease from first daj' of July begins
July 2nd, 1 Washb. on Real Prop. sec. 202, Atkiws v. Sleeper, 7 Allen
(M:iss.) 487; or from April Ist commences Aprd 2nd, Thornton v. Payne,
5 Johns. (N. Y.) 74. There may be a local custom varying it, as for instance,
the custom in Albany that a lease from May 1st shall connncncc at noon May
24G
Cii. V. S. C] TERM GKANTED (COMMENCEMENT). *151
commences the next day and ends on 25tli March, otherwise
the day on which the last quarter's rent is usually reserved
would be subsequent to the expiration of the lease (rt). A
lease " from the day of the date," and " from henceforth," is
the same thing (J). Sometimes a lease "from the day of the
date " will be construed to mean " from the day of the exe-
cution of the deed" (c), but the more literal construction is
usually adopted (cZ).
* Impossible or uncertain date. — As to an impossi- [*151]
ble or uncertain date, there appears to have been this
distinction taken in the books, viz. that if a lease be made to
begin from an impossible date, as from the 30th of Febru-
ary, or the like, it takes effect from the delivery (e). So if
the lease be dated and is to commence from the " making
thereof," or " from henceforth " (g), or from the executing
of a former lease, and no such lease in fact exist, or if the
(«) Ackland r. TuxMey, supra ; Wil- 4 B. & C. 272; Styles v. Wardle, Id.
kinson v. Gaston, 9 Q. B. 137. 908; Cooper v. Robinson, 10 M. & W.
(6) Llewellyn v. Williams, Cro. (394 ; Doe d. Darlinsiton v. Ulpli, l-'>
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, 0 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 (</).
Where a deed has no date, or an impossible date, as the 30th
of February, and in the deed reference is made to the date,
that word must be construed " deliver}^ ; " but if it have a
sensible date, the Avord date occurring in other parts of the
deed means the day of the date and not of the delivery;
and, therefore, in covenant on an indenture of lease dated
the 24th day of December, 1822, whereby the defendant
agreed, within twenty-four calendar months then next after
the date of the indenture, to procure a certain thing to be
done : it was held, that the deed took effect from the day of
the date, and that the twenty-four calendar months reckoned
from the date (/<)• Where an ease was dated 25th March,
1783, habendum "from the 13th March now last past,'" and
it was proved that the deed was not executed until some
time after the date, it was held, that the term commenced
on the 25th March, 1783, and not in 1782 (i). A deed
having been made in the month of August in a leap j^ear,
the words "the 29th February then next ensuing" were
construed to mean the 29th February in the next leap
year (/c). A lease operates as a grant only from the time
of its execution, and the tenant is not liable for previous
breaches of covenant, although committed after the date of
the deed (I). But the duration of tlie term is to be com-
puted from the day in that behalf mentioned in the lease (?n).
Commencement vrith reference to entry. — In general a let-
ting by parol will be considered to commence from the day
of the tenant's entering, and not with reference to any par-
(/) Miller v. Maynwarinp, Cro. (Z) Ciiapman v. Bcccham, 3 Q. B.
Car. ;5!»7 ; Bassett v. Lewis, 1 Lev. 77. 723.
(f/) Bac. Abr. tit. Leases (L. 1); (/) Shaw v. Kay, 1 Exch.412; Jcr-
Ation., 1 Mod. 180; foote v. Berkley, vis r. Tomijkinson, 1 H. & N. 10;'). 20(5.
1 Sid. 4(iL (tn) Bird v. Baker, 1 E. & E. 12 ;
(/-) Styles V. Wardle, 4 B. & C. 008. 28 L. J., Q. B. 7.
(i) Steele v. Mart, 4 B. & C. 272.
248
Ca. V. S. C] TERM GRANTED (COMMENCEMENT). *152
ticular quarter day (»-). But where a tenant entered in the
middle of a quarter, and afterwards paid for that time to the
heginning of a succeeding reguhxr quarter, from which time
}ie paid half-yearly, his tenancy was held to com-
mence from the quarter succeeding his * entering (o). [*152]
Where, however, the tenant entered in the middle of
a quarter, upon an agreement to pay rent " quarterly and
for the half-quarter," the jury, under the judge's direction,
found that the tenancy commenced from the quarter day
preceding the entry (p). A party having taken possession
on the 1st of August, and at the Michaelmas following paid
the half-quarter's rent, and continued afterwards to pay
quarterly on the usual feast days, it was held, that a notice
to quit at Michaelmas was sufficient ; and that although the
landlord had at first given notice expiring with the half-
quarter, it was not necessarily to be inferred from that cir-
cumstance that the tenancy from year to year commenced
on that day (^). Where a tenant under a lease continued
to hold after the expiration of it as a tenant at will, and
assigned it to another, the tenancy of the assignee was held
to commence at the day on which the original tenancy com-
menced under the lease, notwithstanding the assignee came
in on a different day (r).
Different computations. — A lease may commence at one
day in point of computation, and at another in point of
interest (s), and it may commence from a day that is past;
therefore, a lease "to hold from a day past for fifty years
then next ensuing, the said term to commence and begin
immediately after the determination of an existing lease in
the same premises," was not esteemed uncertain as to its
commencement (^).
Leases commencing on happening of contingencies. — If when
(n) Kemp v. Derret, 3 Camp. 510. (;) Doe d. C.astleton v. Samuel, 5
(o) Doe d. Holcomb v. Johnson, 6 Esp. 173.
Esp. 10. (s) Smith L. & T. 106 (2nd ed.).
(p) Doe d. Wadmore i\ Selwyn, (<) Enys v. Donnithorne, 2 Burr.
Hil. T. 1807; Adams Ejee. 107 ('4th 1190; Moore v. Musgrove, Hob. 18;
ed.). 2 Roll. Abr. 850.
(7) Doe d. Savage v. Stapleton, 3
C. & P. 275.
249
*153 THE LEASE. [Ch. V. S. 6.
the lease is to take effect in interest or possession the years
be certain, it is sufficient, for until that time it may depend
upon an uncertainty ; either upon a possible contingency
precedent to its beginning in possession or interest, or upon
a limitation or condition subsequent ; but if it is to be re-
duced to a certainty upon a contingency precedent, the con-
tingency must have happened in the lives of the parties (i/).
Reference to certainty may cure uncertainty. — Though
there appear no certainty of years in the lease, yet if by
reference to a certainty it may be made certain, it is suffi-
cient (a;). Thus if a lease be granted for years after lives in
being, though it is uncertain at first when that term will
commence, because those lives are in being, yet when they
die it is reduced to a certainty, and that is certain which can
be rendered so (?/). So a lease may be granted for a term
of years to commence at the determination of a previous
term for years which is still subsisting (2;). Ii the
[*153] lease be made to * commence from the end and expi-
ration of the previous term, then, if the prcA^ious
term be surrendered or forfeited, &c., the second term com-
mences immediately ; but if made to commence after the end
and expiration of the twenty-one years aforesaid, then the
second term would not commence until after the expiration
of the twenty-one years (a). Where a lessor let Whiteacre
to A. for twenty years, and Blackacre to B. for forty years,
and then demised both to C. for a term of years, habendum
from the end or determination of the said several demises to
A. and P>., 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, Vau<!;h. 373, 524.
73 ; Bac. Abr. tit. Leases (L. 1) ; {h) Say v. Smith, Plowd. 271 ;
Palmer's case, 4 Co. R. 74. Bishop of Bath's case, (5 Co. R. 35 b ;
Bac. Abr. tit. Leases (L. 3).
1 Certainty in duration of tenancies; not for years. — Examples:
"During the existence of said club," is sufficiently definite, Alexander v.
Tolleston Club, 110 111. 65; for the season of 1855 is suflacicnt in lease of a
251
*lo4 THE LEASE. [Cu. V. S. 0.
otherwise they will be void (i). So an agreement for a lease,
or for an underlease, must mention the term, and from what
day it is to commence, otherwise it will not be sufficient to
satisfy the Statute of Frauds (A;). A demise may be made
for " one year certain, and so on from year to year," and such
demise will create a tenancy for two years at the least (^).
So a demise may be made " for six months, and so on from
six months to six months until determined by either party,"
and such demise will create a tenancy for one year at the
least (?n). So a demise may be made from two years to two
years, or from three years to three years, or the like (w). So
a lease may be made for seven years, and afterwards from
year to year (o), but an agreement to let from year to year,
and for so long as the tenant pays rent, and the landlord has
power to let, confers no particular estate beyond a tenancy
from year to year (jo). An instrument, by which A. agreed
to let and B. to take certain premises, on the terms that B.
should pay certain specified sums varying in amount at the
end of every three years up to a specified date, and which
provided that from and after that date " he should pay the
clear annual rental of 9L till the end of the lease,'''' without
mentioning any period at which the lease was to terminate,
(0 Bac. Abr. tit. Leases (L. 3). 45; Roe d. Bree v. Lees, 2 W. Blac.
(i) Bayley r. Fitzmaurice, 9 H. L. 1171; 3 Prest. Conv. 76. And see
Cas. 78; and ante. Kichaids v. Sely, 2 Mod. 80; 3 Keb.
(/) Doe (/. Chadborn v. Green, 9 A. 038.
& E. G58 ; Doe d. Monck i'. Geeckie, (o) Brown v. Trumper, 26 Beav. 11.
5 Q. B. 841 ; 1 C. & K. 307. (/)) Wood v. Beard, L. R., 2 Ex.
(m) Reg. V. Chavvton, 1 Q. B. 247. D. 30; 40 L. J., Q. B. 100; 35 L. T.
(7i) Hennings v. Brabason, 2 Lev. 800.
ferry, on Miramiclii River, and lease terminates wlien the river freezes.
Eraser u. Drynan, 4 Allen (N. B.) 74; lease for "so long as the lessee, his
heirs, and assigns sliall keep the furnace and buildings on tiie premises" con-
tinues till lessee abandons, and he may rebuild after a fire, Cook v. Bisbee,
18 Pick. (Mass.) 527 ; lease for whole time that lessee remains postmaster
terminates with expiration of his commission as postmaster, Kaston v.
Mitchell, 21 111. App. 18!); lease until premises are sold, and ninety days
notice given, expires upon sale and notice, Dunn r. Jaffray, 3() Kan. 408;
lease of ])remise8 for so long as they sliiiil be used for j»arti(!ular i)urpose ter-
minates when they are n(i loTiger used for kmcIi purpose, Horner r. Leeds, 25
'n. J. L. 100, 115; Hurd v. Gushing, 7 Pick. (Mass.) 100, 170, 174; during the
continuance of a partnersliip expires with close of partnersliip, Russell v.
McCartney, 21 Mo. A])p. 544.
252
Ch. V.S.6.] TERM GRANTED (DURATION). *155
was held good oidy for the time previous to the date at which
the 91. was to commence {q}.
Certainty with reference to collateral matters. — If a man,
grant another a lease of land for ten years, and that if at
the end of every ten years he shall pay the lessor a certain
quantity of tiles, then he shall have a perj^etual demise of
the land from ten years to ten years continually following: ^
this is a good lease for ten years only, and bad as to the rest
for uncertainty (r). If a man make a lease for years, with-
out saying how many, it is a good lease for two years certain ;
because for more there is no certainty, and for less there can
be no sense in the words (.s-) ; but if a man lease lands for
such a term as both parties shall please, it is but a lease at
will (0- A tenancy from year to year is determinable at
the end of the lirst as well as of any subsequent year, unless
in creating such tenancy the parties use words show-
ing that they contemplate a tenancy for two * years [*155]
at least (?f). If premises are taken " for twelve
months certain, and six months' notice to quit afterwards,"
the tenancy may be determined at the end of the first year
by a six months' previous notice to quit (a:). A lease for
one year and so on from year to year until the tenancy
thereby created should be determined as after mentioned,
with a provision that either party might determine the
(q) Gwynne v. Ma3'nestone, 8 C. & (u) Doe r/. Clarke v. Smaridfje, 7
P. 302. Q. B. 957 ; Doe d. Phimer v. Naiiiby,
(r) Say v. Smith, Plowil. 271. 10 Q, B. 473; Bac. Abr. tit. Leases
(s) Bisliop of B:ith's case, G Co. R. (L. 3) ; Agard v. King, Cro. Eliz.
n-)
35 ; Bac. Abr. tit. Leases (L. 3). Legg v. Stnidwick, 2 Salk. 4U ; Deiin
(/) Bao. Abr. tit. Leases (L. 3) ; d. Jacklin v. Cartwright, 4 East, 20,
Bisliop of Batli's case, supra; Com. 32; Harris r. Evans, 1 Wils. 262,
Dig. Estates (H. I); Richardson v. Birch v. Wright, 1 T. R. 380.
Langridge, 4 Taunt. 128 ; Cole Ejec. (x) Thompson v. Maberly, 2 Camp.
448. 673.
1 Perpetual leases. — A perpetual lease is a fee. EfRnger v. Lewis, 32
Pa. St. 3(!7 (/ler Lowrie, C. J.). A lease for a hundred years to one and his
lieirs and assigns, and as much longer as he and they think proper, at annual
rent of 3.£ with leave to surrender, is a fee determinable at will of lessee only.
Effinger v. Lewis, fsiiprn.
A lease for such term as lessee pa^'s rent with covenant to pa}' every year,
no limit being given, is a perpetual lease determinable at will of lessor only
upon forfeiture. Folts r. Huntley, 7 AVend. (N. Y.) 210.
*155 THE LEASE. [Ch. V. S. 6.
tenancy by three months' notice, creates a tenancy for two
years certain (^). A demise for a year, and so from year
to year, is a lease for two years certain at least (//) ; so if a
parson make a lease for a year, and so from year to year as
long as he shall continue parson, or as long as he shall live ;
this is a lease for two years at least, if he live or continue
parson so long (z). So a lease for " the term of six months
from the 1st of January, and so on for six months to six
months," until six calendar months' notice is given, the first
payment of rent to be on the 1st of July, is a tenancy for
twelve calendar months at least (a).
Lease until premises required to be pulled down. — Where
a railway company let premises on a weekly tenancy, with
a collateral agreement that the tenant might have them until
the company required to pull them down, it was held that
the company, on requiring the premises for their own occu-
pation, and not to pull them down, might determine the
tenancy at a week's notice (5).
Lease so long as rent paid, and landlord in possession. — An
agreement that the tenant shall not be disturbed so long
as the rent is paid and the landlord remains in possession
creates a tenancy during the joint continuance of the life of
the tenant and the estate of the landlord (c).
Where there is an optional number of years fixed. — A lease
" for seven, fourteen or twenty-one years, as the lessee shall
think proper," is a good lease for at least seven years, and
not void for uncertainty ((/)• ^ lease made in 1775, for
"three, six or nine years, determinable in 1788, 1791 or
1704," is a good lease for nine years, determinable at the end
of three or six years (e). But the lessee alone has the
option to determine such lease at the earlier periods, on the
ground tliat every doubtful grant must be construed in
0/) Doe <l Chadborn v. Green, 0 A. Lewis, 50 L. J., Q. B. 121 ; 44 L. T.
& E. 058 ; Doe <1. Monk v. Geeckie, 2'.):].
5 Q. B. 841 ; 1 C. & K. 807. (') Wood v. Davis, G L. R., Ir. 50.
(2) Bac. Abr. tit. Leases (L. 3). {<!) Ferguson v. Comisli, 2 Burr.
(«) Hefr. V. Ciiawtoi), I Q. B. 247 ; 10:]2.
Simiison v. Margitson, 11 Q. B. 2:]. (e) Goodrightr/. Hall y. Richardson,
{!)) Ciiesliire Lines (.'onnnittec v. 3 T. R. 402,
254
Cii. V. S. 6.] TERM GRANTKD (DURATION). *156
favour of the grantee (/). The usual form of making such
leases at present is to insert the full term in the habendum,
and add a proviso at the end for one or either of the
parties to put an end to the * term at the shorter [*lo6]
periods. If the option be given expressly to each
party, the lease may be determined by either, or by his
representative entitled to the reversion or term (^) ; and
where the option was given to the respective parties, their
executors and administrators, it was held that the devisee
of the lessor might determine the lease (li). But where the
lease contained a proviso that if either of the parties, their
respective heirs or executors, should wish to put an end to
the term at the end of seven or fourteen years, six months'
notice in writing should be given under " his or their respec-
tive hands," and the lessor died, leaving three executors ; it
was held, that a notice signed by two of them oidy, although
given on behalf of themselves and the other executor, was
not a good notice within the terms of the proviso (Q. A
lease for twenty-one years expressed to "be determinable
nevertheless in seven or fourteen years if the said parties
hereto shall so think fit," is 'determinable only b}^ consent of
both the parties, although it may have been their intention
to give the option to either of them (/c). The notice must
end with the first seven or fourteen years (or other stipulated
period), according to the terms of the proviso, and not at
any other time (Z). It must not end at noon on the right
day (???). Sometimes it is made a condition precedent that
the tenant shall not only give the above notice, but also duly
pay all the rent, and perform all the covenants on his part, to
the termination of the notice (ii). Such a condition is unrea-
(/) Dann v. Spurrier, 3 B. & P. East, 491 ; Doe d. Aslin v. Summer-
39!); Doe d. Webb v. Dixon, 9 East, sett, 1 B. & Ad. 135, 141.
15 ; Price v. Dyer, 17 Yes. 356 ; Cole {k) Fowell r. Frank, 3 H. & C 458 ;
Ejec. 398. 34 L. J., Ex. 6.
(r/) Goodright v. Mark, 4 M. & S. (/) Cadby v. Martinez, 11 A. & E.
30; Bird v. Baker, 1 E. & E. 12. 720; Bird v. Raker, 1 E. & E. 12; 28
{h) Roe d. Bumford v. Ilnyley, 12 L. J., Q. B. 7; Cole Ejec. 398.
East, 464. (w) Page v. More, 15 Q. B. 684.
(?) Right d. Fisher v. Cuthcll, 5 («) See, for instance, Parker v.
Shepard, 6 L. T. G65.
255
*157 THE LEASE. [Cii. V. S. 6.
sonable, and ought to be objected to in the first instance (o).
A lease for thi-ee, seven or ten years, determinable on notice,
stipulated that a quarter's rent should be paid by the tenant
on taking possession, the same to be allowed him for the last
quarter's rent " on the determination of the said tenancy ; "
after a notice to determine the lease at the expiration of the
third year had been given, and before its expiration, the
parties verball}' agreed that the party should continue tenant
for another year, no express mention being made of the terms
of the tenancy ; it was held, that the tenant continued to
hold subject to the terms of the original lease, and conse-
quently that the payment on taking possession was applica-
ble to the last quarter of the fourth year (^^).
Where there is a recurring number of years. — If a lease be
made for twenty-one years, with a further covenant by the
lessor, " that the lessee shall have the same for twenty-one
years more after the expiration of the said term, and
[*lo7] so from twentj'-one * years to twenty-one years, until
ninety-nine years thence next ensuing shall be com-
plete and ended," the first twenty-one years are not to be
reckoned part of the ninetj'-nine years {q'). Where one made
a lease for three 3-ears, and so from three years to three years
until ten years should be expired, it was held to be a lease
but for nine years, and that the odd 3'^ear should be rejected,
because that could not come to fall within any three entire
years, according to the limitation (r). Where there was a
demise of freehold and copyhold lands at an entire rent, to
hold so much as was freehold for twenty-one years and so
much as was copyhold for three years, and there was a cove-
nant for renewal of the lease of the copyhold every three
years toties quoties daring the twenty-one years under the
like covenants; and that in the meantime, and until such
new leases should be executed, the lessee should hold the
said lands, as well copyhold as freehold, &c. ; it was held,
that this was only a lease of the copyhold for three years,
(o) Cole Ejcc. no?. (;•) Bac. Al.r. tit. Leases (L. 3);
(/O Finch V. Miller, 5 C. B. 428. riowd. 272, 522 a.
(q) Manchester College i". Trafford,
2 Show. 3L
256
Ch. V. S. 6.] TERM GRANTED (DURATION). *158
and that the lessor, after the three years, might recover the
premises in ejectment against the lessee, there not having
been any fresh lease granted (s).
Where the term depends on a contingency. — Sometimes a
term is limited conditionally, ex. gr. for ninety-nine years if
the lessee or some other persons therein named shall so long
live (0- Where one made a lease for forty years, "if his
wife or any of their issue should so long live ; " it was ad-
judged that the lease was not determined by the death of
one of them, but should continue till all were dead, by reason
of the disjunctive oi\ which goes to and governs the whole
limitation ; but if the words had been " if his wife and issue
should so long live," there clearly, by the death of any of
them within the forty years, the term had been at an end, by
reason of the copulative and., which conjoins all together,
and makes all their lives jointly the measure of the estate (w).
If a lease be made to two for years, if they should so long
live, it would determine by the death of one of them, because
their life is but a collateral condition and limitation of the
estate, which therefore is broken when one dies : this differs
therefore from a lease to tAvo persons for their lives, for that
gives an estate to both for their lives, and both have an
estate of freehold therein in their own right ; which conse-
quently cannot determine by the death of one of them, for
then the other could not be said to have an estate for his life,
as the lessor at first gave it (x). A lease made for twenty-
one years if the lessee should live so long and continue in
the lessor's service, has been held not to determine
on the * lessor's death (?/). If a lease be made for a [*158]
certain number of years, providing the lessee shall
so long continue to occupy the premises personally, it will
cease and determine whenever he parts with the possession,
even by compulsion of law (z). If a lease be made to J. S.
(s) renny d. Eastliam v. Child, 2 (a-) Bac. Abr. tit. Leases (L. 4) ;
M. & S. 255. Roll. Rep. 309.
(<) Huglies and Crowther's case, 13 (//) Wrenford v. Gyles, Cro. Eliz.
Co. R. 6G; BrudncU's case, 5 Co. R. G43 ; Noy, 70; Cole Ejec. 402.
9 a ; Cole Ejec. 402. (r) Doe d. Lockwood v. Clarke, 8
(u) Co. Lit. '^25 a ; Ld. Vaux's East, 185,
case, Cro. Eliz. 209.
25T
*158 THE LEASE. [Ch. V. S. 7.
for twenty j^ears, if tlie coverture between A. and B. shall
so long continue ; this is a good lease for twenty years
although the dissolution of the coverture may determine it
sooner (a). But a lease to one generally during the cov-
erture of A. and B. would create but a tenancy at will, by
reason of the uncertainty of the duration of the cover-
ture (J). Where a lease for years is made to A. and B., if
they should so long live ; or to A., if he and B. should so
long live ; or if the lessor and lessee, or the lessor and J. S.
should so long live : in any of these cases, if one die the
lease is determined (c). If a lease be made during the mi-
nority of J. S., or until J. S. shall come to the age of twenty-
one 3'ears, these are good leases (^d) ; and if J. S. die before
he come to his full age the lease is ended : so, if a man make
a lease for twenty-one 3'ears, if J. S. live so long (e), or if
J. S. shall continue to be parson of Dale so long ; these and
such like leases are good (/). If A. makes a lease to B.
for so many years as A. and B. or either of them shall live,
not naming any certain number of years : or, if the parson
of Dale make a lease of his glebe for so many years as he
shall be parson there ; this is not certain, neither can it be
made so by any means ; and yet if a parson shall make a
lease from three years to three years, so long as he shall be
parson, this is a good lease for six years, if he continue par-
son so long, and for the residue is void for uncertainty ((jr).
A covenant in a lease for lives that the lease is good for
the lives mentioned therein has been held not to warrant the
subsistence of such lives (A).
Sect. 7. — Reddendum.
"What things are requisite in a reservation. — The reddendum
or reservation of rent is a clause in the lease, whereby the
(a) Sny J-. Smith, I'lowd. 273. .".;'); Boraston's cnse, 3 Co. R. 10;
\b) Bac;. Ahr. tit. Leases (L. 3). Wliittoine v. Lamb, 12 M. & W. 813.
(c) Hnidiu'irs fa.sc, 5 Co. R. fl b; {e) Wrislit i». Cartwright, 1 Burr. 2.
Daniel v. Hill, Cro. Jac. 377 , 1 Roll. (/) Bac. Abr. tit. Lenses (L. 2, 3).
R. 197; Bailcs v. VVenrnan, 2 Veiitr. (.7) Bac. Abr. tit. Leases (L. 3).
74. (h) Coatcs v. Collins, L. R., 7 Q. B.
(</) Bishop of Bath's case, 0 Co. R. 144; 40 L. J., Q. B. 157. See 130,
ante.
^58
Ch. V. S. 8.] EXPRESS COVENANTS AND AGREEMENTS. *159
lessor reserves some new thing to himself out of that which
he granted before , and this commonly and properly succeeds
the habendum, and is usually made by the words " yielding
and paying," or similar expressions. In every good
reservation these * things must always occur : — 1. [*159]
It must be by certain and apt words («'). 2. It must
be of some other thing issuing or coming out of the thing
granted, and not a part of the thing itself, nor of something
issuing out of another thing (/c). 3. It must be of such a
thing whereunto the grantor may have resort to distrain.
4. It must be made to one of the grantors, and not to a
stranger to the deed (I}. But the usual formal reddendum
in a lease is not essential. This subject is more fully treated
of hereafter (m).
Sect. 8. — Express Covenants and Agreements.
(b) Generally.
"What a covenant is generally. — A covenant is either ex-
pressed or implied — it subsists either in fact or in law. An
express covenant is a stipulation in a deed that something
has or has not been done, or that something shall or shall
not be done, or that some right or power then exists, or the
like. An implied covenant, or a covenant in law, is that
which the law implies, though not expressed by words (n).
He who makes the covenant is called the covenantor, and he
to whom it is made the covenantee (o). By 8 »& 9 Vict. c.
106, s. 5, " the benefit of a condition or covenant respecting
any tenements or hereditaments may be taken, although the
taker thereof be not named as a party to the same in-
denture " (p). Before this enactment, when a deed was
made inter partes, no one who was not expressed to be a
(i) Parker v. Harris, 4 Mod. 76; (m) Chap. X., Sect. 2, and see
1 Salk. 262. Smith L. & T. Ill — 121 (2nd ed.).
(i) Doe d. Douglas v. Lock, 2 A. & («) Post, Sect. 9.
E. 705. (o) Shop. Touch. 160 ; 2 Blac. Com.
(/) Doe d. Barber v. Lawrence, 4 304.
Taunt. 23. ( ;)) Ex parte Cockburn, re Smith,
12 W. 11. 184.
. 259
*1G0 THE LEASE. [Ch. V. S. 8.
party could sue on a covenant contained in it ; and this
was not a mere rule of construction but a rule of positive
law {q}. A. covenant is valid and binding although indorsed
on the deed after the signing, but before the sealing and
delivery (r).
By what -words covenants may be made. — No particular
technical words are requisite towards making a covenant (s) ;
for any words or form of expression which import an agree-
ment, or show the party's concurrence in the performance of
a future act, or the intention of the parties mutually to con-
tract, will suffice for that purjDose (t'). Thus, "yield-
[*160] ing and paying," &c. * amount to a covenant, on
which an action lies for non-payment (w) ; so yield-
ing and paying such a rent " free and clear of all manner of
taxes, charges, and impositions whatsoever, is a covenant to
pay the whole rent discharged of all taxes before or after-
wards imposed (a;). The words "provided always, and it is
hereby agreed and declared that," &c. create a covenant (?/),
and so do the words "provided always, and these presents
are upon the express condition that," &c. (s).
Construction of covenants. — All contracts are to be con-
strued according to the intent of the parties, as expressed
by their own words (a) ; and if there be any doubt upon the
sense of the words, such construction shall be made as is
most strong against the covenantor, lest by the obscure
wording of his contract he should find means to evade and
elude it (J). There is, however, a distinction between im-
(q) Chcstcrflold and Midland Silk- (u) Hcllier v. Casbard, 1 Sid. 266 ;
stone Colliery Co. v. Hawkins, 3 H. Porter i'. Swctnani, Styles, 400; Smith
& C. G77 ; 11 Jur., N. S. 408. L. & T. 90 (2nd ed.).
()•) Lyburn v. Warrinj^ton, 1 Stark. (.r) Giles v. Hooper, Carth. 135.
162; Reg. v. Aldborougli, 13 Q. B. (,'/) Bac. Abr. tit. Covenant (A.).
190; Broke v. Sniitli, Moor. 079. (z) Brooks v. Drysdale, L. It., 3 C.
(.s) Stephenson's o.-iso, 1 Leon. 324; P. 1). IJ2 ; (iiite, p. 113 (r).
12 East, 182, n.; Smith L. & T. 121 (<i) Com. Di^;. tit. Covenant (E.
(2nded.). 2); I'lowden, 329 , Ipgulden v. May,
(0 Bush V. Coles, Carth. 232 ; Duke 7 East, 241 ; Smith L. & T. 122 (2nd
of St. Albans v. Ellis, 10 East, 352 ; ed.).
Sampson v. Easterby, 9 B. & C. r>05 ; (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 (</).
Covenants which run with the land therefore bind the
assigns, although not mentioned.'-^ But in preparing cove-
nants which are intended to run with the land, the ""assigns"
should alwaj's be mentioned, for though some covenants will
bind them although not mentioned, and others will not bind
them although mentioned, yet there is a middle class, in
which assignees are bound if mentioned, but not otherwise,
and it is prudent to provide for the possibility of a covenant
being held to belong to this class .^
(») Spencer's case, 1 Smith L. C. 645; Wollaston v. Hakewill, 3 M. &
60 (7th ed.). G. 297; Ilopwood v. Whak>y, 0 C. B.
(jr) Esp. N. P. 290. 744 ; 0 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 (</) : to maintain a sea wall in esse (A) : to
repair, to renew and replace tenant's fixtures and macliinery
(e) Parker v. Webb, 3 Salk. 5. (g) Vin. Abr. Covenant (K. 19) ;
(_/) Dean and C. of Windsor's case, Doe d. Strode v. Seaton, 2 C, M. &
5 Co. R. 24 ; Conan v. Keniise, W. R. 730 ; Martyn v. Clue, supi-a (last
Jon. 245 ; Smitli v. Arnold, 3 Salk. 4; point).
Martyn v. Clue, 18 Q. B. 6(31 ; 22 L. (h) Morland v. Cook, L. R., 6 Eq.
J., Q. B. 147. 212, 2G7; 37 L. J., Ch. 825.
492; Provost v. Calder, 2 Wend. (N. Y.) 517; Berry v. M'Mullen, 17 S. & R. '
(Pa.) 84; Weidner v. Foster, 2 Penn. 23; Hannen v. Ewalt, 18 Pa. St. 9;
Salisbury v. Shirley, G6 Cal. 223; Allenspach v. Wagner, 9 Col. 127, 132;
Verplanck v. Wrigiit, 23 Wend. (N. Y.) 50(5, 511 (per Nelson, Ch. J.) ; to pay
taxes, Salisbury v. Shirley, 66 Cal. 223; to repair, Verplanck v. Wright, 23
Wend. 506, oil {per Xelson, Ch. J.) ; Allen v. Culver, 3 Denio (X. Y.) 284;
Crawford v. Bugg, 12 Ont. 8 ; Thompson' v. Rose, 8 Cow. (N. Y.) 266, 269
(per Sutherland, J.) ; Lametti v. Anderson, 6 Id. 307, 308; to pay for build-
ings then on premises, or afterward to be erected to replace them, In re
Haisley, 44 Upper Canada, 345, 347, 349; to pay for permanent improvements,
Berrie v. Woods, 12 Ont. 693 (heirs and assigns were named, but (ppr Boyd, C.)
semhle if they had not been named) ; Lametti v. Anderson, 6 Cow. (X. Y.)
302; Ecke v. Fetzer, 65 Wis. 55; or for new erections. Hunt v. Danforth,
2 Curt. C. C. 592 (the court holding that the covenant touched the thing
demised); but in Thompson v. Rose, 8 Cow. 266, 269, it was held that a
covenant to pay for buildings to be erected would not bind the lessor's
assignee unless named, and (per Savage, Ch. J., in Lametti v. Anderson, 6
Cow. (N. Y.) 307, 308) a covenant to build a wall does not run with the
land, ; covenant not to sell timber off demised premises runs with
land, Verplanck v. Wright, 23 Wend. (N. Y.) 506; also covenant not to
build, Watertown r. Cowen, 4 Paige (X. Y.) 510, 514; and covenant not to
let any other site on same stream for sawing mahogany, Norman v. Wells,
17 Wend. (N. Y.) 136 ; covenant to renew, Piggot r. Mas(m, 1 Paige (N. Y.)
412; covenant to grant purchase privilege, Xapier u. Darlington, 70 Pa. St.
64; Kerr v. Day, 14 Pa. St. 112; covenant of warranty, Sprague c. Baker,
17 Mass. 585; Withy v. Mumford, 5 Cow. (X. Y.) 137; Suydam v. Jones,
10 Wend. (X. Y.) 180; Le Ray De Ciiaumont v. Forsytlie, 2 Penn. 507;
Wyman v. Ballard, 12 Mass. 304, 305, 300; Mitchell v. Warner, 5 Conn. 497,
521 ; covenant of quiet enjoyment, Markland r. Crump, 1 Dev. & Bat. (X. C.)
04 ; also (per Xelson, Ch. J., in Verplanck 7-. Wriglit, 23 Wend. (N. Y.) 506,
511) covenants for further assurance, to discharge lessor of charges ordinary
and extraordinary, to cultivate lands in a particular manner, to reside upon
the premises, to supply them with good water, and not carry on particular
trades, &c.; covenant not to erect building on common in front of premises
conveyed, Watertown i;. Cowen, 4 Paige (N. Y.) 510; covenant that neither
grantor nor his heirs shall make any claim to tlie land conveyed, Fairbanks
I'. Williamson, 7 Greenl. (Me.) 96.
All covenants which are conditions annexed to the estate run with the
land, and bind the assignee. Verplanck v. Wright, 23 Wend. (X. Y.) 506,
Gil ; Hunt v. Danforth, 2 Curt. C. C. 592, &c.
266
Ch. V. S. 8.]
EXPRESS COVENANTS.
*164
fixed to the premises (^) : not to plough (/c) : to use the land
in a husbandlike manner (^) : to lay dung on the demised
land annually (m) : to reside on the demised premises during
the term (jn) : to permit the lessor to have access to two
rooms excepted from the demise (o) : to carry all the corn
produced on tlie demised land to the lessor's mill to be
ground (/?) : to leave the land as well stocked with game at
the end of the term as it was found to be at the beginning of
it (g) : to supply demised houses with good water (r) : to
repai]", and })ay ground rent (.s-) : for quiet enjoyment (f) :
to produce title deeds (w) : to make further assurance (a;) :
to renew the lease (?/) : to endeavour to procure a renewal
of the lease for another life (in an underlease by lessee for
lives) (s) : and to build a new smelting mill in lieu of an old
one in a lease of mines (a).
* To insure. — There is also authority that the [*164]
covenant to insure (^), the covenant not to assign or
sublet without licence (c), and the covenant not to carry on
a particular trade (c?), run with the land.
0) Williams v. Earle, L. Il.,3 Q. B.
739.
(i) Cockson V. Cock, Cro Jac. 125.
(/) Walsh V. Watson, Esp. N. P.
295.
(m) V. Davis, MS. M. T., 42
Geo. 3.
(h) Tatem v. Chaplin, 2 H. Blac.
133.
(o) Cole's case, 1 Salk. 196, S. C.
sub nom. Bush v. Coles, 1 Snow, 389 ;
Carth. 232.
(P) Vyvyan v. Arthur, 1 B. & C.
410. See Hemingway v. Fernandes,
13 Sim. 228.
(y) Hooper v. Clark, L. R., 2 Q. B.
200; 36 L. J., Q. B. 79.
(?•) Jourdain v. Wilson, 4 B. & A.
266.
(s) Martin v. Clue, supra:
(t) Lewis V. Campbell, 8 Taunt.
715; 3 Moo. 35, 51; Campbell v.
Lewis (in error), 3 B. & A. 392;
Noke V. Awder, Cro. Eliz. 375, 4-36.
(u) Barclay v. Kaine, 1 Sim. & Stu.
449.
(.r) Middlemore v. Goodhall, Cro.
Car. 503 ; Kingdon v. Nottle, 4 M. &
S. 53; King v. Jones, 5 Taunt. 418;
4 M. & S. 188.
(y) Isteed v. Stoneley, 1 Anderson,
82, Brooke v- Bulkeley, 2 Ves. jun.
498 ; Roe v. Hayley, 12 East, 464.
(z) Simpson v. Clayton, 4 Bing. N.
C. 758 ; 6 Scott, 469.
(«) Sampson v. Easterby, 9 B. & C.
505 ; Easterby v. Sampson (in error),
6 Bing. 644 ; 1 C. & J. 105.
(h) Vernon v. Smith, 5 B. & A. 1.
And see post, Chap. XVIL, Sect. 1.
(c) Williams v. Earle, L. R., 3 Q.
B. 739; 37 L. J., Q. B. 231.
(d) Mayor of Congleton v. Patti-
son, 10 East, 130. The obiter dicta of
Lord Ellenborough and Bayley, J.,
seem to be in accordance with princi-
ple. In Wilson v. Hart, L. R,, 1 Ch.
463, it was held that a tenant from
year to year was bound by his laud-
lord's covenant tliat no building to be
erected should be used as a beer shop,
although such covenant did not run
267
*164 THE LEASE. [Ch. V. S. 8.
With regard to the covenant to insure against fire, it was
held in Vernon v. Smith (6) to run with the land, or on the
ground that the Building Act, 14 Geo. 3, c. 78, s. 83, in that
case assumed to have a local application only, enables the
landlord to have the insurance money laid out in rebuilding,
so that the covenant was in effect a covenant to repair. The
statute has since been held to have a general application (<?),
so that if the reasoning in Vernon v. Smith be correct, the
covenant to insure runs with the land.
Not to assign without licence. — The covenant not to assign
or sublet without licence was expressly held to run with the
land in Williams v. Earle (/) ; but in the later case of West
V. Dobb (//) (where the point arose, but did not require to
be decided), Blackburn, J., who was one of the two judges
who decided Williams v. Earle, pointed out that in that case
assigns were named in the covenant, and seems to have
wished to confine his judgment accordingly (A). However
this may be, the covenant not to assign or sublet appears to
concern the thing' demised in relation to its state at the time
of the demise, and consequently to bind assignees Avhether
named or not (^).
To pay for improvements. ^ — It has been stated in many
prior editions of this work that a " covenant by a lessor to
pay on a valuation for all trees planted (A;), was a personal
covenant not running with the land, and for this. Grey v.
Cuthbertson (/c) was cited ; but that case, which is very
briefly repeated, seems to have been decided on the ground
with the land. See, too, Wilkinson (/;) And see /)r;- Baylcy, B., in Paul
V. Rogers, 2 I)e G., J. & S. 62. v. Nurse, 8 15. & C. 489 , Doe d.
(e) FJ.T parte Goreley, .34 L. J., Cheere ?". Smith, 5 Taunt. 795 ; Bally
Bank. 1. In Vernon v. Smith, the v. Wells, .3 Wils. 3.3
judgment of Best, .!., proceeded inde- (/) And see 2 Sm. L, C. at p. 77.
pendently of the statute. (/) Grey v. Cutiibertson, 4 Doug.
(/■) L. U., 3 Q. B. 739; 37 L. J., .351, 2 Chit. R. 482; 1 Selw. N. P.
Q. ij. 231. 448.
(7) L. R., 4 Q. B. 034 ; 38 L. J., Q.
B. 289.
^ Bind assignees if named. — See Lamctti v. Anderson, 6 Cow. (N. Y.)
.307,308 {jmr Savage, Ch. J.), Thompson v. Rose, 8 Id. 200, 209; Hunt v.
Diiiiforth, 2 Curt. C. C. 692; Ecke v. Fetzer, (i5 Wis. 55; Bcrrie v. Woods,
V2, Out. 093; In vc Ilaisley, 44 U. C. .315, 347, 349.
2G8
Ch. V. S. 8.] EXl'UESS COVENANTS. *165
that assisfiis were not named in the covenant ; and from the
later case of Gorton v. Gregory (Q it may perhaps he in-
ferred, though the point was not expressly decided, that a
covenant to pay for improvements to be executed on the
land, whether by the lessor or the lessee, runs both with the
land and the reversion, if assigns be named; and this is
borne out in principle by the important case of Mansel v.
Norton (m)i which is more fully noticed elsewhere (n).
* In Minshull v. Oakes, a covenant to repair and [*165]
leave in repair (inter alia) all buildings which should
or might be thereafter erected during the term on the de-
mised premises was considered to be, not a covenant abso-
lutely to do a new thing, but to do something conditionally,
viz. if new buildings were erected on the demised premises
during the term to repair them ; and, as when built they
would be part of the thing demised, it was held that the
assignee was bound, although not named in the covenant (o).
In this case the court expressed an opinion that the rule that
the naming the assigns in the covenant will bind them in
relation to a thing not in esse at the time of the demise, was
neither laid down in Spencer's case nor consistent with rea-
son. The rule, however, appears to have been recognized as
good law in many other cases, both prior (^p) and subsequent
to (5') Minshull v. Oakes. And it seems to be consistent
with reason that the naming of the assigns should vary the
liability (r).
Personal covenants do not run with the land. — A covenant
which is merely personal or collateral to the thing demised
does not run with the land or the reversion, and therefore
assignees are not bound even though they be expressly
named. Of the nature of such personal covenants are
these : ^ — A covenant by a lessee to replace chattels which
(/) See post, note (s). Q. B. 444; Greenaway t'. Hart, 14 C.
(m) L. R., 22 Ch. D. (C. A.) 769. B. 340.
(n) Post, Cli. XX., Sect. 5. (7) Williams v. Earle, \ihi supra ;
(0) 27 L. J., Ex. 104 ; 2 H. & N. 798. West v. Dobb, nbi supra.
(p) Sampson v. Easterby, (5 Bing. (;) But see contra, 1 Sm. L. C. 7G
644, Exch.: Doughty v. Bowman, 4 (ed. 7).
1 The following are held to be personal covenants, viz. : the covenants of
seizin and against incumbrances. Mitchell v. Warner, 5 Conn. 497, 503 ;
269
*166 THE LEASE. [Ch. Y. S. 8.
should become damaged or be superseded by new ma-
chinery (s) (although it would have been otherwise in the
case of a covenant to replace fixtures) (^) : to give the lessee
the option of pre-emption of a piece of ground adjoining the
demised premises (/<) : not to sell ha}^ &c. (r) : not to keep
a beershop within a certain distance of the demised prem-
ises (z) : a covenant to pay rent and repair, made icith a
mortgagor and his assigns, in a lease granted by himself
together with the mortgagee (y) : a covenant in an under-
lease, whereby the lessor covenanted to observe and indem-
nify the lessee against the covenants in the superior lease,
one of which was to build several houses on the land (2) :
and a covenant by lessee for himself, his executors and
assigns not to have persons to work in a mill to be erected
on the demised premises who were settled in other parishes
without a parish certificate (a).
Boxes in theatre. — Where the lessee of a theatre agreed to
repay money lent to him b}- the plaintiff on a day cer-
[*166] tain, and that until payment the plaintiff and * such
persons as he might appoint should have the free
use of two boxes (not specified} and afterwards assigned his
(s) Gorton v. Gregory, 3 B. & S. 0/) Webb v. Russell, 3 T. R. 393;
90; 31 L. J., Q. B. 302. Such a cove- Stokes v. Russell, Id. 678; Russell v.
nant would bind executors in their Stokes (in error), 1 H. Blac. 502.
representative capacity. (c) Doughty v. Bowman, 11 Q. B.
(0 lb. per Willes, .J. 444.
(u) Collison V. Lettsom, 6 Taunt. (a) Mayor, &c., of Congleton r.
224. Pattison, 10 East, 130 ; indirectly
{v) Lybbe v. Hart, 54 L. J., Ch. confirmed by Walsh v. Fussell, 0
860, /jei-Baggallay, L. J. Bing. 163.
(x) Thomas v. Ilaj'ward, L. R., 4
Ex. 311; 38 L.. J., E.x. 175.
Bickford v. Page, 2 Mass. 455; Grecnby v. Wilcocks, 2 Johns. (N. Y.) 1, 5;
Abbott I-. Allen, 14 Id. 248; Kane v. Sanger, Id. 89, 93; "Withy v. Mumford,
5 Cow. 137, 139 (/)«• Savage, Cii. J.).
The following are personal (at least, unless assigns are named), viz.: to
give first refusal of subsecjuent lease, Appeal of Winton, 111 Pa. St. 387,
403; to pay for fixtures to be erected, Hansen r. Meyer, 81 111. 321 ; to pay
for improvements, Tallmaii v. Coffin, 4 N. Y. 134; for re-entry, Porter v.
Merrill, 124 Mass. 534, 541.
Parol agreements, though binding upon parties charged with notice, do
not run with the land. Wilder v. Miiine Cent. R. R. Co., 66 Me. 332; St. L.
A. & T. H. R. R. Co. I-. Todd, 30 III. 409.
270
Cn. V. S. 8.] EXPRESS COVENANTS. *166
interest, it was held that this was a mere personal contract,
and that no action could be maintained against the assignee
for refusing to permit the plaintiff to use the boxes (6).
Personal chattels. — If sheep or other things personal be
demised, a covenant by the lessee for himself and his assigns
to deliver them up at the end of the term will not bind the
assigns (c), and the same rule applies to a covenant to
deliver up mere utensils and other things not fixed to the
demised premises Qd}.
Condition for re-entry. — It may be added here that a con-
dition for re-entry in case the lessee or his assigns become
bankrupt runs with the land (e), but a condition for re-entry
in case the lessee or his assigns be convicted of any offence
against the game laws does not (/).
Operation of Conveyancing Act. — By the Conveyancing
Act, ss. 10 and 11 (//), both the rent and benefit of every
covenant both of lessee and lessor, " having reference to the
subject-matter of the lease," run with the reversion. By the
same act, s. 58 : —
" (1.) A covenant relating to land of inheritance, or de-
volving on the heir as special occupant, shall be deemed to
be made Avith the covenantee, his heirs and assigns, and shall
have effect as if heirs and assigns were expressed.
" (2.) A covenant relating to land not of inheritance, or
not devolving on the heir as special occupant, shall be deemed
to be made with the covenantee, his executors, administrators
and assigns, and shall have effect as if executors, administra-
tors and assigns were expressed.
" (3.) This section applies only to covenants made after
the commencement of this act."
(c) Covenants whether Dependent or Independent.
General rule. — As to what covenants shall be construed to
be conditions precedent or not, it has been laid down that
(ft) Flight V. Glossop, 2 B. N. C. (r) Eoe v. Gallicrs, 2 T. R. 133.
125. (/) Stevens v. Copp, L. R., 4 Ex.
(c) Spencer's case, nhi supra. 20; 38 L. J., Ex. 175.
((I) Williams v. Earle, L. R., 3 Q. (g) See these sections at length, p.
B. 739. 256, post.
271
*167 THE LEASE. [Ch. V. S. 8.
the dependence or independence of covenants must be col
lected from the sense and meaning of the parties to be
deduced from the whole instrument, and not merely from
any technical words (/t) ; and that in whatever order cove-
nants may stand in a deed, their precedency must depend
on the order of time in wliich the intent of the transac-
tion requires their performance (i).^ No precise technical
words therefore are required in a deed to make a
[*167] * stipulation a condition precedent or subsequent ;
neither does it depend on the circumstance whether
the clause is placed prior or posterior in the deed : the merits
therefore of a question of this kind must depend on the
nature of the contract, and the acts to be performed by the
contracting parties, and any subsequent facts disclosed which
(h) Roberts v. Brett, 11 H. L. Cas. (/) Jones v. Barkley, 2 Doug. 684.
337 ; 34 L. J., Ch. 241.
1 Independent and dependent covenants. — An independent covenant
is an unconditional promise. Edwards v. Gale, 52 Me. 360; Simonds' Admr.
V. Beauchamp, 1 Mo. 420. It does not depend for its obligation upon any
prior performance or condition (per Gibson, J., in Bellas v. Hays, 5 S. & R.
(Pa.) 427). Such promise being under seal binds without consideration. 2
Whart. on Cont. 688.
A dependent covenant is one wliich depends upon the prior performance
of. another covenant or condition. 2 Whart. on Cont. sec. 688; Bellas v.
Hays, 5 S. & R. (Pa.) 427.
Where a covenant depends upon a corennnt, the covenants are mutual.
Bellas V. Hays, 5 S. & R. (Pa.) 427. If the obligation of mutual covenants
is simultaneous, they are independent, neither being a condition for the other.
A simple contract is a sufficient consideration for a covenant. School
Directors i-. McBride, 22 Pa. St. 215; Grove v. Hodges, 55 Id. 504 (the remedy
in one case 1)eing ussmnpsit, and in the otlier covenant). A covenantor who
has sealed is liable to a promisor who has not sealed, if the latter have per-
formed. Jennings v. McComb, 112 Pa. St. 518,522 (per Trunkey, J.) ; Leake
on Cont. 141 ; 2 Whart. on Cont. 688.
Want of mutuality, so long as a contract is purely executory, is fatal
either to a suit for specific performance or for damages. Cleaves v. Wil-
lougl.by, 7 Hill (N. Y.) 8:5 (per Beardsley, J.) ; Bellas v. Hays, 5 S. & R.
(Pa.) 427 ; Grove v. Hodges, 55 Pa. St. 504, 516, &c.
Where a covenant de])ends u])nu prior performance of an optional con-
dition, mutuality is wanting and the contract is unilateral. Frue i'. Houghton,
6 Col. 318, 324. J'erformance in such case lixes the liability of the cove-
nantor, making his promise absolute. Matter of Jane Hunter, 1 Edw. Ch.
(N. Y.) 1, 5; Cutting i;. Dana, 25 N. J. Eq. 265; Frue v. Houghton, 6 Col.
318, 324.
272
Cn. V. S. 8.] EXPRESS COVENANTS. *167
have happened in consequence of the contract (/r).^ Where
a covenant is part only of the consideration on one side, it is
■ an independent covenant, and not a condition precedent (/).
If one party covenant to do one thing, the other party doing
another, it is not a condition precedent, but a mutual cove-
nant (m). If the contract be to grant a lease upon payment
of 1,440Z. by certain instalments at stated times, the granting
of such lease is not a condition precedent to a right to
recover the 1,440/. (h). It is a general rule that covenants
are to be treated as independent rather than as conditions
precedent, especially where some benefit has been derived by
the covenantor (o^?
(k) Hotham v. East India Co., 1 T. S. G37 ; 28 L. J., C P. 100. So where
R. 645; Newson v. Smytliies?, 3 11. & A. agrees to sell and B. to pureliase
N. 840; 28 L. J., Ex. 97 ; 1 F. & F. an estate, and B. covenants to pay A.
477. on or before a specified day a certain
(/) Carpenter v. Creswell, 4 Bing. snin as tlie consideration of such sale,
409. with interest to the time of completion
(m) Boone v. Eyre, 2 W. Blac. of the purciiase, but no time is fixed
1312; Pordage v. Cole, 1 Wms. for executing the conveyance; A.
Saund. 319 b, 320 c ; Newson v. may maintain an action for the pur-
Smythies, 3 H. & N. 840; 28 L. J., chase-money and interest, without
Ex. 97 ; 1 F. & F. 477 ; Mackintosh first tendering a conveyance. Mat-
r. Midland Counties R. Co., 14 M. & lock v. Kinglake, 10 A. & E. 50.
W. 548; London Gas Liglit Co. v. (o) Newson r. Smythies, 3 H. &, N.
Chelsea Vestry, 8 C. B., N. S. 215. 843.
(n) Baggallayr. Pettit, 5 C. B., N.
1 Dependent covenants. — Examples: Lessee's to pay rent depends
upon lessor's for quiet enjoyment. Christopher v. Austin, 11 N. Y. 216;
Dyett V. Pendleton, 8 Cow. (N. Y.) 731 ; Lawrence v. French, 25 Wend.
(N. Y.) 445 ; Fitciiburg Corp. v. Melven, 15 Mass. 268.
Lessor's express covenant to make repairs may, by the construction of the
lease, be condition precedent to lessee's to pay rent. Strohecker v. Barnes,
21 Ga. 431.
Lessee's covenant to pay rent depends upon the continued existence of the
thing demised, and will be discharged by total destruction thereof. For
example, if apartments are leased and building totally destroyed by fire.
Womack v. McQuarry, 28 Ind. 103; Winton v. Cornish, 5 Ohio, 477; Kerr ?•.
Merchants' Ex. Co., 3 Edw. Ch. (N. Y.) 315, 322 ; Graves v. Berdan, 26 N. Y.
498. In case of partial destruction, as where land remains, it is otherwise.
2 Independent covenants. — Examples: Lessor's unconditional cove-
nant to erect building for use of lessee, and lessee's to pay rent. Edwards v.
Gale, 52 Me. 360. Lessor's to make repairs and improvements, and lessee's to
pay rent. Tibbits v. Percy, 24 Barb. (N. Y.) 39 ; Speckels v. Sax, 1 E. T>.
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 (</). So if a lessee
covenant to repair, "provided always, and it is agreed that
the lessor shall find great timber," &c., this makes a cove-
nant on the part of the lessor to find great timber by the
word "• agreed," and is not to be a qualification of the cove-
nant of the lessee (r) : but where the words were, " he the
said lessor finding, allowing and assigning timber sufficient
for such reparations during the said term, to be cut
[*168] * and carried by the lessee;" it was held not to be a
covenant to provide timbei', but a mere ' qualilication
of the covenant to repair (.s-), and where the lessee agreed
to repair and the lessor to find timber for repairs, Kay, J.,
decided that the lessee could not recover damages from the
(/O Slater v. Stone, Cro. Jac. 645. Coward v. Gregory, L. K., 2 C. V. 153,
(r/) Neale v. Katcliff, 15 Q. B. 910 ; 172 ; post, Cliap. XVI., Sect. 1 (a).
20 L. J., Q. B. i;50; Hunt r. Bishop, (/) Bac. Abr. tit. Covenant (A).
8 Exch. (375 ; 22 L. J., Ex. ;];]7 ; (.s) Tlionias v. Cadwallader, Willes,
lliitoliinson v. Read, 4 Exch. 701; 400.
Allen !'. Culver, 3 Denio (N. Y.) 284, 294; Allen v. Bell, 4 Wend. (N. Y.)
500. Lcs-sor's to pay for improvements, and le.ssee's to deliver up possession.
Tailman v. Coflfin, 4 N. Y. 1:54. Lessor's for right of common in other lands,
and lessee's to pay rent. Watts i\ Coffin, 11 Jolins. (N'. Y.) 495, 498.
In Simonds' Admr. v. Beauchamp, 1 Mo. 420, it was held that a covenant to
convey by a general warranty deed on a day certain, and a covenant to pay the
purchase-money on same day, made in separate instruments, were independent.
See, also, I'ost v. Vetter, 2 E. I). Sniitii (N. Y.) 248; Ellis i'. McCormick,
1 Hilt. (N. Y.) ;Ji:J ; Brady v. I'eiper, 1 Id. 01.
274
Ch. V. S. 8.] EXPRESS COVENANTS. *168
lessor who had neglected to find materials for an injury
caused by non-repair (f). Where a lease for lives contained
a covenant by the lessee at his own expense to keep the
demised premises in j)roper repair, "having or taking in and
upon the said demised premises competent and sufficient
house-bote, hedge-bote, lire-bote, plough-bote and gate-bote
for the doing thereof, without committing any waste or
spoil:" it was held in an action for not repairing, that the
covenant for repair was absolute, with a licence to the lessee
to take competent and sufficient house-bote, &g. : and that
the finding such house-bote, &c., was not a condition pre-
cedent to the liability of the lessee to repair (m). Where
the lessee covenants to put and keep the demised premises
in repair, " being allowed rough timber but not on the stem
upon the demised premises, the timber to be fetched and
carried at the expense of the lessee." In an action of cove-
nant for not repaiiing, it is sufficient to allege that the lessor
was ready and unllinij to allow and provide sufficient rough
timber not on the stem, without stating that he did actually
furnish it (.r). Where a lessee covenanted to repair a house
before the 1st of June, 5,000 slates being found by the lessor
towards the repair, and afterwards to keep in repair during
the term ; it was held, that finding the slates was not a con-
dition precedent to the covenant to keep in repair, but only to
the covenant for putting the premises in repair before the 1st
"of June (y). In a farming lease the lessee covenanted with
the lessor that the lessee should at all times during the term
repair and glaze the windows and also the hedges, &c., when
necessary, "the said farmhouse and buildings being pre-
viously put in repair and kept in repair by the lessor ; " the
latter clause was held to amount to an absolute and inde-
pendent covenant on the part of the lessor to put the
premises in repair (z). The words "and the whole of which
is agreed to be left to the superintendence of the lessee and
the lessor's son," annexed to a covenant by the lessor to do
(0 Tucker v. Linger, L. R, 21 Ch. (.r) Martyii r. Clue, 18 Q. B. 661;
D. 18. 22 L. J., Q. B. 147.
(u) Dean and C. of Bristol r. Jones, (y) Mucclostone v. Thomas, Willes,
1E:&E. 484; 28 L. J., Q. B. 201. 146'.
(0 Cannock v. Jones, 3 Exch. 233.
275
*169 THE LEASE. [Ch. V. S. 8.
certain work, are neither a condition precedent to, nor con-
current ^yith, the covenant (a). The covenant to repair
generally, and to repair within three months after notice in
writing, are independent covenants (6) ; and where
[*169] a lessee covenanted * to leave premises in repair at
the expiration of the term, and also that the lessors
might direct the lessee to complete the repairs by giving six
months' notice in writing, it was held, that these were two
distinct and separate covenants, the former of which was not
qualified by the latter (c) ; but where a lease contained a
covenant Iw the lessee to repair the premises at all times (as
often as need or occasion should require) and "at farthest
within three months after notice," it was held to be one
entire covenant, the former part of which was qualified by
the latter (r7). Where there was an agreement that the
lessee should spend 2001. in repairs to be inspected and ap-
proved of by the lessor, and to be done in a substantial
manner, and the lessee Avas to be allowetl to retain the
money out of the first year's rent of the premises, it was
held, that the lessor's approval was not a condition precedent
to the lessee retaining the rent {e'). AVliere a lessee cove-
nanted to expend a certain sum in substantial and beneficial
improvements, under the direction or with the approbation
of some competent surveyors to be named by the lessor, the
appointment of the surveyors was held to be a condition
precedent to the lessees liability to expeml the money (/).
Where the lessor covenanted to pay the lessee for the ma-
nure, &c., at the end of the term, upon the lessee delivering
up the farm, if in the meantime he cultivated it on the four-
course S3'stem and performed and kept all and singular otlier
(a) Jones V. Cannock, H II. L. Cas. (r) Wood r. Day, supra.
700; 5Exdi. 71']; Smitli v. Diirrant, (d) Ilorsefall v. Tcstar, 7 Tannt.
0 U. L. Cas. 102. 385; citi'd 4 C. B., N. S. 551.
(i) Doe (I. Morecraft r. M( ii.\, 4 B. (<) Dallnian r. Knifr, 4 Bing. N. C.
& C. GOO; 1 C. & P. .']40; Wood r. 105, rpcofrnizc'd in Stailliart c. Lee, .'5
Day, 7 Taunt. 040; Baylis v. Lc B. & S. ;!04, :]71.
Gro8, 4 C. B., N. S., 537, 552; Corn- ( /) Coombe ;•. Greene, 11 M. & W.
i.sh ;•. Cleife, P. II. & C. 440; 1.'] W. 480; 2 Dowl., N. S. lO'j:]; Cannock r.
B. 380; Hoe d. Goatley r. Paine, 2 Jones,.') Excli. 2:W ; 5 Id. 71:5; 3 II.
Camp. 52ft; Few v. Perkins, 30 L. J., L. Cas. 700; Hunt v. Bishop, 8 Exch.
Kx. 02; 15 W, II. 713. 075.
276
Cii. V. S. 8.] EXPRESS COVENANTS. *170
his covenants in the lease : it was hchl, that the delivery up
of a certain agreement pursuant to a covenant in the lease
was not a condition precedent to the tenant's riglit to recover
for the manure, &c. (y). Wliere by deed reciting an agree-
ment to let copyhold premises, A. covenanted that as soon
as he had procured a licence from the lord of the manor he
would lease them to B. for the* then residue of a term of
yeavs from a certain day, and B. covenanted that he would
repair during the term so to be granted, it "svas held that B.
was liable on this covenant after having occupied the prem-
ises for the whole term, though no licence had been procured
from the lord nor any lease ever made (A).
Option to determine term, &c. — Where in a lease for seven
years, containing the usual covenants that the lessee should
pay the rent, keep the premises in repair, &c., there was a
proviso that the lessee might determine the term at the end
of the first three or five years, giving six months' previous
notice, and then, from and after the expiration of
such notice, and * payment of all rents and duties to [*170]
be paid by the lessee, and performance of all his cove-
nants until the end of the three or five years, the indenture
should cease and be utterly void, it was held, that the pay-
ment of rent and performance of the other covenants were
conditions precedent to the lessee's determination of the
term at the end of the first three years, and that his merely
giving six months' notice, expiring within the three first
years, was not sufficient for that purpose (/). A mining
lease contained numerous covenants by the lessees, and also
a proviso that if they should desire to quit the premises at
the end of the first. eight years, and should give eighteen
months' notice thereof to the lessor, then, all arrears of rent
being paid, and all and singular the covenants and agree-
ments on the part of the lessees having been observed and
performed, the lease should at the expiration of the eighth
year be utterly void ; but, nevertheless, without prejudice to
any claim or remedy which any of the parties might then be
entitled to for breach of any of the covenants ; it was held,
((/) Newson v. Smythies, 3 II. & N. (//) Pistor v. Cater, 9 M. & W. 315.
840; 28 L. J., Ex. 97 ; 1 F. & F. 477. (/) Porter v. SliepliarJ, 6 T. 11. G55.
277
*171 THE LEASE. [Ch. V. S. &
in error, that the performance of all the covenants by the
lessees was a condition precedent to theii" right to determine
the lease (A;). Another Court of Error, however, appears to
have entertained a different opinion (^). A lease contained
a proviso, that if the lessor should give notice for the deliv-
er}- up of the land to him, the lessee covenanted to sur-
render it up, and that the lessor might take possession of
it, paying the lessee compensation for money expended
thereon : it was held, that the proviso did not operate as a
mere covenant by the lessee to give up oh notice, but ex-
pressly gave the lessor power to take possession ; and that
he might do so without having first paid compensation (m).
So where it was agreed that the lessor should within eigh-
teen months from the date of the lease build a cattle-shed,
the whole to be left to the superintendence of the lessee
and her son ; it was held, that this latter provision was not
a condition precedent to or concurrent with the lessor's cove-
nant to build (>/).
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. (</) See, especially, per Parke, B.,
B., N. S. 400 ; 30 L. J., C. P. 3. in Hart v. AVindsor, ubi supra. It
(p) 11 M. & W. 5; 12 L. J., Ex. was, however, expressly approved of
223. And see Campbell v. Wenlock, by Lord Abinger in Sutton v. Tem-
4 F. & F. 710. See also Bird v. Lord pie, t(bi supra.
GreviUe, 1 C. & E. 317, where the rule (r) L. R., 2 Ex. D. 336 ; 36 L. T.
of Smith V. Marrable and Wilson v. 473 ; 46 L. J., Ex. 489 ; 25 W. R. 537.
Seaman, 2 Bosw. (N. Y.) 130 ; Branger r. Manclet, 30 Cal. 624 ; Doupe v.
Genin, 45 N. Y. 119 ; 1 Sweeney (N. Y.) 25 ; Joyce v. De Giverville, 2 Mo.
App. 506 ; Post v. Vetter, 2 E. D; Smith (N. Y.) 248 ; Welles v. Castles, 3
Gray (Mass.) 323 ; Scott v. Simons, 54 N. H. 426 ; Cole r. McKey, 66 Wis.
500 ; Purcell v. English, 86 Ind. 34 ; Libbey v. Tolford, 48 Me. 316 ; Estep v.
Estcp, 23 Ind. 114; Humphrey v. Wait, 22 U. C. C. P. 580; Krueger v. Fer-
rant, 29 Minn. 385; Gill v. Middleton, 105 Mass. 477,478 (joer Ames, J.) ;
Hill V. Woodman, 14 Me. 38.
Covenant to repair ; ■when implied. — There is an implied covenant to
repair the common j)ortions of building leased to different tenants, Looncy v.
McLean, 129 Mass. 33 ; and if lessor fail to repair a common stairway lie will
be liable to tenant for injuries, Walkins r. Goodall, 138 Mass. 533, 536. The
lessor held liable for injuries to tenant caused by obstructions of ice upon
common piazza, arising from defects in common pipe. Worthington ti. Parker,
11 Daly (N. Y. Superior Ct.) 545. Lessor impliedly covenants to repair roof
of building if lie has demised lower story. Contra Doupe v. Genin, 45 N. Y.
110; liohl V. O'Brien, 12 Daly (N. Y.) 160. Tenant in top of building may re-
cover damages for injury to furniture caused by the building failing from its
unsafe condition. lOagle v. vSwayze, 2 Daly (N. Y.) 140. Lessor is liable to
tenant occupying part of a building for damages caused by a fall of a chimney.
In Piatt );. Farney, 16 111. App. 216, it was held that a lessor was not liable
for the injuries if tiie want of repair was caused by acts of third j)arties.
In Woods V. Naumkeag Steam C'otton Co., 134 Mass. 357, it was hehl not
to be the duty of lessor to remove the snow and ice from flight of stone steps
(witliout railing) leading to street, thougli so constructed as to occasion accu-
mulations, there being no change since tenancy began.
284
Cn. V. S. 9.] IMPLIED COVENANTS AND AGREEMENTS. *175
defective drainage, in the case of a house in London let from
the 7th May to the 31st July, and although the drains were
repaired by the landlord, and the house tendered in a whole-
some condition on the 2Gth of May, tlic tenant (who had at
once declined to occupy) was held neither liable for the
agreed rent nor for use and occupation.
(c) On Letting Unfurnished House at Loio Rent.
Another important exception to the rule that there is no
implied condition of litness in letting a house, has been
introduced by the Housing of the Working Classes Act,
1885 (48 & 49 Vict. c. 72, s. 14), (which applies to lettings
at certain iow rents only), which is as follows: —
'' In any contract made after the passing of tliis act for hab-
itation by persons of the working classes of a house or part
of a house, there shall be implied a condition that the house
is at the commencement of the holding in all respects rea-
sonably fit for human habitation. In this section the expres-
sion ' letting for habitation by persons of the working classes '
means the letting for habitation of a house , or part of a
house at a rent not exceeding in England the sum named as
the limit for the composition by sect. 3 of the Poor Rates
Assessment and Collection Act, 1869 " [i.e. in the metropolis
20?., in Liverpool 13?., in Mancliester or Birmingham 10/.,
and elsewhere 8/.] " and in Scotland or Ireland 4/."
The effect of this section (which may perhaps be
best described as * an enactment applying the doc- [*175]
The distinction between a furnished for temporary occupation only, there
and an unfurnished liouse (which was is the implied warrant3' ; but it is
not express!// drawn in Smith v. Mar- submitted that this view of Smith r.
rable) was exi)ressly approved of in Marrable is incorrect, and that both
Wilson V. Finch-IIatton. The case, al- on principle and on the authority of
though re-argued before three judges, \Yiison v. Finch-Hatton, as far as it
Kelly, C. B., Pollock, 75., and Huddle- goes (for Kelly, C. B., appears to
ston,B., on account of its importance, have grounded his judgment at least
was ultimately decided without hesi- partly upon the brevity of occupa-
tation. In Powell r. Chester, 52 L. tinn), the duration of tlie tenancy is
T. 722, Bacon, A''.-C., said that Smitli immaterial, on tlie ground — if on no
V. Marrable was only an authorit}-^ for other — that a furnished house is far
the proposition tliat in taking fur- less easily examined than an unfur-
nished apartments at the seaside, or nished one.
285
*175 THE LEASE. [Cii. V. S. 9.
trine, with all its consequences, of Wilson v. Finch-Hatton,
to unfurnished houses let at rents therein mentioned),
may clearly be avoided by express stipulation excluding its
operation.
Implied covenants by lessee. — In the absence of any ex-
press covenant on the subject, a covenant or promise is
implied on the part of the lessee that he will use the
buildings in a tenantable and proper manner (s),^ and
that he will manage and cultivate the lands in a good and
husbandlike manner, according to the custom of the coun-
try (f) : but not that he will make a certain quantity ^f
fallow, and spend a certain quantity of manure thereon, and
keep the buildings in repair, or any other stipulation not
arising out of the bare relation of landlord and tenant (li).
Only the prevailing course of good husbandry and manage-
ment in the neighborhood need be proved (a;), and it will
be considered applicable to all tenancies in whatever way
created, whether verbal or in writing, unless expressly or
impliedly excluded by the terms actually agreed on (y).
Covenants, -when implied from express -words. — Where a
lessee covenanted to plough, sow, manure, and cultivate the
demised premises (except the rabbit-warren and sheep-walk)
in a due course of husbandry, it was held that it amounted
(s) Horsefall r. Mather, Holt, N. P. Martin v. Gilliam, 7 A. & E. 450 ;
C. 7; Leach v. Thomas, 7 C. & P. Wilkins ;•. Wood, 17 L. J., Q. B. 319.
327 ; Harnett v. Maitland, 10 M. & W. («) Brown v. Crump, 6 Taunt. 300.
257; Yellowly v. Gower, 11 E.\ch. (x) Legh r. Hewitt, 4 East, 154.
294. (,'/) Wigglesworth v. Dallison, 1
(0 Powlcy V. Walker, 5 T. R. 373; Doug. 190; 1 Smith L. C. 598 (7th
Legh V. Hewitt, 4 East, 154 ; Anger- ed.) ; Senior i-. Armytage, Holt, N. P.
stein V. Ilandson, 1 C., M. & R. 789; C. 197; Hutton v. Warren, 1 M. &
Hallifax v. Chambers, 4 M. & W. 002 ; W. 400.
' Use in tenantable manner. — " This implied ol)ligation is part of the
contract itself, as inucii so as if incorporated into it by e.xjjress language " {per
Waite, C. J., in United States v. Bostwick, 94 U. S. 53, 05, 00).
The premises must be "used in a proi)er and tenant-like mamier, witliout
exposing the buildings to ruin or waste by acts of omission or commission"
{per Gibbons, J., in Nave v. Berry, 22 Ala. 382, 390).
Lessee must keep tlie premises in as good repair as he received them, ordi-
nary wear and tear and accidental injuries excepted, nor sulTer voluntary
waste {per Hall, .1., in Hughes r. Vanstone, 24 Mo. Aj)p. 0;'.7). See 7)os<.
280
Cn. V. S. 0.] IMPLIED COVENANTS AND AGREEMENTS. *176
to a covenant not to plough the sheep-walk (s). Where a
lessee covenanted that he would, at all times and seasons of
burning lime, supply the lessor and his tenants with lime at
a stipulated price, for the improvement of their lands and
.repair of their houses : it was held, that this was an implied
covenant also that he would burn lime at all such seasons ;
and that it was not a good defence to plead that there was
no lime burned on the premises out of which the lessor
could be supplied (r/). So a covenant by a lessee to pen and
fold his flock of sheep, which he should keep upon the
premises, upon such parts where the same had been usually
folded, was held to amount by implication to a covenant to
keep a flock of sheep (h}. A landlord having accepted the
offer of a tenant, whose term was expiring, to continue
tenant, provided he could not And any other tenant at the
rent it appeared to him to be worth by a certain day, it was
held to be an implied condition, that the tenant should allow
persons applying for the farm to go over it, and that,
the condition not having baen performed, the * con- [*170]
tract was at an end (c).
Brewery. — On the demise of a brcAvery, with the exclusive
privilege of supplying ale, it would seem that no covenant
can be implied with respect to such a privilege from the
word "demise " (r?). Where in an agreement for a lease
from the plaintiff to the defendant of certain works, the
plaintiff agreed to supply to the defendant the whole of
the chlorine still waste as it came from the still, at a
given rate per cwt., and not to part with any of the
still waste, except to the defendant, it was held, that the
defendant was bound to take the whole of the waste
which, during his occupancy, came from the plaintiff's
still (e).
Riglit of sporting. — In Newton V. Wilmott a demise was
(2) Duke of St. Albans v. Ellis, 16 (c) Doe d. Marquis of Plertford v.
East, .352. Hunt, 1 M. & W. (31)0.
(a) Earl of Shrewsbury v. Gould, (d) Hinde v. Gray, 1 M. & G. 195;
2 B. & A. 487. 1 Scott, N. R. 123.
(6) Webb V. riumnier, 2 B. & A. (e) Bealey i-. Stuart, 7 H.&N. 753;
746. 31 L. J., Ex. 281.
287
*176 THE LEASE. [Cii. V. S. 9.
made of a mansion-house and land, with the sole licence of
sporting over all other lands of the lessor's, and the lessor
covenanted that if any of his tenants should obstruct the
lessee in the enjoyment of his licence, then the lessor would,
on the requisition of the lessee, give the tenant notice to.
quit, and would enforce such notice. The court held that
there was no breach of this covenant by the lessor subse-
quently demising some of his lands for a term of years, with-
out any clause to prevent the tenant from obstructing the
person having the licence of sporting to enjo}- his licence,
and without reserving a power to give notice to quit if he
did (/).
Mining lease. — In the Earl of Glasgow V. Hurlet Alum
Company a lease of alum mines gave the lessee the right to
obtain alum from certain coal wastes. A subsequent lease
of the coal mines provided that nothing thereby granted
should injure the rights of the parties Avho held the alum
mines. The alum existed in the coal wastes. The coal
lessees could not thoroughly work the coal without remov-
ing the pillars which supported the roof ; but by doing this,
the alum would be rendered impossible to be reached : it
was held by the House of Lords that the coal pillars could*
not be removed (,^). A covenant will not be implied in a
lease of mines for the lessees to sink a pit or shaft, although
various provisions of the lease cannot be carried into effect
without their doing so (//).
The tendency of modern decisions is not to imply cove-
nants or stipulations which might and ought to have been
expressed if intended (/).
(_/") Nowton r. Wilniott, 8 M. & W. surface and niinerals beneath grants
711. a lease of the minerals, there is not,
(7) Earl of Cilasgow r. Ilurlet outside the eontraet, an implied reser-
Alum Co., 3 II. L. Cas. 25. vation of any right to have the sur-
(/i) James c. Coehrane, 7 Exeh. 170 ; face supported by the minerals.
8 Id. 55(J. See also, as to mining (') Asjxlin r. Austin, 5 Q. B. 071 ;
leases, Rowhotham v. Wilson, 8 II. L. Dunn r. Sayles, Id. (iSf); Doe d. Mar-
Cas. 348; Dugdale r. IJohcrtson,.'] K. qnis of Bute v. (luest, IH M. & W.
& J. G9r>; 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; (</) Leigh y. Heald, 1 B. & Ad. 622.
Whistler i'. Paslow, Cro. Jac. 487.
293
*179 THE LEASE. [Ch. V. S. 10.
not difficult to collect from the words used whether the
exception was intended to extend to the soil or only to the
trees, the more generic expressions pointing to the soil, and
the more specific to the trees. A parol demise of land,
reserving to the landlord '* all the hedges, trees, thorn
bushes, fences, with lop and top," operates as a licence to
enter the land for the purpose of cutting and carrying away
the trees (e). Where a lessee for life made a lease for years,
excepting the wood, underwood and trees growing upon the
land, it was held a good exception, although he had no inter-
est in them but as lessee ; because he remained always ten-
ant, and was chargeable in waste — wherefore to prevent it
he might make the exception : but if a lessee for years assign
over his term with such an exception, it is a void excep-
tion (/).
Apple-trees. — An exception of " all trees, woods, coppice-
wood grounds, of what kind or growth soever " (^), or of
" all timber trees and other trees, but not the annual fruit
thereof," does not include apple-trees (A).
" Reservation " of game. — A clause purporting to reserve
and except to the lessor the power of hunting, &c., over the
demised premises, ensures as a grant from the lessee to the
lessor — a grant of a profit a prendre. It is not in law either
a reservation or exception (i). A demise of lands, excepting
and reserving all royalties^ with a clause for the lessor to be
allowed to prosecute actions against persons trespassing for
the purpose of hunting, &c., does not amount to a grant by
the lessee of a liberty for the lessor to enter for the purpose
of pursuing, killing, and taking birds of warren (Ji). In a
demise of a mansion-house and land, with the sole licence of
sporting over all other lands of the lessor's subject to the
liberty for each tenant on his farin to kill rabbits thereon,
(e) Hewitt v. Islmm, 7 Exch. 77; (i) Doe d. Douglas v. Lock, 2 A. &
Liforil's case, 11 Co. U. 51 b. E. 705. 74.'?; Wicklmm r. Iluwker, 7
(/) Bacon v. Gyrling, Cro. Jac. M. & W. 10.']; Ewart i-. Graliani, 7 H.
296. L. Cas.3.33 ; Hall on Profits a Prendre,
(y) London i;. Southwell, Hoi.. . 304; p. .'524. And see post, Ch. XVIII.
Wyndliani v. Way, 4 Taunt. ."Jlf!. Sect, (i, " Game," &c.
(/<) BuUen v. Denning, 5 B. & C. (/.) Pannell v. Mill, 3 C. B. G25.
842. I
294
Ch. V. S. 10.] OF EXCEPTIONS ^-TD llESERVATIONS. *180
the exception cKtends not only l,o farms existing at the thne
of the demise, but also to other lands, as plantations, sub.^e-
quently let as farms (/).
Exception of minerals. — An exception of minerals in-
cludes stones got from quarries (^0' ''^^^^ ^^^^ everything
that is necessary for working the mines or quarries,
* including way-leave for carrying away the stone or [*180]
minerals (n) ; but a reservation of "all mines and
minerals, sand, quarries of stone, brick-earth, and gravel
pits," in a farming lease does not prevent the lessee from
selling, in accordance with a custom of the country, flints
turned up by the lessee in course of ploughing (o).
The reservation of a full power to work mines does not
include the power of working so as to let down the sur-
face (jo).
" Mines and minerals." — The legal meaning of the expres-
sion "mines and minerals," is "every substance >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 <L Earl of Egremont v. (x) Ilayne v. Cuinmings, 16 C. B.,
Williams, 11 Q. B. 688. N. S. 421.
(0 Blatchfonl v. Mayor, &c. of (//) Thomas v. Taokcr, 1 H. & N.
Plymouth, .'3 Bing. N. C. 601. 660.
(«) Bac. Abr. tit. Condition.
'Conditions. — Conditions are either exj)ress or implied, general or
special, piccciient or subsequent. A condition general terminates tenancy
ujK)!! entry. A condition special merely authorizes entry to take profits and
hold premises as security. A condition can only be reserved for benefit of
the grantor and his heirs, not for a stranger. 4 Kent's Com. sees. 1'21-127.
It is diKlinguishe<l from a limitation in that the latter marks the period or
event which alisolutcly dctcrniines the estate without entry, while a condition
29G
Cii. V. s. 11.] .rriovisoF:s and conditions. *181
formed before the estate can commence, it is called " a con-
dition precedent ; " but where the effect of the condition is
either to enlarge or defeat an estate already created, it is
then called "a condition subsequent " (2).
Construction of conditions. — Conditions as well as cove-
nants are to be construed according to the real intentions of
the parties (a). What is or is not a condition precedent
depends merely not on technical words, but upon the plain
intention of the parties, to be deduced from the whole instru-
ment (b}. The court will not decide as to the meaning of
an insensible condition or proviso for re-entry (c).
By what instrument made. — A condition may be contained
(c) Cruise's Dig. XII. tit. 1, s. 6 ; 1 (c) Doe d. Wyndham v. Carew, 2
Inst. 16 a, 237 a, n. 1. Q. B. 317 ; Doe d. Darke v. Bowditch,
(a) Cole Ejec. 407. 8 Q. B. 973.
(6) Roberts v. Brett, 11 H. L. Cas.
337; 34 L. J., Cii. 241.
may possibly determine it meantime, only, however, after entry or claim.
Same, sec. 126, 127.
A covenant may be a condition precedent. Ordinarily, however, a cove-
nant is distinguished from a condition in that it is not a limitation or qualifi-
cation upon the estate. Hilsendegen v. Scheich, 55 Mich. (684 that rents
shall be paid in advance is not a condition unless the parties so intended) ;
Langley v. Ross, 55 Mich. 163 (a covenant to pay taxes with no provision of
re-entry is a mere covenant) ; Tallman r. Coflin, 4 N. Y. 134 (lessor's cove-
nant to pay for improvements is not a condition but a mere covenant).
A covenant with clause of re-entry for breach constitutes a condition
qualifying the title, Jackson v. Topping, 1 Wend. (N. Y.) 388, but not other-
wise.
A condition can only be reserved for the benefit of the grantor or lessor
and his heirs. Strangers cannot take advantage of it. 4 Kent's Com.
(13th ed.) sec. 127 ; Porter v. Merrill, 124 Mass. 534, 541 ; Shuniway v. Col-
lins, 6 Gray (Mass.) 227, 230; Welch v. Silliman, 2 Hill (N. Y.) 491,495;
NicoU V. N. Y. & Erie R. R. Co., 12 Barb. (N. Y.) 460.
In a lease of realty and personalty covenant, that lessee shall raise year-
lings to be kept upon pla(;e and divided at end of term, is a condition limit-
ing lessee's absolute right till end of term. Briggs v. Oaks, 26 Vt. 138, 145, 146.
Provision, that certain personal property, as stock and fanning utensils,
to value of §1000, shall be kept on premises and remain property of lessor
as security to end of term, qualifies the title, and is valid against lessees,
attaching creditors. Paris v. Vail, 18 Vt. 277.
' A condition precedent will prevent the vesting of title until it has been
performed. Andis v. Personett, 108 Ind. 202. It may, however, though in a
sealed lease, be waived. Long v. Stafford, 103 N. Y. 274.
A condition subsequent, to be performed by lessor, must in order to
defeat the lessee's title be performed bond fide. Trout v. Perciful, 105 Ind. 532.
297
*182 THE LEASE. [Ch. V. S. 11.
in the same deed or indorsed upon the deed ; or may be con-
tained in another deed executed the same day (c7) ; a condi-
tion indorsed upon a lease before the sealing and delivery is
of equal force with a condition written within the deed (e).
By what words created. — Conditions are most properly
created by using the word "condition," or the words "on
condition ; " but the word commonly and as effectually made
use of, is, that of "provided" (/). The w^ords "covenant"
and " condition," when used in an agreement, do not neces-
sarily mean a covenant under seal, or a condition in the
strict legal sense of the word, but may, in order to effectuate
the intention of the parties, be construed to mean " contract
or stipulation " (^). If a proviso or condition have dejDend-
ence upon another clause of the deed, or if the words of
the lease be to compel the lessor to do something, then it is
not a condition, but a convenant only ; as if there be in the
deed a covenant that the lessee should scour the ditches, and
then these words follow, "provided that the lessor shall
carry away the earth." If the words run thus : " provided
always, and the lessee, &c., doth covenant, &c., that neither
he nor his heirs shall do such an act ; " this is both a
[*182] condition and a covenant (A) ; so if the * words are
" provided always, and it is covenanted and agreed
between the parties, that the lessee shall not alien," this is
both a condition and a convenant ; for it is a condition by
force of the proviso, and a covenant by force of the other
words (i) A covenant by the lessor for quiet enjoyment by
the lessee, his executors, administrators and assigns, during
the term, he or they paying the rent thereby reserved and
performing the covenants on his and their part contained, is
not a covenant subject to a condition precedent (A;).
Condition or covenant. — Where in an agreement to demise
(d) Com. Dig. tit. Condition (A. (;/) Ilnyne v. Cunimings, 16 C. B.,
9). N. S. 421.
(e) Griffin v. Stanhope, Cro. .Tac. (/() Ship. Touch. 122 ; Co. Lit. 140.
4oO; Goodnight d. Nicholls v. Mark, (/) Co. Lit. 103 b.
4 M. & S. 30. (/ ) Dawson i^. Dyer, Bart., 5 B. &
(/) Shep. Touch. 122; Co. Lit. Adol. 584, /-o.sY, Chap. XVIL, Sect. 8
146. b ; and see Lock v. Furze, 19 C. B.,
N. S. 1)6; L. K., 1 C. l*. 441,
298
Cji. V. S. 11.] PROVISOES AND CONDITIONS. *182
lands for a term of years at a certain annual rent, in which
there was no clause of re-entry, there was a stipulation " that
in case the said lessor should want any part of the said land
to build or otlierwise, or cause to be built, then the lessee
shall give up that part of the said land as should be re-
quested by the lessor, by his making an abatement in pro-
portion to the rent cliarged ; and also to pay for so much of
the fence at a fair valuation, as he should have occasion
from time to time to take away, by his giving or leaving six
months' notice of what he intended to do : " it was held,
that this was merely a covenant, and not a condition Q).
But where a proviso in a lease was, that in case the lessor at
any time shall be desirous of having any part of the land de-
livered up to him and shall sign three months' notice, the les-
see covenants to give it up, and that the lessor shall and may
take peaceable and quiet possession, paying a fair compensa-
tion, and the rent being reduced at a certain rate per acre,
it was held not to be a covenant merely (w). By an agree-
ment for a lease it was stipulated and conditioned, that A.
should not assign, transfer or underlet any of the premises,
otherwise than to his wife, child or children : it was held,
that by such clause a condition was created for the breach
of which the lessor might maintain an ejectment (n). But
mere words of agreement, such as " the tenant hereby agrees
that he will not underlet the premises without the consent
in writing of the landlord " (o), do not constitute such a
condition (p).
A condition that assignments should be left with the soli-
citor of the ground landlord has been held to be a cove-
nant Of).
"Running with the land." — A condition which does not
concern the thing demised, but is only collateral, does not
(/) Doe d. Wilson v. Phillips, 2 (o) Shaw v. Coffin, 14 C. B., N. S.
Bing. 13 ; 9 Moo. 46 ; Doe d. Wilson 372.
V. Abel, 2 M. & S. 541. (;>) 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- 0 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, 0 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 (<?). A written paper,
signed by an auctioneer, and delivered to a bidder, to whom
lands were let by auction, containing the description of the
lands, the term for which they were let to the bidder, and
the rent payable, but not the lessor's name, was held neces-
sary to be stamped (t?) : but a similar paper not signed by
the auctioneer, or any of the parties, was held not to be such
a minute of the agreement as was required to be stamped,
nor such a writing as would exclude parol evidence (e).
Where there was a parol agreement to demise cer-
tain premises upon * the terms and conditions con- [*187]
tained in a lease of the same premises granted by the
lessor to another person ; it was held, that in an action by
the lessor against the lessee for rent and non-repairs, the
lease could not be read in evidence unless it was stamped (/).
Where an instrument stamped with a lease stamp demised
certain premises upon the conditions contained in the annexed
lease, which was not stamped, it was held, that the annexed
lease was admissible in evidence without a stamp (/y).
Though an oral lease for three years may be good, yet if it
be reduced into writing it must be stamped, or it will not be
receivable in evidence (A).
Objection to stamp at trial. — Where a document is offered
(b) Drant v. Browne, 3 B. & C. 665 ; (/) Turner v. Power, 7 B. & C.
Edgar v. Blicke, 1 Stark. R. 464. 625; 1 Moo. & M. 131.
(c) Bethell v. Blencowe, 3 M. & G. (g) Tearce v. Cheslyn, 4 A. & E.
119. 225; Strutt v. Robinson, 3 B. & Ad.
(d) Ramsbottom v. Mortley, 2 M. 395.
& S. 445. (/() Prosser i-. Phillips, Bull, N. P.
(e) Ramsbottom v. Tunbridge, 5 M. 269.
& S. 434.
305
*188 THE LEASE. [Ch. V. S. 13.
in evidence, and it is objected to by the opposite party on
the ground that it is not sufficiently stamped, proof of that
lies on the party who makes the objection, it being a fact(z).
The objection is one of a preliminary nature to be decided
by the judge (not by the jury), who Avill, immediately upon
the objection being taken, permit evidence to be interposed,
and arguments adduced, to prove or disprove the sufficiency
of the stamp (/:). Where a document has been altered so
as to affect its validity and also the stamp, it should be
objected to on two grounds, viz., 1. That the alteration has
made the deed void ; 2. That it has rendered a new stamp
necessary : unless the second point be duly taken, it cannot
be relied upon, on an application for a new trial, &c. Q').
The judge's decision that the stamp is sufficient, or that no
stamp is necessary, is conclusive (?«) ; but his decision the
other way may be reviewed upon an application for a new
trial, &c. (w). Since the Common Law Procedure Act, 1854,
s. 28 (repealed and re-enacted by s. 15 of the Stamp Act,
1870), objections to written evidence for want of a sufficient
stamp are usually made by the judge's marshal or associate,
whose duty it is to make the objection, although neither
party wishes it, upon the production of the document as
evidence. But sometimes this may be avoided by the parties
mutually agreeing in Avriting before the trial to admit copies
in evidence instead of the originals (o). Under the Stamp
Act, 1870, the associate can make onl}'- sucli objections for
want of a stamp as the parties might have made if tlie statute
had not passed (o).
stamping after execution. — By the Stamp Act,
[*]88] 1870, s. 15, an unstamped or insufficiently * stamped
instrument may be stamped after execution, on pay-
(/) Wadflinjiton v. Francis, 5 Ksp. Vict. c. 125), s. P>\ ; 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. (</). Whether it was intended to operate
as a deed, or only as an escrow, is a question of fact for the
jury (A).
By attorney. — An attorney or agent to execute a deed in
the absence of his principal must be authorized by deed (i),
and he must execute it in the name of his principal, or in his
own name, adding such words as show that he acts solely as
the agent of his principal (/r). If an unauthorized person
seal and deliver a deed in the name and on behalf of one of
the parties, and the party himself deliver it afterwards, he
thereby adopts the sealing, and makes it his own deed (J).
Date. — Every deed is taken to be delivered on the day it
bears date, unless the contrary be proved {m^ ; and if proved,
it operates only from the time of execution (n) : but if the
date be false or impossible, the delivery ascertains the time
of it (o). Parol evidence is admissible to show that a written
contract which has no date was not intended to operate from
its delivery, but from a future uncertain period (p).
(/) Shep. Touch. 58, 59. (0 Tupper v. Foulkes, 9 C. B., N.
Ig) Gudgcn v. Bessett, 6 E. & B. S. 797.
986 ; Bowkor v. Bunk-kin, 11 M. & W. ("0 Co. Lit. 36 ; 2 Blac. Com. 307.
129 ; Cliristio v. Wilmington, 8 E.xch. ()') Cooper v. Robinson, 10 M. & W.
287, 290 ; Pym v. Cainpl)ell, 6 E. & B. 694 ; Shaw c. Kay, 1 Exch. 412 ; Bird
370 ; 25 L. J., Q. B. 277 ; Furnoss r. v. Baker, 1 E. & E. 12 ; 28 L. J., Q. B.
Meek, 27 L. J., Ex. .34 ; Millersliip v. 7 ; Jeron v. Tomkinson, 1 li. & N.
Brookes, 5 H. & N. 797 ; 29 L. J., Ex. 196, 206 ; Steele v. Mart, 4 B. & C.
369; Murray i;. Earl of Stair, 2 B.&C. 272; Browne r. Burton, 5 D. & L. 289.
82 ; Davies v. Jone.s, 17 C. B. 625, 634. (o) Murray v. Earl Stair, 2 B. & C.
{h) Ponsford v. Walton, L. K., 3 82; Bowker r. Burdekin, 11 M. & W.
C. P. 167, 174. ■ 128; Doe d. Garnons v. Knight, 5 B.
(0 Harri.son v. Jackson, 7 T. R. & C. 671 ; Hare v. IIort()n,5 B. & Ad.
207; Berkely v. Hardy, 5 B. & C. 715 ; Goodri^ht r. Grefrory, Lofft,339;
355; Smith L. &T. 82 C2nd ed.). Goodri^ht d Carter v. Strai)han,
(k) M'Ardle v. Irish Iodine Co., 15 Cowp. 201 ; Lofft, 763.
Ir. Com. L. R. 140. ( /') Davis v. Jones, 17 C. B. 626.
310
Cii. V. S. 15.] REGISTRATIONS OF LEASES. *191
Attestation by witnesses. — The last requisite is the attes-
tation or execution of the lease in the presence of witnesses,
though this is generally necessary rather for the preservation
of the evidence, than to constitute the essence of the deed.
But if the lease be made in pursuance of a power, it must
be executed and attested as required by the power, or by the
stat. 22 & 23 Vict. c. 35, s. 12 (q). And when it requires to
be registered in Middlesex or Yorkshire (infra. Sect. 15), the
"memorial" required by s. 5 of the Yorkshire Registries
Act, 1884, must, by s. 6 of that act, be attested by one wit-
ness or more, " one of whom at least," by s. 6 of the act,
"shall have been a witness to the execution." In the North
Riding two witnesses were necessary prior to the Act of
1884 (r).
* Sect. 15. — Registrations of certain Leases in Mid- [*191]
dlesex, Yorkshire and Bedford Levels.
In Middlesex. — If the demised premises be situate in Mid-
dlesex, Yorkshire, or the Bedford Levels, and if the lease be
not at a rack rent or for more than 21 years in Middlesex, or
for more than 21 years in Yorksliire, or for more than 7 years
in the " Bedford Levels," registration will be necessary to
give it force against subsequent purchasers or mortgagees.
This registration is provided for in Middlesex by 7 Ann. c.
20, s. 17 of which is as follows :
Leases not required to be registered. — " This act shall not
extend to any copyliold estates, or to leases at a rack rent (s),
or to any lease not exceeding one-and-twenty years., ivhere the
actual possession and occupatioti goeth alofig with the lease, or
to any of the chambers in Serjeants' Inn, the Inns of Court,
or Inns of Chancery ; anything in this act contained to the
contrary thereof in anywise notwithstanding."
Leases not comprised in this ver}^ extensive exception may
be registered in such manner as is in the act directed ; and
every such lease " shall be adjudged fraudulent and void (t}
(q) Post, Sect. 19. (f) See Wormald v. Maitland, 35
0) Post, Sect. 15. L. J., Ch. 69; 13 W. R. 832.
(s) /. e. a rent of the full annual
value of the thing demised.
311
*192 THE LEASE. [Ch. V. S. 15.
against any subsequent purchaser or mortgagee for valuable
consideration, unless a memorial thereof be registered as by
the act is directed before the registering of the memorial of
the deed or conveyance under which such subsequent pur-
chaser or mortgagee shall claim.
Memorials, how executed, &c. — By sect. 5, " every such
memorial shall be put into writing (m) on vellum or parch-
ment, and brought to the said office (rr), and shall be under
the hand and seal of some or one of the grantors, or some or
one of the grantees, his or their heirs, executors or adminis-
trators, guardians or trustees, attested hy two witnesses, one
ivhereof is to be one of the tvitnesses to the execution of such
deed or conveyance, which witness shall upon his oath, before
one of the said registrars, or before a master extraordinary in
Chancery (^), prove the signing and sealing of such memo-
rial, and the execution of the deed or conveyance mentioned
in such memorial."
Contents of memorial. — By sect. 6, " every memorial of
any deed or conveyance shall contain the day of the month
and the year when such deed or conveyance bears datre, and
the names and additions of all the parties to such deed or
conveyance, and of all the witnesses thereto and the places
of their abode, and shall express or mention the honors,
manors, lands, tenements, and hereditaments con-
[*192] tained in such deed * or conveyance, and the names
of all the parishes, townships, hamlets, precincts or
extra-parocliial places within the said county where any such
honors, &c., are lying or being, that are given, granted, con-
veyed or in any way affected or charged by any such deed or
conveyance, in such mannei' as the same are expressed or men-
tioned in such deed or conveyance, or to the same effect." In
preparing a lease or other conveyance which will have to be
registered, this enactment should be borne in mind, and the
parcels described accordingly, so that they may be merely
Ck) It may he litliofrrajjlied ; Rejj. (//) Now, " Commissioner to ndinin-
V. Registrars of Mi<l<ik'sox, 7 Q. H. ister oaths in the Supreme ('ourt,"
156. Ifi & 17 Vict. c. 78; Judicature Act,
(x) The Registrar's OfTiee, No. 8, 1873, s. 82.
Serle Street, Lincoln's Inn, London,
W. C.
312
Ch. V. S. 15.] REGISTRATIONS OF LEASES. *192
copied in the memorial, and yet give all the particulars
required by the statute (2).
Certificate of registration. — The deed must be produced,
together with the memorial thereof, to tlie registrar, who is
to indorse on the deed a certificate of the registration, &c.,
" which certificate shall be taken and allowed as evidence
of such respective registries in all courts of record whatso-
ever " (a).
Memorials to be filed in due order. — And the registrar
" shall duly file every such memorial in order of time as the
same shall be brought to the said ofifice, and enter or register
the said memorials in the same order that they shall respec-
tively come to his hands." When two deeds are registered
on the same day and at the same hour, they must be presumed
to have been registered in the order as numbered (6).
Two deeds as to same land. — By sect. 7, when two or more
deeds relating to the same land are registered together, the
parcels need not be stated at length more than once in the
memorial and registry thereof.
Regifetry of judgments, &c. — By sect. 18, judgments, stat-
utes, and recognizances shall affect or bind lands in Middle-
sex only from the time of a memorial thereof being registered
as therein mentioned (c).
Yorkshire. — The Yorkshire Registry Act, 1884,47 & 48
Vict. c. 54, consolidating and amending 2 & 3 Ann. c. 4, 5 &
6 Ann. c. 18, and 6 Ann. c. 35, s. 34 (West Riding), 6 Ann.
c. 35 (East Riding), and 8 Geo. 2, c. 6 (North Riding), con-
tains similar enactments with respect to hereditaments in
Yorkshire.
The excepting clause, s. 28, is as follows :
" Nothing in this act contained shall be deemed to extend
to any copyhold hereditaments, nor to any lease not exceed-
ing twenty-one years, or any assignment thereof where
(2) Reg. V. Registrars of Middle- deed is registered ; Wollaston v. Hake-
sex, 15 Q. B. 976. will, 3 M. & G. 297.
(a) The registered memorial of a (6) Neve v. Pennell and Hunt v.
deed conveying lands in Middlesex is Neve, 33 L. J., Ch. 19; 2 Hem. & M,
secondary evidence of the contents of 170.
such deed against the personal repre- (c) Benham v. Keane, 31 L. J., Ch.
scntatives of the party by whom such 129 ; 8 Jur., N. S. 604.
313
*193 THE LEASE. [Ch. V. S. 15.
accompanied by actual possession, from the making of such
lease or assignment."
Registry offices in Yorkshire. — B}' S. 31 of the act the reg-
istry offices are, as under the repealed acts, at Northallerton
for the North Riding, at Beverly for the East Riding, and at
Wakefield for the West Riding.
[*193] * By the Vendor and Purchaser Act, 1874 (37 & 38
Vict. c. 78) (c^), " where the will of a testator devis-
ing land in Middlesex or Yorkshire has not been registered
within the period allowed by law in that behalf, an assurance
of such land to a purchaser or mortgagee by the devisee or
by some one deriving title under him shall, if registered
before, take precedence of and prevail over any assurance
from the testator's heir at law."
In the Bedford Level. — By 15 Car. 2, c. 17, s. 8, " no lease,
grant or conveyance of or charge out of or upon the said
ninety-five thousand acres [of the Bedford Level], or any
part thereof, except leases for seven years or under in posses-
sion, shall be of any force but from the time it shall be
entered with the registrar, as thereby directed ; the entry
whereof being endorsed by the said registrar upon such
lease, grant, conveyance or charge, shall be as good and
effectual in the law as if the original book of entries were
produced at any trial at law or otherwise." The intention
of these acts plainly is to secure subsequent purchasers
and mortgagees against secret conveyances and fraudulent
incumbrances.
Cases upon Middlesex, Yorkshire and Bedford Level Registry-
Acts. — A lessee of land in the Bedford Level cannot object
to an action by his landlord for a breach of covenant in not
repairing, that the lease was void by statute for want of
being registered, as the act does not avoid it as between the
parties themselves, but only postpones its priority with respect
to subsequent incumbrancers registering their title before (e).
All leases by deed for a valuable consideration not expressly
excepted are subject to the provisions of the Middlesex and
Yorkshire acts. Therefore, where lands within a register
(f/) Sect. 18. ('') Hodson v. Sharpc, 10 East, 360,
314
Cii. V. S. 15.] REGISTRATIONS OF LEASES. *194
county are demised by way of mortgage, the mortgagor to
enjoy the same until default in payment of the principal and
interest, the deed requires registration (/). But a deposit
of a lease with or without a memorandum in writing, by way
of equitable mortgage of lands in Middlesex, need not be
registered, not being a " deed or conveyance " within the
meaning of the 7 Ann. c. 20 (^), although actual or con-
structive notice thereof will in equity affect a subsequent
purchaser (^Ji). A further charge which is not registered
will be postponed to a subsequent mortgage which is regis-
tered (i). The mere receipt of rent Avould not, it seems, be
deemed an actual possession and occupation witliin
the registry acts (^). A lease within the * exception [*194]
of these acts will so continue, notwithstanding it may
afterwards become a valuable and saleable interest (Z). Reg-
istering an assignment is not registering the lease (m). In
registering an assignment of a lease, the parcels ought to be
inserted in full, and it is not enough to refer to them as
being described in the lease (w). A memorial of an assign-
ment of lease indorsed on the lease was tendered for regis-
tration to the registrar for Middlesex, under stat. 7 Ann. c.
20, in the following form : " An indenture of assignment."
Then followed a statement of the date and parties to the
assignment, "assigning all that brick messuage," &c. (speci-
fying the premises and giving a full description of them as
to locality and occupation), " by the description of the mes-
suage or tenement, out-offices and premises, comprised in and
demised by the within-written indenture of lease, with the
appurtenances." The memorial did not state the date of
(/) Rigge on Registration, 88, n. 6.39; 29 L. J., Ch. 419; Neve v. Pen-
(o) ; Wilson on Registration, 29 ; Sug. nell, and Hunt v. Neve, contra.
V. & P. 727 (14th ed.). (k) Fury v. Smith, 1 Huds. & Br.
(g) Sunipter v. Cooper, 2 B. & Adol. 735, 751.
223; Wright v. Stansfield, 27 Beav.; (/) Sug. V. & P. 727 (14th ed.) ;
28 L. J., Ch. 183. But see Neve v. Wilson on Registration, 29.
Pennell, and Hunt v. Neve, 33 L. J., (m) Honeycomb d. Halpen v. Wal-
Ch. 19; 2 Hem. & M. 170; Wormald dron, 2 Stra. 1004; Fleming v. Ne-
V. Maitland, 35 L. J., Ch. 69; 13 W. ville, Hayes, 23; Fury v. Sniitli, 1
R. 832. Huds. & Br. 735, 755.
(A) Wormald v. Maitland, supra. (n) Sug. V. & P. 731 (14th ed.).
0") Moore v. Culverhouse, 27 Beav.
315
*195 THE LEASE. [Ch. V. S. 15.
the lease itself or the parties to it. It appeared on affidavit,
in support of a rule for a mandamus to the registrar to regis-
ter this memorial, that the full description of the premises
was taken from the lease : it was held, that the memorial
did not comply with the requirements of stat. 7 Ann. c. 20,
s. 6, as it did not show that the premises were described in
such manner as the same were expressed in the deed to be
registered, or in the lease thereby referred to. It was also
held, that where the deed, of wliich a memorial is to be
registered, is indorsed on an earlier deed, it is not sufficient
to describe the premises by such memorial in the terms used
in the earlier deed, without express reference to it, if the
deed to be registered describes the premises simply b}- refer-
ence to the earlier deed (o). Where there were two assign-
ments of the same lease of certain premises in Middlesex,
and the last executed was registered first, it was held that at
law the deed last registered must be considered as fraudu-
lent and void, under the statute 7 Ann. c. 20, s. 1 ; although
the party claiming under the second assignment knew, when
it was executed, of the prior execution of the fost assign-
ment (jt?). So a mortgage of leaseholds in Middlesex, which
is registered there before a prior judgment obtained against
the mortgagor, and registered in the Common Pleas (but
not in Middlesex until after the mortgage), will take pre-
cedence of the judgment and any elegit thereon (5^). The
enrolment of a lease granted by the Duke of Corn-
[*195] wall is evidence in the same * manner as if it had
been granted by the crown, when there is no Duke
of Cornwall (r).
Elaborate provisions have been made by the Land Registry
Acts of 1862 (25 & 26 Vict. c. 53), and subsequently by the
(o) TJeg. V. Registrar of Middlesex, (r) Rowe v. Brcnton, 8 B.&. C. 755.
15 Q. B. 976. In the Ducliy of Lancaster, see Kin-
(/') Doe d. Robinson v. Allsop, 5 nersley v. Orpe, 1 Doug. 56. As to
B. & A. 142; Elscy v. Lutyens, 8 registration of conveyances, see Le
Hare, 159; Warbiirton i-. Loveland, Neve t'. Le Neve, 3 Atk. 651; Ambl.
3 Dow. & CI. 480 ; Carlisle v. Whaley, 436 ; Hine v. Dodd, 2 Atk. 275 ; Jol-
L. R., 2 II. L. Cas. 391. land v. Stainbridge, 3 Ves. 478;
(7) Westbrook v. Blytli, 3 E. & B. Morecock v. Dickens, Ambl. 678.
737 ; 23 L. J., Q. B. 386.
316
Ch. V. S. 16.] COSTS OF LEASE AND COUNTERPART. *195
Land Registry Act of 1875 (38 & 39 Vict. c. 87), wliicli
supersedes it, for the registration of titles generally; but
these acts, unlike the particular acts above referred to, are
simply permissive. The Middlesex and Yorkshire Registra-
tion Acts do not apply to land registered under either of the
general acts (.s-). Leasehold land may not be registered
under the act of 1875, unless it be held under a lease which
is either immediately or mediately derived out of land of
freehold tenure (sect. 2). Sects. 34-39 refer to the trans-
fer of leases, and sects. 50, 51 to notice of leases.
Sect. 16. — Costs of Lease and Counterpart.
(a) B^ whom payable.
Costs of lease and counterpart. — The lease and counter-
part are usually prepared by the lessor's solicitor on behalf of
both parties ; but frequently the draft lease is settled and
approved of by the lessee's own solicitor; who sometimes
claims the right to engross the counterpart (^), which how-
ever seems unusual and improper. The costs of survej'or's
charges and counsel's fees for advising on title, &c., will not
be allowed as part of the costs of the lease (7a). In the
absence of any express stipulation to the contrary, the ex-
pense of the lease falls upon the lessee, and of the counter-
part upon the lessor (a:), and the lessee frequently agrees to
pay all the expenses of both lease and counterpart.
By whom solicitor employed. — The lessor's solicitor, when
lie acts for both parties, should, in the first instance, take
care to be emploijed by the lessee to act on his beliaJf in the
preparation of the deeds, so that he may recover the amount
of his charges from him, whether the negotiation for a lease
goes off or is completed. Slight evidence of such employ-
es) Act of 18(32, s. 104; Act of 90; L. R., 1 C. P. 441; 34 L. J., C.
1875, s; 127. P. 201; 35 1(1. 141.
(t) Forster v. Rowland, 7 H. & N. (x) Jennings v. Major, 8 C. & P.
103; SOL. ,T., Ex. 396. 61.
(m) Lock V. Furze, 19 C. B., N. S.
317
*196 THE LEASE. [Ch. V. S. 16.
ment is generally sufficient (j/). If tlie solicitor of the
lessor, who is not the solicitor for the lessee, nor
[*196] employed by him on the particular * occasion, pre-
pares the lease and counterpart, he must look to his
own client, the lessor, for payment of his charges ; and the
lessor, having paid them, may sometimes recover the amount
from the lessee, under the special agreement entered into be-
tween them, or as money paid to his use, at his request (z).
When a proposed lease goes off, it is sometimes very impor-
tant to ascertain correctly who is directly liable to the solici-
tor, because such party, after paying the amount, may have
no remedy over against the other, by reason that the failure
of the negotiation was attributable to him rather than to the
other party; or that there was not a complete contract in
writing sufficient to satisfy the Statute of Frauds (a). It is
always a question for the jury by whom the solicitor was
employed (Z*) : and he should take care to secure in the
first instance sufficient evidence of such employment by the
lessee. Sometimes the charges of the lessor's solicitor may
be taxed at the instance of the lessee, even after they have
been paid (c).
(b) Scale of Solicitors' Charges.
Solicitors' Remuneration Order. — The Solicitors' Remunera-
tion Order, 1882, of which so much as applies to leases and
agreements for leases, is set out in the Appendix to this
work ((?), prescribes a scale of remuneration to solicitors (e)
(//) TVchb ;•. Khodcs, 3 Bing. N. C. {d) See post, Appendix A. sect. 13.
732; Smith u. CIcgg, 27 L. J., Ex. As to agreements for leases, see, also,
300. Ch. IV. sect. 8, ante.
(z) Grissell v. Robinson, 3 Bing. N. (e) By s. (iO of the Stamp Act,
C. 10, 10; Baker v. Merywoatlier, 2 1870, every person, not being a bar-
C. & K. 737. rister, solicitor, or conveyancer, &c.,
{n) 20 Car. 2, c. 3, s. 4 ; Forster v. who " draws or prepares any instru-
Rowland, 7 II. & N. 103; 30 L. J., ment relating to real or personal
Ex. '-V.r,. estate shall forfeit 50/., but by par. 2
(/;) Wilkinson ?'. Grant, 18 C. B. b, of the same section, it is provided
310, 320; .Smith ?'. Clegg, 27 L. J., that the term "instrument" in the
Ex. 300. section does not include " agreements
{r.) In re. Newman, L. K., 2 Ch. 707 ; underhand onl3^"
30 L. J., Ch. 813.
318
Ch. V. S. 17.] ENTRY OF LESSEE. *197
for preparing, settling, and completing lease and counterpart.
By this scale, if the lease be at a rack-rent, the charges are
limited to 11. 10s. on a rental not exceeding lOOZ. (but not
less in any case than 51.'), and on a rental exceeding lOOZ., to
71. 10s. on the first 100/., and 21. 10s. more on each additional
100?., and on a rental exceeding 500/. to 11. 10s. on the first
100/. and 21. 10s. more on each additional 100/. up to 500/.,
and 1/. more on each additional 100/. The lessee's solicitor
may charge one-half the above. A solicitor concerned for
both parties " is to charge the lessor's solicitor's charges, and
one-half of that (^sic) of the lessee's solicitor."
Stamps and disbursements. — The above scale " is not to
include stamps, counsel's fees, or other disbursements reason-
ably and properly paid (/)." It applies only to completed
transactions (ff}.
*Sect. ll.—Entnj of Lessee. [*197]
Interesse Termini. — Before entry a lessee for years has at
common law o\\\j an interesse termini (an interest of a term),
and no possession. He cannot before entry maintain an action
of trespass (^) ; but he may maintain ejectment (A), or he
may assign his interest, and his assignee may enter, or main-
tain ejectment (i). If a lease be so framed as to be a bar-
gain and sale under the Statute of Uses, the possession is
immediately executed in the lessee, without actual entry (Jc).
In Neale v. Mackenzie premises were demised by parol for a
year. The lessee accepted the lease, and, by virtue of the
demise, entered upon the demised land. Before and at the
time of the demise, eight acres included in it had been
demised to a third party, in whose possession they were, so
that the lessee could not, and did not, enter upon them. It
Avas held that the latter demise was wholly void as to the
(/■) Rule 4. 5.53; Harrison v. Blackburn, 17 C. B.,
(ff) Rule 2 (b). N. S. 078; Cole Ejec. 287.
(r/) Co. Lit. 296 b ; Wlieelcr v. (A) Cole Ejec. 72, 287, 459 ; Doe d.
Montefiore, 2 Q. B. 133, 156 ; Tur- Parsley v. Day, 2 Q. B. 156 ; Ryan v.
ner v. Cameron's Steam Coalbrook Clark, 14 Q. B. 73 ; 7 D. & L. 8.
Coal Co., 5 Ex. 932; Lichfieia r. (/) 8 & 9 Vict. c. 106, s. 6.
Ready, Id. 939; Lowe v. Ross, Id. (A) 2 Blac. Com. 270.
319
*198 THE LEASE. [Ch. V. S. 18.
eight acres, and that the rent was not apportionable, and
could not be distrained for, the impediment of the lessee
taking possession not being analogous to an eviction by an
elder title (?). So Avhere the tenant could not obtain posses-
sion of part of the premises demised, it was held an action of
covenant could not be maintained by the lessor against the
lessee for the rent, as in such an action it could not be
apportioned (m). The interesse termini is in the lessee,
whether the lease be made to commence immediately or at a
future day (n).
Sect. 18. — Void or Voidable.
Davenport v. The Queen. — When a lease contains a proviso
or condition that on breach of an}^ of the covenants, the lease
"shall cease, determine, and be utterly void, to all intents
and purposes whatsoever," such words will be construed to
mean void at the election of the lessor (o). This has been held
in a series of cases, affirmed by the Judicial Committee of
the Privy Council in Davenport v. The Queen (jd).
[*198] The lessee will not be allowed * to take advantage of
his own wrongful act or omission, and to say that
thereby the lease lias become void (g). The lessee must do
some act evidencing his intention to enter for the forfeiture
and determine the lease (?•) ; and the lease will be avoided
from that time only ; but previous arrears of rent may be
sued for, although upon re-entry the lessor is to have the
premises again "as if the said indenture had never been
made " (s). The subject of forfeiture is further considered
hereafter (Chap. VII J., Sect. 5).
(0 Ncale V. Mackenzie, 1 M. & W. (7) Kcde v. Farr, 6 M. & S. 121 ;
747. Doe (/. Rryan v. Bancks, 4 B. & A.
(/h) Iloltrate V. Kay, 1 C. & K. 341. 401 ; Arnshy r. Woodward, 0 B. & C.
(n) Com. Dip. tit. Estate (G. 14); 510; Roberts r. Davey, 4 B. & Ad.
Lock V. Furze, 10 C. B., N. S. 00, lO.'l, (K54 ; Doe d. Nash v. Bircli, 1 M. & W.
105; L. R., 1 C. V. 441 ; .^,4 L. J., C. 402; Reid v. Parsons, 2 Chit. R. 247.
P. 201; 35 Id. 141. (j) Roberts v. Davcy, 4 B. & Ad.
(0) Roberts v. Davey, 4 B. & Ad. 007; Arnsby r. Woodward, 0 B. & C.
fi67; Pennintrton r. Cardale, 3 II. & 510; Yonn d. Mattliews v. Smart, 12
N. 650; IIu-lus r. Pahner, 10 C. B., East, 444, 451 ; Baylis 1: Le Cros, 4
N. S. 30:5, 404, 407 ; Cob" Kjec. 408. C. B., N. vS. 5:'.7.
O) L. R., 3 A])i). Ca. at p. 128. (n) Hartsliorne v. ■\Vatson, 4. Ring.
320
Cii. V. S. 18.] VOID OR VOIDABLE. *198
Fraud. — Where a lease was granted to a man on his f raud-
vilent representation that he intended to use the premises for
carrying on a hiwful trade, he intending at the time to use
them, and afterwards using them, as a brothel, the represen-
tation being collateral to the agreement, was held not to
avoid the lease (t}.
Illegality. — Where a lessee intending to assign knew that
the intended assignee took the premises for the purpose of
using them as a brothel (notwithstanding an express cove-
nant therein contained not so to use them), the transaction
was held void, so as to prevent the lessee, who had paid for
dilapidations to the lessor, from recovering the money so paid
from the assignee under the indemnity clause of the assign-
ment, and it was said that no rent or damages for breaches of
covenant would have been recoverable upon an underlease
executed before the assignment (w). In covenant for rent
it is a good defence that the premises were demised by the
plaintiff to the defendant for the express purpose of being
used for boiling oil and tar, contrary to the provisions of the
Building Act (.r).
"What avoids a lease, erasure, &c. — A lease by deed may be
avoided by matter ex post facto, as by erasure, interlineation
or otheral teration in any material part (^). The same rule
extends to a lease not by deed, and it has been held that the
addition by a stranger of a seal to a written instrument will
avoid it (2). A deed executed with blanks in material parts,
whereby it is incapable of having any operation, and after-
wards filled up and delivered by another person, in the
N. C. 178 ; Load v. Green, 15 M. & were intended to be used for blasphe-
W. 210, 223; Selby v. Browne, 7 Q. mous lectures.
B. 620; Franklin v. Carter, 1 C. B. (m) Smith v. White, L. R., 1 Eq.
750; 3D. &L. 213; Johns f. White- 626; 35 L. J. Ch., 454. See, also,
ly, 3 Wils. 127 ; Att.-Gen. v. Cox, 3 Jenning i-. Throgmorton, Ry. and
H. L. Cas. 240. Mood. 251, and post, Ch. vi. Sect. 3.
(0 Feret v. Hill, 15 C. B. 207. As (x) Gas Light Co. v. Turner, 7
to plea of fraud to an action for not Scott, 779; 8 Id. 609 ; 5 Bing. N. C.
granting a lease, see Calvaleiro v. 666; 6 Id. 324.
Paget, 4 F. & F. 537 ; and as to plea ( y) Pigot's case, 11 Co. R. 27 ; Bull,
of illegality, see Cowan ?;. Milbourn, N. P. 267; 2 Blac. Com. 308; David-
L. R., 2 Ex. 230 ; 36 L. J., Ex. 124 ; son r. Cooper, 13 M. & W. 352
in which case it was held to be a (Exch.).
defence that rooms agreed to be let (c) Davidson v. Cooper, supra.
321
*199 THE LEASE. [Ch. V. S 18.
[*199] absence of the party who has * executed, and unau-
thorized by instrument under seal, is invahd (a). If a
deed be altered by a stranger in a point not material, the deed is
not avoided ; but it is otherwise if it be altered by a stranger in
a point material ; for the witnesses cannot prove it to be the act
of the party where there is any material difference : an imma-
terial alteration, however, does not change the deed, and
consequently the witnesses may attest it without danger of
perjury; but if the deed be altered by the party himself,
though in a point not material, yet it avoids it, for the law
takes every man's act most strongly against himself.
Altered deed. — It is material to observe that an altered
deed, although the covenants in it cannot be sued upon, may
be good evidence to show the estate which passed by it, and
which was not divested by these alterations (ft). Where, by
agreement between plaintiff and defendant, a house, No. 38,
was let to the plaintiff, and after the agreement was exe-
cuted and delivered to the plaintiff the number was altered
to 35, but it did not appear by whom, No. 35 being in fact
the house let ; it was held that the agreement might be given
in evidence in an action for an excessive distress, in which
the demise was admitted, to show the terms of the hold-
ing (e).
Cancellation. — It has been held that the cancelling of a
lease by the mutual consent of both parties does not destroy
the term vested in the lessee, and that, therefore, notwith-
standing such cancellation, the lessor may maintain an action
of deht on the demise for the recovery of the rent ((^), and the
deed may be given in evidence to show that the estate
passed (e).
(n) ITibl.lewliitc v. M'Morine, 6 M. 800; Stewart v. Aston, 8 Jr. Com. L.
& W. 200 ; 8 Dowl. 802. I^ut soe R., N. S. 35.
EaRloton )•. Gutteridfrp, 11 M. & W. ('0 Lord Ward v. Luniloy, 5 H. &
465; 2 Dowl., N. S. 1050. N. 87, (iSO ; 29 L. J., Ex. a22.
(/>) 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 (</). Upon a power
to grant building leases, such- a lease expressly exempting
the lessee from rebuilding in case of fire, and by another
clause enabling him to surrender the lease upon notice,
could not be sustained (K).
Sporting rights. — A power to demise lands or any part of
them is not well executed by a demise of part with liberty of
shooting over the whole (0- But the right to shoot and fish
over the lands demised may be excepted and reserved to the
lessor and hLs assigns (h^.
Effect of charges. — If a tenant for life with a power to
grant leases in possession for twenty-one years at the best
rent, convey his life estates to trustees to pay an annuity for
(e) Jones d. Cowper r. Vemer, (h) Sag. Pow. 743; Stiles r. Cow-
Willes, 169; Sag. Pow. 7.38. ' per, 3 A tk. 692.
(f) r>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 (<f), notwithstanding it shall have been ex-
pressly required that a deed or instrument in writing made
in exercise of such power should be executed or attested
with some additional or other form of execution or attesta-
tion or solemnity : provided always, that this provision shall
not operate to defeat any direction in the instrument creat-
(m) Doe d. Barlett v. Eendle, 3 M. (p) In re Rickett, 1 Johns. & H.
&S.99; Fuller t'. Abbott, 4 Taunt. 105. 70; 29 L. J., Ch. 712.
(n) Doe d. Williams v. Matthews, 5 Qj) They are provided for by 1
B. & Ad. 298. Vict. c. 26, s. 10 ; Coie Ejec. 501.
(o) Doe d. Lord Egrcmont v. Ste-
phens, 6 Q. B. 208.
335
*210 THE LEASE. [Ch. V. S. 19.
ing the poAver that the consent of any particnhir person
shall be necessary to a valid execution (r), or that any act
shall be performed (s), in order to give validity to any
appointment, having no relation to the mode of executing
and attesting the instrument ; and nothing herein contained
shall prevent the donee of a power from executing it con-
formably to the power by writing or otherwise than by an
instrument executed and attested as an ordinary deed, and
to any such execution of a power this provision shall not
extend."
It is to be observed that if the power prescribes less than
the statute, it is sufficient to comply with the terms of the
power : but if the power prescribes more than the statute, it
is sufficient to comply with the statute.
(g) Defects in — lioiv cured.
Invalid leases good as contracts for leases. — By 12 & 13
Vict. c. 26 (t) " a lease invalid by reason of the non-observ-
ance or omission of some condition or restriction, or by rea-
son of any other deviation from the terms of the power,
shall, after entry thereunder, be considered in equity as a
contract for a grant in respect of a valid lease under the
power to the like purport and effect as such invalid lease,
save so far as any variation may be necessary in order to
comply with the terms of such power ; and all persons who
would have been bound by a lease lawfully granted under
such power sluiU be bound in equity by such contract."
Invalid leases cured by continuance of lessor's estate. — By
sect. 4, " where a lease granted in the intended exercise of
any such power of leasing as aforesaid is invalid by reason
that at the time of the granting thereof the person
[*210] granting the same could not lawfully * grant such
lease^ but the estate of such person in the heredita-
ments comprised in such lease shall have continued after the
time when such or the like lease might have been granted by
(r) Freshfifld v. RecJ, 9 M. & W. torpart by the lessee, see Fryer v.
404, Coombs, 11 A. & E. 40;].
(s) As to the execution of a coun- (/) Amended by 13 Vict. c. 17.
Sce;jo47, p. 210.
336
Ch. V. S. 20.] LEASES TN REVERSION. *210
him in the lawful exercise of such power, then and in every
such case such lease shall take effect, and be as valid as if the
same had been granted at such last-mentioned time, and all the
provisions herein contained shall apply to every such lease."
Confirmation of invalid leases. — By 13 Vict. c. 17, " where
upon or before the acceptance of rent under any such invalid
lease, any receipt, memorandum or note in writing confirm-
ing such lease is signed by the person accepting such rent,
or some other person by him thereunto lawfully authorized,
such acceptance shall, as against the person so accepting
such rent, be deemed a confirmation of such lease."
It is to be observed that an invalid lease under a power
may be confirmed by the remainderman or reversioner by a
mere memorandum or note in writing coupled with accept-
ance of rent ; but not by acceptance of rent only, without
any intention of thereb}^ confirming the lease. The mere
acceptance of rent by a remainderman may create a new im-
plied tenancy from year to year as between him and the
lessee, which tenancy must be determined by notice to quit,
or otherwise, before the tenant can be turned out of posses-
sion (w).
The above acts do not apply to leases granted by a mere
stranger to the leasing power ; as where a lease is granted
by the executors of a surviving trustee instead of by his
heir (a:), or by the heir instead of the executors (?/).
Sect. 20. — Leases in Reversion.
What are leases in reversion. — All leases which are not to
take effect in possession immediately, hut from a future day.,
are considered as reversionary leases, within the meaning of
powers to grant leases in possession and not in reversion (z).
In legal acceptance a lease for years in reversion, and a
(u) Doe d. Martin v. Watts, 7 T. (y) Robson v. Fliglit, 34 L. J. Ch.
R. 83 ; Doe d. Tucker v. Morse, 1 B. 226.
& Adol. 365; Doe d. Pennington v. (?) Winter r. Lovcday, Comyn. 39,
Taniere, 12 Q. B. 998 ; Cole Ejec. 33; Holt, C. J.; 2 Salk. 537 ; 1 Ld. Raym.
Sag. Pow. 715. 207 ; Goodtitle d. Clarges v. Funucan,
(.r) Ex parte Cooper, re North Lon- 2 Dong. 565; Sug. Pow. chap. 18, s. 4.
don R. Co., U L. J., Ch. 373.
337
*211 THE LEASE. [Ch. V. S. 21.
future interest for years, are one and the same : a future
lease and a lease in reversion are synonymous (a). But
strictly speaking a reversionary lease is one granted for a
term which is to commence from or after the expiration or
other determination of a previous lease. It does not
[*211] create any term or estate, but only an interesse * ter-
mini, until entry thereunder after the time appointed
for its commencement (6). The granting of a reversionary
lease does not disentitle the landlord to distrain for rent
under a subsisting lease (e). If a man make a lease for life,
and afterwards grants the lands to another for twenty-one
years after the death of the tenant for life ; these words
(without the word " demise ") are sufficient to pass a rever-
sionary interest by way of future lease (^). If the rever-
sionary lease be expressed to begin from the end of the
" term " of tlie subsisting lease, and the subsisting lease be
afterwards determined by surrender or forfeiture, the rever-
sionary lease will begin at once ; but if it be expressed to
begin after the end of twenty-one years, it will not begin
upon the surrender, forfeiture or other determination of the
first term till the twenty-one years have actually run out by
effluxion of time (<?). Where a lease for years was made,
and during the term the lessor granted a lease in reversion
of part of the premises to an underlessee, avIio was in posses-
sion of them, to commence on the day the original lease
determined ; it Avas held that the reversionary lease took
effect in possession immediately on the determination of the
first lease (/).
Sect. 21. — Conenrrent Leases.
Nature of concurrent leases. — A concuirent lease is one
granted for a term Avhich is to commence he/ore the ex-
piration or other dctcu'iiiinat ion of a previous lease of
(c/) (-'artli. 11, l.O; Su^. Tow. 717 Hliitc-lifonl, apy)., Colo, rosp., 5 C.
(8th ed.). 15., N. S. 514; 28 L. J., C. P. 140.
(I>) 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 (</). Formerly a concurrent lease Avas inoperative to
pass any estate during the prior term, unless the attornment
of the previous tenant could be obtained, when it would
operate as an assignment of the reversion, &c. (/i). Now
no attornment of the tenant in possession is neces-
sary (^) ; but until he has * notice of such assign- [*212]
ment he may safely continue to pay his rent to the
lessor (^), who will, however, be liable over to the second
lessee for so much mone}^ had and received for his use (/).
If a concurrent lease be granted to and accepted by the
smiw lessee, it will operate as an implied surrender by him
of his previous term, and take effect as a lease in possession
for the term thereby granted (;«) . The reason is that the
same person cannot be, at the same time, both tenant" and
reversioner of the same premises. So Avhere a party entitled
to a I'cmainder in tail expectant upon the determination of
a life estate, grants a term of years to commence immedi-
ately, the grantee, without entry, takes an immediate vested
estate carved out of the remainder, and not a mere interesse
termini ; and no attornment is necessary to complete such
grant, the stat. 4 Ann. c. 16, s. 9, having rendered attorn-
ment unnecessary (w). A devisee for life, with power to
((j) Harmer v. Bean, 3 C. & K. 307. (k) 4 Ann. c. 16, s. 10 ; Cook v.
(A) Bac. Abr. tit. Leases (N.). Moylan, 1 Exch. G7 ; 5 D. & L. 101.
(i) 4 Ann. c. 16, s. 9 ; post, Chap. (/) Smith v. Jones, 1 Dowl., N. S.
VII., sect. 6, "Attornment;" Doe 526; Watson y. McLean, E. B. & E.
d. Agar v. Brown, 2 E. & B. 331, 348. 75; Neate v. Harding, 6 E.Kch. 349.
Edwards v. Wickwar, L. 11., 1 Eq. 403 ; (m) Post, Chap. VIII., sect. (b).
14 W. R. 79, 303, contra — in which (n) Doe d. Agar v. Brown, 2 E. &
there is no reference to 4 Ann. c. 16, B. 331, 348.
s. 9 — would seem to be incorrect.
339
*213 THE LEASE. [Ch. V. S. 22.
make leases for twenty-one years, whereon the old accus-
tomed rent should be reserved, made a lease for twenty-one
years under the old rent, &c., and a year before the expira-
tion of that lease he made a lease to another for twenty-one
years to begin presently ; the last was considered to be good
within his power as a concurrent lease, because it was no
charge upon the reversion, nor was there any more than
twenty-one years in the whole against the reversioner : but
this power would not warrant the making of leases in
reversion, for then he might charge the inheritance ad
infinitum (o). One who has a power to grant a concurrent
lease within seven years of the expiration of the old one,
may grant a lease at any time on the surrender of the old
one (jt)). If apower enables a tenant for life to make leases
for years, determinable upon one, two, or three lives in pos-
session, of such part and j)arts, and so much only of the
lands of the creator of the power as are then demised or
granted for any such time, &c., no lands can be demised
under such a power, but what are at the time of the execu-
tion of the power under lease for one, two, or three concur-
rent lives ; or for any term of years, determinable upon
one, two, or three concurrent lives ; the meaning of such
restriction is, in figurative language, that the candles shall
be all burning at the same time (y).
[*213] *Sect. 22. — Estoppel
Nature and use. — Indentures of lease for years sometimes
enure by way of esfopjyel, which word signifies an impediment
or bar to a man's invalidating liis own solemn act(r).^
Estoppels in general are not favoured (.s-) : thoy continue no
longer on either party than during the lease (<^), or during
(o) Powell on Powers, 428 ; Bac. benham, 4 T. R. 254 ; Skipworth r.
Abr. tit. Leases (L.)- Green, 8 Mod. 311; Com. Dig. tit.
(p) Com. Dig. tit. Estates (G. 1"). Estates (K. 8) ; Bae. Abr. tit. Joint
(7) Powell on Powers, r>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 (</).
Sect. 23. — Sondfor Performance of Covenant.
Nature and effect. — Sometimes a bond is taken by the
lessor from the lessee, with or without sureties, conditioned
for payment of the rent and performance of the covenants
in the lease (A), or a guarantee in writing for the due pay-
ment of the rent (i). Such a guarantee will cease when the
tenancy is determined by due notice to quit, notwithstanding
such notice is waived and a new tenancy created (¥). Some-
times also a bond is made b}^ a sub-lessor to a sub-lessee,
conditioned to indemnify him from the rent reserved in the
original lease, and from all distresses, ejectments, and other
(e) Howlet v. Tarte, 10 C. B., N. S. (0 Tayleur v. Wildin, L. R., 3 Ex.
813; 31 L. J., C. P. 146. 303 ; 37 L. J., Ex. 173.
(/) Doe d. Lord Egremont v. (/l) Tayleur r. Wildin, L. R., 3 Ex.
Wyndham, 12 Q. B. 711. 303; 37 L. J., Ex. 173; see this case
(y) Skipworth v. Green, 1 Stra. distinguislied in the very special case
610; 8 Mod. 311. of Holmes v. Brunskill, L. R., 3
(A) Lainson v. Tremere, 1 A. & E. Q. B. D. 495.
792.
345
*217 THE LEASE. [Ch. V. S. 24.
proceedings in respect thereof ; or b}^ the assignee of a lease
to the assignor to indemnify him from the rent and covenants
in the lease ; or by the assignor to the assignee (Z).
[*217] Such bonds respectively are within the 8 & 9 Will. * 3,
c. 11, s. 8, and operate as securities only, and the
actual damages only are recoverable (w«).
Sect. 24. — Rectification of Erroneous Lease.
In what cases. — If a lease or other deed be drawn up and
executed upon terms materially different from those actually
agreed on, and contrary to the real intention of both parties,
a court of equity may cause it to be reformed and corrected,
or set aside Qi) ; ^ but it will do so only upon very strong
evidence clearly showing a mistake by both parties, and the
onus of proof lies on the plaintiff (o). This strict rule does
not seem to apply as between vendor and purchaser, or lessor
and lessee, Avhere the parties can be replaced in statu quo (p),
and in one case of a mistake in parcels, where the mistake
(/) Smith V. Day, 2 M. & W. 684. L. J., Ch. 500 ; Rooke v. Ld. Kensing-
(m) 2 Chit. PI.' 320 (7th ed.) ; 2 ton, 2 Kay & J. 743 ; Story Eq. Jur.
Wms. Saund. 187 a, n. (c). s. 157; 8 E. & B. 257, 294; Earl of
(n) Murray v. Parker, 19 Beav. Bradford v. Earl of Romney, 30 Beav.
305; Garrard v. Frankel, 30 Beav. 431; Garrard v. Frankel, 30 Beav.
445; 31 L. J., Ch. 604 ; Mortimer v. 445; Price v. Ley, 32 L. J., Ch. 530;
Shortall, 2 Dru. & W. 363; Lister Seaton i-. Staniland, 4 Gift. 61 ; Elwes
V. Hodgson, L. R., 4 Eq. 30; 15 W. v. Elwes, 3 I)e Gex, F. & J. 667;
R. 547; Harris v. Pepperell, L. R., Fallon v. Robins, 16 Ir. Ch. R. 422.
5 Eq. 1. (p) Harris v. Pepperell, L. R., 5
(o) Wright V. Goff, 22 Beav. 207 ; Eq. 1.
Sells V. Sells, 1 Drew. &, Sm. 43; 29
1 Reformation and damages for fraud. — A covenant wliich does not
express intentions of jjartios will be rectified against party taking advantage
of omission. Buhner r. Bruniwell, 13 A. R. (Ont.) 411.
Wliere a party signed under material false representations as to its con-
tents, court held lease void and su.stained an oral agreement in place of it.
Wheeler & Wilson Man. Co. r. Charters, 21 N. B. 480.
It has been held that if lessor knowingly make false representations as to
sanitary condition of premises, lessee may make suital)ie rei)airs and offset
the expenses against rent. W(dfe v. Arrott, 109 Pa. St. 473.
Reformation will not be granted without clear i)roof of fraud or mistake.
Albany lust, for Savings v, Burdick, 87 N. Y. 40, 50. See post, sec. 25, Re-
scission for fraud, &c.
346
Ch. V. S. 24.] RECTIFICATION OF ERRONEOUS LEASE. *218
was partly on the side of the plaintiff, it appears to have
been relaxed, and an annulment ordered unless tlie defend-
ant would consent to a rectification, which he did ( (^).
Parol evidence is admissible ('')-^ iLhe court will not reform
a deed on petition, but an action must be brought ; and so
long as the deed stands the court is bound to act upon it,
notAvithstanding it may be satisfied that the deed is at vari-
ance with the intention of the parties (s).
Action for rectification brought in Chancery Division. — By
section 34 of the Judicature Act, 1873, any action for "the
rectification or setting aside or cancellation of deeds or other
written instruments " must be brought in the Chancery
Division of the High Court. But the 24th section of the
same act gives power to any other division to treat an instru-
ment as rectified or set aside (^).
Compensation for error in lease. — In a very clear case of
mistake, compensation may be awarded to a tenant for hav-
ing accepted an erroneous lease, instead of rectifying the
lease itself. This principle w^as recognized in Besley
V. Besley (w), * in which case, however, compensation [*218]
was refused.
Rectification of erroneous lease. — The facts were these.
By contract in 1861 the defendant agreed to grant to the
plaintiff a sub-lease for the residue of his own term less ten
days. In pursuance of this contract an underlease was pre-
pared by the defendant's solicitor for twenty-three years less
ten days, and the lease was executed by the lessee, who
{q) Paget !•. Marshall, 54 L. J., Ch. (?■) Price ;•. Ley, supra.
575; 51 L. T. 351, per Bacon, V.-C. (s) In re Malet, 31 L. J., Ch. 455,
In this case the plaintiff granted a M. R.
lease of certain portions of three (t) Mostyn v. West Mostyn, &c.,
warehouses, and by mistake included Co., L. R., 1 C. P. D. 145; 45 L. J.,
a first floor. The lease was ordered C. P. 401 ; .34 L. T. .325.
to be rescinded, with an option to the («) L. R. 9 Ch. D. 103; 38 L. T.
defendant to take it, excluding such 844 ; 27 W. R. 184.
first floor.
1 Parol evidence ; when admissible. — Parol evidence is admissible to
prove fraud or mistake, Bulnier r. Brumwell, 13 A. R. (Ont.) 411; Wheeler
& Wilson Man. Co. v. Charters, 21 N. B. 480; Wolfe i-. Arrott, 109 Pa. St.
473 ; but it must be clear and satisfactory, Albany Inst, for Savings v. Bur-
dick, 87 N. Y. 40, 50.
347
*218 THE LEASE. [Ch. V. S. 25.
neither inspected the head lease, nor employed a solicitor.
In 1877 it was discovered that the head lease had only six-
teen years to run at the time of the contract, and had in fact
expired, and that the sub-lease had, hy pure 7nistake, been
made for seven years longer than the lessor had power to
make it. The plaintiff, who had been obliged to procure a
new lease from the head landlord at a greatly increased rent,
claimed compensation, but Malins, V.-C, held that he was to
blame in not having inspected the head lease at the time of
the contract, and applying the rule of caveat emptor, dis-
allowed the claim.
Correction of clerical error. — Where there is a clear case of
a clerical error, it is presumed that the Court will correct it,
and construe the lease as if the error had not been made.
Sect. 25. — Cancellation of Lease for Fraud, Misrepresenta-
tion, or Concealment.
If a lease has been obtained by fraud or material misrepre-
sentation or concealment, either on the part of the lessor or
lessee, it may be set aside (x^.^ Mostyn v. West, Mostyn &
(x) See Story on Equity, ss. 191-203.
1 Rescission for fraud ; mistake ; concealment, &c. — (a) A lease ob-
tained by fraud is void against lessee, tliougli under seal. Ilolley v. Young,
66 Me. 020. If unfair advantage has been taken of one of weak mind, tlie
court will order a rescission. Shanagan v. Shanagan, 7 Out. 200 (lease made
by old man without professional advice, &c. ; rescission ordered, but lessor to
pay for improvements).
A lease will be cancelled after building has been burned, if parties had
agreed to insert provision for suspension of rent in such case, which had not
been inserted by mistake. Gates v. Green, 4 Paige (N. Y.) 355.
If lessee be induced to take lease by fraudulent misrepresentations as to
extent of premises, he can, after entering, sue lessor for damages. Wiiitney
V. Allaire, 1 N. Y. 305. If he occupy, he will be liable only for reasonable
value, Irving v. Tiiomas, 18 Me. 418; or he can bring a suit in equity for a
rescission, Whitney r. Allaire, 1 N. Y. 305, 310 (per Gardiner, J.).
(I>) 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 <a tenant. Merriam i\ Willis, 10
Allen (Mass.) 118. Sucli occupant might maintain trespass against a mere
intruder {per Metcalf, J., supra, and j)er Wilde, J., in Inh'b'ts of Barnstable r.
Thacher, 3 Met. (Mass.) 239, 242, 243).
Occupancy' with knowledge that rent will be charged will ordinarily create
a tenancy. Ducey Lumber Co. v. Lane, 58 Mich. 520, 525; Ward v. Warner,
8 Mich. 508, 519, 520 {per Martin, Cli. J.) ; Dwight v. Cutler, 3 Mich. 566.
It will not if under an adverse claim. Ward v. Warner, 8 Mich. 508, 519,
520; Ilogsett i^. Ellis, 17 Mich. .351, 373 {per Christiancy, J.).
The adverse claim, however, must be more than a mere mental or silent
one. It must be manifested by overt acts or by declarations communicated
to the owner. Ilogsett v. Ellis, supra.
If relation of landlord and tenant has been established, the tenant is
estopped thereafter to set up an adverse claim during tenancy. See ante,
Ciiap. I., sec. 1, p. 2, notes.
A party occupying land, if there is a lease on record, is prima facie a ten-
ant. Libbcy r. Staples, .39 Me. 166.
Occupancy otherwise explainable does not constitute tenancy. Hardin v.
Pulley, 79 Ala. .381.
An execution debtor is not a tenant to the purchaser on execution sale nor
entitled to notice t<T quit. Oriffin v. Rochester, 96 Ind. 545.
A remainderman may be tenant to life tenant. Leavitt v. Leavitt, 47 N
H. 329.
350
Cii. VI. S. 2.] TENANCY FROM YEAR TO YEAR. *219
payment of rent («). Such payment frequently affords evi-
dence of a promise by the tenant to hold the premises from
year to year on the terms of some previously-existing lease
or agreement (b).^ The presumption which arises from the
payment and acceptance of rent is the same against a cor-
poration as against an ordinary person (c). Where premises
are taken under a written agreement, an oral alteration of
the rent will not constitute a fresh demise (^d).^ So an
agreement by the tenant to pay an additional sum yearly,
in consideration of his landlord making certain improve-
ments in the demised premises, does not create a new
demise (e).
Sect. 2. — Tenancy from Year to Year.
Nature of the tenancy. — A tenant from year to year is
one who holds under a demise (express or implied) ^ for a
(«) Smith L. & T. 24-29 (2n(l ed.). {d) Crowley v. Vitty, 7 Exch. 319;
{l>) 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<ir ; different effects. — (a) Mutual consent where necessary.
— A tenant, liolding over, without mutual agreement, is in New Brunswick,
Maine, Massachusetts, &c., tenant at sufferance. Leighton v. Van Wart, 1
Pugs. & Bur. (N. B.) 489; Bowman v. Avery, 3 Kerr (N. B.) 210; Lithgow
V. Moody, 35 Me. 214; Ciiesley r. Welch, 37 Id. 100; Delano v. Montague, 4
Cush. (Mass.) 42 ; Edwards c Hale, 9 Allen, 402.
(b) Tenancif at election of lessor ; where. — 7n New York and some other
states the tenant, who holds over, is a tenant or trespasser at the election of
landlord. Conway v. Starkweather, 1 Denio (N. Y.) 113; Pickett i'. Bart-
lett, 13 Daly (N. Y.) 229, 230 (per Daly, Ch. J.); Smith v. AUt, 7 Id. 492,
493 (per Daly, Ch. ,1.) ; Schuyler c. Smith, 51 N. Y. 309; Wolffe v. WollYe,
09 Ala. 549, 552 (per Somerville, J.) ; Clinton Wire Co. v. Gardner, 99 111.
151 ; Heinphill v. Flynn, 2 Penn. St. 144.
(c) Landlord's consent is essential in all cases in all the states. Den v. Adams,
12 N. J. L. 99 ; Condon v. Barr, 47 N. J. L. 113, 114, 115 ; Cairo, &c., R. K. Co.
V. Wiggins Ferry Co., 82 III. 230; Ferine i-. Teague, 00 Cal. 440; Smiths.
Allt, 7 Daly (N. Y.) 492.
Receipt of rent, distraining, or other recognition of tenancy will be suffi-
cient to continue it. Condon r. Barr, 47 N. J. L. 113, 114, 115 (per Knapp,
.1.); Allen v. Bartlett, 20 W. Va. 40; Critchfield v. Remaley, 21 Neb. 178;
Johnston V. McLellan, 21 C. P. (Ont.) .304.
A tenant may acquire right to continuance of tenancy by delay of lessor.
Chesiey v. Welch, 37 Me. 100. In Den v. Adams, 12 N. J. L. 99, it was held
tiiat mere expiration of time was not sufficient. And in Condon v. Barr, 47
N. .J. L. 113, that a demand to i)ay rent or quit (not compli('(l with) was not.
In Connecticut it is provided by statute (Gen. Sts. sec. 29()7) that holding
orer shall not renew a tenancy. ^
358
Cu. VI. S. 2.] TENANCY FROM YEAR TO YEAR. *222
agrees to pay, any subsequent rent, at the previous rate, a
new tenancy from year to year is thereby created upon the
same terms and conditions as those contained in the expired
lease, so far as the same are applicable to and not inconsist-
In Ke.ntuckij (Gen. Sts. Ch. QQ, Art. 4, sec. 1) it does not until ninety days
have passed.
In Qtaher, if continued more than eight days, it tacitly renews the tenancy
(Civil Code, sec. 1609).
In Delaware (Laws of Del. Ch. 120, sec. 4) and Dakota (Civil Code, sec.
1119) continued possession will renew the tenancy, unless previous written
notice has been given to terminate it.
(J) Ordinary presumption is that tenant holding over holds from^e«r to year
upon the terms of the original lease so far as applicable. Miller v. Kidgely,
19 111. App. 306 ; Wolffe v. Wolffe, 69 Ala. 549 ; Wilgus v. Lewis, 8 Mo. App.
336 ; Vroonian v. McKaig, 4 Md. 450, 454 {per Le Grand, C. J.) ; De Young
V. Buchanan, 10 G. & J. (Md.) 149.
A tenant holding over in Maine and Massachusetts cannot be more than a
tenant at will. Bennock r. Whipple, 12 Me. 346 ; Wheeler v. Cowan, 25 Id.
283; Longfellow J'. Longfellow, 54 Id. 240; Kendall v. Moore, 30 Id. 327;
Emmons v. Scudder, 115 Mass. 367.
(e) Change of terms. — A tenant may become a tenant from month to month
if parties so agree, Macgregor v. Defoe, 14 Ont. 87, 92; or from week to week,
or quarter to quarter {per Wilson, C. J.).
Whether tenancy becomes from year to year ox from month to month is a
question of fact, the payment of monthly or yearly rent being an important
circumstance, sometimes decisive. Withnell v. Petzold, 17 Mo. App. 669 ;-
Hammon i\ Douglas, 50 Mo. 434, 437 ; Vegely v. Robinson, 20 Mo. App.
199, 203 (per Phillips, P. J.) ; Ins. Co. v. Nat. Bank, 71 Mo. 58; Prindle v.
Anderson, 23 Wend. (N. Y.) 616.
LTsually a tenant for month or months, holding over, becomes tenant from
month to month. Prickett v. Hitter, 16 111. 96; McPherson v. Norris, 13 Q. B.
(Ont.) 472.
A distinct understanding will overcome presumptions from payment of
annual rent. Waring v. Louisville, &c., R. R. Co., 19 Fed. Rep. 863. Notice
to tenant, that if lie hold over it must be from month to month, will usually
change the tenancy into a tenancy from month to month, whether tenant con-
sent or not. Shipman v. Mitchell, 64 Tex. 174.
Likewise, notice of a change in terms of tenancy before expiration binds
tenant if he continue to occupy. Hunt v. Bailey, 39 Mo. 257. Tlie contrary'
was held in De Young v. Buchanan, 10 G. & J. (Md.) 149, in Sturdee v. Mer-
ritt, 3 Kerr (N. B.) 641. In Hilliard v. Gemmell, 10 Ont. 504, notice to lessee
that if he held over it must be at increased rent was held evidence for tiie
jury of a tenancy from year to year at the advanced price.
(/) Presumptions ichere mutual consent is required. — In those states where
mutual consent is essential to a continuance of the tenancy, continued occupa-
tion for any length of time will usually establish the relation as against the
tenant. Longfellow v. Longfellow, 54 Me. 240; Bonney v. Foss, 62 Id. 248 ;
Kendall v. Moore, 30 Id. 327 ; Dimock v. Van Bergen, 12 Allen (Mass.)
551.
An assignee may, by admissions, become tenant from year to year. Doe d.
Peters v. PcUetier, 4 Allen (N. B.) 33.
359
*223 TENANCIES FOE, LESS THAN YEARS, ETC. [Ch. VI. S. 2.
ent with a yearly tenancy (i). This, however, appears to
be a matter of evidence rather than of law (A-). The land-
lord may show that he accepted the rent from time to time
under a mistake, and upon the supposition that one of the
lives for which the lease was granted continued in exist-
ence (?) ; or a new reversioner may show that he knew
nothing of any special and unusual terms in the original
lease, and therefore ought not to be deemed to have assented
to them, so as to render himself liable to such terms (m), or
the tenant may show any facts leading to an oj)posite con-
clusion, as that the continued occupation was only provis-
ional and in expectation of a new lease on new terms.
In the absence, however, of any evidence one way or the
other, it seems that upon a holding over and payment of
rent, the jury would be directed to find a tenancy on the
terms of the exjDired lease, and that this would be so even
if there had been an assignment of the reversion prior to
the holding over (n). Any such new tenancy (when im-
plied) will be deemed to have commenced at the same time
of the year as the original tei'm, and notice to quit
[*223] should be given * accordingly (o). Even if the rent
be increased, the tenancy will be subject to covenants
or stipulations similar to those contained in the former lease,
unless others are expressly agreed on (/>)• 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 </. Goody
error), 9 M. & W. G43. v. Carter, i) Q. B. 80;} ; Doe d. Davies
(//) Cox V. Bent, 5 Bing. 185. i'. Thomas, 0 Kxch. 854, 857.
iz) Anderson v. Midland R. Co., 3 (/) Lit. s. 71 ; Co. Lit. 55 b ; Smhh
E. & E. (514 ; 30 L. J., Q. B. 94 ; Cox L. & T. 20, 268 (2nd ed.).
r. Bent, .s«/>?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, 0 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.<!, Yelv. 73 ;
r. Rurdwick, Cro. Eiiz. 400 ; BuhviT r. I^ayton r. Field, :> 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. In<ili!>m, 7 Q. {}>) Saunders v. Mnsgravc, 0 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 </. Rogers v. Pul-
land V. Pounsett, 2 Taunt. 140. len, 2 Bing. N. C. 749.
{z) Yeoman v. Kills. L. H., 2 C. I'.
001 ; 30 L. J., C. P. 320.
384
Ch. VI. S. 8.] VENDOR AND VENDEE. *238
to an action for use on occupation (c?). But an express
agreement that the purchaser shall receive "all rents and
profits " from the day fixed for completion of purchase,
entitles the purchaser to a fair occupation rent from the
vendor until possession is given (f?). And the same rule
applies, although the delay in completion is the fault of
neither party (/).
(d) Tew V. Jones, 13 M. & W. 12. ion below; L. R., 2 Q. B. D. 189;
(fi) Metropolitan R. Co. v. Defries, 36 L. T. 150; 25 \V. R. 271.
L. R., 2 Q. B. D. 387 ; 36 L. T. 494 ; (/) Sherwin v. Sliakespeare, 5 De
25 W, R. 841 — C. A., affirming ^ecis- G., M. & G. 517 ; 23 L. J., Ch, 177.
385
[*239]
* CHAPTER VII.
OF SUBSTITUTION OF PARTIES TO THE CONTRACT OF
TENANCY BY ASSIGNMENTS, SUB-LEASE, BANK-
RUPTCY, MARRIAGE, AND DEATH.
SECT. PAGE
1. Assignments generally . . 239
2. Contract for Assignment . . 240
(a) Generally 2-41
(b) Contract for Assignment
of Term 241
(c) Title of the Vendor . . 244
(d) Title Deeds 248
(e) Tables showing Value of
Leaseholds .... 249
3. Assignment of Reversion . . 252
4. Severance of Reversion . . 255
5. Assignment of Term . . . 257
(a) Absolutely 257
(b) By way of Mortgage . . 263
6. Severance of Term .... 264
7. Sub-lease 264
8. Attornment 266
9. Writs of Execution .... 270
(a) Fieri facias 270
(b) Elegit 271
SEC
T. .
PAGE
10.
Bankruptcy of Lessor . .
274
11.
Bankruptcy of Lessee . .
276
(a) Re-entry by Landlord .
275
(b) Vesting of Lease in
Trustees in Bank-
ruptcy
276
(c) Rescission of Lease . .
277
(d) Disclaimer of Lease by
Trustees
277
(e) Distress for Rent . .
282
(f) Proof for Rent . . .
284
12.
Marriage
285
(a) Of female Lessor . .
285
(b) Of female Lessee . .
286
13.
Death . . ,
286
(a) Heirs or Devisees . .
286
(b) Executors and Adminis-
trators
288
Sect. 1. — Assignments generally.
What is an assignment. — An assignment is the transfer or
conveyance of some pre-existing term or reversion, estate,
right, title, or interest. The party assigning is called the
assignor, and he to whom the assignment is made the
assignee. The word " assigns " extends not only to the
immediate assignee, bnt also to assignees ad infinitimi (a).
Every lessor may assign his reversion, and every lessee may
assign his terra, unless expressly restrained from so doing
(a) Spencer's case, 6 Co. R., 10 ; Bailey v. De Crespigny, L. R., 4 Q.
B. 180, 180.
386
Ch. VII. S. 1] ASSIGNMENTS GENERALLY. *240
by some condition in his lease (J),^ or be a tenant at will (<?),2
or on sufferance (6?). " A contingent, an executory, and a
future interest, and a possibility coupled with an interest, in
any tenements or hereditaments, of any tenure, whether the
object of the gift or limitation of such interest or possibility
be or be not ascertained, also a right of entry, whether
immediate or future, and whether vested or contingent, into
or upon any tenements or hereditaments in England, of any
tenure, may be disposed of by deed " (g). But a right of
re-entry for a forfeiture cannot be so assigned (/).
* Different modes of assignment. — Persons become [*240]
assignees either by act of the party or by act of law :
under the first head may be classed those who become so by
an instrument of assignment ; under the latter head may be
stated those who have thrown upon them the interest in the
premises — in conseqvience of the property having been taken
under writs of execution — by bankruptcy — by marriage —
or by death. Each of those modes of becoming an assignee
will be considered in this chapter.
Assignments must be by deed. — Assignments by act of the
parties, whether of the reversion or the term, must be by
deed.3
(6) Post, Chap. XVII., Sect. 2. (e) 8 & 9 Vict. c. 106, s. 6.
(c) Ante, 220. (/) Hunt v. Bishop, 8 Ex. 675 ;
Id) Ante, 230. ante, 2.
^ There is no implied covenant not to assign. Kobinson v. Perry, 21 Ga.
183; Cooney v. Hayes, 40 Vt. 478, 482.
2 An assignment by tenant at will conveys no interest. Whittemore v.
Gibbs, 24 N. H. 484 ; Cunningham v. Holton, 55 Me. 83 ; Dingley v. Buffum,
57 Me. 381.
^ Assignments. How made, (n) In Canada. — If for terms longer tlian
limited periods, must be by deed. Dove v. Dove, 18 C. P. (Ont.) 424 ; Gal-
braith v. Irving, 8 Ont. 751 ; Regina, ex rel. Northwood v. Askin, 7 L. J. (Ont.)
130; Montgomery v. Spence, 23 Q. B. (Ont.) 39; Ansley v. Peters, 1 Allen
(N. B.) 339.
{h) In United States. — Need not (in most states) be by deed. Halliday t;.
Marshall, 7 Johns. (N. Y.) 211.
An assignment (unless an implied one) must be by "an instrument of as
high a nature " as the lease. If lease is by deed, assignment must be. Bridg-
ham IK Tileston, 5 Allen (Mass.) 371; Brewer v. Dyer, 7 Cush. (Mass.) 337;
Wood I'. Partridge, 11 Mass. 488. If lease is by parol, assignment may be.
Overman v. Sanboin, 27 Vt. 54, 56.
387
*240 ASSIGNjSIENT, bankruptcy, death, etc. [Ch. VII. S. 1.
The Statute of Frauds Qj') eiiacts, " that 110 leases, estates
or interests, either freehold or terms of years, or any uncer
tain interest, not being copyhold or customary interest, of,
in, to or out of any messuages, manors, lands, tenements or
hereditaments, shall be assigned, granted or surrendered,
unless it be by deed or note in writing, signed by the party
so assigning, granting or surrendering the same, or their
agents thereunto lawfully authorized by writing ; or by act
and operation of law."
{g) 29 Car. 2, c. 3, s. 4.
(c) Implied assignments result 6y operation of laiv from acts of parties, even
though instrument executed be an insufBcient one.
An unsealed assignment and occupation and recognition is sufficient to
transfer the estate and liability under a sealed lease. Sanders v. Partridge,
108 Mass. 556. A parol assignment under similar circumstances will transfer
the term and liability under a written lease. Dewey v. Payne, 19 Neb. 540.
A written unsealed assignment unthout entn/ and recognition is not effectual if
the lease is under seal. Sanders v. Partridge, 108 Mass. 556.
(rf) Assignment by estoppel. — An assignee who has entered and taken the
benefit of a lease is estopped to set up the invalidity of the assignment.
Blake v. Sanderson, 1 Gray (Mass.) 332.
(e) Presumption of assignment. — Possession is primd facie evidence to charge
one as assignee. Armstrong v. Wheeler, 9 Cow. (N. Y.) 88; Williams v.
Woodard, 2 Wend. (X. Y.) 487, 492 {per Savage, Ch. J.); Acker v. With-
erell, 4 Hill (N. Y.) 112. The occupant must rebut the presumption. Provost
V. Calder, 2 Wend. (N. Y.) 517, 522 {per Savage, Ch. J.) ; Cross v. Upson, 17
Wis. 618; Mariner v. Crocker, 18 Id. 251.
Possession is not usually held essential to the liability of an assignee by
deed or other sufficient absolute assignment. Eabcock i\ Scoville, 56 111. 461 ;
Weidner v. Foster, 2 Penn. 23; Smith ;•. Urinker, 17 Mo. 148; though it was
80 held in Damainville v. Mann, 32 N. Y. 197.
(/) Substitution. — Thougli lessee ordinarily remains liable after assigning,
Wilson V. Gerhardt, 9 Col. 585; Greenleaf i;. Allen, 127 Mass. 248, yet, if
by parol agreement new tenant is substituted, lessee will be discharged.
Wallace v. Kennolly, 47 N. J. L. 242, 245; Vandekar v. Reeves, 40 Ilun
(N. Y.) 430; Randall v. Rich, 11 Mass. 494; Smith v. Niver, 2 Barb. (N. Y.)
180. In Montgomery r. Spcnce, 23 Q. B. (Ont.) 39, was held still liable not-
withstanding lessor had accepted the assignee (not by deed) in discharge of
lessee.
In Levering v. Langley, 8 Minn. 107, it was hold that where a lessor orally
agreed to accept assignee in discharge of lessee, the latter was not thereafter
liable.
(ry) Vohtntnri/ assignees. — If vohmtary assignee of lessee enters and occu-
pies, he will be liable for rent, Hoyce i;. Rakewell, 37 Mo. 492; Dorrance v-
Jones, 27 Ala. 030; Morton v. Pinckney, 8 Bnsw. (N. Y.) 135; Young r.
Peyser, 3 Id. 308; although otiierwi.se, if he enter to get the goods, Lewis
V. Burr, 8 Id. 140.
388
Ch. VII. S. 2.] THE CONTRACT FOR ASSIGNMENT. *241
8 & 9 Vict. c. 106, s. 3. — By 8 & 9 Vict. c. lOG, s. 3, "an
assignment of a chattel interest, not being copyhold, in any
tenements or hereditaments, shall be void at law unless
made by deed."
Assignment to self and other person. — By 22 & 23 Vict. C.
35, s. 21, " any person shall have power to assign personal
property, now by law assignable, including chattels real,
directly to himself and another person, or other persons or
corporation, by the like means as he might assign the same
to another." Therefore, upon the appointment of a new
trustee of leaseholds and personal estate, the continuing
trustees may assign the trust property direct to themselves
and the new trustees jointly, upon the trusts of the settle-
ment ; whereas previously an assignment and re-assignment
were necessary to effect this object.
Sect. 2. — The Contract for Assignment.
(a) Generally.
Sale of reversion. — By virtue of the 4th section of the
Statute of Frauds, the effect of which has been already con-
sidered (/i), any contract to sell either a reversion or a term
must be in writing.
Notice of tenant's interest. — Where a reversion is sold, the
.possession of a tenant is notice to a purchaser of the actual
interest which a tenant may have (^). Where the purchaser
at the date of the contract knew that the property
was * occupied by a tenant, and did not inquire as [*241]
to the tenant's interest, it was held that he had
notice of the lease, which it was subsequently discovered
that the tenant had (k). In Caballero v. Henty (T)^ the
conditions of sale of a public-house stated it was in the
occupation of a tenant. A brewer, intending to use the
(A) Ante, 85. And see Dart V. & (k) James v. Litchfield, L. R., 9
P. (ed. 5), A.D. 1876. Eq. 51.
(i) Daniels v. Davison, 15 Ves. 249. (/) L. E., 9 Ch. 447 ; 4.3 L. J., Ch.
635; 30 L. T. 314; 22 W. R. 446.
389
*241 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Cn. VII. S. 2.
public-house for tlie sale of his beer, agreed to buy it. He
afterwards learnt that it was under lease to another brewer
for a term of which eight years were unexpired. It was
held that the purchaser was not bound to ascertain from the
tenant the terms of his tenancy, and that the vendor could
not enforce specific performance.
In Phillips V. INIiller (???), it was held that vendors were
not bound to make good to purchasers certain sums paid by
the purchasers to tenants for hay and straw according to
market x'^lue (whereas by the custom of the country fodder
value only was paj^able), in pursuance of special agreements
by the vendors with the tenants not mentioned in the par-
ticulars of sale. This decision, however, proceeded prin-
cipally on the ground that the agreements with the tenants
were personal contracts not binding on the reversion (??).
The vendors bonS, fide believed that it was unnecessary to
mention the agreements in the particulars of sale.
(b) Contract for Assignment of Term.
Where A., being possessed of a messuage and premises for
the residue of a certain term of years, agreed with B. to
relinquish possession to him and to suffer him to become ten-
ant of the premises for the residue of tlie term, in considera-
tion of B.'s paying a sum of money towards completing
certain repairs of the premises ; it was held that this was an
agreement relating to the sale of an interest in land within^
the statute (o). A., being tenant under a parol agreement
for a seven years' lease, agreed to give up the immediate pos-
session thereof to B., in order that B. might enter thereon as
tenant; in consideration whereof, and also as a compensation
for certain improvements made by A., and for the value of
certain artick^s left, B. agreed to pa}'^ A. 100/. A. accord-
ingly relinquisluid and gave up possession of the premises to
{in) \j. R., 10 C. I'. 4U0 ; Jt L. ,T., to incronso rent nor give notice to
C. V. 2(\i>: 32 L. T. OnS, Kxcli. Cii.. quit w.ms held not to liinil a pnrcliasor
reversinfj di'cision below, I>. II., 0 C. of the lan(!!or<l's interest.
T. 201. (<0 IJuttermere v. Hayes, 5 M. ..<i
(n) See also Hoherts v. 'I'regaskis, W. \-)i\. See also Leaf v. Tuton, 10
.18 L. T. 17(1, where an agreement not M. & W. :'.!):!.
390
Ch. VII. S. 2.] THE CONTRACT FOR ASSIGNMENT. *242
B., who was tlieveupon accepted as tenant from year to year,
at a different rent from that formerly paid by A. : and B.
afterwards, in part-performance of the agreement on his
part, paid A. 51Z. In an action to recover the balance
of the * 100?. : — held, that the contract was witliin [*242]
the statute, and consequently that the plaintiff was
not entitled to recover (;?); except, perhaps, for money
found to be due on an account stated (^q). So, in consideration
that A., who was in the possession and occupation of prem-
ises wherein he carried on the business of a milkman, would
yield up the possession and occupation of the said premises
to B., and permit him thenceforth to occupy the same, and
would assign over to B. all his property in the stock and
plant and deliver the same to B., the latter promised to pay
a certain sum : — held, that this was a contract for an inter-
est in or concerning lands within the statute (r). In
Hodgson V. Johnson it was agreed verbally that the plaintiff
should take possession of a brickyard of which the defendant
was tenant, and take the plant and bricks at a valuation, and
that the defendant should pay up all rent due, and endeavour
to induce the landlord to accept the plaintiff as tenant. The
plaintiff took possession and gave the defendant a warrant of
attorney for payment of the sum at which the bricks and
plant were valued. A distress was afterwards put in upon
the premises, and the plant and bricks sold for rent due from
the defendant before the agreement, and the plaintiff was
turned out of possession by the landlord. In an action for
breach of the agreement to pay up the rent, it was held, that
the contract taken in its entirety was a contract for the sale
of an interest in lands within the statute, and therefore that
the plaintiff could not sever and sue only upon that part
which related to the payment of rent (s). A. and B. agreed
orally that A. should pay 37/. for the interest of B. in 'prem-
ises occupied by him as a slaughterhouse, and for the fixtures,
(p) Kelly V. Webster, 12 C. B. 282. (s) Hodgson v. Johnson, E. B. & E.
(q) Cocking v. Ward, 1 C. B. 858 ; 085 ; 5 Jiir., N. S. 290. See, however,
Laycock ;;. Tickles, 4 B. & S. 497 ; 33 Tulbrook v. Lawes, L. R. 1 Q. B. D.
L. J., Q. B. 43. 284 ; and 88, ante.
(r) Smart v. Harding, 15 C. B. 652.
591
*2-13 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 2.
B. to return 10/. if A. were refused a licence to use the
premises as a slaughterhouse. The premises and fixtures
were transferred to A. ; and B. received the 37Z. Subse-
quently an action was brought to recover back the lOZ., a
licence to A. to use the premises as a slaughterhouse having
been refused : held, that the contract being executed as far
as regarded the land, and the promise sued on relating
wholly to money, the plaintiff might recover, though the
contract was not in writing (^). An agreement respecting
the transfer of an interest in land not in writing cannot be
enforced by action to recover the consideration after the
transfer has been executed, and nothing remains to be done
but to pay the consideration money ; but if after such transfer
the defendant admits owing the stipulated price, the amount
may be recovered upon an account stated (w).
[*243] * The Statute of Frauds (29 Car. 2, c. 3), s. 4 (a;),
extends to sales by auction (^). The day for com-
pletion of the purchase of an interest in land inserted in a
written contract cannot be waived by oral agreement, and
another day substituted in its place (2:).
Sales by auction. Particulars of sale. — An auctioneer sell-
ing a lease is bound to state in the particulars or conditions
of sale a notice given by the landlord of his intention to
enter unless the premises are put in repair, although the
vendee is aware of the ruinous state of the buildings, and it
is alleged that the auctioneer was not apprised of the no-
tice («) : and whore leasehold premises are sold by auction,
and the lease containing the usual covenant to repair is pro-
duced and read to the bidders, if any of the buildings de-
mised and described in the lease have been pulled down
before the sale, the purchaser is not bound to complete the
purchase, and may recover back his deposit, although the
(0 Green v. Saddiiifrton, 7 E. & B. & A. 3.",; Konworthy v. Schofiehl, 2
503. B. & C. !)48.
(u) Cocking i--. Ward, 1 C. I?. 158; (z) Stowell v. Robinson, .3 Ring.
Laycock v. Pickles, 4 B. & S. 4!)7; 33 N. C. 928; Moore v. Campbell, 10
L. .1., Q. B. 4.3. Kxch. 323; Noble i;. Ward, L. K.,
(x) Ante., 85. 1 E.X. 117 ; 35 L. J. Ex., 81.
((/) Walker v. Constable, 1 Bos. & («) Stevens v. Adanison, 2 Stark.
P. 30(5 ; Kairhrotiicr v. Siiimioii^i, 5 B. 422.
302
Cu. VII. S. 2.] THE CONTRACT FOR ASSIGNMENT. *244
building pulled down be not described in tlie particulars of
sale (i). Where leasehold premises were sold by auction by
the defendant to the plaintiff, under a condition that the
defendant should make a good title, it was held no defence
to an action for not making a good title, that the premises
had been assigned by the plaintiii" to the defendant by way
of mortgage, and that a good title was made, except that the
premises were out of repair, of which the plaintiff had full
knowledge, and that the lessor had not re-entered as he was
entitled to do (c).
Misdescription. — In the conditions of sale of the lease of a
public-house it was described as " a free public-house," and
the lease contained a covenant that the lessee and his assigns
should take their beer from a particular brewer ; though the
lease was entirely read over by the auctioneer at the time of
the sale, who said mistakenly that it was a free public-house,
and that the covenant about the beer had been decided to be
bad ; it was ruled that a [)urchaser who heard the lease read
over was not bound under these circumstances to complete
the purchase, but was entitled to recover back the de-
posit (c?). Where the particulars of sale of premises in
Covent Garden stated, that under the lease " no offensive
trade was to be carried on, and that the premises could not
be let to a coffee-house keeper or working hatter," and the
original lease when produced appeared to prohibit the busi-
ness of a brewer, baker, sugar-baker, vintner, victualler,
butcher, tripe-seller, poulterer, fishmonger, cheese-seller,
fruit-seller, herb-seller, coffee-house keeper, working hatter
and many others, and the sale of coals, potatoes or
any provisions, it was * held, that there was such a [*244]
material discrepancy between the particulars and the
lease so as to entitle a purchaser to rescind his contract (<?).
Where an original lessee of land subject to a covenant
against certain obnoxious trades, with a proviso for re-entry
for a breach of such covenant, granted under-leases of houses
erected on the land, not containing a similar covenant and
(b) Granger i\ Worms, 4 Camp. 83. (d) Jones v. Edney, 3 Camp. 285.
(c) Barnett v. Wheeler, 7 M. & W. (e) Flight i;. Rooth, 1 Biug. N. C.
364; Wilson v. Wilson, 14 C. B. G16. 370.
393
*244 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Cu. VII. S. 2.
proviso, it was held, that a purchaser by auction of houses
erected on part of this land, and of the improved ground
rents of the houses so under-let, might recover back his
deposit-money from the auctioneer, the omission of the pro-
viso in the under-leases not having been specified in the con-
ditions or mentioned at the time of the sale (/). Where
the particulars of sale by auction of several lots described
one as subject to the same rights of way as were then
enjoyed under existing leases of certain houses, one of which
leases was to be seen ; and a plan annexed showed one right
of way to those houses over that lot, but not another, and it
also showed another right of way over that lot to a second
adjoining lot, and the same person bought these two lots by
two biddings, but a single contract was entered into for the
whole : — it was held, that he might rescind the contract as
to both lots, and that it was not a case for the application of
a compensation provision as to misdescription of the prem-
ises (^).
Where a public-house was sold with the victuallers' and
other licences, the vendor not being at the time entitled to
such licences, nor able to get them transferred to the pur-
chaser in due time pursuant to his contract, it was held that
the purchaser might rescind the contract and recover back
his deposit (/t).
It may be here mentioned that an auctioneer who has sold
goods has no authority to pay the landlord's rent, in order
to avoid the goods being distrained (i).
(c) Title of the Vendor.
Common law -warranty of lessor's title. — Prior to the Ven-
dor and Purchaser Act, 1874, there Avas, in every contract
for the sale of an existing lease, an implied undertaking by
the seller (if the contrary were not exjjressed, as it usually
was in practice) to make out the lessor's title to demise (/r),
(/) Waring v. IIogRart, 1 lly. & (h) Claydon r. Green, L. R., 3 C. P.
Moo. 30; hut see IlaywarJ v. I'arko, 511 ; 37 L. J., C. P. 22(5.
IG C. B. 205. (/) Sweetin},', app. v. Turner, rcsp.,
(ff) Dykes v. Blakes, 4 Bing. N. C 41 L. J., Q. B. 58.
403. (Z) Hall I'. Belty, 4 M. & 0. 410.
804
Cii. VII. S. 2.] THE CONTRACT FOR ASSIGNMENT. *245
and without showing such title, the seller could not maintain
an action at law against the buyer for refusing to complete
the purchase (?).
"Warranty dispensed with by V. & P. Act, 1874. — This war-
ranty is now dispensed Avith by the Vendor and Pur-
chaser *Act, 1874 (37 & 38 Vict. c. 78), which by [*245]
sect. 2, rule 1, enacts that " under a contract to as-
sign a term of years, whether derived or to be derived out
of a freehold or leasehold estate, the intended assign shall
not be entitled to call for the title to the freehold." It is to
be observed that this rule only barred the purchaser's right
to call for the title to the freehold, so that if an under-lease
be sold, the title of any mesne landlord might still be called
for ; and further that the rule does not apply at all to a
lease for lives (m).
The Conveyancing and Law of Property Act, however (44 &
45 Vict. c. 41), enacts, by sect. 3, subsect. (1), that "under
a contract to sell and assign a term of years derived out of a
leasehold reversion, the intended assign shall not have the
right to call for the title to the leasehold reversion ; " but
this section by subsects. (9) and (10) applies only "if and
as far as a contrary intention is not expressed in the contract
of sale," and " to sales made after the commencement " of
the act, i.e. by s. 2, on or after the 1st January, 1882.
Purchaser to assume that covenants performed. — The same
section (3) of the Conveyancing Act, following the common
forms in conditions of sale, provides that a purchaser is to
assume that covenants have been performed, &c., as fol-
lows : —
" (4.) Where land sold is held by lease (not including
under-lease') the purchaser shall assume, unless the contrary
appears, that the lease was duly granted ; and on production
of the receipt for the last payment for rent under the lease
before the date of the actual completion of the purchase, he
shall assume, unless the contrary appears, that all the cove-
nants and provisions of the lease have been duly performed
(0 Souter !'. Drake, o B. & Ad. W. 820; 2 Dowl., N. S. 230; Lay-
992 ; De Medina v. Norman, 9 M. & thorp v. Bryant, 2 B. & C. 735.
(^m) See Dart V. & P. vol. i. p. 290.
395
*246 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 2.
and observed up to the date of the actual completion of the
purchase.
" (5.) Where land is held by under-lease, the purchaser
shall assume, unless the contrary appears, that the under-
lease and every superior lease were duly granted; and on
production of the receipt for the last payment due for rent
under the under-lease before the date of the actual comple-
tion of the purchase, he shall assume, unless the contrary
appears, that all the covenants and provisions of the under-
lease have been duly performed and observed up to the date
of actual completion of the purchase, and further that all
rent due under every superior lease, and all the covenants
and provisions of every superior lease, have been paid and
duly performed and observed up to that date."
Agreement for lease. — Upon a contract for the sale of an
agreement for a lease it is not an implied condition that the
lessor has power to grant the lease (jn). This rule was laid
down before the Vendor and Purchaser Act, which affirms
its principle, but does not expressly embody it.
[*240] * Construction of contracts of sale. — An agreement
for the sale of all B.'s interest in a lease does not
mean free from all under-leases by way of mortgage and
other incumbrances then affecting the premises (o). When
it was stipulated (before the Vendor and Purchaser Act)
that the vendor sliould not be obliged to produce the lessor's
title, the vendee might, notwithstanding, insist upon defects
in the lessor's title, which were disclosed by the abstract
delivered, or which he had discovered aliunde (jo) ; but it
was said to be otlierwise where the purchaser had agreed to
take the vendor's title "as he holds the same," without
requiring the lessor's title (^). The Vendor and Purchaser
Act appears to admit the objection of defects discovered in
(n) Kintrca v. Preston, 1 II. & N. Warren v. TJicliardson, 1 Younge, 1 ;
357 ; 25 L. J., Ex. 287. Harnett v. Yielding, 2 Sch. & Lef. 649.
(o) Phelps y. Potluro, 1(5 C. B. :170. (7) Spratt v. .JelTery, 10 B. & C.
(p) Shepherd v. Keatley, 1 C, M. 24!); llayward v. Parke, IOC. B. 295;
& U. 117; Wheeler v. Wright, 7 M. & Hume r. Pocoek, 14 W. II. 191 ; Mills
W. .%9; Barnettj;. Wheeler, Id. .3(54; r. Tweed, L. R., 1 C. P. 89. See
Sellick V. Trevor, 11 M. & W. 722; Waddell v. Wolfe, L. R., 9 Q. B. 616.
Darlington v. Hamilton, Kay, 550;
896
Ch. VII. S. 2] THE CONTRACT FOU ASSIGNMENT. *247
the lessor's title by the abstract or otherwise. If a person,
who has contracted to purchase the lease of a house, subse-
quently discovers that it was originally leased jointly with
another house, and that the lessor could enter for breach of
covenants in respect of eitlier house, he seems clearly not
bound to complete the purchase (;•).
" Title to be approved by solicitor." — If a contract for the
purchase of a lease state that it is made "subject to the
approval of the title by the purchaser's solicitor," then, in
the absence of mala fides on the part of the purchaser or his
solicitor, the vendor cannot enforce specific performance of
the contract if the purchaser's solicitor disapprove of the
title.
Hussey v. Horne-Payne. — This rule was laid down by Fry,
J., in Hudson v. Buck (s), is stated in Hussey v. Horn-
Payne (f) in the Court of Appeal to the same effect, and
although questioned by Lord Cairns in the House of
Lords (u) is still law.
Objection on ground of forfeiture. — It was usual, before the
Conveyancing Act, for the vendor of a leasehold interest to
protect himself by a stipulation that the production of the
last receipt for rent should be conclusive evidence of the due
performance of covenants. This stipulation was always
strictly construed against the purchaser (x). It is now, as
we have seen, implied into all contracts by s. 3 of the Con-
veyancing Act. If it be negatived, however, a purchaser of
a leasehold may object to the vendor's title, on the ground
that he has incurred a forfeiture, e.g. by omitting for
the space of a month to pay the annual premium * of [*247]
insurance pursuant to his covenant, although it does
not appear that the lessor has taken advantage of the for-
()•) Blake v. Phinn, .3 C. B. 976; (w) L. R., 4 App. Cas. 411 ; 48 L.
Madeley v. Booth, 2 De Gex & Sm. J., Ch. 846; 41 L. T. 1 ; 27 W. R.
718 ; Darlington '•. Hamilton, Kay, 585. The House of Lords affirmed
550; Penniall v. Harborne, 11 Q. B. the judgment of the Court of Appeal,
368. but on different grounds.
(s) L. R., 7 Ch. D. 683; 47 L. J., (x) See Bull v. Hutchens, 32 Beav.
Ch. 247 ; 38 L. T. 56 ; 26 W. R. 190. 615; Laurie v. Lees, 7 App. Cas. at
(0 L. R., 8 Ch. D. 670; 47 L. J., p. 32.
Ch. 751; 38 L. T. 543; 26 W. R.
703— C. A.
397
*247 ASSIGNSIENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 2.
feiture (?/). Under a contract for the purchase of the resi-
due of an old term, a purchaser is not bound to accept a
similar new lease : for the former differs in value from the
latter, the residue of an old term being in certain respects
more advantageous (2) ; but a purchaser cannot refuse to
perform an agreement for the sale of " the unexpired term
of eight years' lease and goodwill," on the ground that only
seven years and seven months of the term remained (a).
Objection on ground of unusual covenants. — A purchaser
cannot resist specific performance on the ground that the
lease purchased contains unusual covenants not mentioned in
the contract of sale (6).
Lessor's licence to assign. — It is incumbent on the vendor
of a lease which contains a restriction against alienation, to
prove that he has obtained the lessor's consent to the assign-
ment (c) ; and it is also incumbent on him, and not on the
purchaser, to procure the lessor's licence for the assign-
ment (c^).
Premium for licence. — If necessary, he must pay any rea-
sonable premium and extra rent required for such consent (e).
This was held in a case where the lessee held at the rent of
36Z. for a term of thirty-five years, and the lessor refused the
licence for a sub-lease for twenty-one years at a rent of 65^.,
except upon payment of an increased rent of 61. and a pre-
mium of 501. Stuart, V.-C, decreed specific performance,
and, in the event of the lessee being unable to grant a proper
sub-lease, an inquiry as to damages (^). The failure to pro-
cure from the lessor a licence to assign, or to register pre-
vious assignments, before the day on which it is agreed to
assign and give possession of leasehold premises, is no breach
of the agreement (/).
(y) See Wilson v. Wilson, 14 C. B. and see Bermingham v. Sheridan, 33
616. L. J., Ch. 571 ; 12 W. R. G58; Ferrer
(z) Mason v. Corder, 7 Taunt. 9. v. Nash, 35 Beav. 107 ; 14 W. R. S ;
(a) Belworth v. Ilassell, 4 Camp. Wallis i-. Littell, 11 C. B., N. S. 3()!);
140. 31 L. J., C. r. 100 ; Barton v. Banks,
(ft) Grosvonor v. Grosvenor, 28 L. 2 F. & F. 213; Davis v. Nisbett, 10
J., Ch. 173; 5 Jur., N. S. 117. C. B., N. S. 752; 31 L. J., C. P. (5.
(c) Mason v. Corder, 7 Taunt. 9; (e) Hilton v. Tipper, 18 L. T. 020;
Winter v. l)innerfj;ue, 14 W. R. 099. 10 W. K. 888.
(d) Lloyd V. Crisj), 5 Taunt. 249; (/") Stowell c. Robinson, 3 Ring. N.
398
Ch. VII. S. 2.] THE CONTRACT FOR ASSIGNMENT. *248
Proof of discharge of au incumbrance. — A purchaser is not
compellable to accept a title to premises formerly subject to
an incumbrance, the discharge of which is shown only by
presumption : thus where a leasehold was sold, subject to a
ground rent, which was said to be apportioned out of a larger
rent, but the apportionment was not evidenced by an exist-
ing deed, but only by the acceptance of a mesne landlord,
and presumption ; it was held that the purchaser was not
bound to accept the title (^).
* (d) Rights and Liabilities as to Title Deeds. [*248]
It is an established principle that whoever is entitled to
the land has also a right to all the title-deeds affecting it (A) ;
and he may maintain an action of detinue against any person
who withholds them from him after demand made (z) ; or an
action of trover (/t) ; consequently the party entitled to the
term is entitled to the lease.
Lien on lease. — A solicitor's lien on a lease will not pre-
vent the lessee from assigning estate (V).
Custody of expired lease. — After the expiration or determi-
nation of a lease the lessor is not entitled to possession of it
as against the lessee, nor can he maintain trover for it (w).
(e) Value of Leaseholds, Reversions and Annuities.
Mode of valuation of property. — In order to show the value
of leasehold estates, and to enable those persons who intend
either to purchase or sell to form their judgment, the follow-
ing tables have been extracted from a very accurate and use-
ful work (?i) upon the subject. The first table shows the
C. 928. And see Wrighton v. New- Burton, 1 Exch. 189 ; Newton v. Beck,
ton, 2 C, M, & R. 124. 3 H. & N. 220.
(g) Barnwell v. Harris, 1 Taunt. (k) Harrington v. Price, S B. & Ad.
430. 173 ; Hooper v. Ranisbottoin, 0 Taunt.
(A) Harrington v. Price, 3 B. & Ad. 12; Davies v. Vernon, 0 Q. B. 443.
170; Hooper r. Kamsbottom, 6 Taunt. (/) Odell i-. Wake, 3 Camp. 394.
12. (,«) Hall V. Ball, 3 M. & G. 242;
(0 Lightfoot V. Keane, 1 M. & W. Elworthy v. Sanford, 3 H. & C 330;
745 ; Roberts v. Showier, 13 M. & W. 34 L. J., Ex. 42.
609; 2 D. & L. 687; Slater v. Dan- (n) Tables for the Purchasing of
gerfield, 15 M. & W. 203 ; Goode v. Estates, &c., by William Inwood, Ar-
399
*24:8 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 2.
value of leases, estates or annuities for terms of years certain,
in number of years' purchase of the clear annual rent, at the
several rates of 3, 4, 5, 6, 7, 8, 9 and 10 per cent, interest,
which the purchaser may thereby make of his money. The
clear annual rent must in all cases be ascertained, by deduct-
ing from the gross rent of the estate, or value of the annuity,
the ground rent, all taxes, and other annual charges, which
would fall upon the purchaser.
cliitect and Surveyor, (1845). To .ind — have been used ; the sign + sig-
arrive at as near an approximation nifying tiiat the value is a little more
as possible to the true value, by the than that stated, and the sign— that
use of vulgar fractions only, with- it is a little less.
out decimals, the algebraical signs +
400
Cii. VII. S. 2.] TABLE OF VALUE OF LEASES, ETC.
*249
* Table of the Value of Leases, Estates or Annui- [*249]
TIES, for a Numhkr OF Years Certain, to make
THE FOLLOWING RaTES PER CENT, (o) .
Years'
Years'
Years'
Years'
Years'
Years'
Years'
Years'
Years.
Furch.
Purch.
Purch.
Purch.
Purcli.
Purch.
Purch.
Purcli.
at 3 per
at 4 per
at 5 per
at 6 per
at 7 per
at 8 per
at 9 per
at 10 per
cent.
cent.
cent.
cent.
cent.
cent.
cent.
cent.
^
1
77
1
*-
*-
i-
^-
i-
i-
1
1-
1-
1-
1-
1-
1-
1-
1-
2
2-
2-
lf +
lf +
lf +
lf +
lf +
1 +
3
2f +
2f+
n-
n~
n+
2i+
2f+
24r-
4
3f-
H-
3i+
u-
34—
3i +
31-
H-
5
^+
^-
4i+
4i-
4 +
4-
4-
H+
6
5^-
5i-
5 +
5-
4f+
4i-
4^ +
4i +
7
6i-
6 +
5f+
5^ +
^-
5i-
5 +
4i+
8
7 +
6f-
6^-
6i-
6-
5f-
51+
5i +
9
7i+
7i-
7 +
6f +
6i +
61-
6-
5f +
10
8i +
8 +
7f-
7i+
7 +
6|-
H-
6i-
11
9i +
8| +
8i+
8-
7i-
7i-
6f+
H-
12
10-
n-
8i +
8^-
8-
7i+
7i+
6f+
13
lOf-
10-
9^-
8f+
8i+
8-
7i-
7 +
14*
lli +
10^+
10-
H+
8f-
H-
7t +
7i+
15
12-
11 +
\0h-
n-
9 +
H+
8 +
7i +
16
12^ +
iif-
\n+
10 +
9tL-
8f+
8R
7f +
17
13|-
m-
iii+
lOi^-
9| +
9 +
81 +
8 +
18
13^- +
12f-
iif-
io|+
10+
9i+
8f +
8i-
19
Ui +
13i-
12 +
lU-
101 +
9i+
9 —
8K
20
15-
131+
12^-
iii-
10i+
9f +
91—
8i +
2o
17^-
15^+
14 +
12f+
llf-
lOf-
9f-
9 +
30
19i- +
17i+
151 +
13f+
121-
1H +
lOK
n-
35
2l|-
18f-
161 +
14i-
13-
llf-
10i+
n-
40
23 +
19f+
17i-
15 +
131+
12-
10|+
9f +
45
m+
20f-
17i^- +
15.V-
134r +
12 +
11-
91 +
50
25f-
2H-
18i +
15f +
13f+
121-
11-
10-
60
27|-
22i +
19-
161—
14-
m-
11 +
10-
70
29 +
231-
19i +
16^-
141 +
124.-
11 +
10-
80
30i-
24-
191 +
16i +
141-
121-
11 +
10-
90
31 +
24i+
19f +
16i +
141 +
121-
11 +
10-
100
3U+
244 +
19i +
16i +
141 +
m-
11 +
10
Per-
petual
33i +
25
20
161-
14i +
121
11 +
10
* Example. — A lease or annuity for 14 years, to make 5 per cent., and to
get back the principal, is worth a little less than 10 years' purchase of the clear
annual rent ; at 3 per cent., a little more than 11|^ years' purchase ; at 8 per
cent., a little less than 8^ years' purchase; and so on.
(y) Inwood, Table 1.
401
*250 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 2.
[*250] * Table of the Present Value of Reversions in Years'
Purchase (p).
The following Table shows the present value of a reversion in
years' purchase of the clear annual rent, after a given terra not
exceeding 60 years, at 3, 4, 5, 6, 7, 8, 9 and 10 per cent, interest.
After
these
Yeiirs.
Years'
Years'
Years'
Years'
Years'
Years'
Years'
Years'
Purch.
Purch.
Purch.
Purch.
Purch.
Purch.
Purch.
Purch.
at .3 per
at 4 per
at 5 per
at 0 per
at 7 per
at 8 per
at 9 per
at 10 per
cent.
cent.
cent.
cent.
cent.
cent.
cent.
cent.
1
32i+
24 +
19 +
15f-
131+
lli +
10^
9 +
2
m-
23 +
181-
14i +
m-
lOf-
9i+
81 +
3
301 +
221-
101 +
14-
iif+
10-
8i +
7^+
4
29i +
21t+
16^-
m-
]0| +
H-
7| +
6f+
5
m+
20i +
15|-
m-
101-
8i+
71-
61-
6
28-
19f +
15-
iii
9i+
7I+
6f-
5|-
7
27 +
19
141-
11+
9-
7-1 +
fi +
51-
8
26i +
181 +
13^ +
101-
^+
6f+
5i+
4|-
9
25i +
17i+
13-
9|+
7i+
61 +
5 +
^-
10
24f +
17-
121 +
9i+
7i+
5| +
i.3_
-4
3f+
11
24 +
161-
llf-
8| +
6|+
51 +
4i+
3i +
12
23i-
l'H+
lli-
H+
5i+
5-
4-
31-
13
22f-
15 +
m+
'-H
6-
4^ +
3^ +
3-
14*
22 +
14^-
10 +
n+
H+
4i+
31 +
•;3_
-4
lo
2U-
14-
9i- +
H-
4-
3 +
24-
16
20^ +
13i+
91—
6^ +
4| +
3|-
2f +
2i-
17
20i-
12f +
8f-
6i-
4i+
3i-
2i+
2-
18
m-h
121+
8R
5f+
41-
31-
21 +
1| +
19
19
llf +
8-
5i+
4-
3-
2-1-
n-
20
m-
IH-
H+
5i-
3f-
2f-
2-
H-
2.5
16-
9^-
6-
3| +
2f-
lf +
11 +
1-
30
13f-
n-
4f-
3-
2-
H-
-H
i+
35
11|+
6H
3f-
n-
U-+
1+
i+
i+
40
10|-
H-
2f +
H-+
1-
i+
i+
i-
45
8^- +
4K
^-
11-
3
4
i-
i-
1-
50
H +
u+
ii-
1-
i-
1-f-
i+
1^-+
55
H +
3-
i-K
3
4
^ +
i-+
tV-
yV+
60
5J-
2i-
1 +
i +
i-
J _
1
1
Ttfr
* ExAMPLK. — A reversion of an estate after a 14 years' term, is worth in
present money, at 5 per cent., a little more than 10 years' purchase of the
clear annual rent; at .3 per cent., a little more than 22 years' purchase; at
8 per cent., a little more than 4\ years' purchase; and so on.
(/O Inwood, Table 13.
402
Ch. VII. S. 2.] COMPAKATIVE VALUE OF ESTATES.
^251
* Table of the Comparative Value of Lifehold and [*251]
Leasehold Estates (q).
The following Table will show the relative value, at 5 per cent,
interest, of estates held for a term of life, or for a term of years
certain.
Age.
Equal to a Leaseliold Estate for a Term certain.
One Life.
Two joint
Lives.
Longest of
Two Lives.
Longest of
Three Lives.
10
20
30*
40
50
60
70
Years.
29
25
21
18
15
11
7
Years.
21
17
15
12
10
7
4
Years.
43
37
33
27
22
16
11
Years.
51
46
39
32
26
19
13
* Example. — An estate held on a single life, aged 30, is equal in value to
a leasehold estate for a term certain of 21 years, at 5 per cent. ; one on two
joint lives, aged 30, to a term certain of 15 years ; one on the longest of two
lives, aged 30, to a term certain of 33 years ; and one held on the longest of
three lives, aged 30, to a term certain of 39 years.
(9) Inwood, Table 26.
403
'252 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 3.
[*252] * Sect. 8. — Assignment of Reversion.
Right of assignee to sue for breach of covenant. — A lessor
may by deed assign his reversion.^ At common law such an
assignment would only have given the assignee a right to the
rent reserved, to distrain for rent, and to sue for breaches of
covenants at law, but not for breaches of express covenants
entered into by the lessee with the lessor (r). To remedy
this, the statute 32 Hen. 8, c. 34, enacted that all grantees of
reversions should enjoy all the advantages, benefits and rem-
edies by entry for non-payment of rent, or for doing of waste
or other forfeiture (s), or by action only for non-performance
of conditions, covenants or agreements, contained or
expressed in leases, which the lessors themselves had or
enjoyed.
(r) Martyn v. Williams, 1 H. & N. (s) Bennett i\ Herring, 3 C. B.,
817, 826; 26 L. J., Ex. 117. N. S. 370.
1 Assignment of reversion, (r?) How made. — See note, sec. 1. It takes
effect from delivery. Meagher v. Coleman, 1 Russ. & Geld. (N. S.) 271.
(6) A deed or other assignment is subject to the lease. Page v. Esty, 54 Me.
819 ; Ala. Gold Life Ins. Co. v. Oliver, 78 Ala. 158; Comer v. Sheelian, 74 Id.
452,457; Casey i'. Gregory, 13 B. Mon. (Ky.) 505, 507 (per Simpson, J.).
A demise for ninety-nine years operates as an assignment of the reversion of
a prior shorter lease. Doe d. Jarvis v. M'Carthy, 3 Kerr (N. B.) 63.
(c) Effect. — Assignment transfers to assignee the right to rent sub-
sequently accruing, Abercrombie v. Redpath, 1 Iowa, 111; Disselhorst v.
C.idogan, 21 111. App. 179; Dixon v. NiccoUs, 39 111. 372; Burden v. Thayer,
3 Met. (Mass.) 76; Howland v. Coffin, 12 Pick. (Mass.) 125; Van Driei v.
Rosierz, 26 Iowa, 575 ; Townsend v. Isenberger, 45 Id. 670 ; Burns v. Cooper,
31 Pa. St. 426; though it be involuntary as in case of judicial proceedings,
Lancashire v. Mason, 75 N. C. 455; Epley v. Eubanks, 11 111. App. 272;
Bank of Penn. v. Wise, 3 Watts (Pa.) 394 ; McDevitt v. Sullivan, 8 Cal. 592 ;
Martin v. Martin, 7 Md. 368; or purely by operation of law, as in case of
heirs, Crosby r. Loop, 13 111. 625; Green v. Massie, Id. 363; Foltz v. Prouse,
17 Id. 487; Kimball r. Sumner, 62 Me. 305; Stinson u. Stinson, 38 Id. 593;
Haslage v. Krugh, 25 Pa. St. 97. A devisee, also, is entitled to subsequently
accruing rent. Cobel v. Cobel, 8 Barr (Pa.) 342.
Kent accrued, payable prior to assignment, does not pass to assignee as it is
a chose in action. Wittrock v. Ilallinan, 13 Q. H. U. C. 135 ; Burden n. Thayer,
3 Met. (Mass.) 76; Sheerer i;. Stanley, 2 Kawle (Pa.) 276; Bank of Pa. v.
Wise, 3 Watts (Pa.) 394 ; Braddee v. Wiley, 10 Id. 362 ; Farmers & Mechan-
ics' Bank v. Egc, 9 M. 436.
(d) Conditional assii/nment. — The reversion may be assigned as security as
rn mortgage. Payment of debt will discharge the assignment. Handershott
V. Calhoun, 17 III. App. 163.
404
Cii. VII. S. 3.] ASSIGNMENT OF REVERSION. *253
Lease must be by deed. — This statute does not apply where
the demise is not by deed(^). If the demise be otherwise
than by deed, the lessor, notwithstanding assignment of the
reversion, retains his right of action (m).
But not under Conveyancing Act. — The 10th and 11th sec-
tions of the Conveyancing and Law of Property Act, how-
ever (.-c), which otherwise appear to re-enact 32 Hen. 8, c. 34,
ss. 1 and 2, apply to leases generally and are not confined to
leases by deed.
Reversion must be the same. — To enable the assignee of a
reversioner to sue on the covenants in a lease, he must be
seised of the same reversion to which the covenants were
originally annexed; therefore, where there was a lease for
years, under which the tenant entered, but which was never
executed by the lessor, who died and devised the property,
it was held, that the devisee could not sue as assignee of the
reversion for breaches of covenants in the lease (3/). A
lease was made by A. and B. his wife, who were seised of an
undivided moiety in right of the wife, and also by C, who
was seised of the other undivided moiety, and it contained a
covenant by the lessee, with A. and C. only, to repair;
semble, that this was not a covenant running with the land
on which the assignee of the reversion could sue (s). The
assignee of a rent reserved by deed (without being an
assignee of the reversion, if any), may maintain an action
for the rent which becomes due after the assignment (a).
Assignment with reservation of rent to assignor. — In South-
well V. Scotter (5), it was doubted whether, by the peculiar
form of words there used, the assignor of a reversion could
bind the lessee by a stipulation in the assignment
that rent could continue to * be paid to the assignor, [*253]
(t) Standen v. Christmas, 10 Q. B. W. 120 ; Thompson v. Hakewill, 19
35 ; Elliott v. Johnson, L. R., 2 Q. B. C. B., N. S. 717 ; 35 L. J., C. P. 18.
120; 36 L. J., Q. B. 41 ; 8 B. & S. .38. (a) Williams v. Hayward, 1 E. &
(u) Bickford w. Parson, 5 C. B. 920. E. 1040; 28 L. J., Q. B. 374; Allen
(x) See these sections at length, v. Bryan, 5 B. cfe C. 512; Robins v.
p. 256, post. Cox, 1 Lev. 22 ; Newcomb v. Harvey,
(y) Cardwell v. Lucas, 2 M. & W. Carth. 161.
Ill ; Cooch V. Goodman, 2 Q. B. 580. (6) 49 L. J., Ex. 356.
(2) Wootton V. Steffenoni, 12 M. &
405
*2o3 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch.VII. S. 3.
and it is very cloabtful whether such an obligation (unless
construed as an obligation to pay to the assignor as agent
of the assignee) could be created by any form of words
whatever. Such a stipulation seems to be repugnant to the
assignment of a reversion, the very essence of which is that
the assignee should stand to the lessee in the place of the
assignor, whereas such a stipulation makes practically two
landlords.^
Dispute of title of assignee by tenant. — The rule that a ten-
ant may not dispute his landlord's title (^) applies only to
the title of the original landlord who let him in, and not to
that of an assignee of the reversion (c?), and such title may
be disputed by a tenant. But if the tenant has paid rent to
a claiming assignee of the reversion or his agent, such pay-
ment is prim^ facie evidence of the title of such assignee,
and the tenant, except in a case of fraud or misrepresenta-
tion, can only defeat that title by showing that he paid in
ignorance, and that some third person is the real assignee of
(c) Cooke I'. Loxley, 5 T. R. 4, ante, (d) Carlton v. Bowcock, 51 L. T.
ch. V. s. 22. 659, pei- Cave, J.
1 Rent severable from reversion. — " Each . . . may be assigned with-
out the other" (per Clopton, J., in Ahi. Gold Life Ins. Co. v. Oliver, 78 Ala.
158, 160).
In Crosby v. Loop, 13 111. 625, it was held that lessor might assign part of
reversion, reserving to himself the entire rent.
In New York the assignee of rent, without the reversion, may sue therefor
in his own name. Demarest v. Willard, 8 Cow. (N. Y.) 206 ; Willard v. Till-
man, 2 Hill (N. Y.) 274, 276.
In Hopkins v. Hopkins, 3 Ont. 223, 230, it was said (per Boyd, C.) that
aecruing rent might be granted by deed or devised by will, and the devisee
might distrain for it.
In Watson u. Hunkins, 13 Iowa, 547, 550, it was held that lessor might
assign the lease without the rent.
It is held in Alabama tliat a note given for rent in advance will sever it
from the reversion. Westmoreland v. Foster. 60 Ala. 448, 455 ; Ala. Gold
Life Ins. Co. v. Oliver, 78 Ala. 158, 161.
If rent be payable in advance, sale of land after such payment does not
entitle vendee to re-collect it. Farmers & Mechanics' Bank v. Ege, 9 Watts
(Pa.) 436; Stone v. Patterson, 19 Pick. (Mass.) 476.
In Farley v. Thomjjson, 15 Mass. 18, an agreement to offset future rent
payments against interest instalments was belil valid.
A purchas(!r at a sale under a i)rior mortgage may collect rent over.
McDevitt V. Sullivan, 8 Cal. 592.
In Ontario it is lield that an assignment of future rent, with right of dis-
trust, must be under seal. Gall)raitii /•. Irving, 8 Ont. 751.
40(i
Ch. VII. S. 3.] ASSIGNMENT OF REVERSION. *254
the reversion ; it is not enough for him to show that the
cLaiming assignee has no title (<3).
Surrenderee of copyhold, mortgagor, &c. — The surrenderee
of a copyhokl reversion may bring covenant against the lessee
within the equity of the statute 32 Hen. 8, c. 34 ; for it is a
remedial law, and no prejudice can arise to the lord, not-
withstanding the lessee had assigned the term before the
surrender (/).
If a mortgagor and mortgagee of a term make an under-
lease in which the covenants for the rent and rej)airs are
only with the mortgagor and his assigns, the assignee of the
mortgagee cannot maintain an action for the breach of these
covenants, because they are collateral to his grantor's interest
in the land, and therefore do not run with it ; but the mort-
gagor himself may, the covenants being in gross (^). Where
a mortgagor made a lease for a term, reciting the mortgage,
and the lessee covenanted to pay a certain sum annually in
part of the interest on the mortgage at a certain place, it was
held a covenant in gross, not running with the land (A).
On a covenant to repair, tenants in common may sue a
lessee of a house, who, after the demise, but before the
breach alleged, became a co-tenant of the plaintiffs in the
same house (/c).
The assignee of a lease, which is good only by estoppel,
may maintain an action on the covenants (Z). Where a per-
son, who was in fact tenant from year to 3^ear (as he
held under a void lease for years), underlet * by deed [*254]
for a term, and the under-lessee again underlet by
deed for a less term : it was held, that this under-lessee had
a reversion on which his assignee could maintain an action
of covenant (m). After assigning over a lease, the assignor
(e) lb. (/.) Yates v. Cole, 2 Brod. & B.
(/) Glover v. Cope, 1 Salk. 185; 660; Twynam v. Pickard, 2 B. & A.
4 Mod. 81; Whitton v. Peacock, 3 105; Badeley ;;. Vigurs, 4 E. & B. 71 ;
Myl. & II. 323. Norval v. Pascoe, 34 L. J., Ch. 82.
(g) Webb v. Russell, 3 T. R. 393 ; (/) Cuthbertson v. Irving, 4 H. &
Stokes V. Russell, Id. 679 ; Russell v. N. 742 ; 6 Id. 135.
Stokes (in error), 1 H. Blac. 562. (m) Oxley v. James, 13 M. & W.
(h) Pargeter ;:. Harris, 7 Q. B. 708 ; 209.
Saunders v. Merryweather, o H. & C.
902; 35 L. J., Ex. 115.
407
*254 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 3.
having no reversion cannot sue the assignee except on
express covenants contained in the assignment (72).
Breaches before assignment. — The assignee of a reversion
has no right of action for arrears of rent due (0), inasmuch
as the right to rent is a chose in action,^ or for breaches of
covenants, although running with the land, committed before
the assignment of the reversion (jo) ; but the assignor may
sue for such j)revious breaches notwithstanding the assign-
ment. Where a mortgagor of a term of years made an
under-lease by indenture, this, though at first a lease by
estoppel, was held to be convertible into a lease in interest
by a re-conveyance by the mortgagees, so as to give a right
of action to the assignees of the lessee on the covenants in
the under-lease (g-).
Notice to tenant before re-entry. — The assignee of a rever-
sion may re-enter for breach of covenants, other than the
covenant to paj' rent, without giving notice to the tenant
that the reversion has been assigned to him (r). As regards
rent, it is expressly provided b}^ 4 Ann. c. 16, s. 10, that the
tenant is not to be prejudiced without notice.
The grantee of a reversion, therefore, may take advantage
of all covenants which run with the land (s). The remedy is
mutual, for the same statute gives the lessee a right of action
against the grantee of the reversion (^). The statute does
not extend to mere collateral covenants (?/) ; but it includes
devises (a;).
How assignments made. — An assignment of the rever-
sion must be by deed (2/)-^ A. let a house to B., as ten-
(n) Hicks v. Downing, 1 Ld. Raym. under tlie Conveyancing Act (see p.
99; 1 Salk. 13. 328) is of course necessary.
(0) Flight V. Bcntlcy, 7 Sim. 149. . (.s) Spencer's case, 1 Sin. L. C. 60,
(;)) Martyn v. Williams, 1 H. & N. niitr, 1()3.
817; 26 L. J., Ex. 117. (/) Jourdain r. Wilson, 4 B. &, A.
(7) Webb V. Austin, 7 M. & G. 206.
701. (u) Webb V. Russell, :! T. R. 393.
(r) Scaltock r. Ilarston, L. R., 1 (.r) ISIacliell c. Dunton, 2 Leon. 33.
C. P. D. 10(5; 45 L. J., C. P. 125; 34 (.'/) Beely v. Perry, 3 Lev. 155;
L. T. 130; .34 W. R. 431. Notice Brawley i>. 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, 0 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, 0 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, 0 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<lit to tlie term, and if the assignee take possession he will be
liable for the rents. Boyce v. Bakcwell, 37 Mo. 492; Eeker v. C. B. & Q.
II. R. Co., 8 Mo. App. 223; Dorriincc v. Jones, 27 Ala. 630; Morton v. Pinek-
ney, 8 Bosw. (N. Y.) 1.35; Young v. Peyser, 3 Id. 308; Astor v. Lent, (5 Id.
612. But if assignee merely enter to take away the goods, he will not be
personally liable. Lewis v. Burr, 8 Id. 140; .Journeay v. Braekley, 1 Hilt.
(N. Y.) 447; Pratt (•. Levan, 1 Miles (Pa.) .358.
In Magill i;. Young, 10 Q. B. II. C. 301, a voluntary assignee, after enter-
ing and occupying the preniises, assigned the term to a pauper, and was thereby
relieved from further liability.
418
Cii. VII. S. 5.] ASSIGNMENT OF TERM. *260
out interruption by the assignor or any person claiming
under him: — free from incumbrances for him: — and for
further assurance ; are implied in every assignment made on
or after the 1st January, 1882, by virtue of s. 7 of the Con-
veyancing and Law of Property Act, 1881 (44 & 45 Vict. c.
41). Tlie proper covenants on the part of the assignee —
for which no provision had been made by the Conveyancing
Act — are, that he will pay the rent and perform the cove-
nants in the lease and save harmless the assignor from any
breach thereof by him or his assigns ((^).
Liability of assignor to assignee. — The liabilities of an as-
signor to an assignee upon the covenant of indemnity were
much considered by the Court of Appeal in the peculiar case
of Russell V. Shoolbred (r), in which it was held, that an
assignor who pays rent has no lien on the term, and cannot
be prejudiced by a subsequent assignment ; and that a right
of distress is not a security to the benefit of which a surety
paying rent is entitled under the Mercantile Law Amendment
Act, 1856 (19 & 20 Vict. c. 97, s. 5). On the general cove-
nant to indemnify the proper costs of defending an action for
breach of covenant are recoverable as damages («). On an
agreement to assign a lease, and to indemnify the lessee from
the rent, the assignee entered before any legal assignment
was made, some goods of the lessee being left on the premi-
ses ; it was held that the assignee was liable on his in-
demnity, those goods having been taken as a distress for
rent, and that it was immaterial whether the goods were left
with the leave of the assignee (Q.
Notice to lessor of assignment of term. — There is no obliga-
tion at common law upon either assignor or assignee to give
any notice to the lessor of the assignment : but the lease fre-
(q) See forms, Appendix B., Sects. pair, the lessee, in the absence of
27, 28. actual loss, can only recover nominal
(?•) 29 Ch. D. 254— C. A. damages, although the lessor may
(s) Murrcll i\ Tysh, 1 C. & E. 80. have commenced an action against
It has been held in Ireland that in the lessee for breach of covenant in
an action by tlie lessee against the the lease (Beattie r. Quiery, 10 Ir. 11.
assignee of a lease for breach of a C. L. 516).
covenant in the deed of assignment (t) Groom v. Buck, 2 M. & G. 567.
to keep the demised premises in re-
419
*261 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 5.
quently contains a covenant that notice shall be given, and
sometimes also that a copy of each assignment shall be fur-
nished to, or even that the assignment itself shall be pre-
pared by, the lessor's solicitors.
Liability of lessee, after assignment. — A lessee continues
liable upon express covenants in the lease, notwithstanding
any assignment ; therefore an action of covenant will lie
against a lessee for years, or his executors, on an ex-
[*261] press covenant, * notwithstanding he has assigned
his term, and the lessor has accepted rent from the
assignee (w).l The lessor may at the same time sue the
lessee upon his express covenant, and the assignee upon
the privity of estate ; but he can have execution ag^nst one
only. An eviction out of part of the land will only amount
to a discharge of an assignee pro tanto (.t).
On w^hat covenants the assignee is liable. — An assignee of a
term is not bound by the personal covenants of the lessee.
But he is bound to perform all the covenants which " run
with the land," and that without being named by the special
word " assigns " (2/). He is also liable to his immediate
assignor upon any express covenants by him in the deed of
assignment (2). But he is not liable to the lessee for rent
which the lessee has been called upon to pay after the as-
signee had assigned over (a) ; and there is no implied con-
tract by an assignee entering upon an invalid assignment
and quitting without notice, that he will indemnify the
lessee against the rent for any period after he has ceased to
occupy (?>).
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, 0 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 <l. IIijj;t,Mn-
99; Rivis /. Watson, 5 M.&AV. 255; botham v. Barton, 11 A. & E. JJH ;
Lloyd V. Davies, 2 Exch. 108. Doe d. Mayor, &c., of Poole v. Wliitt,
(7) Biirrowcs (•. Gradin, 1 D. & L. 15 M. & W. 571 ; Hickman v. Macliin,
2i;5; llarmer v. Bean, 3 C. & K. .307. 4 H. & N. 720; but see Alcliorne v.
(r) Evans i'. Elliott, 0 A. & E. 342 ; Gomme, 2 Bing. 54, 50, Gl ; Delancy
Partingt(m ». Woodcock, 0 A. & E. v. Fox, 2 C. H., N. S. 708.
600; Kogers v. Humi.hrcys, 4 A. & (») Cornish v. Searall, 8 B. & C.
E. 313. See Forms of Attornment, 471; Doe d. Frnnkis v. Frankis, 11
Appendix C., Nos. 10 and Ki (a). A. & E. 702; Kagieton v. (Jutteridpe,
(s) Ghidman i,'. Plumer, 15 L. J., 11 M. & W. 405 ; 2 Dovvl., N. S. 1053.
Q. 15. 70; lO.Jur. 100.
430
Ch. V[I. S. 8.] ATTORNMENT. *268
ancy, or fresh terms, but merely substituting one landlord for
another, does not require a stamp either as a lease or as an
agreement (v). , An instrument in these terms : " I hereby
certify that I remain in the house No. 8, Swinton
Street, belonging to W. G., on sufferance * only, and [*268]
agree to give him possession at any time he may
require : " was held not to amount to an agreement for a
tenancy so as to require a stamp (:r).
Effect of attornment as an estoppel. — An attornment gen-
erally estops the party making it from denying the title of
the person to whom the attornment is made (?/). Thus
where an attornment was made to the claimants in an eject-
ment, who derived their title under a will, the tenant was
held to be estopped from contending in a subsequent action
that upon the true construction of the will the claimants
had no title (2), although on a previous occasion it had been
decided that the tenant might show the attornment to have
been made by mistake and under suspicious circumstances,
and that it had not been acted on for seven years, and a con-
veyance to himself made by the real owner (a). A. and B.,
tenants in common, having agreed to divide their property,
and that Blackacre should belong to A. ; the occupier of
Blackaare, who after this agreement had paid his whole rent
to A., cannot in an ejectment brought against him by A.
object that the partition deed between A. and B. is not exe-
cuted (&). Where a tenant had attorned and paid rent to a
devisee of the landlord, and no fraud or misrepresentation
had been practised towards him, it was held that he could
not afterwards dispute the devisee's title by evidence show-
ing that the testator was incompetent to make a will ((?).
Attornment by tenant to heir upon threat of eviction is tan-
tamount to entry by the heir, and prevents the tenant from
(y) Doe d. Linsey v. Edwards, 5 (a) Gravenor v. Woodhouse, 1 B'mg.
A. & E. 95, 102; Doe d. Wright r. 38.
Smith, 8 A. & E. 255. (6) Doe d. Pritchctt v. Mitchell, 1
(x) Barry i-. Goodman, 2 M. & W. Brod. & B. 11 ; 3 Moo. 219; and see
768. Arden v. Sullivan, 14 Q. B. 832.
(y) Cole Ejec. 218, 219, 230. (c) Doe d. Marlow v. Wiggins, 4
(2) Gravenor u. Woodhouse, 2 Bing. Q. B. 367.
71.
431
*269 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Cii. VII. S. 8.
afterwards disputing his title (c?). So, where a tenant of
glebe land, has attorned and paid rent to the subsequent
incumbent, he will not be permitted to dispute his title by
evidence of a simoniacal presentation of the incumbent (e).
Sometimes, however, a tenant who has attorned will be
allowed to prove that such attornment was procured by
fraud, covin or misrepresentation, or that it was made by
mistake and in ignorance of material facts, and that the per-
son to whom the attornment Avas made really had no title (/).
Thus where A., being tenant to B. who died, afterwards at-
torned to C. as heir of B., in ignorance that C.'s title as heir
was disputed: held, that A. was not thereby estopped from
showing that C. really had no title to the property, and that
the attornment to him was a mistake (^). Where a person,
having possession of land under a good title, became
[*269] tenant and paid rent to a stranger, it was *held, that
he was not estopped, after such tenancy had deter-
mined and before he had given up possession, from setting up
his own prior title in an ejectment by his lessor (/t). But it
is to be observed that in all such cases the onus of proof as
to the title, &c., is shifted and thrown upon the person who
attorned, and he must (amongst other things) disprove the
title of the person to whom such attornment was made,
which is sometimes impracticable or very difficult.
What amounts to an attornment. — Payment of rent by a
tenant to his landlord, after the title of the latter had ex-
pired, and after the tenant had received notice of an adverse
claim, does not amount to an acknowledgment of title in the
landlord, or to a virtual attornment ; uidess at the time of
such payment the tenant heard the precise nature of the
adverse claim, or how the landlord's title had expired (/).
Where A. was tenant of premises under a lease granted by
(d) Hill V. Saunders, 4 R. & C. 520. (r/) Gropory r. Doidse, .1 I5in<T. 474.
(e) Cooke v. Loxley, 5 T. R. 4. (/<) Accidental Deatli Insurance
(/) Rogers v. Pitcher, 6 Taunt. Co. v. Mackenzie, 9 W. R. 713.
202; Cornish v. Searall, 8 B. & C. (/) Fenner v. Duploc, 2 Hiufr. 10;
471 ; Doe d. Plcvin v. Brown, 7 A. & Enfjland v. Slade, 4 T. R. 082 ; Greg-
E. 447 ; Brook v. Bif^fis, 2 Binfj. N. C. ory i-. Doidge, 3 Binp. 474 ; Claridge
672 ; Hugiies v. Hughes, 10 M. & W. v. Mackenzie, 4 M. & G. 143.
703.
432
Cn. VII. S. 9.] ATTORNMENT. *270
B., and a sequestration issued out of the Court of Chancery
against the latter; and A. then signed the following instru-
ment : " I hereby attorn and become the tenant to C. and D.,
two of the sequestrators named in the writ of sequestration
issued in the said suit in Chancery, and to hold the same for
such time and upon such conditions as may be subsequently
agreed upon : " it was held, that this was an agreement to
become tenant, and operated as an attornment ; and also that
as A. had not received possession from C. and D. he was not
estopped by the attornment from disputing their title to the
premises (^k). But an instrument whereby the tenant merely
puts one person in the place of another as his landlord, and
continues to hold under the same terms and conditions as
before, is a mere attornment and not an agreement, and is
evidence of ownership at the time it was executed against
future occupiers, though they do not claim through the per-
son who signed it (/). If an attornment be relied on to
defeat the Statute of Limitations it must be made before
action brought Qm'), and tlie defendant may contend that the
party making such attornment did so without any intention
to admit the party's right or title, and in ignorance that it
would have that effect (w).
* Sect. 9. — Writs of Execution. [*270]
(a) Fieri Facias.
Seizure of term under fi. fa. — Under the writ of fieri facias
the sheriff may levy the debt on the lands or goods of the
debtor, and may therefore seize a leasehold interest.^
(k) Cornish v. Searall, 8 B. & C. (m) Doe d. Mee v. Leatherhead, 4
471 ; but see Hall t'. Butler, 10 A. & A. & E. 784.
E. 204. (n) Doe d. Linsey i'. Edwards, 5
(/) Doe d. Linsey v. Edwards, 5 A. A. & E. 95, 106; Kearny v. Genner,
& E. 95 ; Doe d. Wright c. Smith, 8 cited Cole Ejec. 231.
A. &E. 255; Cole Ejec. 229.
1 Seizure on execution. — The officer may levy by extent upon a life
estate as realty, Chapman r. Gray, 15 Mass. 439; but cannot, upon a term for
years, because it is a chattel, Chapman v. Gray, 15 Mass. 439, unless made
433
*270 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 9.
Yearly tenancy. — • He may also seize the interest of a ten-
ant under a tenanc}^ from year to year (o).
Sheriff's duty on executing a fi. fa. — When the sheriff
under a writ of lieri facias seizes a lease (actually or con-
structively) and sells the term, he must make an assignment
of it by deed.^ If he merely puts the execution creditor in
possession, that will not pass the term and the debtor may
recover in ejectment Cp^. Seizure by a sheriff of a lease of
a debtor's dwelling-house does not vest the term in the
sheriff, but it remains in the debtor, even though sold by
public auction, until after the sheriff executes an assignment
to the purchaser (9'). If the sheriff sells the term before the
writ is returnable, but does not execute the assignment to
the vendee till a subsequent period, the assignment is
valid (r). Any such assignment may be made by the under-
sheriff in the name and under the seal of office of the
sheriff" (6-). Where a sheriff takes a lease and fixtures in
execution, he must sell the fixtures separately, if he cannot
find a purchaser for the whole (0- Where an outgoing
(o) Doe (i. Westniorel.Tnd v. Smith, (r) Doe d. Stevens v. Donston, 1 B.
1 M. & R. 1:57. & A. 2.S0.
(/>) Doe (/. Hughes r. Jones, 9 M. (s) Doe <J. James v. Brawn, 5 B. &
& W. 872; 1 Dowl., N. S. 352; Cole A. 243; cited 8 Q. B. 1042.
Ejcc. 669. (0 Barnard r. Leigh, 1 Stark. R.
(7) Playfair v. Musgrove, 14 M. & 43.
W. 239; 3 D. & L. 72.
freehohl by -statute. Terms for one liundred years or more, whereof fift}-
years remain unexpired, are, for certain purposes, declared freeholds in Mas-
sachusetts, and may be levied upon as real estate. Pub. Sts. Mass. ch. 121,
sec. 1.
Terms for years of no matter how long duration (unless made freeholds)
may he sold on execution as chattels. Lessee of Bisbee r. Hall, 3 Ohio, 449,
405; People r. Westervelt, 17 Wend. (N. Y.) (574.
^ Sheriff's deed. — The purchaser of a lease at judicial sale is liable botli
for the i)reuiium {)aid for it and for the rent for the unexpired term. D'Aquin
V. Arniaiit, 14 La. An. 217; Brinton v. Datas, 17 Id. 174; Hayden v. Shiff,
12 Id. 524 ; Matter of Morgan U. K. & S. S. Co., 32 Id. 371, 375, 370; Leh-
man V. Dreyfus, 37 Id. 587. If lessee iiay subsequent rent, assignee is liable
over to him, Lehman v. Dreyfus, 37 La. .An. 587, 588 (and per Manning, J.);
and lessee's creditors may garnish it.
He is not liable for rent between the sale and date of the deed. Thomas
V. Connell, 5 Pa. St. 13.
In Wickersham v. Irwin, 14 Pa. St. 108, it was held that a purchaser who
had never entered possession, but had given the lease to another who had, was
not liable for rent to the lessor.
434
Ch.VII. S. 0.] WRITS OF EXECUTION (FIEHI FACIAS). *271
tenant has agreed to assign the remainder of his term, the
sheriff, before an actual assignment made, may sell the term
under a fi. fa. against the tenant, and put upon it the value
agreed to be given by the incoming tenant (it).
Equitable Interest. — Before the Judicature Act, an equi-
table interest in a term could not be seized and sold under a
fi. fa. (a;), but it would seem that it might have been reached
in a court of equity (^), and that the effect of the Judicature
Act is to render such an interest liable to execution gen-
erally, though this has been doubted (z).
Possession under fi. fa. — When the sheriff seizes and sells
a term under a h. fa., he does not usually put the purchaser
into actual possession of the property, especially if there be
an under-tenant (a) : but the purchaser is left to
* obtain actual possession by ejectment (^>), 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, 0 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 (<?). This act includes equitable
interests (d^ and since the Judicature Act it has been unnec-
essary for a creditor, seeking to obtain equitable execution
thereunder upon an equitable interest, previously to sue out
an elegit (e) ; the appointment of a receiver is a delivery in
execution by lawful authority (/).
*Sect. 10. — Bankruptcy of Lessor} [*274]
Reversion vests in trustees. — The reversion in lands held
by lease under a landlord becoming bankrupt will under the
term "property" vest in his trustees in bankruptcy (^), to
whom there will be an assignment of the reversion by opera-
tion of law.2 It is conceived that the statute 34 Hen. 8,
c. 34 (A), whereby the assignee of the reversion may sue the
(b) 29th July, 1864. R. L. R., 13 Ch. D. 252 ; 49 L. J.
(c) Sects. 4, 5, 6 ; see also Jud. Bank. 7, C. A.
Act, 1873, s. 34. (/) lb.
(c?) Halton v. Haywood, L. R., 9 {g) Bankruptcy Act, 1883, ss. 64,
Ch. 229. 168.
(e) Evans, Ex parte, Watkins, In (/i) Ante, p. 252.
1 The last United States Bankruptcy Act was the act of March 2, 1867.
This was amended June 22, 1874, and repealed June 7, 1878.
The prior acts were the acts of 1800 and 1841.
The Enp;lish Bankruptcy Acts of 1869 and 1883 have some material varia-
tions not found in the American acts. Tlie subject of bankruptcy is still
important liere, owing to the existence of insolvency laws and liability to a
re-enactment of a bankruptcy law at any time.
2 The reversion passes to the assignee, subject to the lease. Meador v.
Everett, 10 Nat. Bankr. Reg. 421.
439
*274 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 11.
lessee on the covenants, does not apply to such an assignment,
but whether this be so or not is of little consequence, inas-
much as by sect. 57 of the Bankruptcy Act, 1883, trustees in
bankruptcy may bring or defend any action, or other legal
proceeding, relating to the property of the bankrupt.
The Bankruptcy Act contains no special provisions as to
the tenants of a bankrupt. In the possible event of a rever-
sion binding the landlord to an act so onerous as to make it
worthless in the hands of the trustees, they may disclaim it
as being "land burdened with onerous covenants" under
sect. 55 of the act (Q.^ Under sect. 23 of the Act of 1869,
the reversion, like any freehold estate, would probably, on
disclaimer, have vested in the Crown (y), but by sect. 55,
sub-sect. 6 of the Act of 1883 (/c) the court ma}- make a
vesting order of any disclaimed property, and a tenant would
no doubt have a locus standi to apply to have such a vesting
order made in his favour.
Bankruptcy of lessor determines tenancy at -will. — The bank-
ruptcy of the landlord as soon as known to a tenant at A\ill
operates as a determination of the will, inasmuch as it works
an assignment of the reversion (?).
Bankruptcy of mesne landlord. — If tlie lessor be himself a
tenant having created a sub-lease, the provisions of sect. 55,
as to disclaimer, and especially of sub-sect. 2 and 6 thereof
(post, pp. 280, 281), should be carefully considered.
Sect. 11. — Bankruptcy of Lessee.
(a) Re-entry hy landlord for forfeiture.
Proviso for re-entry lawful. — A proviso for re-entry by the
lessor in case of the bankruptcy of the lessee has for a long.
(0 See the effect of this section, (k) Posi, p. 281.
post, 270. (/) Doe v. Tliomas, 6 Ex. 854 ; 20
(/) Re Mercer and Moore, L. \i., L. J., Ex. 307.
14 Ch. D. 278.
^ Assignee is not hound to take j)roperty wliicli is hnrdensome. Aniory i;.
Lawrence, .3 Cliff. 52:> ; (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., 0 Ch. 8(30; 52 L. T. G:}4. S. 149 of the
Q. B. I). 2<S1 ; 51 I>. 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, 0 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, 0 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, 0 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 (<?).
Who entitled to rent, &c. before birth of posthumous child. —
A qualified heir is entitled to the rents and profits of realty
which accrue between the death of the ancestor and the
birth of the ancestor's posthumous and only child, whether
such rents be actually received before such birth or not (c?).
Actions against legatees and heirs. — The legatee of a term
is an assignee tliereof (after the executor has assented to the
bequest), and as such is liable for subsequent breaches of
covenants which run with the land (e) ; but a legatee of
an equity of redemption in a term cannot be charged as an
assignee (/). If there be a breach of the lessor's
covenants in his lifetime, his heir is * liable if named, [*288]
if the covenant be real, in respect of his assets by
descent; and he may be sued as an assignee of the rever-
sion (^).
(b) Executors and Administrators?-
What goes to executors and administrators. — ExecutorS.
and administrators are entitled, by virtue of their office, to
(b) Dollen v. Batt, 4 C. B., N. S. (e) Holford v. Hatch, 1 Doug. 184.
760; 27 L. J., C. P. 281. (/) Mayor of Carlisle v. Blamire,
(c) Com. Dig. tit. Covenant (B. 3). 8 East, 487.
(c?) Richards v. Richards, 1 Johns. {g') Derisley v. Custance, 4 T. R.
754 ; 29 L. J., Ch. 836. 75.
1 Relations to realty. — («) Generalh/. — Executors and administrators
at common law have no control over realty (except to sell it under license if
necessary to pay debts and legacies) unless given by will. See ante, (a), note.
Rodman v. Rodman, 54 Ind. 444 ; Hankins v. Kimball, 57 Id. 42 ; Kidwell v.
Kidwell, 84 Id. 224; Lane v. Thompson, 43 N. H. 320, 325 {per Sargent, J.).
The power to lease property may be conferred by will. Martin's Appeal,
23 Pa. St. 433; Hauck v. Stauffer,_31 Id. 235; Carlile's Appeal, 38 Id. 250.
The power to sell does not necessarily imply the right to lease or to
occupy. Rubottom v. Morrow, 24 Ind. 202; Gregg v. Currier, 36 N. H. 200.
A fortiori, the power to sell upon the happening of a future expected event
(as the marriage or death of a widow), does not give the present right of pos-
session and control. James v. Beesly, 4 Redf. (N. Y.) 236. Realty, which is
in equity personalty, is subject to the control of the executor to be distributed
like personalty. It was so held wliore lessee, under lease with purchase
461
*288 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 13.
all the chattels real ^ and personal ^ of the deceased, notwith-
standing a specific bequest of any of them to another person.
A legatee of leaseholds has no complete title until one or
more of the executors has assented to the bequest (A). If a
lease for years of land be granted to a man and his heirs, or
to him and the heirs of his body, or to him and his succes-
sors, and he die, his executor or administrator, and not his
heir, takes the term ({). If a rent be granted or reserved
out of land to a person in fee-simple, fee-tail, for life or years,
the arrears due at his death go to his executor or administra-
(A) Ante, Ch. I. Sect. 27, and see, Touch. 469; 1 Wms. Exors. 673 (7th
also, 286. ed.).
0) Lit. s. 740; 10 Co. R. 18; Shep.
option, tendered his money and claimed right to purchase after the death of
lessor. The money was held to be assets for the lessor's executor. Buck-
waiter V. Klein, 2 Am. Law Record, 347.
(6) In California the executor or administrator has full control of both
realty and personalty during the settlement of the estate. Code Civil Pro-
cedure, sec. 1452. He can maintain ejectment to gain possession of the
lands, Curtis v. Herrick, 14 Cal. 117 ; Touchard v. Keyes, 21 Id. 202, 208,
209, and even against the heirs or devisees, Page i\ Tucker, 54 Id. 121 ; and
the heirs cannot recover possession, Meeks v. Hahn, 20 Id. 620. He may
lease the realty during the period of administration, Doolan r. McCauley, 66
Cal. 476 ; is entitled to receive the rents and profits as against the heirs,
Smith V. Walker, 38 Id. 385 ; and must account for them in the probate court,
Walls V. Walker, 37 Id. 424. The rents are not thereby changed into person-
alty, but retain their character except so far as needed to pay debts. Matter
6f Estate of Woodworth, 31 Id. 595, 604, 605.
1 Chattels real belong to executor. — Terms for years and other lease-
hold property less than fri'ohohl are chattels real, and belong to the executor.
Wiley's Appeal, 7 W. & S. (Pa.) 244; Green v. Green, 2 Redf. (N. Y.) 408;
Mayor v. Mabic, 13 N. Y. 151, 159 (per Denio, J.) ; Gay, Petitioner, 5 Mass.
419; Pugsley i-. Aikin, 11 N. Y. 494; Murdock v. Ratcliff, 7 Ohio, 119;
Reynold's Heirs v. Commissioners, &c., 5 Id. 204; Lewis's Heirs v. Ringo, 3
A. K. Marsh. (Ky.) 247; Faler v. McRae, 56 Miss. 227; Webster v. Parker,
42 Miss. 465; Dilimgliam i'. Jenkins, 7 S. & M. (Miss.) 479, 487, Horn n.
Bowen, 2 Clev. Law Rep. 133, and Schee v. Wiseman, 79 Ind. 389 (mining
leases) ; Emeret's Estate, 2 Pars. (Pa. Eq. Cas.) 195 (tenancy from year to
year) ; Keating >•. 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, 0 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 (</),
or personally as an assignee of the term, even where he has
not entered to take possession of the demised premises (A).
But the husband of an executrix or administratrix, who has
never entered, ought not to be sued alone as assignee of the
term (i).
* Liability of executor de son tort. — An executor de [*290]
son tort is liable as assignee upon the covenants of a
lease, and the executor of an executor de son tort may himself
become executor de son tort in respect of the estate of tlie
original estate. Where the father was executor de son tort
with regard to a lease, and the son upon his death acted as
agent to the mother till her death, and then continued in
possession of the lease for the benefit of himself and the other
children, it was held that he became assignee of the lease,
and liable upon the covenants therein (^).
Personal liability of executor. — An executor, SO far as he
has assets, is no doubt liable upon the covenants of his
testator, and there is strong authority for saying that even if
the estate be insufficient, he is personally liable (?) ; but this
(c) Chap. XI. Sect. 3 (d). L. R. .384; Ackland v. Pring, 2 M. &
(d) 2 Wms. Exors. 1752 (7th ed.). G. 9:37 ; Lyddall v. Dunlop, 1 Wils. 4,
(e) Shirreff v. Hastings, L. R., 6 5; 1 Wms. Saund. 1, note (1); but
Ch. D. 610 ; 25 W. R. 842. see Kearsley v. Oxley, 2 H. & C. 806.
(/) Paull V. Simpson, 9 Q. B. 365. (0 Kearsley v. Oxley, 2 H. & C.
{(j) Coghil r. Freelove, 3 Mod. 325; 896.
Pitcher v. Tovey, 4 Mod. 71 ; 1 Wms. (h) Williams v. Heales, L. R., 9 C.
Saund. 241 b, note (5); 2 Wms. P. 177; 43 L. J., C. P. 80; 30 L. T.
Exors. 1752 (7th ed.). 20; 22 W. R. 317.
(/() Wollaston v. Hakewill, 3 M. & (/) See Piatt on Covenants, p. 458,
G. 297 ; Nation v. Tozer, 1 C, M. & and the cases cited, infra.
R. 172 ; Green v. Ld. Listowell, 2 Ir.
465
*290 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 13.
naked question of personal liability has not come before the
courts for very many years, and the extreme hardship of
making- an executor personally liable upon some covenants
(as to rebuild a house which has been burnt down), is so
apparent, that an express decision to that effect would prob-
ably be followed by remedial legislation.
Executor may assign over to pauper. — An executor or ad-
ministrator may discharge liimself from personal liability as
assignee of the term by an assignment over, even to a pau-
per (/?i) ; and if, not having a sufficiency of assets, he do not
so assign, after first offering to surrender, he cannot thi'ow
the resulting loss upon beneficiaries (m).
Executor not personally liable for rent. — The proper course
to be pursued is that pointed out in 22 & 23 Vict. c. 35, s.
27 (o). In cases to which that act does not apply, or where-
it is not pursued, an executor or administrator sued as an
assignee of the term, and who has not assigned over, may
plead — except as to £ (being the full actual value of
the demised premises during the period in respect of which
the rent is claimed, and which should be paid into court, or
tlie claim for it be otherwise answered (/>) ) — 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. (</) Fry v. Fry, 27 Beav. 146; 28
507. L. J., Ch. 593.
(/) Cook V. Gregson, 3 Drew. 547; (/<) Thackor v. Wilson, 3 A. & E.
26 L. J., Ch. 706. 142.
469
*293 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Cii. VII. S. 13.
mised, although the period for laying out the same may not
have arrived, and shall have assigned the lease, or agreement
for a lease, to a purchaser thereof, he shall be at liberty to
distribute the residuar}- personal estate of the deceased to
and amongst the parties entitled thereto respectively, with-
out appropriating any part, or any further part (as the case
may be), of the personal estate of the deceased to meet any
future liabilit}' under the said lease, or agreement for a lease ;
and the executor or administrator so distributing the resid-
uary estate shall not, after having signed the said lease or
agreement for a lease, and having, where necessary, set apart
such sufficient fund as aforesaid, be personally liable in
respect of an}- subsequent claim under the said lease or
agreement for a lease."
Right of lessor to follow assets. — The section goes on to
provide, that '• nothing herein contained shall prejudice the
right of the lessor, or those claiming under him, to follow
the assets of the deceased into the hands of the person or
persons to or amongst whom the said assets may have been
distributed." Leases made before the act are within this
section (/), and so are leases assigned to the testator or intes-
tate (^), but a lease assigned to a residuary legatee is not (i).
It is not clear whether an executor should set apart a fund to
meet a contingent liability under a lease, which he knows of,
but as to which no notice has been given him, or claim made ;
perhaps he may do so for his own indemnity, but the landlord
has no right to bring an action to compel him to do so (/).
By sect. 28, the executor has the like power of getting rid
of personal liability under conveyances on chief rent or rent-
charges, and agreements for such conveyances.
By sect. 29, executors or administrators may advertise
for creditors and others to send in their claims against the
estate of the testator or intestate, and at the expiration of
the time named in the advertisements for sending in such
claims, are at liberty to distribute the assets of the testator
or intestate amongst the parties entitled thereto.
(i) Dodson V. Sammell, 1 Drew. & (k) In re Green, 2 De Gex, F. & J.
Sm. r,:;-) ; ;?0 L. J., rii. 799; Smith i-. 121.
Smitli, 1 Drew. &, Siii. :3«4. (/) King v. Walcott, 4 Hare, 692.
470
Ch. VII. S. 13.] DEATH. *294
By sect. 30, executors or administrators may, by petition
or summons, obtain the opinion of a judge of the
Chancery division " on * any question respecting the [*294]
management or administration of the trust property
or the assets of any testator or intestate," and may act on
such opinion with perfect safety, except in case of fraud or
wilful concealment. Questions of construction affecting capi-
tal of considerable amount will not be decided upon a peti-
tion under this section (w). Executors bringing facts plainly
before the court and distributing the assets under its direc-
tion are absolutely protected against any future claim ; and
the only remedy of a creditor on covenant or otherwise is
against the legatees (w). A lessor is not entitled, in respect
of a breach of covenant in a lease, to follow the assets of a
deceased lessee, which had been placed in settlement upon
the marriage of the lessee's daughter, there being no imputa-
tion as to the honesty with which the assets have been dealt
with (o).
Where leaseholds are sold under an order of the court
in an administration action, and the purchase-money is paid
into court, the order is a sufficient indemnity to the execu-
tors (jo).
Use and occupation. — Actions for use and occupation by
and against executors and administrators will be treated
of hereafter (g). Where there was a lease by deed, and on
the death of the lessee her son applied to the lessor to
become tenant on the same terms as the lessee, and was
accepted; it was held, in an action for use and occupation
against the son, to whom, jointly with another, letters of
administration had been granted to the estate of his mother
after the commencement of the action, that it was a question
(m) In re Burnett, 10 Jur. N. S. (/)) Waller v. Barrett, 24 Beav.
1098, Wood, V.-C; In re Evans, 30 413; 27 L. J., Ch. 214; Williams i-.
Beav. 232. Headland, 34 L. J., Ch. 20. It was
(n) Bennett v. Lytton, in re San- otherwise before the passing of 22 &,
ford, 2 Johns. & H. 155; Smith v. 23 Vict. c. 35. See Garratt «. Lance-
Smith, 1 Drew. & Sm. 384. field, 2 Jur., N. S. 177 ; Brewer v.
(o) Dilkes v. Broadmead, 2 Giff. Pocock, 23 Beav. 310.
113 ; 29 L. J., Ch. 310 ; 30 Id. 268. (7) Chap. XIV.
471
*294 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 13.
for the jury whether the defendant occupied as assignee of
the lease or upon a fresh taking (r).
Wrongs to property committed by testator or intestate. —
Formerly an executor or administrator could not be charged
in any case for any personal wrong done by the deceased,
and therefore no action could be brought against him for
any such cause ; as for cutting down trees, or for suffering
his cattle to eat up the plaintiff's grass; but by 3 iSt 4 Will.
4, c. 4, s. 2, such actions may be brought against executors
within six months after administration commenced in respect
of wrongs committed by the deceased within six months
before his death.
(r) Drury Lane Theatre v. Chapman, 1 C. & K. 14.
472
♦CHAPTER VIII.
DETERMINATION OF TENANCY.
[*295]
SECT. PAQK
1. The Modes of Termination . 295
2. When the Term is limited
conditionally 290
3. Surrender 29G
(a) By express Terms when
deed necessary . . . 296
(b) By Operation of Law . 299
(c) Operation of 305
(d) By whom and to whom
made 307
4. Merger 308
5. Forfeiture 310
(a) How incurred generally 310
(b) Construction of Proviso
for Re-entry .... 312
(c) Who may avail them-
selves of a Forfeiture . 317
(d) Entry of Lessor ... 319
(e) Demand of Rent ... 319
(f ) Waiver of Forfeiture . . 322
SKCT. PAOB
6. Relief against Forfeiture . 320
(a) Before Conveyancing
Act 320
(b) Under Conveyancing
Act 328
(c) For Non-payment of
Rent 331
7. Notice to quit 332
(a) Nature and Operation of 332
(b) When necessary . . . 334
Under Agricultural
Holdings Act . . 335
(c) When unnecessary . . 338
(d) By whom and to whom
given 342
(e) Form and Service of . 345
(f) Waiver of Notice ... 355
8. Exercise of Option to deter-
mine Lease 357
9. Disclaimer 360
10. Death 363
Sect. 1. — The Modes of Termination.
Enumeration. — A lease for years may be determined in
various ways, viz.: — 1. By effluxion of time, on the expira-
tion of the term granted.^ 2. By the happening of some
1 Leases for terms certain expire •without notice. — Logan r.
Herron, 8 S. & R. (Pa.) 459; Clark v. Smith, 25 Pa. St. 137; McCarthy v.
Yale, 39 Cal. 586; Neumeister v. Palmer, 8 Mo. App. 491 ; Clapp v. Paine, 18
Me. 264; Stockwell v. Marks, 17 Id. 455; Lithgow v. Moody, 35 Id. 214;
Preble v. Hay, 32 Id. 450 ; Hauxhurst v. Soniers, 38 Cal. 563 ; Jackson v.
Parkhurst, 5 Johns. (N. Y.) 128 ; Jackson v. M'Leod, 12 Id. 182. They are
for life, for lives, for years, for months, for weeks, for days, &c. A lease may
provide for a tenancy at will after expiration of a term. Van Rensselaer's
Heirs r. I'enniman, 6 Wend. (N. Y.) 509.
From year to year ; limited. — A tenancy from year to j'car may be
limited to expire at a time certain. This will result if parol lease is made for
a term of years. Doe d. Parkinson v. Ilaubtman, Bert. (N. B.) 645.
473
*295 DETERMINATION OF TENANCY. [Ch. VIII. S. 1,
event upon which the term is limited conditionall3^ 3. By
a surrender. 4. By merger. 5. B3' forfeiture and re-entry
or ejectment pursuant to some proviso or condition in the
lease, for breach of covenant, &c. 6. By a notice to quit,
wJiere the tenancy is from y«ar to year, or for other like
period (greater or less) ^ determinable by notice.^ 7. By a
"Where a seal is required, a written lease (not under seal) will have the
same effect as oral lease, terminating without notice at end of period.
Caverliill v. Orvis, 12 C. P. (Ont.) 392.
^ Shorter periodical tenancies ; how terminated. — These are from
quarter to quarter, Witt v. Mayor of N. Y., 0 Kuhertson (N. Y.) 4il ; from
month to month, Anderson r. Prindle, 19 ^yend. fN. Y.) 391 and 23 Id. 616;
Gruenewald v. Schaales, 17 Mo. App. 324 ; McDevitt v. Lambert, 80 Ala. 536 ;
Gunn V. Sinclair, 52 Mo. 327 ; Prickett v. Ritter, 16 111. 96 ; Huyser v. Chase,
13 Mich. 98; Woodrow v. Michael, Id. 190; from ireek to week {per Wal-
worth, Chan., in Anderson v. Prindle, 23 Wend. (N. Y.) 616, 619), &c.
Notice to terminate them is, at common law, usuall}' equal to the intervals.
Statutor}' notices are sometimes shorter, but it is usually held must terminate
with tlie periods.
2 Termination of tenancies at -will. — By the common law they are deter-
minable without notice, see post, sec. 7, note, "Tenancy at will; notice to
quit," &c., other than a reasonable informal one necessary to enable lessee to
comfortably remove his family and effects, and harvest his crops.
Statutory notices are, however, now generally required. See post, ch. 8,
sec. 7, (c), note, "The shorter tenancies."
In Maine these tenancies can only be determined by the statutory notice
or by mutual consent. Rev. Sts. Ch. 94, sec. 2; Cunningham c. Horton, 57
Me. 420 ; but see Sullivan v. C.arberry, 67 Id. 531. The statute is very sweep-
ing, and (if taken literally) would exclude termination by alienation, death,
eviction, &c., as well as prevent limiting such tenancies upon conditions.
In Massachusetts a statutorj' notice is provided, but it is held tiiat parties
may agree upon a different one. May v. Rice, 108 Mass. 150 ; Davis v. Murphy,
126 Id. 143; distinguishing Batclielder v. Batclielder, 2 Allen, 105; or may
limit the tenancy on conditions, Creech v. Crockett, 5 Cush. 133 (for special
purpose) ; Ashley v. Warner, 11 Gray, 4-3, 45 (so long as he kept a good
school) ; Hollis v. Pool, 3 Met. 350 (till sale) ; Lyon v. Cunningham, 136
Mass. 5.32, 541 {per Field, J.) ; Elliott v. Stone, 1 Gray, 571 (to pay rent in
advance or leave, held a limitation terminating without entry; but sec contra,
Elliott V. Stone, 12 Cush. 174, Sliaw, C. J., giving the opinion in both cases),
the happening of wliich will i])so facto determine the tenancy, or tiic tenancies
may be limited to e.xpire at a given time without notice, Morton, J., in Davis
V. Murpliy, 126 Mass. 143, 144 ; Sliaw, C. J., in Elliott v. Stone, 1 Gray, 671,
574. Such limitations on tiie tenancy do not make it any greater than a ten-
ancy at will.
See further as to comlitional limitations, post, sec. 2, note, and sec. 5, note,
" Forfeiture clauses."
Tenan(;ies at will arc terminated in following among other ways besides by
notice to (piit, to wit: by death of huMHord, .Toy v. McKay, 70 Cal. 445; Reed
V. Reed, 48 Me. 388; deatli of lessee, Keating v. Moises, 2 Manitol)a, 47;
474
Cn. VIII. S. 2.] TERM LIMITED CONDITIONALLY. *296
notice to determine the term at the end of the first seven or
fourteen years thereof, or at some other specified period,
l)ursuant to a power in the lease. 8. By a dischiimer of the
reversioner's title, where the tenancy is only from year to
year, or other less period, and not for a term of years. 9. By
death of the party on wliose life the lease depends, as in the
case of a lease for lives. ^
By effluxion of time. — When the term of years granted by
a lease expires by effluxion of time, the lessee or his assigns
ought thereupon to quit possession (a).
* Sect. 2. — When the Term is limited conditionally? [*296]
Conditional limitations and conditions. — Sometimes the
term itself is limited conditionally, ex. gr, for forty years if
(o) For the consequence of " Holding Over," see Chap. XIV., post.
Robie V. Smith, 21 Me. 114; alienation by landlord, Emmes v. Feelej', 132
Mass. 346 ; Curtis v. Calvin, 1 Allen (Mass.) 215 ; Howard v. Merriam, 5
Cush. (Mass.) 563, 574; McFarland v. Chase, 7 Gray (Mass.) 462; Esty v.
Baker, 50 Me. 325; Nelson v. Cook, 12 Q. B. U. C. 22; written lease for
term certain by landlord to third party, Groustra v. Bourges, 141 Mass. 7
(and it matters not what were lessor's motives) ; Merger Doe d. Cliff v. Conn-
away, Bert. (N. B.) 574, 578, 579 (as where lessee acquires the reversion) ;
lessee making a sub-lease (at option of lessor), Reckhow v. Schenck, 43 N. Y.
448; Cook v. Cook, 28 Ala. 660, 668 {per Walker, J.); alienation by lessee,
Little V. Palister, 4 Greenl. (Me.) 209; by disclaimer or inconsistent acts
directly or impliedly disaflSrming lessor's title, Campbell v. Procter, 6 Greenl.
(Me.) 12 (pointing out the property as his own to be levied upon) ; Bennock
V. Whipple, 12 Me. 346 (receiving a deed from a stranger) ; Ware v. Wad-
leigh, 7 Greenl. (Me.) 74; Currier v. Earl, 13 Me. 216; Bryant v. Tucker, 19
Id. 383 ; and (also at election of lessor) by voluntary waste, Daniels v. Fond,
21 Pick. (Mass.) 367.
1 Termination by total destruction. — It is, also, held in America that
tenancies may be terminated by total destruction of demised thing. Stockwell
V. Hunter, 11 Met. (Mass.) 448 (lease of basement, whole building burned) ;
Graves v. Berdan, 26 N. Y. 498 (lease of basement and chamber, whole
building burned) ; Kerr v. Merchants' E.x. Co., 3 Edw. Ch. (N. Y.) 315; and
Winton v. Cornish, 5 Ohio, 477 ; and Womack v. McQuarry, 28 Ind. 103; and
Alexander v. Dorsey, 12 Ga. 12 (all cases of leases of apartments in buildings
which were wholly destrojcd by fire).
If any part of the demised thing is not destroyed, as (in case of lease of
v/hole building) where land remains, the tenancy continues, and tenant
remains liable for rent. See post, ch. 10, sec. 7, note, " Destruction of demised
buildings by fire."
2 Terms limited conditionally expire w^ithout notice. — Examples :
So long as lessee remains postmaster, Easton v. Mitchell, 21 III. App. 189
(expired with expiration of commission) ; so long as lessee shall keep fur-
475
*296 DETERMINATION OF TENANCY. [Cu. VIII. S. 2.
the lessee, or some other person or persons therein named
shall so long live. In such case the term will determine at
the end of the forty years, or on the death of the person or
persons named, which shall fii'st happen (6). Where a cer-
tain term of years is granted provided the lessee shall so
long continue to occupy the premises personally, it will cease
whenever he parts with the possession, even by compulsion
of law, as by his becoming bankrupt (c). It was held in an
old case that a lease for twenty-one years, if the lessee con-
tinue so long in the service of the lessor, was not determined
by the death of the lessor (c?) ; and in another old case, that
if a lease of a house was made to a widow for forty years,
sub conditlone quod si tamdiu vixerit sola et inhabitaverit, the
term passed to her executor upon her death unmarried
within the term (e) : but these rulings seem hardly to be
correct, the first because the contract of service terminates
with the death of the master, and the second because the
(6) Cole Ejec. 402 ; Hughes and (d) Wrenford v. Gyles, Cro. Eliz.
Crowther's case, 13 Co. R. 66; Brud- 643; Nov, 70.
nell's case, 5 Co. R. 9. (e) Hardy v. Seyer, Cro. Eliz. 414.
(c) Doe d. Lockwood v. Clarke, 8
East, 185.
nace and buildings on premises, Cook v. Bisbee, 18 Pick. (Mass.) 527 (but if
buildings are burned, lessee has right to rebuild them) ; during the existence
of said clut), Alexander v. ToUeston Club, 110 111. 65 (continued notwith-
standing subsequent incorporation of the club) ; so long as he " kept a good
school," Ashley v. Warner, 11 Gray (Mass.) 43 ; lease of ferry for season of
1855, Eraser v. Drynan, 4 Allen (N. B.) 74 (terminates with tlie freezing of
the river (Miramiciii), or at least upon Dec. 31, 1855) ; during continuance
of partnersiiip, Russell v. McCartney, 21 Mo. App. 544 ; to firm for firm pur-
poses, Johnson v. Hartshorne, 52 N. Y. 173, 177 (terminated by dissolution of
firm tliough five years' lease) ; for specified business purposes, Horner v.
Leeds, 25 N. .7. L. 106; Hurd v. Gushing, 7 Pick. (Mass.) 169, 174; so long
as tlie land should be occupied and overflowed as a mill pond, Kerr v. Bearin-
ger, 29 Q. B. U. C. 340.
To tliese sliould be added leases with purchase options, Knerr v. Bradley,
105 Pa. St. 190; Forge v. Reynolds, 18 C. P. U. C. 110; Sutherland v.
Buchanan, 9 Chy. (Ont.) 135, purcliMse covenants, Stewart v. Long I. R. R.
Co., 102 N. Y. 601 ; Bostwick v. Frankfield, 74 N. Y. 207, and forfeiture
clauses. See post, sec. 5, notes.
Tenancies may be limited upon will of lessor, Folts v. Huntley, 7 Wend.
(N. Y.) 210, or upon will of lessee. Ffliiiger v. Lewis, 32 Pa. St. 307. See
ante, sec. 1, notes, for examples of limitations upon tenancies at will and from
year to year.
476
Ch. VIII. S. 3.] SURRENDER (liY EXPRESS TERMS). *297
meaning of the parties appears to have been that the lease
should be for the life of the widow.
Devise of house rent free, &c. — Where the testator ap-
pointed the defendant to be his agent, " to live rent free in
my house as long as he continued agent, that is, as long as
he does the business honestly and to the satisfaction of the
trustees," it was held that the direction of the testator was
only a recommendation to the trustees to continue the de-
fendant as agent, and that they might eject him from the
house, unless the defendant could prove the dismissal to be
malicious (/)•
Re-entry. — Upon the breach of any condition the lessor or
his assigns may re-enter or maintain an ejectment, without
any express proviso for re-entry (//). A proviso in a lease
with no penalty annexed is a condition ; but if a penalty is
annexed it is a covenant (1i).
Sect. 3. — Surrender.
■ (a) Surrender by express Terms.
What is a surrender. — A surrender is the yielding up
an estate for life or years to him who has the imme-
diate estate in reversion or remainder, wherein the
* estate for life or j-ears may merge, by mutual agree- [*297]
ment (i). The party making the surrender is called
the surrenderor, and the party to whom it is made the sur-
renderee. It differs from a release in this respect, that the
release operates by the greater estate descending upon the
less ; whereas a surrender is the falling of a less estate into
a greater (k). The proper operative words of a surrender
are "surrender and yield up"(^). If a lessee reserve to
himself any interest in or part of the estate, it is no sur-
(/) Belaney v. Kelly, 24 L. T. 738. (/) 1 In.st. 337 (b) ; Smith L. & T.
{g) Harrington v. Wise, Cro. Eliz. 303 (2nil ed.).
48(3, cited 8 B. & C. 316; Earl of {k) Smith v. Maplehack, 1 T. R.
I'embroke v. Sir H. Berkeley, Cro. 441 ; Williams r, Saw3'er, 3 B. & B. 70.
Eliz. 384, 560; Knight ;•. Mory, Id. (/) Smith L. & T. 304 (2nd ed.)'.
00 ; see post. Sect. 5, " Forfeiture." Sec Forms of Surrenders, post, Appeii-
(A) Simpson v. Titerell, Cro. Eliz. di.x B, Sects. 30, 31, 32, 33.
242.
477
*297 DETERMINATION OF TENANCY. [Cn. VIII. S. 8.
render (m) ; nor does a surrender, it seems, operate as such
unless accepted by the reversioner (n).
Surrenders must be in vrriting, and if for more than three
years by deed. — Every surrender, by the act of the parties,
must be in writing, and every surrender of a term of more
than three years must be by deed.^ This is the effect of the
thu-d section of the Statute of Frauds, and of the third sec-
tion of 8 & 9 Vict. c. 109, the hiter enactment providing that
if a deed be necessary for the creation of the term, a deed is
requisite to its surrender (o).
By the Statute of Frauds (29 Car. 2, C. 3), S. 3, " no IcaseS,
estates or interests, either of freehokl or of term of years, or
any uncertain interest not being copjdiokl or customary in-
terest, of, in, to or out of any messuages, manors, lands, ten-
ements or hereditaments, shall be assigned, granted or sur-
rendered, unless it be by deed or note in writing, signed by
the party so assigning, granting or surrendering the same, or
their agents thereunto lawfully authorized by writing, or by
act and operation of law."
By 8 & 9 Vict. c. 106, s. 3, "A surrender in writing of an
interest in any tenements or hereditaments, not being a copy-
hold interest, and not being an interest which might by law
have been created without writing (j**), made after the 1st
day of October, 1845, shall be void at law unless made hy
deecir
No surrender by mere cancellation. — It has been held that
a lease caniiot be surrendered b}' mere cancellation (</) ; and
it has been held also, where a lease appeared to have had the
names of the j)a]'ties torn off, that tliere was neither a sur-
(m) Com. Dip. tit. Surrender (H.) ; three years from the making thereof
Bac. Abr. tit. Leases (S. 8) ; Co. Lit. wiieroupoii tlic rent reserved unto tiie
337. hindlord sliail amount imto two-thirds
(n) Coles i\ Evanson, 19 C. B., N. S. parts at least of tiie full improved
382. value."
(o) iSeo McGartli v. Shannon, 17 Ir. (7) lioe v. Arehbishop of York, H
R., C. L. 128. East, 8(5; Ld. Ward v. Lumley, 5 H.
{p) I. e. by Sect. 1 of the Statute & N. 87, (550; 29 L. J., Ex. 322.
of Frauds, " a lease not exceeding
' III United States usually rex('ei)t wlicrc lease is under seal) neither assign-
ment nor .surrender need be. hi Canadian I'rovinees the rule is otherwise.
478
Cii. VIII. S. 3.] SURRENDER (l5Y EXPRESS TERMS), *298
render by operation of law, nor prima facie evidence of a
surrender by deed or note in writing (r).
Conditional surrender. — A lessee may surrender upon con-
dition, and if the condition be broken, the particular estate
is revested (s) ; therefore, if a lessee for years surrender his
whole term to the original lessor upon condition,
* he may, upon non-performance of the condition, [*298]
re-enter and revive the term (t}.
When may surrender be made. — The lessee cannot before
entry merge the term by a surrender, because till entry
there is no term and no reversion wherein the possession
may be merged ; but if the lessee enter and assign, the as-
signee may before entry surrender his term to the lessor (m).
But it is not necessary that the surrenderor of a lease, to
begin at a future day, should be in possession in order to
make a surrender before the period of commencement : thus,
if a lease be to commence at ?iliehaelmas next, and the lessee
take a new lease uncler seal before Michaelmas, it is a sur-
render in law of the first lease (a;). As to surrender of
leases in futuro or future interests, there is this distinction
to be observed, that a lessee for years of a term to begin
at a day to come cannot surrender it by an actual surren-
der before the day of the term begin, but he may by a sur-
render in law (?y). Whenever a deed purporting to be a
surrender cannot operate as such, it will probably take effect
as an assignment or as a release of the right to the term, uf
res magis valcat quam pereat.
Requisites of good surrender. — In order to make a good
surrender of lands by deed, and to make them pass by
such a surrender, these things are requisite: — 1. That tlie
surrenderor be a person able to surrender, and that he
have an estate in possession of the thing surrendered at the
time of the surrender made. 2. That the surrender be tf>
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 (<i). But such acceptance would seem to be
necessary (e).
[*299] * Instances of surrenders. — A written instrument in
this form : — " We do hereby renounce and disclaim,
and also surrender and yield up all right, &c.," a tenancy
from year to year being in existence, has been held a surren-
der and not a disclaimer (/). A written request by the
tenant to his landlord to re-let the premises to some other
person may, when acted on, amount to a surrender by act
and operation of law (^). A written notice given b}'- the
tenant of his intention to quit at a time when he believed
his tenancy to expire, but which is afterwards discovered
not to be the time, does not operate as a surrender (A).
(s) Shep. Touch. 303 ; 2 Blac. Com. (^ Per Bylcs, J., in Colics i-. Evan-
.33G ; but sec contra, Shcp. Touch. 308. son, 19 C. B., N. S. 382.
(a) Post, note {(I). (/) Doe d. Wyatt v. Stagg,5 Bing.
(J>) 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, 0 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, 0 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, 0 East,
(c) Com. Dig. tit. Surrender (II.) 80; Davison d. Bromley r. Stanley,
(L. 1). 4 Burr. 2210; Doe </. Earl of Egre-
(J) Lloyil !•. Langford, 2 Mod. 175; niont r. Courtenay, 11 Q. B. 702;
Smith V. Mapleback, 1 T. R. 441. Smitli L. & T. 307 (2nd ed.); 3 Brest.
(c) Doe d. Murrell i\ Milward, 3 Conv. 104, 1(55.
(/() Com. Dig. tit. Estates (G. 13).
484
Ch. VIII. S. 3.] SURRENDER (bY OPERATION OF LAW). *302
tracted for, is not a surrender of a valid former lease incon-
sistent tlierewitli : therefore when a tenant for life, wit li a
power of leasing, made a lease of part of some land, which
was not a good execution of the power, in consideration of
tlie surrender of two prior leases of the whole of the land,
and in order to effectuate an agreement entered into be-
tween the lessee and another person for the sale of the
remaining part of the land, which the lease recited that it
was intended to lease to the vendee by indenture of even
date, and which was done ; it was held, after the death of
the tenant for life, that this new lease as to the premises
thereby demised did not operate as a surrender of the two
prior leases (i). So where a tenant for life, with power of
leasing, granted a lease "in consideration of the surrender
up" of a former lease, "which surrender is hereby made and
accepted," it was held, that the new lease not being a good
execution of the power, and therefore voidable by the re-
mainderman, did not operate as a surrender of the prior
lease (A;). Where a voidable bishop's lease, which had been
granted in consideration of a surrender by deed executed a
few days before of a prior lease, was avoided ' b}' the suc-
cessor ; it was held, that the first lease was not revived by
such avoidance (^).
Effect of new lease of part only. — If a lessee for years
accept a new lease by indenture of part of the lands, it is a
surrender for that part only, and not for the whole (?») ;
and though a contract for years cannot be so divided, as to
be avoided for part of the years and to subsist for the
residue, either * by act of the party or by act in law ; [*302]
yet the land itself may be divided, and the tenant
may surrender one or two acres, either expressly or by act
of law, and the lease for the residue will stand good and
(i) Doe d. Biddulph v. Poole, 11 Doe d. Earl of Egremont v. Forwood,
Q. B. 713; Roe d. Earl of Berkeley 3 Q. B. ()27.
V. Archbp. of York, 6 East, 86 ; 2 (/) Doe d. :Murray v. Bridges, 1 B.
Smith L. & T. 713 (6th ed.) ; Smith & Ad. 817.
L. & T. 308 (2nd ed.). (m) Earl of Carnarvon v. Villol.ois,
(k) Doe d. Earl of Egremont v. 13 M. & W. 342 ; Morrison v. Cliad-
Courtenay, 11 Q. B. 702 ^overruling wick, 7 C. B. 266; 6 D. & L. 567.
485
*302 DETERMINATION OF TENANCY. [Ch. VIII. S. 3.
untouched (7i). If there be two lessees for life, or years,
and one of them take a new lease for years, it is a surrender
of the moiety (o).
By estoppel. — The term "surrender by operation of law"
is properly applied to cases where the owner of a particular
estate has been party to some act having some 'other object
than that of a surrender, but which object cannot be effected
whilst the particular estate continues, and the validity of
which act he is by law estopped from disputing (j»). Such
surrender is the act of the law, and takes place indepen-
dently of, and even in spite of, the intention of the parties (5^).
It is presumed to have preceded the act to which the tenant
is party (r). The acts in pais, which bind parties by way of
estoppel, are acts of notoriety, not less formal and solemn
than the execution of a deed, as, for instance, livery, entry,
acceptance of an estate, and the like (s).
By consent and acceptance of possession. — A tenancy from
year to year cannot be determined unless there be either a
legal notice to quit or a surrender (^) : and therefore a ten-
ancy from year to year, created hy parol, is not determined
by a parol licence from the landlord to the tenant to quit in
the middle of a quarter, and the tenant's quitting the prem-
ises accordingly (u) ; but where upon a tenancy from 3'ear
to year, determinable at a quarter's notice, the lessor licensed
the tenant to quit in the middle of a quarter, and the tenant
accordingly quitted, and the lessor accepted possession; it
was held to be a surrender by operation of law, destroying
the right to rent for the whole or any part of the current
quarter (x).
By mutual agreement. — An agreement by landlord and
tenant that the term shall be put an end to, acted upon by
(n) Bac. Ahr. tit. Loa.scs (S. .^). (0 Doe f/. Read i;. Kiilout, 6 Taunt.
See Jones v. Bridgcman, 39 L. T. 500. 519.
(o) Shep. Toucli. 302. (n) Mollctt r. Brayne, 2 Camp. 10;
(;0 Lyon v. Reed, 13 M. & W. 285; Tlioinpson (•. Wilson, 2 Stark. \i. 379.
Besseil v. Land.sberg, 7 Q. B. 038; (.<) Grimman r. Leg^e, 8 B. & C.
Com. Dig. tit. Surrender (I.). 324; Brown r. Burtinsiiaw, 7 D. &
(fy) Lyon i-. Heed, 13 M. & W. 285. li. (i03 ; Furnivail v. (irove, 8 C. B.,
(r) 9 C. B. 0,34, note. N. S. 496; 30 L. J., C. T. 3; Bac.
(.f) Id.; Nickells i;. Atlierstone, 10 Abr. tit. Leases (S. 2).
Q. B. 944.
48G
Ch. VIII. S. 3.] SUKRENDER (BY OPERATION OF LAW"). *303
the tenant's quitting the premises, and the huidloid ])y some
unequivocal act taking possession, amounts to a sunendei'
by operation of law (y). Where, therefore, a tenant left tlie
key at the counting-house of the landlord, and the latter,
though he at fii'st refused to accept it, afterwards put up a
board to let the premises, and used the key to show them,
and painted out the tenant's name from the front, this was
held sufficient evidence of a surrender by operation of
law (s). In Reeve v. Bird, the tenant of a house, three cot-
tages, and a stable and yard, let at an entire rent for
a term, before the * expiration of it, assigned all the [*303]
premises, the house and cottages being in the posses-
sion of subtenants ; the landlord accepted a sum of money
as rent up to the day of the assignment, which was in the
middle of a quarter ; the assignee took possession of the
stable and yard only ; the occupiers of the cottages having
left them after the assignment, and before the expiration of
the term, the landlord relet them ; the tenant paid no rent
after the assignment, but the landlord received rent from
the subtenants, and before the expiration of the term he
advertised the whole of the premises to be let or sold ; it
was held that this was a surrender by operation of law of all
the premises («). But where a tenant from year to year by
a Lady-day holding, orally agreed with his landlord's agent
to quit at the ensuing Lady-day, which was within half a
year ; and the premises were relet by auction, at which the
tenant attended and bid, but the new tenant was not let
into possession ; it was held that the tenancy was not de-
termined, there not having been a surrender by operation of
law (6).
Acceptance of key. — If the landlord of a house in the
middle of a quarter accept the key from his tenant under a
parol agreement that upon his then giving up the possession
the rent shall cease, and he never afterwards occupy the
premises, he cannot recover in an action for the use and
(y) Phene v. Popplewell, 12 C. B., (h) Doe d. Hiullcstone v. Johnstone,
N. S. 334 ; 31 L. J., C. P. 235. 1 M'Clel. & Y. 141 ; Jolinstone v.
(z) Id. Hudlestone, 4 B. & C. 922; Doe d.
(a) Reeve v. Bird, 1 C, M. & R. 31. Murrell v. IMilward, 3 M. & W. 328.
487
*304 DETERMINATION OF TENANCY. [Cii. VIII. S. 3.
occupation of the house for the time subsequent to his ac-
cepting the key (c).^ But where A. was tenant to B. of
rooms for a term of years, and upon the bankruptcy of B.,
A. sent the key of the rooms to the office of the official
assignee, where it was left with a clerk, who was told that
it was the key of the rooms which A. had Occupied ; and A .
immediately quitted possession, but no further communica-
tion took place : this was held not to amount to a surrender
by act and operation of law (cf). Where two persons de-
mised a house by lease in writing, one of whom, after sign-
ing the lease, never further interfered, and the other, before
the first quarter's rent became due, accepted the key from
the tenant's wife ; it was held, that there was a sufficient
surrender by the tenant which bound both the lessors, the
wife of the tenant acting as his agent, and the lessor, who
accepted the key, as the agent of the other (e).
Mere acceptance of key does not effect surrender. — But the
mere fact that the landlord has received the key, and at-
tempted unsuccessfully to relet the premises, does not estop
him from alleging that the tenancy still subsists ; and if,
afterwards, before the expiration of the term, the landlord
relet, the surrender by operation of laAv takes effect from
such reletting, and does not relate back to the receipt of the
key. So it was held by the Court of Appeal in Oastler v.
Henderson (/).
[*304] * Letting to another person, &c. — Where a lessee
quitted in the middle of his term apartments which
he had taken for a year, and the lessor let them to another
person, so that the lessee could not have come back if he had
chosen ; it was held that, by so doing, the lessor dispensed
with the necessity of a written surrender (.7). Where the
owner of a ferry demised it for a year, but after a few weeks
tlie lessee finding it unprofitable, agreed instead to become
servant to the owner, and received daily wages for attending
, (c) Wliitolioad I'. Clifford, 5 Taunt. (>>) Dodd v. Acklom, 0 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, 0 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'<l, l.'J M. & W. B. <.)44 ; Smith L. & T. -.Wl (2ml od.).
285; Smith L. &T.;]10 (2iul ed.). (.s) Graliam i-. Wicholo, 1 Cr. &
(q) Doe d. Hull V. Wood, 14 M. & M. 188; Woodcock v. Nuth, 8 Bing.
W. G82. 170.
490
Cii. VIII. S. .0.] SUBKENDER (BY OPERATION OF). *306
to let C. stand in B.'s place, and C. offered to pay rent ; it
was held, in an action for use and occupation against C, that
he could not set up as a defence that B.'s term had not been
determined either by a notice to quit, or a surrender in writ-
ing (^). Where a sole tenant from year to year, before the
termination of bis tenancy, entered into an agreement with
his landlord for a lease to be granted to him and another
jointly, and both entered upon and occupied the premises
jointl}"; it was held, that the first tenancy was determined
though the lease was never executed pursuant to the agree-
ment (w).
(c) Operation of Surrender.
Surrender ■will not prejudice previous sub-leases. — The sur-
render of a lease will not affect or prejudice a sub-lease
previously granted (a;), unless indeed the subtenant
expressly assents *to the surrender and in effect [*30G]
attorns to the surrenderee;^ to hold of him on new
terms, or as his agent or servant (y). Where a lessee mort-
gaged tenant's fixtures, and afterwards surrendered his lease
to the lessor, who granted a fresh lease to a third party ; it
was held, that the mortgagee had a right to enter and sever
(t) Phipps V. Sculthorpe, 1 B. & A. M. & S. 146 ; Pleasant d. Hayton v.
50 ; but see Hyde r. Moakes, 5 C. & Benson, 14 East, 232 ; Torriano v.
P. 42. Young, 6 C. & P. 8 ; Piggott ;,'. Strat-
(!/) Hamerton v. Sieed, 3 B. & C. ton, 1 De G., F. & J. 33; 29 L. J.,
478. Ch. 1, 7.
(x) Mellor v. Watkins, L. R., 9 {y) Lambert v. M'Donnell, 15 Ir.
Q. B. 400 ; Doe d. Beaden ■;. Pyke, 5 Com. L. R. 136.
^Effect of surrender upon sublease. — A lessee cannot surrender to
prejudice of sub-lessee. McKenzie v. Lexington, 4 Dana (Ky.) 129. Sub-
lessee may sue lessor if he disturb nim. Eten v. Luyster, 60 X. Y. 252. If
lessor make new lease, and sub-lessee attorn, he will lose remedy against
lessor. Ritzier i-. Raether, 10 Daly (X. Y.) 286.
Such surrender operates, in most cases, as a quasi assignment, lessor becom-
ing landlord to sub-lessee. Eten v. Luyster, 60 X. Y. 252, 259 ; Ritzier v.
Raether, 10 Daly, 286, 289; Benson v. BoUes, 8 Wend. (X. Y.) 175, 180.
In McKenzie v. Lexington, 4 Dana (Ky.) 129, 130, however, the lessee,
having sublet without rent ar.d surrendered, was held himself liable for the
rent. See post, sec. 4, notes.
A lessee cannot surrender to prejudice of lien men or others who have
acquired interests. Hagan v. Gaskill, 42 X. J. Eq. 215.
491
*306 DETERMINATION OF TENANCY. [Ch. VIII. S. 3.
the fixtures, as it was not competent to the tenant to defeat
his grant by the subsequent voluntary act of surrender (z).
Operation on rents reserved in sub-leases. — Formerly if a
lessee for years, who had sublet for a less term, surrendered
his term to the lessor, it followed that the reversion on the
sub-lease being gone, the rent and the covenants were gone
also (a). But the Act 4 Geo. 2, c. 28, s. 6, enabled a lessee
to surrender his lease for the purpose of taking a new one
without a surrender of a sub- lease, and saved to the lessee all
the same remedies against the sublessee for rents, covenants
and duties, and to the original lessor the same remedies for
rents and duties reserved by the new lease, so far as they
exceed not the rents and duties reserved in the former one,
out of which the sub-lease was derived, as if the original lease
were still kept on foot(^0' And by 8 and 9 Vict. c. 106, s. 9,
if a reversion expectant on a lease is surrendered, the estate
which confers, as against the tenant, the next vested right
to the tenements, shall be deemed the reversion for the
purpose of preserving the incidents to and obligations on
the reversion (c) ; so that, b}' the effect of this statute, the
surrenderee becomes assignee of the reversion expectant on
the sub-lease.
Effect on rent previously due. — Where a lease containing a
personal covenant for the payment of rent is surrendered,
the personal covenant is independent of the estate in the
property, and as to rent previously due is not affected by the
surrender, but the lessor remains a specialty creditor for
the rent which accrued due before the surrender ((^).
Accruing rent. — Before the Apportionment Act, 1870(e),
rent reserved l)y the lease at fixed periods, (jiiarterly or
otherwise, which was accruing when a surrender was made,
(z) Loiulon and Westminstor Loan Palk v. Marehctti, 1 B. & Ad. 716.
and Discount C Limited v. Drake, 0 See this section at leuRtli, post, Cliap.
C. B. N. S. 798 ; 28 L. J., C. P. 2!)7 ; IX., Sect. 4.
and see Saint v. Pilley, L. R., 10 Ex. (r) Smith L. & T. 316. See 28(5,
137 ; 44 L. J., Ex. 33. post.
(<i) Threr i;. Barton, Moore, 94; (d) Att.-Gcn. v. Cox, 3 II. L. Cas.
Wel.h V. Kussell, 3 T. H. .393; Burton 240 ; Smitli L. & T. 317 (2nd ed.).
V. Barclay, 7 Binfj. 7.'')0. (e) Post, Chap. X., Sect. G (b).
(Jj) Snuth L. & T. 317; Doe d.
492
Ch. VIII. S, 3.] SURRENDER (bY AND TO WHOM MADE). *307
sank and was entirely lost (/) ; but that act, sect. 3, by the
words " re-entry, death or otherwise," seems to include the
case of a surrender.
* Surrender after assignment of future rent. — In the [*307 J
peculiar case of Southwell v. Scotter (r/), the plain-
tiff, having- let to the defendant, assigned the reversion, but
agreed with the assignee that they should continue to receive
rent from the defendant, to whom they gave notice of the
agreement. The defendant afterwards' surrendered to the
assignee of the reversion, and it was held that such a sur-
render was valid, and that the rent accruing due after it
could not be recovered by the plaintiff from the defendant ;
but it seems that the plaintiff would have had a remedy
against the assignee, though it was not necessary to decide
that point.
(d) Bi/ and to tvJiom Surrender made.
Surrenderee must be the immediate reversioner. — Those
persons who are disabled to grant are unable to surrender ;
and such persons as are disabled to take by a grant are
unable to take by a surrender (7i). Moreover, the surren-
deree must be the immediate reversioner (/) ; if therefore A.
let to B. for ten years, who lets to C. for five years, C. can-
not surrender to A. by reason of the intermediate interest of
B. ; but in such case B. may surrender to A., and afterwards
C. likewise, because then his lease for five years is become
immediate to the reversion of A. (^). If a husband have a
lease or estate for years in right of his wife, he alone, or he
and his wife together, may surrender it ; but if the husband
have an estate for life in right of his wife, who is tenant in
dower or otherwise, and he alone, or he and she together,
surrender it, the surrender is good only during the life of
(/) Grimman v. Legge, 8 B. & C. could be a valid assignment of the
324 ; Slack v. Sharp, 8 A. & E. 360 ; rent to the plaintiff as a chose in
Dodd V. Acklom, 0 M. & G. 673 ; Doe action, see 252, ante,
d. Philip V. Benjamin, 9 A. & E. 644; (li) Shep. Touch. 303.
Furnivall v. Grove, 8 C. B., N. S. (/) Edwards v. Wickwar, L. R., 1
496 ; 30 L. J., C. P. 3. Eq. 68, 403.
(<7) Southwell V. Scotter, 49 L. J., (A) Bac. Abr. tit. Leases (S. 2).
Ex. 356. As to whether there was or
493
*308 DETERMINATION OF TENANCY. [Ch. VIII. S. 3.
the husband, unless the deed be acknowledged by the wife
pursuant to the Act for the Abolition of Fines and Recov-
eries.
Joint tenants, executors, &c. — One joint tenant cannot sur-
render to another joint tenant, but he may grant, release or
assign to him. One of two or more executors may also sur-
render an estate or lease for years, which the executors have
in the right of their testator (?). Where the lessee of prem-
ises, under a covenant of re-entry if the rent should be in
arrear twenty-eight days, died in bad circumstances, and his
brother administered de son tort, and then after having
agreed with the landlord to give him possession and suffer
the lease to be cancelled on his abandoning the rent, which
was twenty-eight days in arrear, took out letters of adminis- .
tration ; it was held, that the agreement of the brother as
administrator de son tort did not conclude him as rightful
administrator, nor give a right of possession to the landlord
who had entered under the agreement, but who had
[*308] not made any formal demand of the rent, * nor taken
a regular surrender of the lease (w). Where a lessee
who had jjaid rent sometimes to a trustee and sometimes to
a cestui que trust, gave up possession on the last day of the
term, but before it was ended, to the person who had been
trustee, and not to the party then having the legal title ; it
was held, that as the act was equivocal, it did not amount to
either a surrender or to a forfeiture (w).
Infants. — An infant may make a surrender in law by the
acceptance of a new lease, if such new lease increase his
term or decrease his rent ; but a surrender by an infant
lessee by deed is absolutely void.
Sequestrators. — A surrender of a lease cannot be made to
sequestratoi's ; it must be to the lessor, or to a party legally
entith'd under hiiu (o).
What estate surrender may operate on. — A lessee may sur^^
(/) Shop. Touch. 303. * (») Ackland v. Lutley, 9 A. & K.
(m) Doe d. Hornby v. Glenn, 1 A. 87!>.
& 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, 0 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, 0 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]an<l,
11 Met. (Mass.) 99; and may bring ejectment. Doe </. Mayor, &c., of St. John
V. Koe, 24 N. B. ;557 ; Jackson r. Topijing, 1 Wend. (N. Y.) 388.
»((!) Dimand bffore rtitn/. — They cannot for non-payment of rent witlinut
previous demand. Tiiis must be on pay-day, just before sunset. If no other
l)lace is named, it must be at mansion-house or otiier most notorious place on
premises (thougli no j)tison be tliere). .lolmsion v. Hargrove, 81 Va. 118;
408
Cji. VIII. S. 5] FORFEITURE. *311
the lease ; or (2) for a breach of any covenant, in case (and
in case only (e)) the lease contain a condition or proviso for
re-entry for a. breach of such covenant (/). The
same rule applies to tlie breach of the terms of * an [*311]
agreement for a lease for years, whether a person
has entered and holds as tenant from year to year (_(/), or is
considered as actual lessee (^Ii}. In that case also, if the
agreement stipulate for a proviso for re-entry, ejectment can
be brought at once. The lessor, having the jus disponendi,
may annex whatever conditions he pleases to his grant, pro-
vided they be not illegal or repugnant to the grant itself ;
and upon the breach of any of these conditions may, subject
to special statutory provisions for " relief against forfeiture,"
avoid the lease (/).
By -what acts a forfeiture may be incurred. — Besides incur-
ring a forfeiture by the breach of express conditions, which
will be hereafter considered, a lessee may incur a forfeiture
for breach of implied conditions, either by matter of record,
or by act in pais : 1, by matter of record, where he sues out
a writ, or resorts to a remedy which claims or supposes a
right to the freehold, or where, in an action by his lessor
grounded upon the lease, he resists the demand under the
(e) It is of importance that a lease Phillips, 2 Bing. 13 ; Doe d. Darke v.
for years sliould contain a proviso for Bovvditch, 8 Q. B. 978.
re-entry for non-paymeijt of rent at (r/) Doe d. Tliomson v. Amey, 12
any rate, as otlierwise the lessor may A. & E. 476 ; Thomas i\ Paclcer, 1 H.
find himself saddled with an impe- «& N. 669 ; Ilayne r. Cunimings, 10
cunious tenant, and not he able to C. B., N. S. 421.
get rid of liini — unless, indeed, he (/;) See as to this, Walsh i: Lons-
can get judgment signed for rent due, dale, 21 Ch. D. 9, ante, p. 86.
and seize the term of years in execu- (/) Baylis v. Le Gros, 4 C. B., N. S.
tion. 537, 539; 6 Id. 552. As to "relief
(/) Lit. s. 325 ; Doe d. Wilson v. against forfeiture " see post, Sect. 6.
Connor v. Bradley, 1 How. 211, 217; .Jackson v. Harrison, 17 Johns. (N. Y.)
66, 71 (simply in afternoon will not do) ; Remsen v. Conklin, 18 Id. 447, 450
(per Spencer, Ch. J.); Van Rensselaer v. .Tewett, 2 N. Y. 141; Smith v.
Wliitbeck, 13 (^liio St. 471 (must be at front door sufficient time before sun-
set to allow for counting money); Chipman v. Emeric, 3 Cal. 283; Gaskill v.
Trainer, Id. 334 ; Gage v. Bates, 40 Id. 384 (the rule is now changed by
statute in California).
Disavowal of title waives demand. Jackson v. Collins, 11 .Johns. (N. Y.) 1.
Breaches of orditiari/ corenants do not work forfeitures. Pickard i-. Kleis,
56^ich. 004; Langley v. Ross, 55 Id. 103; Hilsendegen v. Scheich, Id. 468.
499
*311 DETERMINATION OF TENANCY. [Ch.VIII. S.5.
grant of a higher interest in the land; or where he acknowl-
edges in court the fee to be in a stranger ; for having thus
solemnly protested against the right of his lessor, he is
estopped by the record from claiming an interest under
him (y), but anything of this sort can seldom, if ever, now
happen, real actions having been abolished: 2, by act in
pais, where he aliens the estate in fee (A-).^ Where a tenant
delivered up possession of the premises and the lease, in
fraud of his landlord, to a person who claimed under an
hostile title, with the intention of enabling him to set up
that title, not with the intention that he should hold under
the lease ; it was held, that the term was forfeited (?).
Where a lessee, who had paid rent sometimes to a trustee
and sometimes to a cestui que trust, gave up possession on
the last da}^ of the term, but before the term was ended, to
tlie j^erson who had been trustee, and not to the party then
having the legal title ; it was held, that as the act was equivo-
cal, it did not amount either to a surrender or a forfeiture
of the term (w?). Where a forfeiture may be incurred by a
grant or deed, it is necessary that the deed be a valid instru-
ment, for if by reason of any defect it be void, it will not
work a forfeiture of the estate (w) : but granting a lease of
0") Pout, Sect. 8. (m) Ackland v. Lntlcy, 9 A. & E.
(k) Kees v. Irvington, Cro. Eliz. 822. 879.
(/) Doe d. Ellerbrock v. riynii, 1 ())) Dcnn d. Dolman v. Dolman, 5
C, M. &11. 137. T. R. 041; Doe d. Lloyd v. Powell,
5 B. & C. 308, 312.
^ Disavowal of lessor's title. — Express or implied disavowal terminates
tenancy at lessor's option. Wells r. Sheerer, 78 Ala. 142; Jackson c. Collins,
11 Johns. (N. Y.) 1 (perpetual lease terminated) ; Newman ?•. Rutter, 8
Watts (Pa.) 51, 54 {]>er 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. 0
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 ; 0 II. L. Cas. G72 ; 27 L.
Blakoway, 5 C. & P. o<i:]; Doc d. J., Q. B. ;52I ; IVrry v. Davis, 3 C. B.,
Cook V. Danvers, 7 Ea.st, 200. N. S. 7G9.
(x) Co. Lit. 202; Bac. Abr. tit. (z) Rede v. Farr, 6 M. & S. 121.
Conditions (O. 4) ; Cole Ejec. G8. And see the cases ante, 181.
(//) Doe d. Davis n. Eisani, Moo. («) Hartshorn v. Watson, 4 Bins.
&M. 189; Doe f/, Muston V. Gladwin, N. C. 178; G Dowl. 404; see also
« Q. B. 05.3, 9G1 ; Croft i;. Lumley, 5 Selby i;. Browne, 7 Q. B. G20.
' Voluntary -wraste will terminate a tenancy at will at option of landlord.
Walcol V. I'onieroy, :i I'ick. (.Mass.) 121 (selliiifi- olT manure); IMiillijJS v.
Covert, 7 Johns. (N. Y.) 1 (cutting timber) ; SultVrn v. Townsend, 9 Id. 35^
36 ( fter curiam^.
^ See unlc, (a), notes.
502
Ch. VIII. S. 5.] rOEFEITUKE. *313
demise contained a clause that if tlie rent should be unpaid
for ten days, or if the lessee should not observe all the con-
ditions, &c., then it should be lawful for the lessor to enter
upon and take possession of the premises, and to expel the
lessee, without any legal process, and as effectually as a
sheriff might do on a recovery in ejectment; and that, in
case of such entry and an action being brought, the defend-
ant might plead leave and licence in bar ; it was held, that
the lessee's right to possession as tenant continued until the
lessor had availed himself of the licence given (A). Such a
clause does not dispense with a formal demand of tlie
rent (c-). An agreement to let a house and for the lessee
to make certain alterations, and if they were not done that
the lessor might retake possession, and that the agreement
should be null and void, is voidable only at the election of
the lessor if the lessee does not make the alterations ((?).
Where in an agreement amounting to an actual demise there
was a clause in the following form, "it is stipulated and
conditioned that the lessee shall not underlet ; " it was held,
that these words created a condition, and being such, upon
breach of it the lessor might maintain ejectment, without an
express clause of re-entry (e). A proviso that the lessee
shall pay 120/. per annum creates both a covenant and a
condition, and therefore for breach of it an ejectment may
be maintained without any express power of re-entry (/).
If by a written agreement premises are let for a term, " at
and under the rent of 80/.," it is an agreement by the lessee
to pay that rent ; and therefore if there be a power of re-
entry in case of breach of " any of the agreements therein
contained," the lessor has a right of re-entry on non-pay-
ment of rent, although there is no express agreement to
pay rent (^g). A proviso that if buildings should not be
(h) Kavanagh r. Gudge, 7 M. & G. & C .S08; Simpson v. Tittcrell, Cro.
316; ID. &L. 928. Eliz. 242; Marsh v. Curteys, Cro.
(c) Barry v. Glover, 10 Ir. Com. Eliz. 528 ; Cole Ejec. 402.
L. R. 113; Acocks v. Phillips, 5 H. ( /") Harrington v. Wise, Cro. Eliz.
& N. 183. 48C'; cited 8 B. & C. 31G ; Cole Ejec.
(d) Doe d. Nash v. Birch, 1 M. & 402.
W. 402 ; Hayne v. Cummings, 16 C. (q) Doe d. Eains v. Kneller, 4 C.
B., N. S. 421. & P. 3.
(e) Doe d. Henniker v. Watt, 8 B.
503
*31-1 DETERMINATION OF TENANCY. [Ch. VIII. S. 5.
[*314] * completed on a certain day " it shall be lawful for
the lessors into the demised premises or any part
thereof in the name of the whole [omitting the words 'to
re-enter '] and repossess," would seem to give a right of re-
entry (/i).
Insensible proviso. — Where a proviso for re-entry was in-
sensible, the court refused to decide its meaning, and non-
suited the plaintiff in an ejectment for a forfeiture (i).
Where the lessee covenanted to pay the rent, and not to
assign without the leave of the lessor, and there was a pro-
viso for re-entry if the rent was in arrear, or if all or any of
the covenants tlteremafter contained on the part of the lessee
should be broken ; and there were no covenants on the part
of the lessee after the proviso, but only a covenant by the
lessor that upon the lessee paying the rent, and performing
all and eveiy the covenants thereinhefore contained on his
part to be performed, he should quietly enjoy ; it was held,
that the lessor could not re-enter for breach of the covenant
not to assign, for that the proviso was restrained by the
word thereinafter to subsequent covenants ; and though
there were none such, yet the court could not reject the
word (Z"). A proviso giving a power of re-entry if the lessee
" shall do or cause to be done any act, matter or thing con-
trary to and in breach of any of the covenants," does not
apply to a breach of the covenant to repair, the omission to
repair not being aw act done within the proviso (/)•
Proviso for re-entry for breach of negative covenant. — It has
been said to be a general rule that the proviso for re-entry
applies only to the breach of an affirmative and not to the
breach of a negative covenant (m). If the proviso be ex-
pressed to operate in case of "default in performance" or
"failure to perform," or the like, this rule would seem to hold
(//) Hunt If. Eisliop, 8 Exch. 075. (/) Doe rl. Al)dy r. Stevens, 3 B. &
(0 Doe d. Wyndliam v. Carew, 2 Ai\.'2'.n); Cole Ejee. 407.
Q. B. ;317; but see Doe (/. Darke v. (w) West v. Dobb, 39 L. J., Q. B.
Bowditeb, 8 Q. B. !>7;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 (</).
Similarly, where the reddendum clause stipulated for an
additional rent in case of the lessee carrying on certain
trades which he covenanted not to carry on, and a proviso
for re-entry for breach of covenants generally, it was held
that the lease could not be construed as meaning' that the
lessee was entitled to carry on the trades in question on pay-
(n) L. R., 3 Ex. D. at p. 82. (7) Doe d. Antrobus v. Jepson, 3
(0) L. R., 6 Q. B. at p. 648. B. & Ad. 402.
(/j) Doe d. Earl of Darlington v.
Bond, 5 B. & C. 855.
505
*316 DETERMIXATrOX OF TENANCY. [Cii. VIII. S. 5.
ment of the additional rent, and that the right of re-entry
might be exercised on breaches upon which the additional
rent became payable (?•).
Proviso for re-entry in case of execution. — Where a lease
contained a clause of re-entry, in case the term of years
thereb}" granted should be extended or taken in execution;
and before the end of the term, the sheriff entered the prem-
ises under a writ of extent against tlie lessee at the suit of
the crown, held an inquisition, and seized the lessee's inter-
ests into the king's hands ; it was held, that this proceeding
was a taking in execution within the latter clause of the con-
dition, and that the term was determined and forfeited to
the lessor (s) ; and where the condition was, amongst other
things, to be void "if the lessee should incur any debt on
which any judgment should be signed, entered up or given
against him, and on which an}^ writ of fieri facias, or other
writ of execution, should be issued," and the tenant gave
a warrant of attorney, on which judgment was entered up
and execution issued and the tenant's goods were taken, and
the lessor entered ; it was held, that he was entitled to
the emblements (t).
Proviso for re-entry in case of bankruptcy. — A proviso was,
that in case the lessee should commit an act of bankruptcy,
whereon a commission or fiat in bankruptcy should or might
be issued, and under which he should be duh) found
[*316] and * declared a bankrupt, the term should deter-
mine ; the tenant became bankrupt, and was found
and declared a bankrupt, but there was not a proper petition-
ing creditor's debt on Avliich the fiat was founded ; it was held
by two judges, against the opinion of Parke, B., that the
lessee was not duly found and declared a bankrupt Avithiu
the meaning of the proviso (?/). A proviso Avas, that if the
lessee, his executors, administrators or assigns, should be-
come bankrupt or insolvent, or suffer any judgment to be
(r) Wt'ston V. Metropolitan Asy- (J) Davics v. Eyton, 7 Bing. 154.
lums Board, L. R., 8 Q. B. D. 387 ; (») ^^oe d. Lloyd v. Ingleby, 15 M.
40 L. T. l(i«. & W. 465.
(s) Rex V. Topping, 1 M'Clcl. &
You. 544.
606
Cii. VIII. S. 5.] FORFEITURE. *316
entered against liiin ])y confession or otherwise, or suffer any
extent, process or proceedings to be had or taken against
him, whereby any reasonable probability might arise of the
estate being extended, &c., the estate should determine, and
the lessor have a power to re-enter ; the tenant died during
the term, and by his will devised the premises to his exec-
utors on trust, and the surviving executor became a bank-
rupt; it was held the lessor's right of i-e-entry thereupon
accrued (a^). The non-payment of a debt mentioned in an
insolvent's schedule was held not to be a continuing insol-
vency, so as to constitute a new forfeiture of a lease, the
former forfeiture by the insolvency having been waived (^).
A lease for three lives contained a proviso that if the lessee,
his heirs, &c., should, during the continuance of the term,
happen to become insolvent, and unable in circumstances to
ofo on with the manao-ement of the farm, the demise should
from thenceforth cease and be absolutely void : the court
doubted whether the attainder of the tenant for felony was a
forfeiture of the lease ; but held, that if it Avas a breach of
the condition, it was not a continuing breach, but was con-
temporaneous with the conviction (2).
Proviso for re-entry for ceasing to work mines. — Where a
lease of coal mines reserved a royalty rent for every ton of
coal raised, and contained a proviso that the lease should be
void altogether if the tenant should cease working at any
time within two years ; but after the working had ceased
more than two years the lessor received rent ; it was held,
that the lease was not absolutely void by the lessee's ceasing
to work, but voidable only at the option of the lessor ; and
that he might avoid the lease upon any cessation to work,
commencing two years before the day of the demise in the
ejectment (a).
For non-production of cestui que vie. — In a lease for years
if a person should so long live, there was a covenant to pro-
(.r) Doe of. Bridgeman v. David, 1 B. & Ad. 705. See further, p. 274,
C, M. & R. 405 ; Doe d. Williams v. ]>ost.
Davis, 0 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 (<?).
The lessor or his assigns. — No one can re-enter for a for-
feiture but the person then legally entitled to the rent or to
the reversion (/) ; but a lessor who has demised his whole
interest, subject to a right of re-entry on breach of a condi-
tion, may enter on the condition being broken, though he
have no reversion (<7).^ A reversioner who has parted with
his reversion, either absolutely or by way of mortgage, can-
{h) T^antlle v. Lory, G A. & E. 218. Doe d. Barney v. Adams, 2 C. & J.
(c) Kocs d. Powell v. King, Forrest, 232 ; Doe (/. Barker v. Goldsmith, 2
19 ; 2 Brod. & B. bU. C. & J. ()74.
(d) Davis v. Burrell, 10 C. B. 821. (7) Doe d. Freeman v. Bateman, 2
(e) Rede v. Farr. 0 M. & S. 121. B. & A. KiS ; Colville v. Hall, 14 Ir.
(/) Ilotley V. Scott, Lofft, 319 a; Com. L. R. 205, C. P.
^ Jackson ?'. Collins, 11 .Tohns. (N. Y.) 1. A lessor under a perpetual lease
with re-entry proviso may re-enter for disavowal of title or non-payment of
rent.
608
Ch.VIII. S. 5.] FORFEITURE. • *318
not re-enter or maintain ejectment for a forfeiture (A), nor
after his reversion has been merged and extinguished (i).
Persons having equitable estates. — It was held befoie the
Judicature Act that a riglit of entry could not be effectually
]"eserved to a stranger to the legal estate, although he joine.d
in the demise and had some equitable or beneficial estate or in-
terest in the property (/c). Thus, where by lease a mortgagee
demised, and the executrix of the mortgagor demised and
confirmed, and a power of re-entry for breach of covenants
was reserved to tliem or either of them^ it was held, that the
deed operated as a demise by the mortgagee, and a confirma-
tion by the executrix, and that the proviso for re-entry
enured only to the mortgagee, and not to both (?).
Trustees. — The same rule apj^Jied where trustees and
cestui qui trust joined in a lease, reserving rent to
the cestui que trust, with a proviso for re-entry * on [*318]
non-payment (m), and where the tenant for life and
the reversioner joined in a demise (w). The effect of the Judi-
cature Act is to allow beneficiaries to avail themselves of a
forfeiture (o), but in practice they will generally be repre-
sented by their trustees.
Devisees, coparceners, &c. — Where a power to determine
a lease is reserved to the lessor, his heirs, executors or admin-
istrators, it will extend to his devisee (^)). Where a power
for re-entry for breach of covenants is reserved, and the
reversion descends to coparceners, it seems that one or more
of them cannot, without the other or others, maintain eject-
ment for a forfeiture, the condition or proviso for re-entry
not being divisible (^). A lease granted under a power con-
tained in a settlement reserved a right of entry to the lessor
(h) Fenn d. Matthew v. Smart, 12 (»;) Dno (J. Barker r. Goldsmith, 2
East, 443 ; Doe il. Marriott v. C. & J. 674.
Edwards, 5 B. & Ad. 1005; Doe d. («) Treport's case, 6 Co. R. 15;
Prior (;. Ongley, 10 C. B. 25. Cole Ejec. 404.
(0 Webb V. Russell, 3 T. R. .393, (o) Jadicature Act, 1873, s. 24; R.
402; Threr v. Barton, Moore, 94. S. C. Order XVI. rules 7, 11, 13.
{k) Doe d. Barber v. Lawrence, 4 (/>) 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, 0 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 <l. Nash v. Birch, 1 M. & {l>) 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. 0 IJ. & C. 370.
(7) Doe </. Cheney y. Batton, Cowp. (1/) Doe d. Rankin v. Briiidlcy, 4
243. B. & Ad. 84; Doe d. Baker v. Jones,
(r) Doe d. Nash v. Birch, 1 M. & 5 Exi,li. 498, 505.
W. 402. (s) Fryett d. Harris v. Jcfferys, 1
(.s) Cole Ejpc. 409. Esp. .'393; Cole Ejee. 409.
(/) Doe d. Baker v. Jones, 5 Exch. («) Doe d. Taylor v. Jolinson, 1
498. Stark. 411 ; Zoueh d. Ward v. Willin-
(») Doe d. Mustin v. Gladwin, G gale, 1 II. Blae. 311.
Q. B. 953, 950; Penniail v. Ilarborno, (/>) 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 (<i). A forfeiture, by omis-
sion to repair after notice, is suspended but not w^aived by
an agreement to allow further time to repair (e).
Of covenant not to sublet. — The acceptance of rent with
knowledofe of a written subletting for a time certain is a
waiver of a forfeiture for the breach of a covenant not to
sublet, and the breach is not a continuing breach, although
the covenant be that the lessee " will not permit any person
to occupy " (/).
Of covenant not to carry on trade, &c. — If a lessee exercise
a trade on the demised premises by which his lease is for-
feited, the landlord does not, by merely lying by and witness-
ing the act, waive the forfeiture (^), as some positive act of
waiver, as by receipt of rent (A), is necessary; but if he per-
mit the tenant to expend money in improvements, it would
seem that it is evidence to be left to a jury of his consent to
the alteration of the premises (z) : and if a lessor after a for-
feiture advise a person to purchase the term of his lessee,
he cannot maintain an ejectment for a forfeiture against such
purchaser; but he may do so if the party have an interest,
(c) Bailey v. Mason, 2 Ir. Rep., to apply to the case of a covenant
N. S. 582. not to use the demised premises in a
(rf) Doe (7. Reutzen v. Lewis, 5 A. particular way. Per Bramwell, L. J.,
& E. 277 ; Roe d. Goatley v. Paine, 2 in Lawrie v. Lees, L. R., 14 Ch. D. at
Camp. 520. p. 262.
(e) Doe i1. Rankin v. Brindley, 4 (7) Doe d. Sheppard v. Allen, 3
B. & Ad. 84. Taunt. 78.
(/) Walrond v. Hawkins, L. R., (/;) Griffin v. Tomkins, 42 L. T. 359.
10 "C. P. 342; 44 L. J., C. P. 116; 32 {i) Doe (/. Sheppard v. Allen, ubi
L. T. 110. It is doubtful wliether the sup., per Mansfield, C. J.
principle of this case would be held
519
*326 DETERMINATION OF TENANCY. [Ch. VIII. S. 5,
viz.. an annuity secured on the premises, and the advice is
merely "to take to them" (/;). If A., tenant for life, subject
to forfeiture, with a remainder over to B., lease to C. for a
term, and afterwards apprehending that he has forfeited,
acquiesce in B.'s claim to and receipt of 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. ; for in order to constitute a confirma-
tion of the payment, some act ought to have been done by
A. with the knowledge of his own situation (/). Where land
was demised with a covenant by the lessee to build and com-
plete thereon houses within a year, and a proviso that if he
did not, the lease should be void; the houses not being com-
pleted, it was held, that the forfeiture was not waived by the
steward of the lessor having permitted the lessee to employ
workmen in completing the houses for a short period after
the forfeiture (w). When the landlord does any act amount-
ing to a constructive eviction of the tenant he cannot main-
tain an ejectment for a forfeiture for not repairing
[*326] during the continuance of such eviction (?i). *A.
demised land with a covenant by the lessee to finish
certain houses thereon, and with a power of re-entry in case
of default, and by another indenture between A. and the
plaintiff, reciting that A. had made sub-leases of the land in
question, A. assigned the land to the plaintiff subject to the
«ub-leases ; the court inclined to think that if the condition
had been broken, the assignment, subject to the sub-leases,
would have been a waiver of the forfeiture although the for-
feiture was not known to A. (o). Though an acceptance of
rent or other act of waiver may make a voidable lease good,
it cannot make valid a deed or a lease which was actually
void at first; but where a lease for years contains tlie common
proviso " that it shall and may be lawful for the lessor to
re-enter," or a proviso " that the term shall cease and deter-
(k-) Doc <f. Sore v. Eykins, 1 C. & (n) I'ellatt i;. Boosoy, H L. J., C. P.
P. IM; l{y. & Moo. 20. ' 281.
(/) Williaiiisc. Bartlioloinew, 1 Bos. (") Hunt v. Bishop, 8 Exch. G75;
& P. 32(!. Hunt V. Remnant, 9 Exch. G35.
(;/() Doer/. Ed. Kensington i-.Biind-
hy, 12 Moo. ;]7.
520
Cii. VIII. S. O.J RELIEF AGAINST FORFEITUEE. *327
mine if the lessor please," the lease will be only voidable by
a breach of covenant ; and the forfeiture may be waived by
a subsequent acknowledgment of a tenancy (p).
Actual waiver does not operate as general -waiver. — By
23 & 24 Vict. c. 38, s. 6, "where any actual waiver of the
benefit of any covenant or condition in any lease on the part
of any lessor, or his heirs, executors, administrators or assigns,
shall be proved to have taken place after the passing of this
act in any one particular instance, such actual waiver shall
not be assumed or deemed to extend to any instance or any
breach of covenant or condition other than that to which such
waiver shall specially relate, nor to be a general waiver of the
benefit of any such covenant or condition, unless an inten-
tion to that effect shall appear."
Sect. 6. — Relief against Forfeiture.
(a) The laiv before the Conveyancing Act.
Equitable relief. — An unqualified proviso for re-entry in
case of breach of any covenant has long been usually inserted
as a common form in leases, and the courts of law, though
"leaning against forfeiture," invariably gave effect to such
proviso upon a breach being clearly proved, however great
the hardship to the lessee (5-). Courts of equity were, there-
fore (before the Judicature Acts), frequently (r) applied to
for relief by injunction to restrain actions of ejectment. In
|pv*the case of th^ breach of the covenant to pay rent, relief was
granted from very early times, the statute 4 Geo. 4,
c. 28, only regulating the mode * of granting the [*327]
relief, and not originating it (s). As for forfeiture
by other breaches, the early cases are not quite uniform.
No equitable relief for " wilful " breach. — They will be found
reviewed by Lord Erskine in Sanders v. Pope (^), and by
(/j) Doe d. Bristow v. Old, Ad. up to 1847 reviewed in "Piatt on
Ejec. 155 (4th ed.). Leases," Vol. 2, at p. 485 et seq.
(q) See Doe v. Gladwin, 6 Q. B. at (s) Green v. Bridges, 4 Sim. 96.
p. 961. (t) 12 Ves. 262.
(r) See the whole series of cases
521
*327 DETERMINATION OF TENANCY. [Ch. VIII. S. 6.
Lord Eldon in Hill v. Barclay (it), and in Reynolds v.
Pitt (a:). In Sanders v. Pope, Lord Erskine granted re-
lief against forfeiture of a public-house lease incurred by
not laying out a particular sum in repairs within a given
time, and declared the result of the prior authorities to be
that the court had jurisdiction to grant relief in all cases
where full compensation could be made, although the
breach might have been wilful. But in Hill v. Barclay,
Lord Eldon, though distinguishing Sanders v. Pope (^/), dis-
tinctly disapproved of the doctrine that relief could be given
in case of a wilful breach, and refused relief in a case of non-
repair in which the landlord had given a notice which had
not been complied with. But, as was pointed out by Stuart,
V.-C, in Bamford v. Creasy (2;), Lord Eldon expressly rec-
ognized the exceptions in case of accident or surprise, and
accordingly relief was granted in a case (a) where it ap-
peared that out of twenty-two items of repair twenty had
been proceeded with, and fourteen completed, and that the
repairs had been partially delayed by the weather ; Stuart,
V.-C, mentioning "as an equity always recognised" the
equity of a tenant who has bound himself by a covenant to
repair, and who can show to the court equitable circumstances
sufficient to entitle him either to a relief from a strict per-
formance of the lease, or to ensure him against a forfeiture
by reason of the neglect to perform them.
The rule of Hill v. Barclay was recognized in Gregory v.
Wilson (i) by Turner, V.-C, in refusing to grant specific
performance of an agreement for a lease. In Nokes v. Gib-
bon (c), Kindersle}^ V.-C, refused relief where the breach
consisted in a failure to construct certain drains, and in Job
V. Banister (t^), where a lease was granted with a covenant
for perpetual renewal by the lessor, provided the lessee's
covenants should be kept. Wood, V.-C, refused to compel
(k) 18 Ves. 50; and sec id. IG Ves. (n) Bargcnt v. Thompson, 4 Gift.
402. 47;J.
(x) 10 Ves. 134. (I>) 0 Hare, 083.
0/) Sanders v. Pope, 12 Ves. 262. (r) 20 T.. J., Ch. 483.
(z) 3 GilT. 075. In this case the (<!) 0 K. & J. 374.
lessor had obtained judgment by de-
fault in ejectment.
622
Cii.VIII. S.6.] RELIEF AGAINST FORFEITUIIE. *328
the lessor to renew or to restrain him from ejecting the
lessee for breaches of covenant to repair and insure, although
the lessee had expended large sums of money on the prem-
ises, and their value was much increased, the lessee losing
about 5,000^. for a breach of covenant which might be amply
remedied by 500^.
Lunatic. — In one case, however — subsequent to Hill v.
Barclay — Lord Eldon granted relief against an ejectment
for non-repair brought by the committee of a lunatic, on
the principle that harsh proceedings would not
* be for the benefit of the lunatic's estate (^e} ; but [*328]
there does not seem to be any direct authority upon
the question how far trustees neglecting to take advantage
of a forfeiture would be protected by the court.
Result of modern cases. — The result of the modern cases
appears to be that accident and surprise afford the only in-
stances in which relief was given, and that the fact that a
landlord gained ever so large an improved value by insisting
on the forfeiture was not taken into account.
Statutory relief against failure to insure. — The covenant to
insure is one which from its nature may be broken without
producing the slightest injury to the reversion, and yet a
court of law allowed a lessor to re-enter on the smallest
breach of it (/). And for a long period no relief could
have been obtained in a court of ec^uity against an eject-
ment for a forfeiture by not insuring (^), unless there had
been fraud or misleading on the part of the lessor (^Ji). But
by 22 &, 23 Vict. c. 35, now repealed and superseded by the
Conveyancing Act, power was given to a court of equity to
relieve in a case where no loss had happened, and the breach
had been committed without fraud or gross negligence, and
there was an insurance on foot at the time of the application
to the court. The court was required to direct a record of
(e) Ex parte Vaughan, 1 Turn. & Green v. Bridges, 4 Sim. 96, cited 6
Kuss. 434. Q. B. 9G1 ; Gregory v. Wilson, 9 Hare,
(/) Doe V. Gladwin, 6 Q. B. 953 ; G83.
post, Chap. XVII., Sect. 1. (/,) Meek v. Carter, 4 Jur. N. S.
0) White V. Warner, 2 Meriv. 459; 992.
523
1^
*329 DETERxMINATION OF TENANCY. [Ch. VIII. S. 6.
the relief ha^dng been granted, and had not power to relieve
the same person more than once in respect of the same cov-
enant or condition, nor to grant any relief where a prior
forfeiture had been already waived out of court in favour
of the person seeking the relief. By the Common Law Pro-
cedure Act, 23 & 24 Vict. c. 126, this relief might be granted
by a court of law.
(b) Relief against Forfeiture under the Conveyancing Act.
Except as above stated, that is, except in the case of non-
payment of rent, and failure to insure, and except in rare
cases of accident and surprise, no relief against forfeiture
could be given until the year 1882. The Conveyancing and
Law of Property Act, 1881, 44 & 45 Vict. c. 41, which by
sect. 2 took effect from and after the 31st December, 1881,
by s. 14 (1) restricts the landlord's right of forfeiture, and
(2) empowers the Chancery Division of the High Court to
"relieve " against its exercise in the following general, retro-
spective, and compulsory terms : —
" (1) A right of re-entry or forfeiture under any proviso
or stipulation in a lease, for a breach of any covenant or
condition in the lease, shall not be enforceable, by
[*329] action or otherwise (z), unless and * until the lessor
serves on the lessee a notice (Ic) specifying the par-
ticular breach complained of, and if the breach is capable of
remedy, requiring the lessee to remedy the breach, and in
any case requiring the lessee to make compensation in money
for the breach, and the lessee fails within a reasonable time
thereafter, to remedy the breach, if it is capable of remedy,
and to make reasonable compensation in^'taoney, to the satis-
faction of the lessor, for the breach.
Relief by court against forfeiture. — " (2) AVhere a lessor is
proceeding, by action or otherwise, to enforce such a right
of re-entry or forfeiture, the lessee may, in the lessor's
(/) e.r}., by peaceable re-entry, with- by that (lesifrnation, and served either
out action. by loavinj^ it at the last place of
(/•) By 8. 67 of the Act, infra, p. aixxlc, or by sending it in a registered
3.30, the notice must be in writing, letter by post, addressed to the lessee
and may be addressed to the lessee by name.
524
Ch. VIII. S. 6.] RELIEF AGAINST FORFEITURE. *329
action, if any, or in any action brought by himself, apply
to the court (/) for relief, and the court may grant or refuse
relief as the court, having regard to the proceedings and con-
duct of the parties under the foregoing provisions of this
section, and to all the other circumstances, thinks fit ; and
in case of relief may grant it on such terms, if any, as to
costs, expenses, damages, compensation, penalty, or other-
wise, including the grant of an injunction to restrain any
like breach in the future, as the court, in the circumstances
of each case, thinks fit.
Meaning of "Lease," "Lessor," and "Lessee." — " (3) Foi' the
purposes of this section a lease includes an original or deriv-
ative under-lease, also a grant at a fee farm rent, or secur-
ing a rent by condition ; and a lessee includes an original or
derivative under-lessee, and the heirs, executors, administra-
tors, and assigns of a lessee, also a grantee under such a
grant as aforesaid, his heirs and assigns ; and a lessor in-
cludes an original or derivative under-lessor, and the heirs,
executors, administrators, . and assigns of a lessor, also a
grantor as aforesaid, and his heirs or assigns.
Act of Parliament. — " (4) This section applies although
the proviso or stipulation under which the right of re-entry
or forfeiture accrues is inserted in the lease in pursuance of
the directions of any act of parliament (wi)-
Length of term. — " (5) For the purposes of this section
a lease limited to continue as long only as the lessee abstains
from committing a breach of covenant shall be and take
effect as a lease to continue for any longer term for which
it could subsist, but determinable by a proviso for re-entry
on such a breach.
Cases to which section does not apply. — " (6) This section
does not extend —
" (i) To a covenant or condition against the assigning,
under-letting, parting with the possession, or disposing of
(/) That is, by s. 2 (xviii.) and s. (m) See e.(j., Settled Estates Act,
69 (1) of the Act, the Chancery Divis- 1856, 19 & 20 Vict. c. 120, s. 32, 10
ion of the Hish Court; but the Geo. 4, c. 50, s. 27, 8 & 9 Vict. c. 124.
Queen's Bench Division lias jurisdic-
tion to relieve in an action before it.
525
*330 DETERMINATION OF TENANCY. [Ch. VIII. S. 6.
the land leased (w), or to a condition for forfeiture on the
bankruptcy (o) of the lessee, or on the taking in execution
of the lessee's interest : or —
[*330] * " (ii) In case of a mining lease (p) to a cove-
nant or condition for allowing the lessor to have
access to or inspect books, accounts, records, weighing
machines, or other things, or to enter or inspect the mine or
the workings thereof.
Repeal. — " (7) The enactments described in Part I. of the
second schedule to this act (^) are hereby repealed.
Non-payment of rent. — " (8) This section shall not affect
the law relating to re-entry or forfeiture or relief in case of
non-payment of rent.
Retrospective and compulsory. — " (9) This section applies
to leases made either before or after the commencement of
this act, and shall have effect notwithstanding any stipula-
tion to the contrary."
Effect of section 14 of Conveyancing Act. — The effect of
this section is first to interpose in favour of the tenant the
requirement, which did not exist at common law, that the
landlord shall, before proceeding to enforce a snp[)osed
right of re-entry, give fair notice of his intention to do so,
in order that the parties may settle the matter between
themselves, without any resort to the court; and secondly, in
case of tlie parties so failing to settle the matter, to allow
the tenant (not the landlord, whose course will be, if he
wishes to push the matter to extremity, to decline to be sat-
isfied with the compensation offered) to apply for an adjust>-
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., 0 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. <i7!) ; 38 54 C. A. It will be olisi-rvcd that the
L. T. 813; 20 W. R. 829, per Lord fxi)ri'ss stiijulation need not be in
Coleridf^e, C. J. writing.
(y) See Id. ((«) Hoe d. Rodd v. Archer, 14
{z) Barlow v. Teal, L. R., 15 Q. B. Kast, 244.
53G
Cii. VIII. S. 7.] NOTICE TO QUIT. *337
should not avail himself of the provision the notice will be
a " year's notice, expiring with a year of tenancy " (in ac-
cordance with sect. 3o), and not with the " current year."
Application of Agricultural Holdings Act. — Tlie iVgricul-
tural Holdings Act, 1883, 4G & 47 Vict. c. 61, by ss. 54 and 61
applies to the following and no other holdings : —
'•'■ Holdings, either wholly agricultural or wholly yaatoral, or
partly agricultural and partly pastoral, or wholly or partly
cultivated as market 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.''
Service of notice under Agricultural Holdings Act. — It is
enacted by s. 28 of the Agricultural Holdings Act, that
"any notice under this act" may be served by registered
letter through the post ; but it is submitted that a notice to
quit is not a notice under the act, and that s. 33 merely
lengthens the notice required at common law (6).
"What tenancies are determinable at end of first year. — A
tenancy '' from year to year so long as both parties please "
is determinable at the end of the first, as well as of any sub-
sequent year, unless in creating such tenancy the parties use
words showing that they contemplate a tenancy for two
years at least (c). But where a tenancy is created for "one
year certain, and so on from year to year " (which is often
done by mistake), it enures as a tenancy for two years at
the least, and cannot be determined by notice to quit at the
end of the first year (<i) ; but it may be determined by due
notice to quit at the end of the second or any su])sequent
year of the tenancy. A tenancy " for twelve months certain
and six months' notice afterwards " may be determined by
notice to quit at the end of the first year (e) : but a demise
"not for one year only, but from year to year," has been
(6) See the act, /ws^ Appendix, and 10 Q. B. 473; Smith L. & T. 323
for one instance out of many of a (2nd ed.).
notice " under the act" see s. 7. A (d) Doe d. Chadborn v. Green, 9
contrary o])inion to that in the text is A. & E. 658. ,
given in Hoscoe on Evidence, ed. 14. (e) Thompsons. Maberloj', 2 Camp.
(c) Doe c/. Clarke v. Smaridge, 7 573; Brown v. Symons, 8 C. B., N. S.
Q. B. 957 ; Doe d. Plumer v. Nainby, 208; 29 L. J., C. P. 251.
537
*o38 DETER]\UXATION OF TENANCY. [Ch. VIII. S. 7.
held to constitute a demise for two years at least (/). A
tenancy for six months, and so on from six months to six
months until determined by either party, is a tenancy for
one year at least (^). So a lease for three years, and so on
from three years to three years, makes one term for
[*338] six years (A). Such tenanc}- maybe * determined by
a half-year's notice to quit expiring at the end of the
first six years, or of any subsequent period of three years,
but not at any other time («'). A demise for a "term of
three years determinable on a six months' previous notice to
quit, otherwise to continue from year to year until the term
shall cease by notice to quit at the usual times," is a demise
for three years certain, determinable only at the end of that
period by six months' previous notice ; and if not then de-
termined, a subsisting tenancy from year to year. Such a
demise cannot be determined by a notice to quit at the end
of the first or second of the three years (/<?).
By husband. — Prior to the jN'Iarried Women's Property
Act it was held that a husband could not maintain ejectment
for his wife's lands, let from year to year with his express or
implied assent, without first giving due notice to quit (/).
The effect of that act would seem to be that the notice to
quit need be given in the wife's name only.
By infant. — An infant must give the same notice to quit
as if he were of full age (m).
After death or assignment. — A notice to quit is not ren-
dered unnecessaiy by the death of the landlord (o), or of
the tenant (jo), nor by an assignment of the term (g^), or of
(/) Dean t/. Jacklin i\ Cartwright, (m) Maddon d. Baker v. White, 2
4 East, ni. T. II. 160; Doe d. Miller v. Nodon,
(r/) Reg. V. Chawton, 1 Q. B. 247. 2 Esp. 530.
(/i) Henningsi;. Brabason,2Lov.45. (o) Maddon </. Baker v. White, 2
(0 Cole Ejec. .36; Roe d. Bree v. T. R. 160.
Lees, 2 W. Blac. 1171; Ilennings v. (]>) 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 <inle, sec. 2, note, and cases there cited ; also sec. 1, note 2, and cases
there cited of conditional limitations of tenancies at will. It seems that both
tenancies from year to year and at will may be limited to expire at a fixed
date, if not terminated earlier bv notice to (]iiit.
540
Ch. VIII. S. 7.] NOTICE TO QUIT. *339
purchaser is let into possession until a given day on terms
the same rule will apply (Ji).
Where notice to quit is dispensed with. — It may be ex-
pressly stipulated tliat the tenant may quit tvithout notice, at
any time, upon the happening or discovery of a particular
event or fact (which happens), ex. gr. "if he tinds anything
that may at all lead him to suspect that there is any embar-
rassment in his landlord " (t).
Monthly or weekly tenancy. — Where the tenancy is other-
wise than yearly, and there is no local custom or special stip-
ulation as to notice, it is very doubtful what notice to quit is
necessary,^ A notice corresponding with the period of ten-
{h) Doe d. Leeson v. Sayer, 3 der, 1 Stark. 308; Right d. Lewis i'.
Camp. 8 ; Doe d. Parker v. Boulton, Beard, 13 East, 210.
H M. & S. 148 ; Doe d. Moore v. Law- ((') Bethell v. Blencowe, 3 M. & G.
119.
1 The shorter tenancies. — (a) Notice to terminate. — Tenancies for tlie
sliorter Jixed periods (week, month, quarter, &c.) terminate, like terms for
years, without notice. In fact (though fractional) thoy are tenancies for
yeavs. 4 Kent's Com. sec. 85.
(6) Shorter periodiad tenanciea. — It is usually held at common law in Amer-
ica that a notice equal to the intervals between rent payments is sufficient to
terminate them, as three months to terminate a tenancy from quarter to
quarter, Witt (•. Mayor of N. Y., 0 Rob. 441 ; one montli, from month to month,
Anderson u. Pindle, 19 Wend. (N. Y.) 391; 23 Id. 61(3; McDevitt v. Lam-
bert, 80 Ala. 536 ; Prickett i". Ritter, 16 III. 97 {per Scates, J.); Huyser v.
Chase, 13 Mich. 98 ; Woodrow v. Michael, Id. 190 ; Sanford i'. Harvey, 11
Cush. (Mass.) 93 ; and Walker v. Sharpe, 14 Allen (Mass.) 43 (and this is so
by statute in Mass.) ; Gunn v. Sinclair, 52 Mo. 327 ; Gruenewald v. Schaales,
17 Mo. App. 324 (and by statute in Missouri) ; a week, from week to week
{per Walworth, Chan., in Anderson v. Prindle, 23 Wend. 619).
(c) Statutory notices to terminate the shorter tenancies and tenancies at icill. —
The notices are very frequently fixed at the intervals between rent paj'mcnts,
but not always, and there is a great variety in the statutes.
In Nova Scotia (Rev. Sts. ch. 125), New Brunswick (Con. Sts. ch. 83, sec.
10), Quebec (Civil Code, sec. 1657), Ontario (Rev. Sts. ch. 143, sec. 15), Mani-
toba (Con. Sts. ch. 54, sec. 8), and Delaware (Laws of Delaware, ch. 101,
sec. 4), tenancies from month to month are terminated by a month's notice
and from week to week by a week's notice. In Quebec tenancies from quar-
ter to quarter, as well as all uncertain verbal and presumed leases, are termi-
nated by a three months' notice.
In Massachusetts (Pub. Sts. ch. 121, sec. 12), Michigan (Statutes, sec.
5774), and Minnesota (Sts.cli. 76, sec. 40), the notice to terminate a tenancy
at will is three months, but if the rent is payable oftener than that the notice
will be sufficient if equal to the intervals; and, in case of non-payment of
rent, fourteen days' notice is sufficient.
541
*339 DETERMINATION OF TENANCY. [Ch. VIII. S. 7.
ancy, ex. gr. a week's notice in case of a weekly tenancy, is
clearly sufficient (Z:), but whether it is necessary is not set-
(Jc) See Doe d. Peacock v. Eaffan, 6 Esp. 4.
In Iowa (Rev. Code, sec. 2015), Kansas (Compiled Laws, sec. 3207), and
Maine (Rev. Sts. ch. 9i, sec. 2), notice to terminate a tenancy' at will is thirty
days. In Iowa and Kansas, if the intervals are less than thirty days, the
notice will be sufficient if it equal them.
In New York (3 Rev. Sts. Part 2, Tit. 4, sec. 7), Maryland (Rev. Code,
Art. 67, Subtitle 7, sec. 1), Indiana (Rev. Sts. sec. 5207), Kentucky (Gen.
Sts. ch. 66, Art. 6, sec. 1), Missouri (Rev. Sts. ch. 45, sec. 3077), California
(Civil Code, sec. 789), and Dakota (Civil Code, sec. 239), notice in case of a
tenancy at will is one month.
In Indiana (Rev. Sts. sec. 5209), if the periods are shorter than three
months, the notice will be sufficient if it equal them; likewise in Wisconsin
(Rev. Sts. sec. 2183), if they are less than a month.
In Missouri (Rev. Sts. sec. 3078) all tenancies less than from year to year
may be terminated by a month's notice.
In New York City, unless otherwise expressly agreed, rent is payable quar-
terly upon all leases, and they expire May 1 (3 R. S. Part 2, Tit. 4, sec. 1).
In Illinois (Statutes, ch. 80, sec. 6) thirty days is required to terminate a
monthly tenancy, or for periods less than a year. Seem v. McLees, 24 111. 192 ;
Brownell v. Welch, 91 Id. 523 ; though it is still considered that tenancies at
will are determined without notice, Dunne v. Trustees of Schools, 39 111. 578 ;
Herrell v. Sigeland, 81 Id. 457.
In Colorado one month's notice terminates a half-yearly, and ten daj's a
monthly, tenancy (Gen. Sts. sec. 1504). In Georgia two months' notice from
landlord, or one month from tenant, will terminate a tenancy at will (Code,
sec. 2291).
In North Carolina notice to terminate a tenancy from month to month is
fourteen days; from week to week, two days (Code, sec. 1750).
In Rhode Island, in terms less than year, notice is one-half the term, not
exceeding three montlis (Pub. Sts. ch. 232, sec. 1).
In Mississippi (Rev. Code, sec. 1330) the notice to terminate half-yearly
and quarterly tenancies is one month ; to terminate monthly or weekly ten-
ancies, it is one week.
In Oregon the notice is ten days in all cases except farming tenancies, and
for such tenancies it is ninety days (Law of Ore. sec. 3520).
In Connecticut parol leases reserving monthly rent expire without notice
at end of month (Gen. Sts. sec. 2967).
In New Hampshire (Gen. Laws, ch. 250, sec. 2) tliree months' notice is suf-
ficient in all cases, thirty days if rent is payable oftcner than once in three
months, and seven days if the rent is in arrears.
In Pennsylvania proluthli/ a notice cqw.d to the rent intervals would bo
sufficient to terminate the shorter periodical tenancies. "The Law of Land-
lord and Tenant in Pennsylvania" (by Jackson and Gross), p. 213.
The editors rely upon outside decisions, and say there are good lawyers
who differ from them.
Several of the states have no statutory jjrovisions for terminating either
tenancies at will f)r tlu- shorter periodical tinancies.
Termination of notices. — Notices to terminate the shorter periodical ten-
542
Cii. VIII. S. 7.] NOTICE TO QUIT. *340
tied. It was ruled by Parke, B., at nisi priu;-; (Z), in
an action for use and occupation, *that the well- [*340]
known rule that a yearly tenancy cannot be deter-
mined without a half-a-year's notice "cannot be applied to a
weekly takhig," inasmuch as " the eifect of it would be to
show that half-a-week's notice was necessary to put an end
to such a tenancy ; " that a week's notice to quit is not im-
plied as part of the contract in a weekly taking, and that a
tenant who quitted on the same day of the week on which
he entered was not bound to pay rent for the week subse-
quent. But in Jones v. Mills (w), the Court of Common
Pleas held that a tenancy from week to week does not deter-
mine without some 7'easonahle notice : and that an ejectment
cannot be maintained against such tenant without any pre-
vious notice. Both these cases being decided in favour of
the tenant, they are not so conflicting as has been generally
supposed. On the whole, the law appears to be that, in the
case of weekly tenancies, the landlord is entitled to such
reasonable notice, not exceeding a week, as will enable him
to get a new tenant, and the tenant to such reasonable
notice, not exceeding a week, as will give him a reasonable
time to remove his property from the premises (n).
Tenant may stay till midnight. — After notice given the
tenant appears to be entitled in strict law to stay until mid-
7iujht of the day on which the notice expires, at whatever
hour of the day the tenancy may have commenced, or the
notice may have been given ; — for the law takes no account
of fractions of a day. This seems to follow from the author-
ity (o) in which a notice to quit at noon (of the proper day)
was held bad in the case of a tenancy from year to year ; but
(0 Huffell V. Armistoad, 7 C. & P. (n) See per Erie, C. J., in Jones v.
56, 58. Mills, iibi supra, citing Tliunder <1.
(m) 10 C. B., N. S. 788; 31 L. J., Weaver v. Beiclier, 'A East, 449.
C. P. 66. "Williams, J., thought that (o) Page v. Moore, 15 Q. B. QQ.
a week's notice, and Willcs, J., that
half-a-\veek's notice, was necessary.
ancies must terminate at the end of the rent periods. Gunn v. Sinclair, 52
Mo. 327, 331; Russell v. McCartney, 21 Mo. App. 544, 547; Woodrow v.
Michael, 13 Mich. 187, 190 ; Sanford y. Harvey, 11 Cush. (Mass.) 93; Pres-
cott );. Elm, 7 Id. 34(5; Steward v. Harding, 2 Gray (Mass.) 335; Currier v.
Barker, Id. 224 ; Bay State Bank v. Kiley, 14 Gray (Mass.) 492.
543
*341 DETERMINATION OF TENANCY. [Ch. VIII. S. 7.
a custom to quit at a more convenient time, if it could be
proved in fact, would no doubt be good in law.
Proof of custom. — The onus of proof of any custom (where
a custom is relied on) lies on the party asserting its exist-
ence (j!?). If there be any such local custom or special stip-
ulation, notice to quit must be given accordingly ((^), and
such notice will of course be sufficient (?').
Tenants at will. — A notice to quit is unnecessary to deter-
mine a strict tenancy at will (s).^ But such tenancy must
be duly determined by a " demand of possession," or by entr}^
or by something equivalent, on or b'fore the date of the
plaintiff's alleged title in an ejectment (f'). Implied ten-
ancies at will frequently change into tenancies from
[*341] year to year, * upon payment of rent, &c. (m), in
which case the usual notice to quit must be given.
Tenants on sufferance. — A tenant on sufferance is not
(;0 Cole Ejec. 33, 37. d. Hall v. Wood, 14 M. & W. 682
{(]) Doe d. Peacock v. TJaffan, 6 (2nd point) ; Doe d. Hollingswortli
Esp. 4; Doe d. Finlayson r. Bayley, v. Stennett, 2 Esp. 717.
5 C. & P. 67. (0 Goodtitle d. Galloway ;;. Her-
()■) Doe d. Parry r. Hazell, 1 Esp. bert, 4 T. K. 680; Denn d. Brune r.
94 ; Doe d. Campbell v. Scott, 6 Bing. Rawlins, 10 East, 261 ; Doe d. Jacobs
362. I'. Phillips, 10 Q. B. 130; Doe d.
(s) Doe d. Tomes r. Chamberlaine, Nicbolls r. M'Kaeg, 10 B. & C. 721.
6 M. & W. 14; Doe d. Milburn v. (u) Clayton v. Blakey, 8 T. R. 3,
Edgar, 2 Bing. N. C. 498; Doe d. ante, 206.
Jones V. Jones, 10 B & C. 718; Doe
1 Tenancy at will ; notice to quit ; w^hen necessary. — A formal
notice to quit is not neccssan' to determine a strict tenancy at will /)// the com-
vion law. Jackson v. Bradt, 2 Caines (N. Y.) lOi); Jackson v. Rogers, 2
Caines' Cas. (N. Y.) 314, 318 ; Rich v. Bolton, 46 Vt. 84 ; Ellis v. Paige, 1
Pick. (Mass.) 43; Curl v. Lowell, 19 Id. 25, 26, 27 (per Wilde, J.) ; Jackson
V. Bryan, 1 Jolins. (N. Y.) 322, 323 (per Thompson, J.) ; Phillips v. Covert, 7
Id. 1, 4 (pel- Kent, C. J.) ; Humphries v. Humpliries, 3 Ircd. L. (N. C.) 362 ;
Davis V. Thompson, 13 Me. 209 (per Weston, C. J.) ; Moore i-. Boyd, 24 Me.
242 ; Withers v. Larrabee, 48 Id. 570, 571 (per Appleton, J.) ; Dunn^e v. Trus-
tees, .39 111. 578; Herrell v. Sizeland, 81 Id. 457.
The lessee, however, cannot be expelled without a demand of possession
and reasonahle time allowed him to remove his family and effects, and harvest
his croi)8. Ellis i-. I'aige, 1 Pick. (Mass.) 43; Curl r. Lowell, 19 Id. 25, 26,
27; Moore r. Boyd, 24 Me. 242; and many other cases, some of theni cited
supra.
Statutory notices are now frc(iucntly rcfjuired. See cMi/r, note, " Shorter
tenancies."
For many other ways, beside notice, in which tenancies at will may be
determined, see ante, ch. 8, sec. 1, note, " i'ermination of tenancies at will."
544
Cu. VIII. S. 7.] NOTICE TO QUIT. *341
entitled to any notice to quit, nor even to a demand of pos-
session, before an ejectment can .be maintained against
him (.r). But such tenancy will easily change into a tenancy
at will, or into a tenancy from year to year, whereupon a
demand of possession, or a regular notice to quit, will become
necessary (^).
Intruders. — If a man get into possession of a house to be
let, without the privity of the landlord, and they afterwards
enter into negotiations for a lease, but differ upon the terms,
the landlord may maintain ejectment to recover possession
of the premises without giving any notice to quit (s). But
possession should be demanded before action, to put an end
to any implied tenancy at will, arising from the negotia-
tions (a).
Mortgagors. — A mortgagor who is suffered to remain in
possession, or in receipt of the rents and profits of the prop-
erty mortgaged, not being a tenant of the mortgagee, but in
the nature of a bailiff to receive the rents, and thereout pay
the interest, and keep the surplus for his own use (5), is not
entitled to any notice to quit, nor even to a demand of pos-
session, before ejectment ((?).
Tenants of mortgagor. — Tenants from year to j^ear of the
mortgagor, whose tenancies commenced before the mortgage,
are entitled to the usual notice to quit (d). But if their
tenancies commenced after the mortgage, they are not
entitled to any notice to quit, nor even to a demand of
possession (e), unless a new tenancy has been created as
between the mortgagee and the tenant (/).
(x) Doe (/. Moore v. Lawder, 1 Goodier, 10 Q. B. 957 ; Doe d. Gar-
Stark, n. 308; Doe d. Leeson v. rod v. Olley, 12 A. & E. 481; Cole
Sayer, 3. Camp. 8 ; Doe d. Roby v. Ejec. 38, 462 ; but see "West v. Eritche,
Maisey, 8 B. & C. 767. . 3 Exch. 21G.
{y) Cole Ejec. 38. {d) Doe d. Bowman i'. Lewis, 13
{z) Doe d. Knight v. Quigly, 2 M. & W. 241 ; 2 D. & L. 607.
Camp. 505. (e) Keech v. Hall, 1 Doug. 21 ; 1
(rt) Cole Eject. 58. Smith L. C. 579 ; Thunder d. Weaver
{b) Trent v. Hunt, 9 Exch. 14 ; v. Belcher, 3 East, 450 ; Doe d.
ante, 47. Parker v. Boulton, 6 M. & S. 14'8.
(c) Doe d. Roby v. Maisey, 8 B. & (/) Doe d. Hughes v. Bucknell, 8
C. 767; Doe d. Fisher v. Giles, 5 C. & P. 566; Doe d. Whittaker v.
Bing. 421 ; Doe d. Snell v. Tom, 4 Hales, 7 Bing. 322.
Q. B. 615; Doe d. Wilkinson v.
545
*342 DETERMINATION OF TENANCY. [Ch. YIII. S. 7.
Corporations. — It seems that notice to quit need not be
given by or to a corporation aggregate where there has been
no demise nnder seal, and that either party may determine
the tenancy at any time without notice (^).^ A notice to
quit (when necessary) may be given by the steward of the
corporation without his being authorized so to do under the
common seal (^.) If given to a corporation it must be
directed to them, and not to their head officers (Q.
[*342] * Where the plaintiff claims by title paramount to
the tenancy from year to year notice to quit is unnec-
essary (A-).
Disclaimer. — A disclaimer by a tenant from year to year
of the reversioner's title renders any notice to quit unnec-
essary (?).
(d) Bi/ whom and to whom given.
By whom. — A notice to quit may be given either by the
landlord or by the tenant, or by the authorized agent of
either party (jn).
Agents. — The agent, who, if acting generally, may give
the notice in his own name, but not if he is acting sj)e-
cially (w), ought to have sufficient authority when the notice
is given, or, at the latest, when it begins to operate : a; sub-
seqlient recognition is not sufficient (o). Where the trustees
of a marriage settlement left the entire control and manage-
ment of the trust estates to their cestui que trust, who was
tenant for life in possession, it was held, that he was their
general agent in that behalf, and had power to give notices
(fj) Fiiil.iy V. Bristol and E.xctor R. {h) Doe d. Tutland i'. Ilildcr, 2 B.
Co., 7 Exch. 409; Copper Minors' & A. 782 ; Cole Ejec. 40.
Co. V. Fox, 16 Q. B. 229; Pennington (/) Post, Sect. 8; Cole Ejec. 41.
V. Cardale, ?> 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 </.
(/) Doe d. Earl of Carlisle v. Fisher v. Cuthell, 5 East, 491, 498.
Woodman, 1 East, 228.
' The same rules pertain as in cases of individuals in the United States.
54G
Cii. VIII. S. 7.] NOTICE TO QUIT. *343
to quit, and that such a notice given in his own name only
was sufficient (j^). But when a notice to quit is given by
a particular agent, having a limited authority only, such
notice should be given in the name of the principal, or
expressly on his behalf (g). A notice given by an agent in
the names of W. and B. " and others " is valid as a notice
from W. and B. only (r). A notice by an agent of an agent
is not generally sufficient (»)•
Assignees, devisees, heirs, executors, &c. — Any person for
the time being legally entitled to the immediate reversion of
and in the demised premises, ex. gr. as assignee, devisee,
heir, executor or administrator of the landlord, may give
notice to quit (f). ^ One of several executors or administra-
tors is competent to give a notice to quit on behalf of all (m).
Any subsequent owner deriving title through or under the
party giving the notice may avail himself of it (x).
Subsequent mortgagee. — A mortgagee whose mortgage is
subsequent to the commencement of a tenancy from year to
year created by the mortgagor is an assignee of the rever-
sion, and he may give the tenant the usual notice
* to quit (?/). But a prior mortgagee need not give [*343]
any notice to quit (3).
Partners. — Where A. demises to a mining company, and
afterwards becomes a member of that company, he may
nevertheless give the company notice to quit, and afterwards
(/)) Jones V. Phipps, L. R., 3 Q. B. (.r) Doe d. Earl of Egreniont v,
303; 37 L. J., Q. B. 173. ITellings, 6 Jur. 821, Q. B.; Doe d.
(7) Doe (/. Lyster v. Goldwin, 2 Q. Earl of Egremont r. Forwood, 3 Q.
B. 143, 146 ; IBuron v. Denman, 2 B. 627 ; Doe d. Higgs v. Terry, 4 A.
Exch. 188 ; Cole Ejec. 44. & E. 274.
(r) Doe d. Bailey v. Foster, 3 C. (,'/) Burrovves v. Gradin, 1 D. & L.
B. 215. 213, 218 ; Rawson v. Eicke, 7 A. &
(s) Doe d. Rhodes r. Robinson, 3 E. 451 ; Burton v. Dickenson, 17 L.
Bing. N. C. 077 ; Cole Ejec. 45. T. 246.
(0 Cole Ejec. 42. (z) Ante, 314.
(u) Id. 43.
1 The notice ought to show the assignee's authority, Donaldson r. Likens,
2 Brewst. (Pa.) 486 ; but the omission may be corrected orally at the time of
service, Thamm v. Hambcrg, Id. 528.
647
*343 DETERiUNATION OF TENANCY. [Ch. YIII. S. 7.
maintain ejectment against them (a). Where a brewer de-
mised to a publican upon a yearly tenauc}', determinable
at any time by three months' notice, after which the brewer
took in two new partners, and the subsequent receipts for
rent were given in the name of the firm : held, that a notice
to quit given by the lessor in his own name only was suffi-
cient, and that it was not to be presumed from the receif)ts
that the legal estate in the reversion had vested in the firm (6).
Joint tenants. — Where several joint tenants demise from
year to year, such of them as give notice to quit may sever-
ally recover their respective shares (c). A notice to quit
signed by one of several joint tenants on behalf of himself
and the others (Avhether authorized by them or not) is suffi-
cient to determine a tenancy from year to year as to all ;
because the tenant holds the whole premises of all so long as
he and all shall please, and a notice to quit given by any
one effectually puts an end to that tenancy (t?). And there-
fore also a notice to quit given on behalf of several joint
tenants by a person authorized by one of them to give such
notice is sufficient to determine the tenancy as to all (e). A
notice given by an agent in the names of W. and B. " and
others " is valid as a notice from W. and B. only (/).
Tenants in common. — A notice to quit given by oiie of
several tenants in common may be to quit his undivided
part or share (,^). Where they demise jointly they seem to
stand on the same footing as joint tenants, and notice to
quit may accordingly be given b}'' either of them on behalf
of himself and the others (Ji).
Receivers. — A receiver, whether appointed by the High
Court, or by a private individual with a general anthoriti/ to
(a) Doe (1. Harvey i;. Francis, 4 M. (p) Doe d. Kindersley v. Hughes,
& W. 331. 7 M. & W. 141.
(b) Doe d. Green v. Baker, 8 Taunt. (/) Doe d. Bailey v. Foster, 3 C.
241. B. 215.
(c) Doe d. Wliaynian v. Chaplin, 3 (//) Cutting v. Derby, 2 W. Blac
Taunt. 120. 107o ; Doe d. Robertson v. Gardiner,
(d) Doe d. Aslin v. Summersett, 1 12 C. B. .•323. See the {oTm,post, Ap-
B. & Ad. 1.35, 140; Doe d. Kinders- pendix C.
ley V. Hughes, 7 M. & W. 141 ; Al- (A) Cole Ejec. 44.
ford V. Vickery, Car. & M. 210;
Smith L. & T. 327 (2nd ed.).
548
Cii. VIII. S. 7.] NOTICE TO QUIT. *344
let the lands to tenants from j^ear to year, has thereby
implied authority to determine such tenancies by a regular
notice to quit (i). But a person authorized to manage the
affairs of another during his absence abroad, and to receive
his rents, has no authority implied hy laiv to deter-
mine a tenancy by notice to * quit ; but it is a ques- [*344]
tion of fact for the jury wliether he had such author-
ity (/f). "A mere receiver of rents, as such, has no author-
ity to determine a tenancy " (T).
To whom, given by landlord. — A notice to quit given by the
landlord should be given to his immediate tenant, or to his
assignee, &c., in whom the term is then vested, and not to a
mere subtenant (ni).^ A notice addressed to the tenant, but
served upon the subtenant upon the premises, is insuffi-
cient (?^). The notice should be directed to the tenant,
and may be delivered to his solicitor or agent (o). In
Tanham v. Nicholson (j») it was held by the House of Lords
that service ujion a person whose duty it would be to deliver
the notice to the tenant was sufficient to sustain ejectment,
although in fact the notice was never delivered to the tenant :
in this case the tenant was imbecile, and the notice was
delivered to his daughter, who lived in the house and man-
aged it. If the notice be served upon the tenant personally,
(0 Wilkinson v. Colley, 5 Burr. (»n) Pleasant d. Hayton v. Benson,
2696, 2698 ; Doe d. Marsack v. Read, 14 East, 234 ; Doe d. Morris v. Wil-
12 East, 57; Doe d. Manvers v. liams, 6 B. & C. 41.
Mizeni, 2 Moo. & R. 56. (») Doe d. Mitchell v. Levi, Ad.
(^•) Doe d. Mann v. Walters, 10 B. Ejec. 92, note (b).
& C. 626. (o) Doe d. Prior v. Ongley, 10 C.
(/) Id. 633, Parke, J. ; Doe d. B. 25, 34.
Rliodes v. Robinson, 3 Bing. N. C. (/>) 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<rht d. Flower v. Darby,
(2) Doe d. Armstrong v. Wilkinson, 1 T. 11. 159 ; Doe d. David v. Wil-
12 A. & E. 743. lianis, 7 C. & P. 322; Doe d. Murrcll
(a) Cole Ejec. 48; Doe d. Castle- v. Mil ward, 3 M. & W. 328; Koe d.
ton V. Samuel, 5 Esp. 173; Doe d. Brown r. Wilkinson, Co. Lit. 270 b,
Spicer v. Lea, 11 East, 312; Doe d. note (228).
Finlayson v. Bayley, 5 C. & P. 67; {d) Iloe rf. Brown f. Wilkinson, Co.
Doe </. Daniel />. 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 </. man, 4 Esp. 0.
Hinde v. Vincc, 2 Camp. 250 ; Doe (/. (*) Toole v. Warren, 8 A. & E. 587,
Willis V. Perrin, 9 C. & P. 467. 588.
(«) Doe d. Spicer i;. Lea, 11 East, (0 Atkland v. Lutley, 9 A. & E.
312; Smith v. Walton, 8 Bing. 235; 879.
Cadby V. Martinez,* 11 A. & E. 720. (h) Page r. More, 15 Q. B. 084.
{p) Denn d. Peters r. Ilopkinson, (.r) Doe </. Phillips r. Butler, 2 Esp.
3 D. & K. 507 ; Doe d. Hale v. Ben- 589; Doe d. Williams v. Smith, 5 A.
son, 4 B. & A. 588. & E. 350.
(7) Denn d. Willan v. Walker,
Pcakc, Ad. Cas. 194.
556
Cii. VIII. S. 7.] NOTICE TO QUIT. *349
expiration of the cuiTcnt year" is sufficient for the 29th
September, if the tenancy commenced from that day (y),
but it is better. not to use the expression current year (2).
A notice on 27th September to quit "at the expiration of the
term for which you hokl the same " is sufficient for Lady-
day, if the tenancy commenced from that day (a). A notice
to quit " at the expiration of the present year's tenancy " is
sufficient, although it does not appear on the face of it that it
was given six months before the expiration of the current
year of the tenancy (6).
When commencement of tenancy unkno-wn. — Where it is
unknown and cannot be ascertained or proved at what time
of the year the tenancy actually commenced, the notice
should be to quit on a specified quarter day, " or at the ex-
piration of the current year of your tenancy which shall
expire next after the end of one half-year from the service
of this notice " ((?). If an ejectment founded on such notice
be not commenced, nor the claimant alleged in the writ to
be entitled to possession, until some day after the third quar-
ter day succeeding that mentioned in the notice, such notice
will certainly be sufficient, supposing the rent to be payable
on the usual quarter days and no rent to be received which
accrued subsequently to the quarter day mentioned in the
notice. This is the safest course to be pursued under such
circumstances (d). But sometimes an implied admission
may be obtained from the tenant, by serving him personally
with a notice to quit on a particular day, and reading it to
him, or getting him to read it, if he make an objection to it
on the ground that it is to quit at the wrong time (e). But
the defendant may rebut such prim^ facie evidence as to the
""time when the term commenced by proof that the tenancy
(y) Doe d. Baker v. Wombwell, 2 (c) Doe d. Digby v. Steel, 3 Camp.
Camp. 559. 117 ; Hirst v. Horn, 6 M. & W. 393.
(s) Doe d. Mayor of Iliclimond v. (d) Cole Ejec. 5i.
Morphett, 7 Q. B. 577 ; Smith L. & (e) Thomas d. Jones v. Reece, 2
T. 323, 326 (2nd ed.). Camp. 047: Doe d. Charges, Bart. ;■.
(a) Doe d. Milnes v. Lamb, Ad. Forster, loEast,40o; Doe (/. Leioostor
Ejec. 272, Holroyd, J. v. Biggs, 2 Taunt. 109 ; Walker i;.
(b) Doe d. Gorst v. Timothy, 2 C. Code, (J H. & N. 594; 30 L. J., Ex.
& K. 351. 172.
657
*350 DETERMINATION OF TENANCY. [Ch. VIII. S. 7.
actually commenced at a different part of the year (/). In
the absence of such proof the jury should be directed to infer
and find' that the tenancy commenced at the time mentioned
in the notice (^). If the tenant, in answer to an application
by the landlord or his agent, state that the tenancy com-
menced on a particular day, and a notice is thereupon given
him to quit on that day, it seems that he will be
[*350] estopped from * afterwards proving tliat the tenancy
commenced on a different day (/;). It was once ruled
that a notice to quit upon a particular day was prima facie
evidence that the tenancy commenced on that day, and threw
upon the defendant the onus of proof that it commenced on
some other day (i). But it is now settled that such a notice
(without more) is not even prima facie evidence that the
tenancy commenced on the day therein mentioned (/c).
When tenant enters in middle of quarter. — When a tenant
enters in the middle of a quarter, and jjai/s rent for the broken
period to the next regular quarter da}^ and subsequently
pays his rent from quarter to quarter, his tenancy will be
deemed to have commenced, not when he first entered, but
at the ensuing quarter day, and notice to quit should be
given accordingly (?). But if he has not paid any rent the
tenancy will be deemed to have commenced on the day when
he entered, and notice to quit at that time will be good (jri).
"When different parts are entered at different times. — Where
different parts of the demised })remises were entered upon at
different times the notice sliould l)e to quit at corresponding
periods, "or at the expiration of the year of the tenancy
which will expire next after the expiration of half a year
from the delivery of this notice " («). Such notice has been
(/) Oakapple d. Green v. Copous, {k) Doe d. Ash ?•. Calvert, 2 Camp.
4 T. K. .301; Cadby v. Martinez, 11 388.
A. & K. 7"J0. (/) Doe d Ilolcoinl) v. .Johnson, 0
(f/) Walker r* Code, 0 II. & N. Esp. 10; Savage v. Stapleton, ;] C. &
rj04; ;5() L. .1., Ex. 172. V. 21^>\ 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 </. Williams i'. Smith, 5 A.
Esp. 7. & 1- yoO.
558
Cii. VIII. S. 7.] NOTICE TO QUIT. *351
held to be sufficient for the whole of the premises, if served
in time for the principal subject of the demise (o). But this
was in the case of agricultural tenancies, where the entry
upon the accessorial part of the premises was at a different
time from that upon the substantial part for agricultural rea-
sons, and the court viewed the landlord as having given a
licence to enter the accessorial part rather than as having
made a demise of it. If any doubt arise as to which is the
principal and which the accessorial subject of the demise,
that is a question of fact for the jury (|>) ; 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,
{</) Doe d. Heapy v. Howard, 11 5 Esp. 173; Doe d. Sj)icer v. Lea, 11
East, 498; Doe d. Kindersley v. East, 312; Doe f/. Tucker y. Morse, 1
Hughes, 7 M. & W. 141. B. & Ad. 365; Humphreys v. Franks,
(r) Ad. Ejcc. 107 (4th ed.) ; Doe 18 C. B. 323.
559
*352 DETERMINATION' OF TENANCY. [Ch. VIII. S. 7.
year to year was afterwards created (t) ; and where a new
landlord allowed the tenant of his predecessor to remain in
occupation and receiv^e rent from him (it). But this rule
applies only to a case where the tenant holds over on a lease
made to himself (a;).
Where a subtenant by assignment holds over, and pays
rent after the expiration of a lease commencing at Christmas
and expiring at jNlidsummer, a notice requiring him to quit
at Midsummer is good (^).
Where possession is under void demise. — Where the tenant
comes into possession under a void lease, a tenancy from
year to year is created ; but, -generally speaking, the holding
must be taken with reference to the period of entry under
the lease so far as regards the expiration of the notice to
quit: thus where a remainderman creates a new tenancy
with a tenant in possession under a void lease granted by a
tenant for life, and receives rent on the days of payment
mentioned in the lease, a notice to quit must expire on the
day of entry under the original demise (2). And it was held
in the leading case of Doe d. Rigge v. Bell, that if a landlord
lease for seven years by parol, and agree that the tenant
shall enter at Lady-day and quit at Candlemas, though the
lease be void by the Statute of Frauds as to the duration of
the term, tlie tenant holds under tlie terms of the lease in
other respects ; and therefore the landlord can only put an
end to the tenancy at Candlemas («).
[*352] * Where three months' notice sufficient. — Where
premises are let from year to year upon an agree-
ment that either party may determine the tenancy by a
quarter's notice, the notice must expire at the period of the
(0 Bcrrey v. Lindlcy, 3 M. & G. {z) Roc d. Jordan v. Ward, 1 H.
498; Doe d. Robinson r. DobcU, 1 Q. Blac. iUi ; Doe d. Collins v. Wellcr, 7
B. 800; Kemp v. Derrott, .'] Camp. T. R. 478 ; Beale v. Sanders, ;J Hinp
510. N. C. 850 ; Leo v. Smith, » Exch. ()02
(u) Kelley v. Patterson, L. \\., 0 C. («) Doe d. Rigije r. Bell, 5 T. R
P. 081 ; 4:3 L. J., C. P. 320 ; 30 L. T. 571 ; 2 Smith L. C. 90 (7th ed.) ; Doe
812, where see the cases reviewed by d. I'eaeock v. Rafl'an, 0 Ksji. 4
Brett, J. Richardson v. (Jiffard, 1 A. & E. 52
(x) Per Brett, J., id. Doc d. 'I'homson v. Amey, 12 A. & E
(//) Doe d. Buddie v. Lines, 11 Q. 470; Doe d. Davenish v. Moflatt, 15
B. 402. Q. B. 257.
560
Cn. VIII. S. 7.] NOTICE TO QUIT. *352
year when the tenancy commenced (/>) : 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 </. Fleming v. Somerton, 7
kins, 7 East, G61. g. B. •''.8 ; Keg. r. Mortlock, Id. 469;
Cole Ejec. 54, 159.
562
Cii.VlII. S. 7.] NOTICE TO QUIT. *354
served half a year before the time when the tenant is to quit
possession (w). Bnt a customary half-year's notice is suffi-
cient where the tenancy is from one of the usual quarter
days (a;). Where a greater or less notice than that usually
required by law is provided for by express stipulation or
local custom, it will be sufficient to give notice accord-
ingly (?/). Where a "six jnonths' " notice is agreed for, it
seems that a six lunar ^ months' notice is sufficient (z).
Sunday. — The notice may be served on a Sunday (a).
Service of notice to quit. — A notice to quit need not he
served iJerso7ially on the tenant.''^ It is sufficient to leave it
at his dwelling-house with his wife or servant (6). Such
service is sufficient although the notice does not actually
reach the tenant's (or landlord's) hands before the half-year
has commenced (c^. But merely leaving the notice at the
tenant's house, without any explanation, and without
proof that the person to whom * it was delivered was [*354]
the tenant's wife or servant, or that it ever came to
his hands, is not sufficient (t7). So service on the tenant's
wife, off the demised premises and without proof that it was
at her husband's residence, where she was then living with
him, appears to be insufficient (e). Service of the notice
upon a relative of the subtenant upon the premises is not
sufficient, although the notice was properly addressed to the
tenant (/). Putting the notice under the door of the ten-
ant's house, or any other mode of service, has been said to
be sufficient, if it be shown that the notice came to the teu-
(m) Right d. Flower v. Darby, 1 T. Yorkshire, 7 Q. B. 154; Appleton v.
R. 159, 163; Johnstone v. Huddle- Murray, 8 W.R. 658 ; Mason i-.Bibby,
stone, 4 B. & C. 932. 2 H. & C. 886, Pollock, C. B.
(x) Ante, 347. (c) Doe d. Neville v. Dunbar, Moo.
(.y) Ante, 352; Cole Ejec. .32, 53. & M. 10; Papillon ?•. Brunton, 5 H. &
(s) Rogers v. Kingston-upon-Hull N. 518 ; 29 L. J., Ex. 265.
Dock Co., 34 L. J., Ch. 165. (d) Doe d. Buross v. Lucas, 5 Esp.
(rt) The act 29 Car. 2, c. 7, s. 6, 153.
m.ikes only writs, &c. void. (e) Roe d. Blair v. Street, 2 A. & E.
(b) Smith V. Clarke, 9 Dowl. 209; 328, 331 ; Cole Ejec. 54.
.Jones d. Griffiths v. Marsh, 4 T. R, (/) Doe d. Michell v. Levi, Ad.
464 ; Roe d. Blair v. Street, 2 A. & E. Ejec. 92.
329; Reg. v. Js. of North Riding of
1 Calendar in United States. See ante, (a), note.
2 See ante, (d), note, " Service of notice."
663
*354 DETERMINATION OF TENANCY. [Ch. YIII. S. 7.
ant's hands before the commencement of the six montlis (^) ;
and in Tanham v. Nicholson (A) it was held that it was suffi-
cient to serve the notice upon a person whose duty it was
to deliver it to the tenant.
Sending notice by post. — In Papillon v. Brunton («), be-
tween nine and ten o'clock on the 25th March a tenant put
into a post-office in London a let;^er containing a notice to
quit on the following Michaelmas, and addressed to the
place of business in London of his landlord's agent. The
agent was at his place of business until between six and
seven o'clock in the evening and did not receive the letter,
but found it on the following morning. This was held a
sufficient notice to determine the tenancy, the jury having
found that the letter was delivered on the 25th jNIarch, after
the agent left (/). If a notice be j)osted on one da}-, and
delivered in due course of post on the next, the latter is
considered as the day on which it was sent(/c).
Joint tenants, corporations, &c. — Service on one of several
joint tenants is prima facie sufficient for all of them (Z).^
Service on a corporation ma}^ be on one of its officers (j/Oi
and in the case of a company " incorporated by act of parlia-
ment for the purpose of carrying on any undertaking," the
Companies Clauses Consolidation Act, 1845 (8 Vict. 16), pre-
scribes by sect. 135, that "any notice" may be served "by
being left at or transmitted through the post, directed to the
principal office of the company, or one of their principal
offices where there shall be more than one, or being given
(fj) Alford I'. Vickery, Car. & M. tion bcitiK for the jury. See Roscoe
280. on Kvidfiue, 14th cd. p. 029, citing
(//) Ante, .'j44. Gresliam House Estate Co. c. Rossa
(/) Papillon V. Brunton, 5 TT. & N. Grande IMininK Co., 5 W. N. 1870.
f)18 ; 20 L. J., Ex. 205. Tiiis ease does (/.-) Reg. v. Recorder of Richmond,
not decide tiiat mere posting amounts E., R. & E. 253 (notice of charge-
to a service in law; it seems, how- ability of i)auper) ; Tew r. Harris, 11
ever, that a notice to quit, if posted Q. R. 7 (notice of appointment of
i-o as to be delivered in due time, will referee).
be presumed to have been so deliv- (/) Doe v. Watkins, 7 East, 551;
ered, but that the ])resuMipti()n may Doe v. Crick, 5 Esp. 100.
be rebutted by proof that the notice (m) Doe i;. Woodman, 8 East, 228.
was not in fact received — the ques-
1 Sec (iiitr, (d), note, " Service of notice."
5C4
On. VIII. S. 7.] NOTICE TO QUIT. *355
personally to the secretaiy, or if there be no secretary, then
by being given to any one director of the company."
Agricultural tenants. — As to whether notice to quit may
be served by register(-d letter under s. 28 of the Agricultural
Holdings Act, see p. 337, ante.
* Indorsement of service. — A proper indorsement [*355]
of the service should be made in the usual course of
business, which will be admissible in evidence after the death
of the witness (w).
Proof of notice. — It is not necessary to prove the signature
to the notice (o) ; nor to produce the attesting witness (if
any ( j^)) ; nor to give notice to produce the original notice
served (5'). The regular service of a notice to quit, held to
have been properly inferred from the circumstance of the
tenant speaking about "the notice to quit which he had re-
ceived," and engaging a valuer to value his rights as an out-
going tenant (r). But a party who is driven to rely on such
evidence should, as a matter of precaution, give a notice to
produce the notice to quit, describing its contents fully (s).
(f) Waiver of Notice.
Creation of new tenancy by waiver. — A notice to quit can
be waived, and a new or continual tenancy created, only by
the express or implied consent of both parties (ty. " There
is this difference between a determination of a tenancy by a
notice to quit and a forfeiture ; in the former case the ten-
ancy is put an end to by the agreement of the parties, which
determination of the tenancy cannot be waived without the
assent of both ; but in the case of a forfeiture the lease is
voidable only at the election of the lessor : in the one case
the estate continues though voidable, in the other the ten-
(«) Doe d. Patteshall v. Turford, 3 (p) C. L. V. Act, 1854, s. 26.
B. & Ad. 890; Stapylton v. Clouo-h, (q) Ante, 353 (0.
2 E. & B. 933; Smith L. & T. 328 (;) Doe d. Simpson v. Hall, 5 M.
(2nd ed.). & G. 795.
(o) Forman v. Dawes, 1 Car. & M. (s) Cole Ejec. 160.
127. (/) Cole Ejec. 55.
1 Waiver of notice is usually a question for the jury. "Whitney v. Swett,
22 N. H. 10, 14.
565
*356 DETERMINATION OF TENANCY. [Ch. VIII. S. 7.
ancy is at an end'* («f). By a notice to quit given to a ten-
ant from year to year, his tenancy is determined on the expi-
ration of the current year ; and a waiver of the notice creates
a new tenancy, taking effect on the expiration of the old
one (r).
Guarantee for rent ceases. — A guarantee for the rent will
not extend to such new tenancy (:c).
Waiver by acceptance of rent or distress. — If a landlord
receive rent due after the expiration of a notice to quit, it is
a waiver of that notice (?/), and a distress for such rent is
also a waiver : but the landlord may receive or distrain for
rent at any time after the giving of the notice, so long as this
be done before the expiration of it.^
Even after the expiration of the notice, where rent is
usually paid at a banker's, if the banker, without any special
authority, receive rent accruing after such expiration, the
notice is not thereby waived (2) : so if the money be not
paid o" received as rent^ but as a satisfaction
[*356] * for the injury done by the tenant in continuing on
the premises as a trespasser, it will not have such an
operation (a). But where the money is expressly faid as
rent^ the landlord cannot, under protest or otherwise, receive
it only as compensation for subsequent occupation : such pay-
ment and receipt, notwithstanding the protest, will operate
as matter of law to Avaive all forfeitures then known to the
landlord (^). A demand of rent accruing subsequently to
the expiration of a notice to quit is not necessarily a waiver
r«) Blyth V. Dennett, 13 C. B. 178, (z) Doe d. Ash v. Calvert, 2 Conip.
180; 22 L. J., C. 1'. 79, 80; Dundy v. 387.
Nicholl, 4 C. B., N. S. 381. (a) Goodriglit d. Cliarter v. Cord-
(.t) Tayleur v. Wildin, L. R., 3 Ex. went, 0 T. R. 220; Zouch d. Ward v.
303; 37 L. J., Ex. 173. Willinfralo, 1 II. Blac. 311.
(//) Goodriglit d. Charter v. Cord- (/>) 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 (<?).
"Waiver by giving second notice. — Generally speaking, giv-
ing a second notice to (juit amounts to a waiver of a notice
previously given (t^) ; ^ but a good parol notice to (|uit will
not be waived by a subsequent insuflicient notice in writ-
ing (e). Where a landlord gave a notice to quit different
parts of a farm at different times which the tenant neglected
to do in part, in consequence of which the landlord com-
menced an ejectment ; and before the last period mentioned
in the notice was expired, the landlord, apprehending that
the witness by whom he was to prove the notice would die,
gave another notice to quit at the same respective times in
the following year, but continued to proceed with his ejects
ment, it was held that the second notice was not a waiver of
the first (/). If, after the expiration of a notice to quit,
the landlord give the tenant a fresh notice, that unless he
quit in fourteen days, he will be required to pay double
value, the second notice is no waiver of the first (//) : so if a
landlord give notice to his tenant to quit at the expiration of
the lease, and the tenant hold over, and a second notice be
delivered to the tenant, after the expiration of such notice,
"'■to quit on a subsequent day or to pay double rent;" it is
no waiver of the first notice (li).
By other acts. — If the landlord has given notice to quit,^
and the tenant holds over, the landlord cannot waive his
notice and distrain for rent subsequently accruing (J).
Where a three months' notice was given, the rent being
(c) Blyth V. Bennett, 13 C. B. 178 ; (9) Doe d. Digby ;•. Steel, 3 Camp.
Doe d. Cheny r. Batten, Cowp. 243. 117 ; Doe d. Godsell v. Inglis, 3 Taunt.
{d) Doe d. Brierly v. Palmer, 16 64; Blyth v. Dennett, 13 C. B. 178.
East, 53. (A) Messenger v. Armstrong, 1 T.
(e) Doe d. Ld. Macartney v. Crick, R. 53.
5 Esp. 196. (/) Jenner v. Clegg, 1 Moo. & R.
(/) Doe J.Williams i;. Humphrey, 21."); Alford v. Vickery, 1 Car. & M.
•> 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 </. Davics v. Evans, 6 M.
W. 095, 70:5 ; Doe d. Williams r. & W. 48.
Cooper, Hunt i: Allgood, and Jones (i) Doe d. (Calvert v. Frowd, 4
V. Mills, supra. Bing. 557 ; 1 Moo. & 1*. 480.
674
Cii. VIII. S. 9.] DISCLAIMER. *362
for life who had made a voidable lease, applied for rent to
the tenant, who at first did not refuse to pay, but after some
negotiation did so, saying that he understood that another
person was entitled to the estate ; lield that the remainder-
man might maintain ejectment without notice to quit or
demand of possession, there being a disclaimer of the re-
mainderman's title (a). Where several persons joined in
letting land, and it was agreed that the rent should be paid
to an agent for them, and afterwards one of the lessors, to
whom alone in fact the land belonged, demanded rent of the
tenant, who said " you are not my landlord : " it was left to
the jury to say whether he intended that the relation of land-
lord and tenant did not exist between them or merely that
the rent was to be paid to the agent (^). An attornment by
a tenant from year to year to a third person amounts to such
a disclaimer of the landlord's title as will enable him to main-
tain ejectment without any notice to quit (c). "I have no
rent for you, because A. B. has ordered me to pay none."
This is evidence of a disclaimer of the tenancy (c:?). In
another case the defendant had for several years occupied a
cottage as tenant from week to week to one M., and after the
death of M. the defendant continued to pay his rent weekh^
to certain persons to whom M. had devised the premises.
The devise being discovered to be void by reason of the
Mortmain Act, the heir at law of M,, by his agent, demanded
the rent. The defendant said that he had received notice
from the other party and ivould not pay any more rent until he
kneio who was the riyht owner. It was held, that this did not
amount to a disclaimer or repudiation of the title of the heir
at law so as to entitle him to eject the defendant without any
notice to quit (c).
Date of disclaimer. — Where a disclaimer is relied on, it
must a})pear to have been made before or on the day men-
tioned in the writ of ejectment as the time when the claimant
(«) Doe d. Phillips v. Rollings, 4 (</) Doe d. Whitehead v. Pittinan,
C. B. 188. 2 N. & M. 673.
(In) Doe d. Bennett v. Long, 9 C. & (e) Jones v. Mills, 10 C. B., N. S.
P. 773. 788.
(c) Throgmorton v. Whelpdale,
Bull. N. P. 90 ; Cole Ejec. 42.
575
*363 DETERMINATION OF TENANCY. [Cii. VIII. S. 10.
was entitled to possession (/). But where the defendant by
his agent, on 26th June, answered an application for rent by
saying that his " connection as tenant with the late John
Grubb, Esq. (through whom the plaintiff derived his title),
has ceased for several years, and that he now pays his rent to
his brother ; " this was held to be evidence of a disclaimer of
title before the \st May (on which day the demise was laid in
the ejectment), and rendered any notice to quit un-
[*363] necessar}^ (^^). In ejectment against two * persons as
landlord and tenant, an admission by the tenant, after
action brought, of an attornment by him to tlie landlord hav-
ing taken place before the day from which possession was
claimed in the ejectment, was held sufficient evidence of a
disclaimer as against both the defendants (/i)-
Waiver of disclaimer. — A disclaimer may be waived by any
act of the landlord acknowledging the party as his tenant at
a later period, as by a distress for subsequent rent (z).
Sect. 10. — Death.
Death of tenant. — A tenancy does not determine by the
death of the lessee, but will vest in his legal personal repre-
sentatives, who are entitled to give or receive the usual
notice to quit (/c).
Death of landlord. — So it will not determine by the death
of the lessor (Z), unless he was only a tenant for his own life,
and the demise was not made in pursuance of any power or
statute (w)' And even in such case the tenant, if the hold-
ing be agricultural, is entitled (in lieu of emblements («)) ^^
( f) Doe if. licwis V. Earl Cawdor, 1.3; Parker d. Walker r. Constable, •"
1 C, M. & R. ;581) ; 4 Tyrw. 852 ; Doe Wils. 25 ; James v. Dean, 11 Ves. .S!)l ;
d. Bennett r. Lontr. 9 C. & V. 77;5. Rex r. Stowe, (i T. R. 21)5, 208; Doe
(.7) Doe (I. Gnilib r. Grubb, 10 B. d. Hull v. Wood, 14 M. & W. 082.
& C. 810. (/) jNIaddon d. Baker v. White, 2
(//) Doe (/. Mee r. Litlierland, 4 T. R. 150 ; Cole Ejec. 31.
A. & E. 784. (m) Doe <I. Thomas v. Roberts, 10
(/) Doe d. David v. Williams, 7 M.itW. 77S: Doe r/. Kirby r. Carter,
C. & P. .322. Ry. & Moo. 2.!7.
(k) Maokay v. Maekreth, 4 Douj:. (h) Kelly r. Webber, 11 Ir. Com.
213; Doe d. Shore r. Porter, ;J T. M. E. Rep. 57.
Ch. VIII. S. 10.] DEATH. *363
hold the demised premises until the end of the then current
year of the tenancy (o).
"When term limited conditionally. — Sometimes a lease is'
granted for a certain term of years, if the lessee sliall so long
live ; in which case it will determine either at the end of the
specified term or upon the death of the lessee, which shall
first happen (j»).
Death of cestui que vie. — When a person holds for the term
of another's life he is called tenant pur autre vie ; leases made
by him of course determine on the death of the cestui que
vie, or person for whose life he holds, or at the end of the
then current year of the tenancy (q) : but not on his own
death; and a lease by him may be made to commence on his
own death (q}. We have already considered how a tenant
pur autre vie may be compelled to produce his cestui que
vie, if living ((/).
(o) 14 & 15 Vict. c. 25, s. 1 ; post, (p) Ante, Chap. IV., Sect. 3.
Appendix A., Sect. 4. (q) Ante, 148.
577
[*364] * CHAPTER IX.
OF THE RENEWAL OF LEASES, AND OF THE EXERCISE
OF AN OPTION TO PURCHASE.
1. Covenants to renew — vvheth- 4. Renewal by Trustees in their
er perpetual or not . . . 364 own Names 369
2. Forfeiture of Right to renew 367 5. Renewal without Surrender
3. Renewal by Minors, Lunatics of Sub-leases 371
and Married Women . . 369 6. Exercise of Option to pur-
chase 373
Sect. 1. — Covenants to renew — whether perpetual or not.
Construction of covenants. — Some nice points occur in the
books concerning the construction of covenants for the re-
newal of leases ; the question in general being Avhether the
renewed lease is to contain a similar covenant for renewal,
so giving a right of renewal for ever.^ Covenants for re-
newal of leases are considered as real agreements, and go
^ Covenants of renevral. — Covenants for renewal will not be construed
to create perpetuities if it can be avoided. Syms v. Mayor of New York, 105
N. Y. 158 ; Rutgers v. Hunter, 6 Johns. Ch. (N. Y.) 215 ; Banker v. Braker, 9
Abb. New Cases (N. Y.) 471.
A covenant to renew does not imply insertion of covenant to renew, Pig-
got V. Mason, 1 Paige (N. Y.) 412 ; nor does covenant to renew with similar
covenants, Carr v. Ellison, 20 Wend. (N. Y.) 178 ; Muhlenbrinck v. Pooler,
40 Hun (N. Y.) 526.
It implies same term and rent, Kent, Chan., in Rutgers v. Hunter, 6 Johns.
Ch. (N. Y.) 215, 218; M'Coun v. Clian. in Willis v. Astor, 4 Edw. Ch. (N. Y.)
594, 595 ; Cunningliam v. Pattee, 99 Mass. 248; but not necessarily the same
covenants generally in new lease, Rutgers v. Hunter; Willis v. Astor, supra.
A privilege of " further term," of one, two, and three years, entitles at most
to one term for three years. Austin v. Stevens, 38 Ilun (N. Y. ) 41.
In case of alternative covenant to renew after valuation of premises, less
improvements, by arbitrators, or to pay for improvements, tlie court (liolding
it could not enforce arbitration) awarded damages. Hopkins v. Oilman, 22
Wis. 476.
Under covenant of perpetual renewal, tenant cannot do anything to impair
value of security. Crowe v. Wilson, 65 Md. 479.
Subject to that, he may tc:\r down, build up, alter, or remodel, as ho
pleases (^per Bryan, J., in Wilson v. Crowe).
578
Cii. IX. S. 1.] COVENANTS TO RENEW. *365
with the hind, and therefore will affect even the legal in-
terest of those who take the estate with notice of such
leases and covenants (a) : but a covenant for perpetual re-
newal, entered into by a person having a limited interest
in lands, does not bind the estate ; and therefore, if his
assignee acquire the inheritance, it is not bound by the cove-
nant (5). A covenant for renewal, which is so framed as to
create a perpetuity in the heirs of the body of a particular
person, is invalid (c).
Running with land. — It has been already stated that a
covenant for renewal runs both with the reversion and the
land (<'<?) .
Ordinarily not held perpetual. — The leaning of the courts
is against perpetual renewals (t?) ; and therefore, in order to
establish this construction, the intention must be unequiv-
ocally expressed, and a proviso in general terms, that the
lease to be granted shall contain the same covenants and
agreements as the lease containing the covenant, has been re-
peatedly held not to extend to the covenant for renewal (e).
An agreement in a lease for lives, that upon the
renewing or inserting of any life or lives, a * certain [*365]
sum shall be paid by the lessee, his heirs and assigns,
to the lessor, his heirs and assigns, does not amount to a cove-
nant for perpetual renewal (/). A covenant in a lease of
land for ninety-eight years, that the lessor will from time to
time renew the lease, and perfect such other assurances as the
lessee should reasonably require for strengthening, confirm-
ing and sure-making the demised premises, at such rents,
and under such covenants and conditions, as in the lease
were contained, is not a covenant for perpetual renewal (</).
(rt) Earl of Shelburne v. Biddulph, (cc) Ante, 1G.3 (y) and (::).
6 Bro. P. C. 363. (d) Baynham v. Guy's Hospital, 3
(b) Brereton v. Tuohey, 8 Ir. Ch. Ves. 298.
R. 190 ; Postlcthwaite v. Lewthwaite, (e) 4 Jarm. Free. 394 (3rd ed.) ;
2 J. & H. 237 ; 31 L. J., Ch. 584 ; and Tritton r. Foote, 2 Bro. C. C. 636 ; 2
see Trumper v. Truniper, L. R., 14 Cox, 174.
Eq. 295; 41 L. J., Ch. 295. (/) Smyth i;. Nangle, 7 CI. & Fin.
(c) Hope V. Mayor, &e., of Glouces- 405 ; 1 West, 184.
ter, 7 be G., M. & G. 647; 25 L. J., (,/) Browne v. Tiglic, 2 CI. & Fin.
Ch. 145. .396.
579
*365 RENEWAL OF LEASES. [Ch. IX. S. 1.
Where one, in consideration of bl. 8s. in nature of a fine,
and of a yearly rent of 6s. 9c?. demised certain ground, with
the buildings, &c., for twenty-one years, with a proviso for
distress if the rent were in arrear for fourteen days ; and
the lessor covenanted at the end of eighteen yeais of the
term, or before, on request of the lessee, to grant a new
lease of the premises " for the like fine, for the like term of
twenty-one years, at the like yearly rent, with all covenants,
grants, and articles, as in that indenture were contained : "
it was held, that this covenant was satisfied by the tender of
a new lease for twenty-one years, containing all the for-
mer covenants except the covenant for future renewal (Ji).
Where a lessor covenanted to renew the lease at the request
of the lessee within the term ; and the lessee did not request,
but his executors did; Lord Macclesfield, C, ordered the
lessor to renew the demise of the premises for twentj'-one
3'ears, that being the usual term, but said that though the
new lease was to be made on the same covenants, yet that
that did not take in a covenant for renewing («'). In another
case, premises were demised for three lives and for twenty-
one years after the death of the last survivor. The lessor
covenanted with the lessee that if he should lose a life and
think proper to have a new life put in, then, within six
months after the death of the first life, and so on continuing
the term and estate thereby demised, the lessor would put
in a new life ; it was held, that the lessee had power to
introduce one new life only, and that one in the place of
the first life dropping, but with a new term of twenty-one
years, commencing with the death of the survivor of the
two survivors and the new life (/r).
Also in Swinburne v. Milburn (/) a right of renewal was
held not to be perpetual, but to bv^; a riglit of renewal as
often as any of three lives should drop, but the covenant in
this case was so special, that a reference thereto is considered
sufficient.
(/() Ipgulden V. May, 7 East, 2;]7 ; (/ ) Walmcsloy v. Pilkington, 35
2 New K. 449; 9 Vcs. .SSI. licav. 302.
(/) Hide V. Skinner, 2 V. Wnis. (/) L. R., 9 App. Cas. 844 ; 54 L.
VM ; but see 3 Atk. 448. J., Q. B. 0.
580
Cii. IX. S. 1.] COVENANTS TO RENEW. *366
Perpetual renewal. — But although prima facie a
lessor is not taken to have intended to * enter into [*3G6]
a covenant for perpetual renewal if there are in the
lease expressions indicative of such an intention, the High
Court will give effect thereto (jn). Thus, where a lease for
lives contained a covenant on the death of either of the
cestui que vies to execute a renewed lease at the same rent,
and subject to the same covenants, "including this present
covenant:" it was held, that this was a covenant for per-
petual renewal, and that the lessee was entitled to have
inserted in tiie renewed lease a covenant for renewal totldem
verbis with that contained in the original lease, but with the
name of the new cestui que vie substituted for that of the
deceased (n). It was once held that a lessor and his an-
cestors had, by their own acts of successive renewal, con-
strued a covenant in a lease for lives to be for a perpetual
renewal, and that he was therefore bound by it (o). But in
a subsequent case, this method of construing the covenant
by the equivocal acts of the parties was repudiated (p).
Renewal to one of two lessees. — One of two lessees has
no single right of renewal (^).
Breach of covenant to " endeavour " to renew. — If a lease
for ninety-nine years, determinable on three lives, be con-
veyed in trust for A. for life, and A. covenant to use his
utmost endeavours, as often as any of the persons on whose
lives the premises are held shall die, to renew the same by
purchasing of the lord of the fee a new life in the room of
such as shall fail, it is no breach of the covenant, if upon
one of the lives failing he procure a renewal upon his own
life (r). A sum falling short of three years' annua.1 value of
premises, calculated on the rack rent, is not an unreasonable
fine for the renewal of a lease by the Duchy of Cornwall ;
and therefore the lessee having covenanted in a sub-lease to
(m) Hare v. Burgess, 4 K. & J. 45; Yes. 298; Eaton v. Lyon, Id. 004;
27 L. J., Ch. 80 ; liridges r. Hitch- Iggulden v. May, 9 Vcs. 331 ; 7 East,
cock, 1 Bro. P. C. 522 ; Furnival v. 237 ; 2 New R. 449.
Crewe, 3 Atk. 83. {q) Finch r. Underwood, 45 L. J.,
(w) Hare v. Burgess, supra. Ch. 522 ; post, 308.
(o) Cooke V. Booth, Cowp. 819. " (?•) Scudamore v. Stratton, 1 Bos,
Ip) Baynham v. Guy's Hospital, 3 & P. 455.
581
*367 RENEWAL OF LEASES. [Ch. IX. S. 2.
do his utmost endeavours to procure a renewal of the letters-
patent, on either of three cestui que vies dying, commits a
breach of his covenant by not paying such a fine demanded
for a renewal (s).
Trust for renewal. — Under a trust to renew leases out of
the rents, issues and profits, followed b}^ a power to mortgage
in case, from any cause, the money wanted to pay the fines
should not be produced by the ways and means aforesaid, it
was held that the rents being sufficient for that purpose, the
fines ought to be paid out of the income (^). A trust for
renewal fails if renewal be impossible («<).
[*367] * Sect. 2. — Forfeiture of Right to renew.
By not applying in time. — Where it was covenanted that
the lessor would renew whenever any life or lives, dropped,
provided that if the lessee, his executors or administrators,
upon or after the death of an}^ of the life or lives should
refuse or neglect to renew the said lease, or make applica-
tion therein, or tender such new lease, and pay or tender a
certain fine, then the indenture should be void ; it was held,
that the lessee forfeited his right of renewal for not appl3-ing
Avhen the first life dropped (.r). But where a lease, for
sixty-one years, of house property contained a covenant that
the lessee might renew, on certain terms, at the end of each
and every term of fourteen years, on giving ten days' notice
of such his desire ; and the lessee, or those claiming under
him, continued in possession after the two first terms of four-
teen years each had expired, and then, before the expiration
of the third fourteen years, desired to renew : held, that the
lessee was not precluded, by liis not having given notice
earlier, from claiming his right to liave a renewed lease in the
terms of the covenant (2/). A covenant in a corporation
(.s) Simpson v. Clayton, 4 Bing. N. (r) Bnynham i-. Guy's Hospital, 3
C. 7G8. Vfs. 2!tr); Eaton I'. Lyon, Id. 0!M),
(0 Sollcy V. Wood, 20 Beav. 482. (>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, 0 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, 0 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'<ii"s.
(r) Id.; Bradbury v. Wright, 2 (u) fA J.. J. Ch. 4!)7 ; '.V.l W. R. 42
DourI. 024. (C. A.).
(s) 2 Blac. Com. 41 ; Cilh. RentH, (.r) Ramsdcn v. Dyson, L. R., 1 II.
38; Co. Lit. 144, Ilarfr. n. (5). L. 129.
(I) Doc (/. Whittick v. .lohn.son, Cow,
696
Ch, X. S. 1.] DIFFERENT KINDS OF KENT. *378
Peppercorn rent. — ■ A peppercorn rent is a nominal rent
not intended to be paid, but stipulated for on the view
(which is not correct) ^ that the reservation of some reiit is
necessary to constitute a lease. It is most frequently found
in building leases, in wliich it is usually reserved for the
first few years of the term only, during which the houses
to be built will be in course of erection only, and therefore
not yet profitable to the lessee.
Rent having no money value. — The residue, if not less than
200 years, of a term (not liable to be determined by re-entry,
or created by sub-demise) originally created for not less than
300 years, without any trust for the freeholder, and without
any rent " or with merely a peppercorn rent or other rent
having no money value " (//) may, under sect. 65 of
the Conveyancing * Act, 1881, as amended by sect. [*378]
11 of the Conveyancing Act, 1882, be enlarged into
a fee simple.
Rent barred by time. — The Statute of Limitations (see
chap. xiii. s. 1) does not apply to rent reserved on a lease (z) ;
but the provisions of the Conveyancing Acts above mentioned
apply also to cases where a rent having money value has
become barred by lapse of time.
Rack-rent. — Rack-rent is a rent of the full annual value of
the tenement, or near it (a).
Fore-hand rents or fines. — A fine or premium given by the
lessee to the lessor at the time of taking or renewing a lease
is in the nature of a fore-hand rent, and has been considered as
an improved rent (6). In the case of renewal of a lease by
an ecclesiastical corporation, if an accident, which has not
happened from their fault or that of the tenant, delay the
lease, a new member coming in has his proportion of the
fine (5).
(?/) A rent so small as to be iinsale- (2) Grant v. Ellis, 9 M. & W. 113.
able, as a rent of 3s., has been held not (a) 2 Blac. Com. 42.
to be within these words {re Smith (/)) Irish Society ;•. Needham, 1 T.
and Scott, 31 W. R. 411) ; but a rent R. 486; Southall v. Leadbetter, 3 T.
of " one silver penny if demanded" R. 461; Wynne v. Bampton, 3 Atk.
is clearly within them {re Chapman 473.
andHobbs,33 W. R. 703).
^ See ante, note, " Rent," &c.
697
*379 RENT. [Ch. X. S. 2.
Reut payable in advance. — Sometimes rent is made pay-
able from quarter to quarter or otherwise in advance. Such
rent could not of course be recovered in advance in an
action for use and occupation (c), but a distress may be
made,^ or an action maintained for such rent, as soon as it
becomes payable, according to the terms of the demise (c?).
The reservation should be clearly expressed so as to make
the rent payable from time to time in advance : otherwise
it may perhaps be construed as applicable to the first quarter
only (e). Thus where premises were let, " the yearly rent
to be 1101., and to be payable in advance if the landlord
required the same," nothing being said as to the days of pay-
ment ; and af tei' a quarter had expired the landlord demanded
a quarter's rent only : it was held, that he was not entitled
to dis'train for the whole 1101. (/). But where it was a
condition in the lease of a farm that the tenant should pay
the last half-year's rent in advance, which last half-year's
rent should be considered as reserved and dae on the 29th
September preceding, if the landlord should see cause for
such demand ; it was held, that the landlord was entitled to
demand the last half-year's rent, and to distrain for it at
any time between the 29th September and the expiration of
the tenancy, without demand previous to the 29th Septem-
ber (g).
[*379] * Sect. 2. — Reservations of Rent.
(a) Mode of Reservation.
Reservation ought to be sufficiently certain. — The USUal
formal reddendum in a lease is not essential. Any expres-
sions showing the intention of the parties that a rent shall
(0 Angell V. Randall, 10 L. T. 480. 101 ; Hopkins r. Hclmorc, 8 A. & E.
(f/) Jc-nncT r. VAv^k, 1 Moo. & R. 40:5.
2i:j; Lee i;. Smith, 9 Exfli.002; Mor- (/) Clarke v. Holfonl, 2 C. & K.
ton V. Woods, L. H., 3 Q. H. Or.8; 37 54o'.
L. J., Q. B. 242; Smith L. & T. 218 (7) Witty v. Williams, 12 W. K.
(2nd c'd.). 765.
(e) Holland v. Falser, 2 Stark. R.
* deepest, ch. 11, sec. 10, (a), note, " Distress; when may be made."
598
Cii. X. S. 2.] RESERVATIONS OF RENT. *379
be payable will be a sufficient reservation (7<). The reserva-
tion of rent, however, ought to be certain as to the amount
and the time when payable (/) ; although if there be any-
thing in the reservation by which the amount of the rent
may be ascertained, this will be as good as if the sum itself
were clearly specified, in accordance with the maxim Id cer-
tum est quod certuni reddi potest (/c). Thus in Daniel v.
Gracie, the proprietor of a house, and of a marl pit and Ijrick
mine, demised the house by unwritten agreement to D. from
a day named, and it was at the same time agreed between
them, without writing, that D. should take the marl pit and
the brick mine, and should pay quarterly, at the usual quar-
ter days, Sd. per solid yard for all the marl that he got, and
Is. Sd.per tJiousand for allthe bricks that he made. D. took
the marl and made bricks accordingly, and paid the stipu-
lated sums for a time ; but they afterwards fell into arrear.
It was held, that the agreement for the marl pit and brick
mine was a demise of the land from year to year, at a rent
capable of being ascertained with certainty, for which, con-
sequently, the lessor might distrain (Z).
Rent may commence before enjoyment. — Rent may be
reserved to commence before the lessee is to enter upon
the enjoyment of the land. Thus where a man made a
lease of Blackacre to commence in futuro, and of Whiteacre
to begin in prsesenti, rendering rent payable at Michaelmas
before the commencement of the term in Blackacre ; it was
held to be a reservation immediately ; for it was but one
entire rent, and as such was payable according to the reser-
vation (?n). A subsequent agreement may by relation oper-
ate to make a reservation ol rent from the beginning (?i).
From what rent must issue. — Properly speaking, a rent
(h) Gilb. Rents, 30, 33; Doe d. Gilb. Eq. R. 45; Gilb. Rents, 9, 10;
Rains v. Kneller, 4 C. & P. 3; Attoe Co. Lit. 96 a, 142 a.
V. Hemmings, 2 Bulstr. 281; cited 2 (/) Daniel v. Gracie, 6 Q. B. 145;
H. & C. 427. and see Pollitt v. Forrest, 11 Q. B.
(/) Parker v. Harris, 1 Salk. 202; 949; Bowers v. Nixon, 12 Q. B. 546;
4 Mod. 79 ; Lit. s. 213 ; Gilb. Rents, 9. Edmonds v. Eastwood, 2 II. & N. 811,
(k) Orby V. Mohun, 2 Vern. 531, 826.
542 ; 2 Freera. 291 ; 3 Bro. P. C. 248 ; (m) Gilb. Rents, 25.
(») M'Leish v. Tate, Cowp. 781.
599
*380 RENT. [Ch. X. S. 2.
can be reserved out of no inheritance but such as is manur-
able, as it is called, or upon which the lessor may enter to
distrain (o) ; a lease of the vesture or herbage of the land
reserving rent is good, because the lessor may come upon
the land to distrain the lessee's beasts feeding thereon; but
a reservation of grass, herbage, or other vesture of
[*380] the land, would be bad, because * they are part of
the thing demised (j?). There is this difference
between a reservation, which is always of a thing not in
being, but newly created or reserved out of the land or
tenement demised ; and an exception, which is ever a part
of the thing granted, and of a thing in being (q}.
"Where reservations are entire or several. — There is a differ-
ence between a rent reserved entire, upon a demise of sev-
eral things in the same lease, and where the rent is not
originally reserved entire, but the reservation is several and
apportioned to the several things demised : for instance, if a
lease be made of several houses, rendering the annual rent
of 51. at the two usual feasts — viz. for one house 3?., for
another 10s., and for the rest of the houses the residue of the
said rent of 51. — with a clause of re-entry into all the houses
for non-payment of any parcel of the rent : this is but one
•reservation of one entire rent ; because all the houses were
leased, and the 5?. was reserved as one entire rent for them
all, and the "viz." afterwards does not alter the nature of
the reservation, but only declares the value of each house (r).
But if the lease had been of three houses, rendering for one
house SI., for another 20s., and for the third 10s., with a con-
dition to re-enter into all for the non-payment of any parcel ;
these are three several reservations, and in the nature of
three distinct demises : and each house in this case is only
chargeable with its own rent (s).
Demise void if part cannot be legally demised. — Where
tliere is a dcmisi; of premises, and an entire rent reserved, if
any part of tlie premises could not be legally demised, the
(o) Gill). HcTits, 20. (,) Gilh. IJonts, 34.
(;>) 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. (<l) Mounfjoy's caso, 5 Co. R. 3 b ;
(c) MnstiT, &c. of St. Cross J. Ld. Suf,'. Pow. 7!)7.
Howard v. Waldon, G T. Tl. 338. (r) Kendall v. Baker, 11 C. B. 842.
602
Ch. X. S. 2.] UESEr.VATIONS OF RENT. *382
according to the reddendum and not according to the haben-
dum (/) ; but where the reservation is general, as half-
yearly or quarterly, and no special days are mentioned,
there the half-year or quarter must be computed according
to the habendum (,</). If a man make a lease the first day
of May, reserving rent payable quarterly, this means quar-
terly from the making of the lease : for if the beginning
of the quarter should be construed to be any other day
than the date of the lease, the lessor would lose the profits
of his land for some time, and consequently not have quar-
terly payment made during the continuance of the lease (A).
Where rent was to be payable by a parol demise from the
Lady-day following, evidence of the custom of the country
was admitted to show that by " Lady-day," " Old Lady-day "
was intended (i).
A net rent is a sum to be paid to the landlord clear of all
deductions, so as to include, for instance, land tax and
sewers rate (Jc).
Mining leases. — Where a lessee of a colliery covenanted
to pay as rent "• one-third part of the money that should
arise, be made, received or produced from the sale of the
coals ; " and also covenanted to keep " true accounts of all
coal daily raised, and to make and deliver true copies there-
of ; " it was held, that the rent was to be calculated on the
amount of coals sold, not on the amount of money actually
received for them (/).
Dead rent. — Mining leases frequently stipulate for two
rents ; first, a dead rent, i. e. a rent payable whether the
mines be worked or not ; and secondly, a royalty upon the
minerals raised. In one case the demise was of all right
and interest in coals and other minerals in a certain estate,
(/) As to discrepancy between the (/) Doe d. Hall v. Benson, 4 B. &
habendum and reddendum with re- A. 588; Denn v. Hopkinson, 3 1).
spect to the length of the term, see & R. 507 ; Smith v. Walton, 8 Bing.
BurchelU.Clark,46L. J. 115 (C.A.), 235; but see Hogg y. Norris, 2 F. &
and 145, ante. F. 24G.
{g) Tomkinsy. Pinsent,2Ld. Raym. (h) Bennett v. Womack, 7 B. & C.
819; 1 Salk. 141 ; 7 Mod. 90. 627 ; 3 C. & P. 96.
(A) Gilb. Rents, 50 ; 2 Roll. Abr. (/) Edwards v. Rees, 7 C. & P. 340.
449, 450.
603
*384 RENT. [Ch. X. S. 2.
Michaelmas following, before which time the lease would have
expired (ii). By indenture dated 21st March, a messuage
w^as demised from 25th March then instant, for seven years
wanting seven days, paying therefor yearly and every year
during the term the yearly rent of 2S51. by four equal quar-
terly payments on the 25th of March, 24th June, 29th Sep-
tember, and 25th December, in every year commencing from
the said 25th March then instant ; it w-as held, that this was
either a covenant to pay a before -hand rent, whereby all the
payments would become due within the term, or else that, by
virtue of the words yearly and every year, the lessee would
be liable for the last quarter's rent on a day after the expira-
tion of the term (.r). Where, b}^ agreement, dated 8th Sep-
tember, a house Avas let for seven years at an annual rent
payable quarterl}'^, the Jirst payment to be made on the 25th
March following, it was held that only a quarter's rent be-
came due on the 25th March, and that in effect the payment
for the first quarter was postponed until after the end of the
term (;y).
" Gale." — Each periodical payment of rent is termed a
" gale," from " gaveW a rent or duty, and each " gale " is a
distinct debt (2).
" Team work." — In a lease of a farm, the clause " the
tenant to perform each year for the landlord at the rate of
one day's team work witli two horses and one proper i)erson
for every 50Z. of rent when required (except at hay and corn
harvest), without being paid for the same," extends to other
than agricultural work, such as hauling coals; but it does
not oblige the tenant to find a cart, plough or other vehicle
or machine necessary for the performance of the work (a).
(c) To whom Rent reserved.
Must be to lessor himself. — Rent must be reserved to the
lessor himself, and not to a stranger, for it is something
(u) Gill). Rents, 49, 51 ; Hill r. (//) Ilutchins r. Scott, 2 I\r. & W.
Grange, Plow. 171. 800.
(x) Hopkins V. Helmore, 8 A. & E. {z) Welby v. I'liillips, 2 Vern. 120.
463. (a) Duke of MariborouKh v. Os-
l.orn, 5 B. & S. 07 ; 33 L. J., Q. B. 148.
COG
Cn. X. R. 2"! RESERVATIONS OF RENT. *385
paid by way of retribution or compensation for
* the land, and ought to he made to him from whom [*385]
the hind passes : only the crown can make a reserva-
tion of rent to a stranger (A). If A., and B., his son, by
lease reciting that B. is the heir apparent of A., let for years
to commence after the death of A., rendering rent to B., it
will be void ; for a reservation to him by his proper name, and
not to him as heir, is the same as if it were to a stranger (c).
Where by a lease rent was reserved to a person 7iot a party
to the lease, and the lessees covenanted with him and the
lessors to pay rent, &c., it was held, that he could not join
with the lessors in an action of covenant for non-payment
of the rent (c?). Where there is any doubt as to the person
to whom the reservation should be made, the clearest and
safest way is to reserve the rent generally^ during the term
(tvithout saying to wJiom'), and leave it to be distributed by
the law in the mode pointed out in Whitlock's case (^) :
for if the reservation of rent be general, the law directs it to
be paid according to the intent and the nature of the thing
demised. In such case the rent goes to the person who
Avould have succeeded in the estate if the lease had not been
made (/).
Effect of inaccuracies as to parties. — As rent is intended by
law to follow the reversion, inaccuracies of expression, by
which the reservation is made to other persons than the re-
versioner, have not the effect of severing it from the rever-
sion : thus, if the reservation be made to the owner in fee,
" his heirs, executors or assigns," the word " executors " will
be rejected, and the rent will go with the reversion and be-
long to the heirs (^). In any case (except under a power)
it is safe to make the reservation to the lessor, " his heirs,
executors, administrators and assigns " (A). If a lessee for a
(/;) Lit. s. 346; Co. Lit. 47 b; Id. (e) 8 Co. R. 70, 141.
14:3 b; Gilb. Rents, 54. (/) Gilb. Rents, G4, 71.
(c) Com. Dig. tit. Rent (B. 5) ; (</) I<1. 61 ; Cro. Car. 207 ; Co. Lit.
Oates ('. Frith, Hob. 130; Co. Lit. 47, 47 a ; 1 Wms. Exors. 768 (6th ed.).
143 b; Sacheverell v. Froj,rgat, 1 (h) Dollcn v. Batt, 4 C B., N. S.
Ventr. 161; 2 Saund. 370; Gilb. 768; Whittome v. Lamb, 12 M. & W.
Rents, 59. 813.
(d) Ld. Southampton v. Brown, 6
B. & C. 718.
607
*386 RENT. [Ch. X. S. 2.
term of years makes a lease for a less term of years, render-
ing rent to him " and his heirs during the term," it will go
to his executors (?') ; but it seems to be otherwise when the
words " during the term" are omitted (^). If a tenant in
tail demise for years, rendering rent to himself and his heirs,
this goes to the heir in tail (?), and not to the general heir.
So if a tenant in tail to him and the heirs male of the body
of his father, lets the land, rendering rent to him, " his heirs
and assigns," the rent will go to the heir male of the body of
his father, though he be not heir to the lessor (w).
[*386] * Reservation by tenant for life. — If a tenant for
life, having a power, demise, rendering rent to him-
self, his heirs and assigns, " it shall be adjudged to him in
remainder" (w).
Reservation by tenant in fee to himself simpliciter. — It ap-
pears that a simple reservation of rent to the lessor only, not
mentioning his heirs, is good for the life of the lessor
only (o) ; but that a reservation to the lessor or his heirs
during the term is good for the whole of the term ( jt>).
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
(</) Co. Lit. Gl b, 12G; Rudloss v. Excli. 203; lU'indell v. Sehell, 4 C.
Phillips, Cro. Eliz. 805; Thynn v. B., N. S. 07.
Cholmley, Cro. EUz. .383; Etrcrton (/) 1 Cliit. Arch. G02 (lltli ed.) ; 2
V. Siieafe, Lutw. 1151; (iill). Rents, Id. 1002; Chit. Forms, 25(i, 702 (0th
14.3. cd.).
(e) Hac. Ahr. tit. Condition (O. 2); (/>) 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 (</). If it contains
various stipulations for the performance or observance of
several things of more or less importance to the parties, and
the breach of any one of which gives rise to a definite amount
of damage, and one large sum is stated at the end to be j^f'iid
upon any omission, neglect or default, such sum must be
considered as a penalty (Ji). But it is otherwise where the
damage sustained is of an unliquidated nature, and not of
definite amount: in such cases the full stipulated sum
(however large and disproportionate) * may gener- [*393]
{h) Sainter v. Ferguson, 7 C. B. C. 390; Legge v. Horlock, 12 Q. B.
710; Hurst V. Hurst, 4 Exch. 571 ; 5 1015.
Id. 203; Legge v. Horloch, 12 Q. B. (/) Davics v Pcnton, G B. & C.
1015; Crux v. Aldred, 14 W. R. 656, 216; Ketiil)le i-. Farreii, 6 Biiig. 141;
C. r. Horner v. Flintoff, 9 M. & W. 678.
(c) Follitt V. Forrest, 11 Q. B. 949, {g) Dimich v. Corlctt, 12 Moo. P.
966. C. C. 199.
(rf) Kcnible v. Farren, 6 Bing. 141. {h) Astley v. Weldon, 2 Bos. & P.
(e) Davies v. Penton, 6 B. & C. 346; Kemble p. Farren, 6 Bing. 141;
216; Crisdee y. Bolton,3C. &P. 240; Boys t-. Ancell, 5 Bing. X. C. 390;
8 Moo. 252 ; Horner v. Graves, 7 Bacham v. Drake, 8 M. & W. 853.
Bing. 735 ; Boys v. Ancell, 5 Bing. N.
617
*o93 KENT. [Cn. X. S. 3.
all}' be recovered (Q. The law on the question of penalty
or liquidated damages may now be considered, after a
great number of decisions, not, perhaps, all of them strictly
reconcilable with each other, to be at length satisfactorily
settled : and the hinge on which the decision in every par-
ticular case turns is tJie intention of tJie parties^ to be collected
from the language they have used. The mere use of the
term " penalty," or the term " liquidated damages," does not
determine that intention ; but, like any other question of
construction, it is to be determined by the nature of the pro-
visions and the language of the whole instrument. One
circumstance, however, is of great importance towards ar-
riving at a conclusion ; if the instrument contains many
stipulations of varying importance, or relating to objects of
small value calculable in moriey, there is the strongest ground
for supposing that a stipulation, applying generally to a
breach of all or any of them, was intended to be a penalty,
and not in the way of liquidated damages (Jc).
Forfeiture of a deposit. — Where a deposit is made to secure
the due performance of a written contract, and it is to be
forfeited in case of any breach, such forfeiture may be
enforced, and is not considered as a penalty (Z) ; or, instead
thereof, the amount of damage actually sustained may be
recovered (m).
Increased rent for tillage. — Where there is a reservation of
bl. per aci'c during the last twenty 3'ears of a term, for every
acre of meadow which the tenant shall plough, or convert
into tillage during the said last twenty years of the term,
and so after that rate for any greater or less quantity than
an acre, or less time than a year, it is considered that the
rent is due in the last twenty years, if the land is then
plonglied, Avhether it was first ploughed within ths last
twenty years, or before ; and the rent continues payable
during the twenty years, though the land be again laid down
to permanent grass (w). Ilic right to additional rent for
(0 Anie, 392, note (//). (m) Icely v. Grew, 0 N. & M. 467.
(Jc) Ante, 392, note (;/). (71) Kirch r. Stcplu'nson, 3 Taunt.
(/) Ilniton V. Sparkt'9, L. R., 3 C. 4(',<.) ; IIowill ?•. Ritliards, 11 East,
P. IC)\; 37 L. J., C. 1'. 81. 033; liac. Abr. tit. Rout (F.).
G18
Ch. X. S.4.] WHEN KENT IS DUE. *394
over tillage is not waived by the acceptance of the reserved
rent with a knowledge of the breach (o).
Increased rent in publican's lease for not taking lessor's beer.
— The provision sonietinios inserted in a publiean's lease,
that the lessee shall take all his beer fi'oni the lessor, or else
pay an advanced rent, has been much censured by the courts;
and, at all events, such a covenant is subject to an implied
condition, and cannot be enforced unless the lessee be sup-
plied with good beer (j9).
* Sect. 4. — When Bent is due. [*394]
Rent is due in morning, must be demanded at sunset, is in
arrear after midnight. — The rules of the common law with
respect to the time when rent is due, and when it must be
demanded, are very curious and precise.^ It seems that rent
is due in the morning of the day appointed for payment, but
it is not in arrear until after midnight ( q).
Just before and at sunset is the time appointed by law
to make a proper demand of it (r), to take advantage of a
condition of re-entry ; ^ the demand should be made such
time before sunset as to allow sufficient lig-ht to count the
(o) Denton v. Richmond, 1 C. & (7) Dibble v. Bowatcr, 2 E. & B.
M. 734. 504; Cutting v. Derby, 2 W. Blac.
(p) Cooper V. Twibill, 3 Camp. 1077; Leftley r. Mills^ 4 T. R. 473;
286; Holcombe v. Hewson, 2 Camp. Bac. Abr. tit. Rent (H.).
391; Stancliffe, app., Clarke, resp., 7 (r) Duppa r. Mayo, 1 Saund. 287;
Exch. 439; 21 L. J., Ex. 129. 2 Salk. 578; Cole Ejec. 413.
1 Rent : •when due. — In lease for year (in absence of different express
or implied agreement), it is payable at end of year. Manough's Appeal, 5 W.
& S. (Pa.) 432. In lease from year to year, it is payable at end of each year,
Duryee i\ Turner, 20 Mo. App. 34; Ridgley v. Stilhvell, 27 Mo. 128, 134;
likewise in lease for years, Boyd ;». McCombs, 4 Pa. St. 140.
Rent is not payable (ordinarily) until use and occupation has been enjoyed,
Bordman r. Osborn, 23 Pick. (Mass.) 295,299; Wooil ;•. Partridge, 11 Mass.
488, and the entire rent period has expired, English v. Key, 39 Ala. 113, 110,
117.
2 Johnston v. Hargrove, 81 Va. 118 ; Connor v. Bradley, 1 How. 211, 217 ;
Jackson v. Harrison, 17 Johns. (N. Y.) 00, 71 ; Remsen v. Conklin, 18 Id. 447,
450 {}ier Spencer, Ch. J.) ; Van Rensselaer v. Jewett, 2 N. Y. 141 ; Smith v.
Whitbeck, 13 Ohio St. 471 ; Chipman v. Emeric, 3 Cal. 283 ; Gaskill v. Trainer,
Id. 334 ; Gage v. Bates, 40 Id. 384.
619
*o93 RENT. [Ch. X. S. 3.
iill}' be recovered (?'). The law on the question of penalty
or liquidated damages may now be considered, after a
great number of decisions, not, perhaps, all of them strictly
reconcilable with each other, to be at length satisfactorily
settled : and the hinge on which the decision in every par-
ticular case turns is the intention of the parties, to be collected
from the language they have used. The mere use of the
term " penalty," or the term " liquidated damages," does not
determine that intention ; bvit, like any other question of
construction, it is to be determined by the nature of the pro-
visions and the language of the whole instrument. One
circumstance, however, is of great importance towards ar-
riving at a conclusion ; if the instrument contains many
stipulations of varying importance, or relating to objects of
small value calculable in money, there is the strongest ground
for supposing that a stipulation, applying generally to a
breach of all or any of them, was intended to be a penalty,
and not in the way of liquidated damages Qi).
Forfeiture of a deposit. — Where a deposit is made to secure
the due performance of a written contract, and it is to be
forfeited in case of any breach, such forfeiture may be
enforced, and is not considered as a penalty (V) ; or, instead
thereof, the amount of damage actually sustained may be
recovered (wt).
Increased rent for tillage. — Where there is a reservation of
bl. per ac]-e during the last twenty 3'ears of a term, for every
acre of meadow which the tenant shall plough, or convert
into tillage during the said last twenty years of the term,
and so after that rate for any greater or less quantity than
an acre, or less time than a year, it is considered that the
rent is due in the last twenty years, if the land is then
plouglied, whether it was first ploughed within the last
twenty years, or before ; and the rent continues payable
during the twenty years, tliough tlie land be again laid down
to permanent grass (w). I'lic riglit to additional rent for
CO Ante, 302, note (»/). {in) Iccly v. Grew, G N. & M. 407.
(/c) Ante, 392, note ((/). (») liircli r. StepIuMiaon, 3 Taunt.
CO Hiiiton V. Sparkos, L. R., 3 C. 4r.O ; IIowclI v. Uicliards, 11 East,
P. 1(51; 37 L. J., C. 1'. bl. <(.'53 ; Hac. Abr. tit. Rent CF.).
G18
Ch. X. S.4.] WHEN RENT IS DUE. *394
over tillage is not waived by the acceptance of the reserved
rent with a knowledge of the breach (y).
Increased rent in publican's lease for not taking lessor's beer.
— The provision sometimes inserted in a publican's lease,
that the lessee shall take all his beer fiom the lessor, or else
pay an advanced rent, has been much censured by the courts ;
and, at all events, such a covenant is subject to an implied
condition, and cannot be enforced unless the lessee be sup-
[)lied with good beer (j9).
* Sect. 4. — When Rent is due. [*394]
Rent is due in morning, must be demanded at sunset, is in
arrear after midnight. — The rules of the common law with
respect to the time when rent is due, and when it must be
demanded, are very curious and precise.^ It seems that rent
is due in the morning of the day appointed for payment, but
it is not in arrear until after midnight ( q).
Just before and at sunset is the time appointed by law
to make a proper demand of it (/•), to take advantage of a
condition of re-entry ; ^ the demand should be made such
time before sunset as to allow sufficient light to count the
(o) Denton v. Richmond, 1 C. & (7) Dibble v. Bowater, 2 E. & B.
M. 734. 504; Cutting v. Derby, 2 W. Blac.
(p) Cooper V. Twibill, 3 Camp. 1077; Leftley ?'. Mills^ 4 T. R. 473;
286; Holcombe v. Hewson, 2 Camp. Bac. Abr. tit. Rent (H.).
391; Staneliffe, app., Clarke, resp., 7 ()) Duppa v. Mayo, 1 Saund. 287;
Exch. 439; 21 L. J., Ex. 129. 2 Salk. 578; Cole Ejec. 413.
1 Rent : ■when due. — ■ In lease for year (in absence of different express
or implied agreement), it is payable at end of year. Manough's Appeal, 5 W.
& S. (Pa.) 432. In lease from year to year, it is payable at end of eacli 3'ear,
Duryee r. Turner, 20 Mo. App. 34; Ridgley v. Stillwell, 27 Mo. 128, 134 ;
likewise in lease for years, Boyd v. McCombs, 4 Pa. St. 146.
Rent is not payable (ordinarily) until use and occupation has been enjoyed,
Bordman r. Osborn, 23 Pick. (Mass.) 295,299; Wood r. Partriilgc, 11 Mass.
488, and the entire rent period lias expired, English v. Key, 39 Ala. 113, 116,
117.
2 Johnston v. Hargrove, 81 Va. 118 ; Connor r. Bradley, 1 How. 211, 217;
Jackson v. Harrison, 17 Johns. (N. Y.) 00, 71 ; Remsen v. Conklin, 18 Id. 447,
450 {}i€r Spencer, Ch. J.) ; Van Rensselaer v. Jewett, 2 N. Y. 141 ; Smith ;;.
Whitbeck, 13 Ohio St. 471 ; Ciiipman i-. Emeric, 3 Cal. 283 ; Gaskill v. Trainer,
Id. 334 ; Gage v. Bates, 40 Id. 384.
619
*395 RENT. [Ch. X. S. 4.
money (s) ; the person making the demand must remain on
the hind till the sun has set; and the demand must be
actually or constructively continued till that time (i). The
court will not take judicial notice of the time of sunset on
a particular day, that must be proved by evidence (m). A
demand made on the proper day at one o'clock is clearly
bad (.-c), although a tender by the tenant or his agent at any
time before or after sunset would be sufficient to save the
forfeiture (^).
Death of landlord on rent-day. — Where a lessor, tenant in
fee, died after sunset and before midnight, it was held that
the heir and not the executor was entitled to the rent (2) ;
but payment to the lessor or his agent on the morning of the
rent-day, the lessor dying before noon, is valid as against the
heir, though not against the crown (a). Where the rent was
reserved payable on Michaelmas-day, and the lessor died on
that day between three and four o'clock in the afternoon
before sunset, and a question was raised whether the exec-
utor or the heir, or, which is the same, the jointress of the
lessor, should have the rent, it was held that the rent should
go to the heir or jointress (5).
Payment of rent in advance. — Payment before the day is
voluntary and a payment of a sum in gross, and no satisfac-
tion at law of the rent (c) ; but it seems it will be otherwise
m equity, for payment of rent to the tenant in tail or for life,
on or even before the day, where the tenant in tail lived
to the rent-day (d')^ will discharge the lessee, though
[*395] if the tenant in tail die * on the same day, the re-
(s) Co. Lit. 202 a; Maund's case, Co. R. 127; Ld. Kockinijliam ;•. Ten-
7 Co. R. 28 b; Tinckler i-. Prentice, rice, 1 1'. Wins. 177; 1 Salk. 578; 1
4 Taunt. 540. Rwanst. 845, note; Re Clulow, o Kay
(/) Wood and Ciiiver's case, 4 & J. 080; 20 L. J., Cli. 518.
Leon. 179; Acocks v. Phillips, 5 II. {n) Clun's case, 10 Co. R. 127 b.
& N. 183. (/>) 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 (</).
Attachment of rent. — Rent due and owing to a judgment
del)tor may lie ordered by a divisional court, a judge, or a
C/l) Gore i;. Lloyd, 12 M. &W. 4(53. (/>) 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 (<?) ; but even in this
(n) Co. Lit. 201 b; Kowe v. Younp, (/>) 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 accomplishe<l (williout actual entry or i'xi)ulsion)
l>y 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. — {<i) Attachment on mesne process.
— Taylor says that in "the New England States the law of attachment on
mesne process has superseded the law of distress (2 Taylor's Land. & Ten.
sec. 558), and that the principles of the common law doctrine of distress
have been thereby essentially assumed. See Parker, C. J., in Potter !•. Hall.
3 Pick. (Mass.) 368, 374, and Parsons, C. J., in Bond r. Ward, 7 Mass. 123,
128. It is a curious fact (as pointed out in Delano's Law of Landlord &
Tenant in Massachusetts) that the colonial laws gave a writ of replevin for
647
*-J:12 DISTRESS FOR RENT. [Ch. XI. S. 1.
History. — Originally it was not so much a remedy as the
means of obtaining one ; for when it was made, the chattels
distrained remained only as a pledge in the hantls of the dis-
goods distrained. See Dig. Mass. Laws, 1675, and Plm. Col. Laws, 1675; see,
also, St. 1825, c. 89.
In Wait Appt. 7 Fic:k. 100, 105, Parker, C. J., said, " We think there is no
riglit of distress in tliis Commonwealth;" also in Potter c. Hall, 3 Pick. 368,
374 : " Our legislature seems to have considered the common law in this
respect as obsolete, or repealed by usage in tiie several statutes ; they have
made exempting articles of small value, but of great necessity from attach-
ment."
(6) Landlord's statutory liens. — i\Iany of the states have enacted laws giv-
ing the landlord a special lien upon the crop of his lessee. For example :
''Xort/i Carolina (Code, sec. 1754 et seq.; State v. Crowder, 97 N. C. 432;
Bridgers v. Dill, Id. 222; State v. Wilbourne, 87 N. C. 529); South Carolina
(Whaley r. Jacobson, 21 S. C. 51) : Georgia (Code, sees. 1977, &c.; Worrill v.
Barnes, 57 Ga. 404; Davis v. Meyers, 41 Id. 95; Taliaferro r. Pry, Id. 622;
Hobbs V. Davis, 50 Id. 213; Johnson v. Emanuel, Id. 590; Ware v. Blalock,
72 Id. 804; Benson v. Gottheimer, 75 Id. 642); Alabama (Civil Code, sec.
3056 et seq.; Steiuhardt v. Bell, 80 Ala. 208; Robinson v. Leliman, 72 Id.
401; Lake v. Gaines, 75 Id. 143; Stoelker v. Wooten, 80 Id. 610; Napier v.
Foster, Id. 339) ; Mississippi (Rev. Code, ch. 50, sec. 1301 et seq.; Cohn v.
Smith, 64 Miss. 816 ; Roberts r. Sims, Id. 597) ; Arkansas (Digest of Statutes,
sec. 4453 et seq. ; Roth v. Williams, 45 Ark. 447 ; Birmingham v. Rogers,
46 Id. 254) ; New Mexico (Conip, Laws, sec. 1537 et seq.) ; Indiana (Rev.
Sts. ch. 76, sec. 5224 ; Ry. Co. v. Linard, 94 Ind. 324) ; Iowa (Rev. Code,
sec. 2017 et seq.; Garner v. Cutting, 32 Iowa, 547; Grant v. Whitewell, 9 Id.
152; Carpenter i'. Gillespie, 10 Id. 592; Rotzler v. Rotzler, 40 Id. 189;
Perry v. Waggoner, 68 Id. 403; Jarchow ?'. Pickens, 51 Id. 381); Illinois
(Prettyman v. Unland, 77 111. 206; Fames v. Mayo, 6 Bradw. (111.) 334;
O'llara v. Jones, 46 111. 288; Mead i'. Thompson, 78 Id. 62; Hunter !•. Whit-
field, 89 Id. 229; Miles r. James, 36 Id. 399; Herron ?'. Gill, 112 Id. 247);
Kansas (Comp. Laws, Art. 3227 et seq.) ; Mis.souri (Haseltine r. Aushcrman,
87 Mo. 410; Chamberlain v. Heard, 22 Mo. App. 416); Nebraska (Comp.
Sts. sec. 1073). The natures of these liens \ary considerably. Generally
they are confined to the crop, and are paramount to all other liens.
In Iowa the lien extends not only to crops but to other personal property
of tenant which has been used upon the premises during the term ; the lien
continues (during the tenancy) for one year after each year's or shorter
period's rent becomes due, but does not continue more than six months after
the expiration of tlie term, and special statutory provisions are made for its
enforcement.
Texas. — There is a special statutory lien in Texas (Rev. Sts. sec. 3122, a)
upon all the property of the tenant in residence, storehouse, or other building
for all rents due or to become due, and extending in time one month after
tenant cea.ses to occupy. See Couts v. Sjiivey, iJG Tex. 267; H. R. E. B. B.
Ass. V. Cocliran, 60 Tex. (»20.
In Marifland it is provided (Rev. Code, Art. 67, sec. 13) that in case a
share of crops is reserved as rent, the landlord sliall have a lien not to be
divested by bankruptcy, insolvency, voluntary sale, or process of law; and
in Florida (Dig. ch. 137) he lias a suiicrior lien upon agricultural products,
648
Cii. XI. S. 1.] DEFINITION OF DISTRESS. *412
ttainer, but could not be sold (c) ; and, as Blackstone
observes, " although such a distress put the owner to in-
convenience, and was therefore a punishment to him, yet if
he continued obstinate, and would make no satisfaction, it
was no remedy at all to the distrahier " (fZ). Tiiis power,
however, became the means of great oppression in the hands
of the barons («), and continual enactments were passed up
to 1 & 2 Philip and Mary, c. 12, for the protection of ten-
ants (/) ; but the current of legislation afterwards took a
turn, and was for a very long time wholly for the benefit of
landlords rather than of tenants (^) ; a step in the favour of
tenants, however, was taken, in 1871, by the act which pro-
tects the goods of lodgers from distress, another step, in
1872, by the act which protects railway rolling stock, and a
still further and very considerable step — in relation to agri-
cultural holdings only — by the Agricultural HolcUngs Act,
1883 (p. 430, post).
To what rents incident. — Distress is incident of common
right to every rent-service,^ properly so called (/i). It is also
(c) Preamble to 2 W. & M., sess. 1, Westminster II.), cc. 36, 37 ; 1 & 2
c. 5. Ph. & M. c. 12.
(d) 3 Blac. Com. 14. (g) 17 Car. 2, c. 7 ; 2 W. & M., sess.
{e) Barrington on Ancient Statutes, 1, c. 5 ; 8 Ann. c. 14 ; 4 Geo. 2, c. 28 ;
14. llGeo. 2, c. 19; 56Geo. 3,c. 50; 3 &
(/) 51 Hen. 3, c. 4; 52 Hen. 3 4 Will. 4, c. 42, s. 38; 14 & 15 Vict.
(Statute of Marlebridge),cc. 1,2,4, 15, c. 25; Bankruptcy Act, 1869, sect.
21 ; 3 Edvv. 1 (Stat, of Westminster), M,ante, 282.
cc. 16, 17, 23; 13 Edw. 1 (Stat, of (h) Aiite,S76.
even to those of older date, but upon other property of lessee, sub-lessee, or
assigns, it is only superior to subsequent liens.
In Kentuckif (Gen. Sts. ch. QQ, sec. 12) the landlord has a preferential lien
upon produce, fixtures, household furniture, and other personal property of
tenant or undertenant; but as it is lost by removal (without fraudulent
intent) unless asserted within fifteen days thereafter, it much resembles the
landlord's ordinary lien in cases of distress, though in some respects superior
to it.
In some of the above states the law of distress also exists. Sometimes
the lien is enforcible by distress warrant (Ga. Code, sec. 1977 ; Worrill v.
Barnes, 57 Ga. 404) and sometimes by attachment (Comp. Laws of Ivans.
Art. .3231; Rev. Code of Iowa, sec. 2018; Rev. Code of Miss. sec. 1301;
Ciiambi'ihiin r. Heard, 22 Mo. App. 416 ; Civil Code, Ala. sec. 3061).
1 Definitions. — For rent-service, rent-seek, rents of assize, chief-rents,
rent-eliarge, and fee-farm rent, see ante, ch. 10, sec. 1, also 2 Bl. Cora. sec. 42,
and 3 Kent's Com. sees. 460, 461.
649
*413 DISTRESS FOR RENT. [Ch. XL S. 1.
necessarily incident, by special reservation, to every 7-ent-
charge (Ji). But it was not incident to rent-seek Qi) until
the 4 Geo. 2, c. 28, s. 5 (i), extended the remedy of distress
to rents-seek, rents of assize, and chief-rents, and thereby
in effect abolished nearly all material distinction between
them (/r).
On other lands. — Distress for rent may, by agreement, be
made upon other lands of the lessee than those out of which
the rent issues.^ This was held by the Exchequer Chamber
upon the construction of a mining lease (/).
Right to distrain may be postponed. — The right of distress
is not so inseparable an incident to rent-service that it can-
not be postponed. Therefore a landlord may for good con-
sideration undertake not to distrain for six months (m), a
mesne landlord may contract not to distrain until after he
has produced to his tenant a receipt for the rent for the time
being due to the superior landlord (?t), and a superior land-
lord may undertake not to distrain on the goods of an in-
tended lodger of his tenant (o). From an agreement, to
which the landlord of a farm is privy, for a sale by
[*413] the tenant of *some eatage of pasture to a third
person, the amount produced by the sale to be paid
(0 Ante, 376; Johnson v. Faulk- (h) Giles r. Spencer, 3 C. B., N. S.
ner, 2 Q. B. 925. 244 ; 26 L. J., C. P. 237.
(^•) 2 Bhic. Com. 6 ; Com. Dig. tit. (o) Horsfonl v. Webster, 1 C, M.
Distress (A. 1). . & R. 090. Tiie Lodger's Goods Pro-
(0 Daniel v. Stepney, L. R., 9 Ex. tection Act (see post, Sect. 9 (f) ) ren-
185, reversing decision below, L. R., ders such undertaking now generally
7 Ex. 327 ; 41 L. J., Ex. 208. unnecessary.
(m) Oxenham v. Collins, 2 F. & F.
172.
1 "Where may distress be made. — At common law only upon the
demised ])remises. Musby v. Leeds, 3 Calls. (Va.) 380; Geigcr's Adm'r v.
Ilarman's Ex'r, 3 Gratt. (Va.) 130; Bradley u. Piggot, Walker (Miss.) 348
(even tenant's goods ordinarily).
In Illinois personal property of tenant may be distrained anywhere in
county where he resides (Sts. of 111. ch. 80, sec. 10; Uhl v. Dighton, 25 III.
154).
In Koitiirki/ likewise (Gen. Sts. ch. CO, sec. 11; Mitchell >: 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 (<?). Where a land-
lord gives a warrant to distrain for rent in the usual form,
he thereby in effect authorizes the bailiff to receive the rent,
(//) Thomas v. Harries, 1 M. & G. private pound, but before they have
C95. been sent (as intended) to the public
(s) Swann v. Earl of Falmouth, 8 pound, is not too late. Browne r.
R. & C. 450. Tovvell, 4 Bing. 2;:!().
(a) Tennant v. Field, 8 E. & B. H.'U). {b) Smith i-. Goodwin, 4 B. &. Add.
Where sheep are distrained for dam- 411].
age feasant, a tender of amends after (c) Bennett v. Bayes, 5 H. & N.
Ihe sheep have been put into a .391 ; 29 L. J., Ex. 391.
655
*417 DISTRESS FOR RENT. [Cii. XI. S. 'Z.
if tendered: and it seems that in such case he could not
prohibit the bailiff from accepting such tender, so as to render
a tender to him invalid: at all events, the bailiff cannot refuse
a tender on the ground that he was forbidden by the landlord's
solicitor to receive the money (d). A tender to the landlord's
agent, who signed the distress warrant on his behalf, is suffi-
cient (e). But a tender to the broker's man, who is merely
left in possession under the distress, and has no actual
authority to receive the money, is bad(/), and so is a tender
to a servant (^). Where it appeared that the distrainer's
wife had been in the usual habit of acting as his agent in
such matters, and had in his absence made a distress for
damage feasant; it was held, that a tender to her of amends
was sufficient (A).
Tender must be in full, with expenses. — The tenant must, at
his peril, tender the full amount of the rent in arrear, with-
out any deductions, except in respect of actual or constructive
payments on account thereof (not items of set-off). He must
also tender, at his peril, a sufficient sum for the law-
[*417] ful * expenses of the distress (^), unless indeed the
tender be made before anj- entry to distrain (?). The
tender should be made iineonditionalh/, so that the party may
accept it without prejudice to his right (if any) to recover
more. And although Avhere the amount owing is not dis-
puted, the .demand of a receipt and refusal to part with the
rent without one, would seem, under the present Stamp Act,
not to vitkite the tender (m), a tender of one quarter's rent,
coupled with a demand of a receipt up to a particular day,
tliere being a dispute whether one or two quarters' rent was
then due, is not valid (n); but sending a certain sum "to
(fi) Hatch V. Hale, 15 Q. R. 10. (m) See Ridiarrlson v. .Tackson, 8
(/') Bennett v. Raycs, supra. M. & W. 2fl8. Tlio prior enactments
(/) Boiilton V. Reynolds, 2 E. & E. on the subject, 48 Geo. 3, c. 12(5, ss. 4,
.309; 20 L. .7., Q. ]}.]!. 5 (see Lain^' r. Meadcr, 1 C. & V.
(r/) Pilkington i-. Hastings, Cro. 257) ; 55 Geo. 3, c. 184, Sch. tit.
Eiiz. 81.3. Receipt, are repealed by 3.3 & 34
(/() Browne v. Powell, 4 Bing. 2:)0. Viet. c. 90, nnd the law is now gov-
(k) Post, Sect. 8. erned by the Stamp Act, 1870, s. 12.3,
(/) Bennett r. Baycs, 5 H. & X. which sec, Appendi.K A., Sect. 7.
:?0i ; 29 L. J., Ex. 391. {») Finch v. Miller, 6 C. B. 428.
6r)()
Cil. XI. S. 2.] CONDITIONS PRECEDENT TO DISTRESS. *41 7
settle one year's rent," does not impose a condition (o), nor
does a tender "under })rotest" (p).
Detention of distress after payment. — A landlord, who has
accepted the rent in arrear and the expenses of the distress
after the impounding, cannot be treated as a trespasser merely
because he retains possession of the goods distrained; although
his refusal to deliver them up to the tenant may amount to
a conversion so as to render him liable in trover (g').
Property in goods distrained. — Notwithstanding a distress,
the property in the cattle or goods distrained (whether im-
pounded or not) remains vested in the tenant or owner
thereof, until they are sold under the distress (r) ; and he
may sell or otherwise dispose of them subject to the distress ;
or whenever the distress is determined (without any sale) he
may recover them back (r). So a purchaser from him may
recover them in trover, where the landlord has not sold the
goods, but taken them himself at a valuation, which he had
no legal right to do (.9). The landlord or person distraining
lias no property in the cattle or goods distrained, nor even
the possession thereof ; therefore, if they are rescued, or
unlawfully taken out of the pound, he cannot maintain
trover (?), but only a special action for rescue or pound
breach (?t).
There must be an actual demise at a fixed rent. — A landlord
has, at common law, no right to distrain unless there be an
actual demise'^ at a fixed rent (^x}.^ A licence to get all the
(0) Brown v. Owen, 11 Q. B. ISO; (s) King v. England, suprn.
Bull V. Parker, 2 Dowl., N. S. 345. (0 I^ex v. Cotton, Parker, 121 ;
(p) Manning v. Lunn, 2 C. & K. Wilbraliam v. Snow, 2 Saund. 47 a.
1;;. (m) Riddell v. Stowey, 2 Moo. & R.
(//) West V. Nibbs, 4 C. B. 172. 358 ; Turner v. Ford, 15 M. & W. 213 ;
(r) Turner v. Ford, 15 M. & W. post, Sect. 10.
212 ; King i: England, 4 B. & S. 782 ; (.r) Dunk v. Hunter, 5 B. & A. 322 :
33 L. J., Q. B. 145. Ilegan r. Johnson, 2 Taunt. 148;
I The relation of landlord and tenant is essential. — Helser r. Pott, 3
Pa. St. 179. A mortgagee, under mortgage prior to lea.se, cannot distrain.
M'Kirclier v. Hawley, 10 Johns. (N. Y.) 289 ; Souders v. Vansickle, 8 N. J. L.
313 ; Price v. Smith, 2 Green's Ch. (N. J.) 516.
Whether a subsequent mortgagee could distrain would, doubtless, depend
upon which theory of mortgages prevailed where property was situated. See
ante, oh. 1, sec. 28, notes.
" Fixed rent. — Liability for use and occupation is too indefinite. Wells
V. Ilornish, 3 Pa. 30 ; Smoot v. Strauss, 21 Fla. 611
657
*418 DISTRESS FOK RENT. [Cii. XI. S. 2.
copperas stone wliicli may be found in part of a manor, for
twenty-one years, at the yearly rent of 25Z., is not a
[*418] demise, and will not support a distress * for the agreed
rent(^). Where a tenant holds over on sufferance
only, as there is then no "agreed rent" or actual tenancy, a
distress cannot lawfully be made, but the remedy is by action
for use and occupation (2). Where a lease of tithes and land
was granted at an entire rent, and it was void as to the tithes,
because it was not under seal ; it was held, that a distress for
an arrear of rent was altogether unlawful, because there was
no distinct rent due for the land (a). Where a lease was made
by parol of 100 acres of land at a certain rent, and the lessee
accepted the lease and entered upon the land, but afterwards
Regnant v. Porter, 7 Bing. 451 ; Wat- (r) Alford v. Viokery, Car. & M.
son V. Waud, 8 Exeh. 335 ; Hancock 280 ; Jenner v. Clegg, i Moo. &, R.
V. Austin, 14 C. B., N. S. 634. As to 213; Williams v. Stivcn, 9 Q. B. 14.
distress under mere agreement for (a) Gardiner r. Williamson, 2 B. «&
lease since the Judicature Act, see Adol. 337 ; see also Meggison v. Lady
Walsh V. Lonsdale, L. R., 21 Ch. I). Glamis and Sells v. Same, 7 Exch.
9, and p. 80, ante. 085.
(jj) Ward I'. Day, 33 L. J., Q. B. 3,
254.
To pay seventy dollars per annum in repairs is sufficient. Smith v. Colson,
10 Johns. (N. Y.) 91.
To make repairs (of no estimated value) was held too indefinite in Grier v.
Cowan, Add. (I'a.) 347.
To pay taxes and daub and chink a house was held a certain rent in pro-
ceedings for possession in Shaffer v. Sutton, 5 Biiiii. 228.
It has been many times held that rent payable in kind or specific articles
might be distrained for. Owens v. Conner, 1 Bibb (Ky.) 005 (rent payable in
iron. The court said, " id certum est quod certum reddi potest"); Jones c.
Gundrim, 3 W. & S. (Pa.) 531 (iron) ; Fry v. Jones, 2 IJawle (Pa.) 11 (tolls
of grist mill).; Xowery v. Connolly, 29 Q. B. (Out.) 39 (fractionaJ share of
crops) ; Prestons v. McCall, 7 Graft. (Va.) 121 (fractional share of salt).
In Illinois it is expressly jjrovided tiiat rent pa_yal)le in specific articles,
labor, &c., may be distrained for. Sts. ch. 80, sec. 29; Craig v. Merinu', 10
111. Aj)]). 214 (l)room corn).
//( Indiana it has been held in two cases that rent payable in kind cannot
be distrained for, not being a certain rent. Bowser v. Scott, 8 lilackf. 8() (rent
payable by the acre in wheat, corn, oats, &c.) ; Clark v. Fraley, 3 Id. 2((4
Clease on shares at rental of one-third of the corn). In Purcell v. Thomas, 7
Id. 300, lield tliat rent payable in Indiana scrip could not be distrained for.
In Kaufman v. Myers, 38 (ia. 133, it was held that rent ))ayab!e in Ameri-
can gold coin might be distrained for at market value in legal tenders.
(ins
Cii. Xr. S.2.] CONDITIONS PRECEDENT TO DISTRESS. *419
found that eight acres liad been previously demised by his
lessor to another person who was in possession ; it was held,
that the demise was altogether void as to the eiglit .acres, and
that the rent could not be apportioned, and therefore could
not be distrained for (6) : but it would have been otherwise
if the demise had been .under seal, because that would have
operated as a grant of the reversion and its incidents, as to
the eight acres, and no apportionment of the rent would have
been necessary (c). A rent of a certain sum j^er cube yard
of marl dug, and a certain sum per thousand of bricks made
from ehiy dug from land, is a rent wliich may be ascertained
with certainty, and which therefore may be distrained for (d}.
Where the demise was subject to certain rents, provisions,
and stipulations, and amongst others that the lessee should
not sell hay off the premises, under the penalty of 2s. 6<i.
per yard of the hay sold, to be recovered by distress as for
rent in arrear ; it was held, that this was recoverable by
distress as for rent, but was not a rent(e).
Agreement for lease. — Where a person is in possession
under a mere agreement for a lease, not amounting to an
actual demise, and no other circumstances exist from which
a tenancy at a fixed rent can be implied and found by a
jury ; the common law rule is that as no rent (properly so
called) is due for the occupation, but only a compensation
in the nature of rent, the owner cannot distrain for non-pay-
ment (/); b^t that if the agreement goes on to say, that
until the lease shall be executed, the rent, covenants and
agreements to be therein 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 ; that
will, on entry, create a tenancy at a fixed rent, for
which the landlord may distrain when due,.* although [*419]
no rent has been paid under the agreement (,^) ; and
(b) Neale v. Mackonzic«(in error), (c) Pollitt v. Forrest, 11 Q. B. 949;
1 M. & W. 747; Holgate c. Kay, 1 C. 1 C. & K. 5(50.
& K. 341. (/■) Dunk v. Hunter, 5 B. & A.
(r) Ecol. Commrs. of Ireland v. .322 ; Hegan r. Johnson, 2 Taunt. 148.
O'Connor, 9 Ir. Com. L. R. 242 ; Lake (//) Anderson v. Midland K. Co., 8
r. Dean, 28 Beav. 007. E. & E. 014 ; 30 L. J., Q. B. 94 ; Pin-
((/) Daniel v. Grade, 6 Q. B. 145. ero v. Judson, 0 Bing. 200 ; Rollason
659
*419 • DISTRESS FOR RENT. [Cii. XI. S. 2.
similarly that where an intended purchaser, by the contract
of sale, admits himself to be tenant from week to week to
the vendor, at a specific rent per week payable in advance or
otherwise, such rent may be distrained for (A). But these
cases must now be compared with Walsh v. Lonsdale (f).
Implied tenancy at fixed rent. — An actual tenancy at a
fixed rent may be implied from very slight circumstances ;
thus where a tenant, who had entered on premises under an
agreement for a lease, admitted a charge of half-a-year's rent
in an account between him and his landlord ; it was held,
that this was equivalent to payment, and constituted him a
tenant from year to year, and made him liable to a dis-
tress (k').^ Where the plaintiff took possession of premises
under an agreement for a lease to him for seven years, at a
yearly rent payable half-yearly, but no lease was executed,
nor was the quantum of rent to be paid ascertained ; and
the plaintiff occupied under the agreement for three years,
and paid rent for two ; it was held, that this created a ten-
ancy from year to year, and entitled the landlord to distrain
for the arrears due at the rate previously paid (?). But
where a tenant entered under an agreement containing stipu-
lations for a lease at 251. per year, and an engagement by
the landlord to complete certain erections, which were never
completed, nor any rent paid, and the tenant, on being called
on after some years' occupation, said he was ready to pay
upon the erections being completed and an allowance made
to him for some repairs ; it was held, that a demise at a cer-
tain rent could not be implied so as to entitle the landlord
to distrain (?»). So where a person let a furnished house at
V. Leon, 7 II. & N. 73 ; 31 L. J., Ex. (L) Cox v. Bent, 5 Bing. 185; Vin-
90. cent v. Godson, 24 L. J., Ch. 122 ;
(//) Yeoman v. Ellison, L. R., 2 C. Smitli L. & T. 27 (2n(l ed.).
V. 081 ; 30 L. J., C. V. 326. In this (/) Knigiit v. Bennett, 11 Moorc,
case the rent was 80/. a week. 222.
(i) Ajile, 86. (?«) Kegnant v. Porter, 7 Bing.
451.
' A tenant from year to year, at a fixed rent, is lialile to distress, Sturdee
r. Merritt, 3 Kill's (N. IJ.) 041 ; so is a tenant holding over after a term and
paying rent, Macgregor r. Defoe. 14 Ont. 87 ; and a lessee at will, if he paj's a
fixed rent, Buckley v. Russell, 24 N. B. 205.
660
Cii. XI. S. 2. J CONDITIONS PRECEDENT TO DISTRESS. *420
a certain rent from a future day, and agreed that he wouhl
furnish it suitably for a school ; it was held, that such fur-
nishing was a condition precedent to the right to demand
the rent, and therefore that the lessor, not having furnished it,
could not distrain (/i). Where a jjerson entered upon prem-
ises subject to the approbation of the landlord, who after-
wards did not approve, but upon his agreeing to pay an
advanced rent, as well for the time he had been in posses-
sion as for the future, allowed him to continue in possession ;
it was held, that the landlord might distrain for the advanced
rent accrued before the agreement as well as for what accrued
afterwards — such agreement giving him the same power by
relation to his tenant's first entry into possession, as it did
to recover his rent in future (o).
Acknowledgment. — An * acknowledgment of an [*420]
antecedent tenancy at a specified rent, with an agree-
ment to go on on certain terms, is sufficient to authorize a
distress (p^..
Surrender. — If a tcnailcy has existed, a surrender of tlie
term must be complete {cf)^ or the landlord's right to dis-
train will continue (r).
Eviction. — ^ If a tenant is evicted by titl^ paramount, but
remains in possession under a new agreement with the per-
son who had evicted him, his original landlord cannot dis-
train on him for rent (s). If a lessor exercise his option
that a lease shall be void for breach of covenant, he cannot
distrain for subsequent rent (t).
Notice to quit. — Where the landlord has given a notice to
quit and the tenant holds over, but nothing is done to show
that a new tenancy is created, the landlord cannot distrain
for rent accruing due after the time when the notice ex-
(n) Mechelen v. Wallace, 7 A. & (r/7 Ante, Ch. VIII.
E. 49; Vaughan v. Hancock, 3 C. B. (r) Coupland v. Maynard, 12 East,
766. 134.
(o) M'Leish v. Tate, Cowp. 781. (.s) Hopcraft v. Keys, 9 Ring. 613.
(/)) Eagleton v. Gutteridge, 11 j\I. (<) Jones v. Carter, 15 M. & W.
F^ W. 465; 2 Dowl., N. S. 1053; 718; Franklin r. Carter, 1 C. B. 750 ;
Gladman v. Plumer, 15 L. J., Q. B. 3 D. & L. 213 ; Bridges v. Smyth, 5
79 ; 10 Jur. 109. Bing. 410 ; Cole Ejec. 82, 408.
661
*421 DISTRESS FOR RENT. [Ch. XI. S. 3.
pired (?^). In a previous case a distress for rent accruing
after the expiration of a notice to quit was considered to
operate merely as a waiver of the notice (.r). It should
however, be borne in mind that a notice to quit cannot be
waived without the express or implied consent of both par-
ties, and that it differs in this respect from a forfeiture Oy).
Prolongation by custom. — Where it appeared that by the
custom of the country the tenant was to have the use of the
barns, gate-houses, &c., of the farm for a certain period after
the end of the term, for the purpose of thrashing out corn
and foddering cattle : and the tenancy was determined at
Michaelmas, and the landlord in the January following dis-
trained a corn-rick for rent due at Michaelmas, he having in
the meantime obtained an injunction to restrain the tenant
from carrying off the premises corn in the straw ; it was
held, that the holding by the tenant under the custom,
though involuntary, was a j^'^olongation of the original term,
and that tli^ landlord was entitled to distrain (z).
Sect. 3. — Restraining Distress by Injunction.
Injunction against distress. — Before the Judicature Acts a
distress could not be restrained by injunction (a). But
section 25, subs. 8, of the Judicature Act, 1875, which enacts,
that "an injunction may be granted by an interlocutory
order of the court in all cases in which it shall appear to
the court to be just or convenient," extends to
[*421] authorize an injunction, and such an * injunction
was granted in Shaw v. Earl of Jersey (/>). 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, 0 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.
(.</) Rogers v. Humphreys, 4 A. & B. <i58 ; 37 L. J., Q. B. 242.
E. 299; rartington v. Woodcock, 0 (f) Bradl)y,99; Alcliorne r. (lonime,
A. & E. G90, ante, 50. 2 Bing. 54.
(</) Bullen, 74.
GG8
Cii. XI. S. 4] WHO MAY DISTRATN. *426
version, is permitted by the mortgagee to continue in the
receipt of the rents incident to that reversion, he, during
such permission, is praesumptione juris authorized, if it should
become necessary, to realize the rent by distress, and to dis-
train for it in the mortgagee's name, as his bailiff : and he
may so justify the distress, although it was taken in his own
name as for the rent due to himself (e). So where a mort-
gage by demise has been paid off by the assignee of the
equity of redemption, who takes from the mortgagee an
undertaking to execute a transfer of the mortgage, tliere is
an implied authority to the assignee of the equity of redemp-
tion to distrain in the name of the mortgagee C/).
Annuitants. — A mere annuity may be distrained for Avhere
the deed creating it expressly confers a power to distrain Qg') ;
but not generally in other cases (A). If an annuity be
granted out of an estate, and the grantor, to secure the pay-
ment, vests the estate in trustees for a term, to the use of
the annuitant, and subject thereto continues in possession,
the annuitant may distrain for the arrears ; for supposing the
term to have given him the reversion, the grantor is to
be considered as his subtenant, upon whom he might as re-
versioner distrain at common law (i).
Guardians. — Such guardians as may make leases
of the infant's lands in their * own names "(A-), may, [*426]
during the minority of their wards, distrain in their
own names for arrears of rent reserved by such leases (V).
(1)) Persons not having the Reversion.
On exchanges and partitions. — Although a person who has
never had the reversion, or has parted with it, cannot gen-
erally distrain (w), yet in some particular cases the power of
(c) Trent v. Hunt, 9 Exch. 14. (h) See Cliap. I., Sect. 20.
(/) Snell V. Finch, 13 C. B., N. S. (/) Shopland v. Ryoler, Cro. Jac.
651 ; 32 L. J., C. P. 117. 55,' 98; Bedell v. Constable, Vaugh.
{g) Chapman v. Beecham, 3 Q. B. 179; Bullen, 72.
723. (m) Smith v. Mapleback, 1 T. R.
{h) Co. Lit. 32 a ; 144 b ; Bullen, 441 ; Parmenter v. Webber, 8 Taunt.
51, note (9). 593; Preece i\ Corrie, 5 Bing. 24;
(0 Fairfax v. Gray, 2 W. Blac. Thorn v. Woollcombe, 3 B. & Adol.
1326.
586; Pascoe v. Pascoe, 3 Bing. N. C.
669
*427 DISTRESS FOR RENT. [Cn. XI. S. 4.
distress is held to be at commoa right, even without the
reversion. Thus a rent granted upon an exchange may be dis-
trained for without any reversion or express power (n), and so
may a rent granted by one coparcener to another for equalitj^
of partition (o). In such cases the grantee of the rent ma}^
distrain for it without any express power in the deed : but
if such grantee assign over, neither he nor tlie assignee
can distrain for arrears due before the assignment (jt>).
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-
(<l) Whitehead v. Taylor, 10 A. & (r/) Osborne r.Wickenrlen,2Saiind.
K. 210. 195; Ankerstein v. Clarke. 4 T. K.
{e) Bullen, 5G, 57 ; Ogncl's case, 4 017 ; Parry v. Ilindle, 2 Taynf. 181.
Co. 11. 51 a. (/,) Bullen, 54.
(/) Howe i;. Scarrott, 4 II. & N. 0) Wood v. Tate, 2 B. & P., New
72;5 ; 28 L. J., Ex. 325 ; ante, Cliap. R. 247.
VII., Sect. 8. (A ) ^«/<', 370.
G72
Cii. XI. S. 4.] WHO MAY DISTRAIN. *429
wardens and overseers of a parish holding property under 59
Geo. 3, c. 12 (I), mnj, on behalf of himself and the others,
distrain for rent due in respect of the property Qm').
(g) P&t'sons having special Powers.
Rent-charge. — It is of the very essence of a rent-charge
that a power of distress should be given by the deed or will
creating the charge (w), and a distress may be made accord-
ingly when any of such rent is in arrear. So the assignee of
a rent-charge may distrain for arrears thereof which become
due after the assignment (o), but not for previous arrears (^).
Rent-seek. — The grantor or owner of a rent-seek may dis-
train for arrears by virtue of 4 Geo. 2, c. 28, s. 5 (5'). So a
devisee may distrain for rent devised to him out of
land, whether the land be expressly charged * with [*429]
a distress or not (r). If a lessee for years assign his
term, reserving a rent with no clause of distress, he cannot
distrain for the rent, either by the common law or by the
statute (s). A person who lias possession of land, though he
has not the legal estate, may by agreement grant another a
power of distress Q'). A covenant that the grantor of a rent
should not replevy the goods distrained until the rent be
paid, is void (?*). Where by an inclosure act a yearly corn-
rent was substituted in lieu of tithes, and a power of distress
was given for the recovery thereof ; it was held, that the
goods of a tenant, coming in under the owner of land which
had remained for several years untenanted, and wholly un-
profitable, were liable to be distrained for such corn-rent in
arrear (a-).
(l)Ante,?A. (s) v. Cooper, 2 Wils. 375
(vi) Gouldsworth v. Knights, 11 M. Parmenter v. Webber, 8 Taunt. 593
& W. 337. Smith v. Mapleback, 1 T. R. 441
(n) Ante, 412. Preece r. Corrie, 5 Bing. 24 ; Pascoe
(o) Maund's case, 7 Co. R. 28. v. Pascoe, 3 Bing. N. C. 898; Lang-
(;)) Brown ??. Metropolitan Coun- ford y. Selmes, 3 Kay & J. 220 ; 3 Jur.,
ties Life Insurance Society, 1 E. & E. TST. S. 859.
832; 28 L. J., Q. B. 236. (t) Chapman v. Beecham, 3 Q. B.
(7) Ante, 376. 723; Pollitt v. Forrest, 11 Q. B. 961.
(r) Siiep. Touch. 429 ; Buttery v. (u) 1 Inst. 145 b.
Robinson, 3 Bing. 392 ; Sallory v. (x) Nevvling v. Pearce, 1 B. & C.
Leaver, L. R., 9 Eq. 22. 437 ; Bendyslie v. Pearce, 4 Moo. 99.
673
'430 DISTRESS FOR KENT. [Ch. XI. S. 4.
(h) Receivers and Agents.
Private Receiver. — A private receiver cannot generally
distrain without an express power for that purpose (^). In
Jolly V. Arbuthnot, by a receivership deed executed con-
temporaneously with a mortgage in fee, which it recited, the
mortgagor and mortgagee aj^pointed a receiver, and consti-
tuted him their agent and attorney to receive the rents of
the mortgaged property, and to use such remedies by way of
entry and distress as should be requisite for that purpose.
By the same deed the mortgagor attorned as tenant from
year to year to the receiver, and there was a proviso that if
default should be made in payment of the mortgage money
or interest at the times appointed, the mortgagee might enter
and avoid the tenancy created by the attornment. There
was also a proviso that nothing therein contained should les-
sen the rights, powers or remedies of the mortgagee under
the mortgage (2). On the mortgagor being found bankrupt,
it was held, that the relation of landlord and tenant had been
created between the receiver and mortgagor by the receiver-
ship deed, and that the receiver was entitled to distrain, and
take the goods which had belonged to the mortgagor on the
mortgaged premises (a).
Receivers appointed by order of court. — Receivers ap-
pointed by the High Court have a power, where they con-
sider it necessary, to distrain, and need not apply first to the
Court for a particular order for that purpose (ft),
[*430] because as the * Court never makes an immediate
order, but appoints a future day for a tenant to pay,
it might be an injury to the estate to wait till that time, as it
would give the tenant an opportunity to convey his goods off
the premises in tlie meantime. If, however, tlicre is any
doubt who has the legal right to the rent, then the receiver
(;/) Eullcn, 72; Wjird v. Slicw, 9 («) Jolly v. Arbuthnot, 4 De G. &
Jiiif,'. 008 ; (» Kxc'li. 11). J. '2'J4 ; 28 L. J., Cli. 547.
(z) The real ol)jcct of tliis was to (/>) 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, 0 Exch. 205.
B. 300 ; .39 L. J., Q. B. 125. (r) Dalton v. Wliittem, 3 Q. B.
(«) Hcllawell v. Eastwood, 0 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 (<?). Where a sheriff's officer, being
in possession of a tenant's effects under an outlawry, made a
distress on them for rent, and on the request of the landlord
sold the goods distrained, and afterwards the outlawry was
reversed, the officer was held liable to pay the produce of the
goods to the landlord, for they were not in custodia legis,
the judgment being mere waste paper (fZ).
Messenger in bankruptcy. — Goods seized by a messenger
(u) Peacock v. Purvis, 2 Brod. & B. (2) 24 Vict. c. 10, s. 16 ; post, Sect.
362 ; Wright v. Dewes, 1 A. & E. 641 ; 11 (c).
Wliarton v. Naylor, 12 Q. B. 673 ; 6 («) Smith v. Russell, 3 Taunt. 400.
D. & L. 136 ; Smith L. & T. 204 (2nd {b) Blades v. Arundale, 1 M. & S.
ed.). 711.
(x) See post. Sect. 11 (a). (c) Seven v. Mihil, 1 Ld. Ken. 370.
Cv) 19 & 20 Vict. c. 108, s. 75 ; post, (d) St. John's College, Oxford v.
Sect. 11 (b). Murcott, 7 T. R. 259.
695
*444 DISTRESS FOR RENT. [Ch. XI. S. 9.
under a bankruptcy have been held not to be privileged as
being in the custody of the law (e).^
Receiver. — In Sutton v. Rees, a receiver in a legatees'
suit advertised furniture in a leasehold house for sale. The
superior landlord claimed rent, but took no other steps, and
the furniture was sold. It Avas held, that the landlord had
no lien on the proceeds of the sale, but must come in with
the other creditors, and it was said that he should have dis-
trained, first obtaining leave of the court so to do (/).
In cases of extents. — A distinction has been taken between
proceedings at the suit and for the benefit of the
[*444] Crown, and an outlawry in a civil suit (,(/). An * im-
mediate extent against a Crown debtor tested after
a distress taken for rent justly due to the landlord with
notice of the tenant being the Crown debtor, and appraise-
ment of the goods and chattels, but before sale, prevails
against the distress (K) : so where a man was outlawed and
an extent issued thereupon, and his goods were seized,
although the landlord distrained three days before the
extent, it was held that he was not entitled to any part of
the rent due, under 8 Ann. c. 14 («'). Where an officer
entered under an extent, and improperly continued on the
premises for a longer period than he ought, the court would
not permit the rent accruing subsequently to the seizure to
be paid out of the proceeds ; but left the landlord to his
action against either the tenant for nse and occupation, or
the officer for wrongfully continuing on the premises (/<•),
The landlord of premises on which goods have been seized
under an extent in aid is not entitled, under 8 Ann. c. 14, s.
1, to call on the sheriff to pay a year's rent due before the
teste of the writ (/).
(c) Brings V. Sowry, 8 M. & W. College, Oxford r. Murcott, 7 T. R.
279; Newton v. Seott, 9 M. & W. 259.
434; 10 Id. 471 ; ]'liillii)s r. Sliervill, (//) Rex v. Cotton, Parker, 112.
0 Q. B. 944. (/) Rex v. Sotlierby, Bunh. 5.
(/) In re Sutton and Sutton v. (A) liex v. Hill, ti I'riee, 19; Lane
Rees, 32 L. J., Ch. 437 ; 9 Jur., N. S. r. Crockett, 7 Id. 50(5; Harrison r.
450. Barry, 7 Id. 0!»0.
Q/) Imp. Sheriff, 171 ; St. .lolm's (/) Rex r. Deeaux, 2 I'rioe, 17.
''■ Under the late I'liited States h.-itikniiitcv law, jirnperty licid hy an as-
signee was not liahle to di.strcs.s. I\I()rj,';iM r. Caiiiiihi.'ll, 22 Wall, 381.
CiUG
Cii. XI. S. 9.] EXEMPTIONS FEOM DISTRESS. *445
Grooving corn seized and sold under a fi. fa. — Formerly,
where a tenant's growing corn was seized and sold under a
fi. fa. pursuant to 2 W. & M. c. 5, s. 3 (7?i), and the vendee
permitted it to remain till it was ripe, and then cut it, the
landlord could not distrain on it for rent before the exi)ira-
tion of a reasonable time for the vendee to remove and carry
it away ; such corn, whilst in the possession of the sheriff's
vendee, being considered as in the custody of the law (m).
So the landlord could not distrain for rent on any corn, hay,
straw or other agricultural produce, sold by the sheriff under
an execution, subject to a special agreement with the pur-
chaser for him to use and consume the same on the demised
premises according to the terms of the lease or agreement,
or the custom of the country (o).
14 & 15 Vict. c. 25, s. 2. Crops sold under fi. fa. liable, so long
as on farm. — 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 other 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 bar-
gain 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,
* which was passed in order to reverse the law as [*445]
laid down in Wharton v. Naylor (p'), the tenant's
crops can only be sold under an execution for their value
minus the rent to which they may become liable, and the
costs of a distress ; but the landlord may afterwards abstain
(m) Ante, 436. XI., Sect. 6 (b). This act does not
(n) Wliarton v. Naylor, 12 Q. B. apply to sales under distresses for
673; 6 D. & L. 136; Peacock v. rent; Ridgway v. Ld. Stafford, 6
Purvis, 2 Brod. & B. 362 ; Wright v. Exch. 404.
Dewes, 1 A. & E. 641. (jo) 12 Q. B. 673.
(o) 56 Geo. 3, c. 50; ante, Chap.
697
*445 DISTRESS FOR RENT. [Ch. XI. S. 9.
from distraining, and so in effect benefit the purcliaser pro
tanto at the tenant's expense ; after which he may sue the
tenant for such rent, or distrain upon his other goods for
the amount.
(f) The Goods of Lodgers.
Lodgers' Goods Protection Act. — At common law, as we have
seen, the goods of third persons are liable to be distrained for
rent, subject to the exceptions in the case of goods delivered
to a person in the way of his trade, and other cases. An
important statutory exception has been made in favour of
lodgers by an act passed in 1871, 34 & 35 Vict. c. 79.i By
this act, which does not extend to Scotland (5'), after reciting
that " lodgers are subjected to great loss and injustice by the
exercise of the powers possessed by the superior landlord to
levy a distress on their furniture, goods and chattels, for
arrears of rent due to such superior landlord by his imme-
diate lessee or tensint," it is enacted (sect. 1), that "if any
superior landlord shall levy or authorize to be levied a dis-
tress on any furniture, goods, or chattels of any lodger for
arrears of rent due to such superior landlord by his imme-
diate tenant, such lodger may serve such superior landlord,
or the bailiff or other person employed b}' him to levy such
distress, with a declaration in writing (r) made by such
lodger, setting forth that such immediate tenant has no right
of property or beneficial interest in the furniture, goods, or
chattels so distrained or threatened to be distrained upon,
and that such furniture, goods, or chattels are the property
or in the lawful possession of such lodger ; and also setting
forth whether any and what rent is due and for what period
from such lodger to his immediate landlord ; and such lodger
(g) Sect. 4. (r) See Form of Declaration, Ap-
pendix D., No. 12.
^Lodgers. — The goods of lodgers arc liable to distress in most of the
American states.
In Nona Sr.otia and Ontario tliere are special provisions for the protection
of lodgers whose goods are distrained upon their giving written notice, and
paying their rent in arrear to the superior landlord (Rev. Sts. Nova Scotia,
cli. 120, sec. G; Rev. Sts. Ontario, v.\\. 143, sec. 44). See as to property of
boarders, ante, (c), notes.
698
Ch. XI. S. 9.] EXEMPTIONS FROM DISTRESS. *446
may pay to the superior landlord, or to the l)ailiff or other
person employed by him as aforesaid, the rent, if any, so due
as last aforesaid, . or so much thereof as shall be sufficient to
discharge the claim of such superior landlord (s).
Inventory. — " And to such declaration shall be annexed a
correct inventory, subscribed by the lodger, of the furniture,
goods, and chattels referred to in the declaration ; and if any
lodger shall make or subscribe such declaration and
inventory, knowing the same or either of * them to [*446]
be untrue in any material particular, he shall be
deemed guilty of a misdemeanor."
Declaration inoperative against subsequent distress. — A dec-
laration under this section is no protection unless it has
been made after the distress has been levied or authorized or
threatened, and it is inoperative against a distress subse-
quently levied which has not been authorized or threatened
before the declaration is made So it was held by the Court
of Appeal in Thwaites v. Wilding (0? on the very reasonable
ground — though the decision may seem rather hard upon
lodgers — that the conditions of the statute must be rigidly
complied with by the lodger, in order to deprive the landlord
of his remedy at common law. The declaration need not
state that no rent is owing, if such be the case, nor even that
the declarant is a lodger. Ex parte Harris, 34 W. R. 132;
53 L. T. 655.
If distress proceeded with. — By sect. 2, " if any superior
landlord, or any bailiff or other person employed by him,
shall, after being served with the before-mentioned declara-
tion and inventory, and after the lodger shall have paid or
tendered to such superior landlord, bailiff, or other person,
the rent, if any, which by the last preceding section such
lodger is authorized to pay, shall levy or proceed with a
distress on the furniture, goods, or chattels of the lodger,
(s) By sect. 3, " any payment made (0 Thwaites v. Wilding, L. R., 12
by any lodger pursuant to the first Q. B. D. 4 ; 53 L. J., Q. B. 1 ; 49 L.
section of this act shall be deemed a T. 396; 32 W. R. 80, C. A., affirming
valid payment of any rent due from decision below, L. R., 11 Q. B. D.
him to his immediate landlord." 421 ; 52 L. J., Q. B. 734 ; 49 L. T.
201.
699
*447 DISTRESS FOR RENT. [Ch. XL S. 9.
such superior landlord, bailiff, or other person shall be deemed
guilty of an illegal distress, and the lodger may apply to a
justice of the peace for an order for the restoration to him of
such goods; and such application shall be heard before a
stipendiary magistrate, or before two justices in places where
there is no stipendiary magistrate, and such magistrate or
justices shall inquire into the truth of such declaration and
inventory, and shall make such order for the recovery of the
goods or otherwise as to him or them may seem just, and the
superior landlord shall also be liable to an action at law at
the suit of the lodger, in which action the truth of the decla-
ration and inventory may likewise be inquired into."
Who is a "lodger." — It is clear that '•'lodger" in this act
cannot mean " sub-tenant." On the other hand, every lodger
is to some extent a " tenant," and a person occupying by far
the greater part of a house under a contract in writing was
held to be a " lodger" within the act in Phillips v. Henson (m),
Avhere the only rooms retained by the mesne landlord were
"a housekeeper's room on the basement and two or tliree empty
attics and a stable." Nor is it necessary that the mesne land-
lord should even reside on the premises; it is enough if he
retain by himself or an agent such control and dominion over
them as the master of a house usually has (a-). The
[*447] question whether the party claiming * under the act
is a " lodger " or not ought not to be left to the
jury (?/) in an action for illegal distress ; though it is a
question for determination by justices upon the hearing of
an application for an order under the statute (2).
The lodger must sleep on the premises. — The lodger must
sleep and reside on the premises, and a person- occupying the
premises in daytime only for the purpose of his business is
not a "lodger" within the statute (a).
(u) L. R., .3 C. P. D. 20 ; 47 L. J., B. 7 ; 45 L. T. 426 ; 30 W. R. 115, C.
C. P. 273; 26 W. R. 214, per Grove A.; Ness v. Stevenson, L. R., 9 Q! B.
and Lindley, JJ. ; the latter learned D. 245.
judne 18 reported as observing that (y) lb.
" probably the act would not apply (s) Ness v. Stephenson, svpra, note
to an under-tenant who has the ex- (a:).
elusive possession of the whole («) TIeawood v. Bone, L. R., 13 Q.
house." B. D. 170; 51 L. T. 125.
(.r) Morton v. Palmer, 51 L. J., Q.
700
Cn. XI. S. 9.] EXEMrTIONS FROM DISTRESS. *447
A lodger may sue for selling before five days. — If the land-
lord sell before the five days within which by the statute of
William and Mary [post, Sect. 8] the tenant has the power
to replevy, the lodger has a right of action against him, and
this although the declaration under the statute may not have
been served till after the sale (/>)•
(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 ; 0 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<ost, Appendix A. (e) Harvey v. Pocock, 11 M. & W.
(c) Simpson v. Hartopp, Willes, 740; Davies j). Aston, 1 C. B. 746; 8
f)12; 1 Smith L. C. 489 (7th ed.) ; D. & L. 188.
Gorton v. Faulkner, 4 T. R. 505. (/) Gauntlett v. King, 3 C. 1?., X.
S. 59.
70(;
Ch. XI. S. 9.] EXEMPTIONS FROM DISTKESS. *452
Mr. Smith expresses an opinion that this exemption would
include a lawyer's books also (jf).
Threshing machine. — A threshing machine, which is not a
fixture, is liable to a distress, unless in actual use at the time,
or there be other sufficient distress (A). If a man has two
mill-stones, and one only is in use, and the other lies by not
used, it may be distrained for rent (i).
* (k) Agisted Stock} [*452]
Conditional exemption. — If the Agricultural Holdings Act
applies (/c), agisted stock, that is stock taken in by the ten-
ant to be fed, in some parts of the country called " tacks,", is
conditionally exempt ivom distress under some circumstances.
For it is provided by s. 45 of that act that '•' Where live stock
[i.e. by s. 61 'any animal capable of being distrained' (Z)]
belonging to another person has been taken in by the tenant
at a fair price, such stock shall not be distrained where there
is other sufficient distress to be found." As to the " fair
price" it has been held not to be necessary that there should
be a price in money, and that an agreement " milk for meat "
as it is termed, i.e. that the tenant should keep for his own
use and by way of payment, the milk of agisted cows, is
within the section (wi).
Limit on amount recoverable. — The section goes on to pro-
vide that if the live stock be distrained by reason of other
sufficient distress not being found, " there shall not be re-
covered by such distress a sum exceeding the amount of the
price so agreed to be paid for the feeding, or if any part of
such price has been paid, exceeding the amount remaining
unpaid."
{(j) Smith L. & T. 205 (2iid ed.). pi. 6, cited in Simpson v. Ilartopp,
(Ji) Fenton v. Logan, 0 Bing. (576. ■uhi supra.
As to absolute exemption, if on agri- (t) Sect. 5, ante, 430.
cultural holding, see sub-s. (/<), ante, (/) See Sub-s. (U), anfe, 439.
448. (»i) London & Yorkshire Bank r.
(?) Year Book, Easter T. 14 H. 8, Belton : Ross and Smith, Claimants,
L. R., 15 Q. B. D. 457.
J Agisted stock. — Cattle taken under exclusive right to feed the grass
are not exempt by the Agricultural Holdings Act. Masters v. Green, 20 Q.
B. D. 807.
[n Pennsylvania cattle received to be pastured are exempt from distress.
Cadwahuier r. Tindall, 20 Pa. St. 422.
707
*453 DISTRESS FOR RENT. [Ch. XI. S. 10.
Power of owner to redeem. — Moreover the owner of the
stock, who at common law would he subject to the common
loss of third persons, has a special statutory privilege, it being
further enacted that " it shall be lawful for him to redeem the
stock at any time before it is sold (71) by paying to the dis-
trainer a sum equal to such price as aforesaid," and that "any
payment so made to the distrainer shall be in full discharge
as against the tenant of the like amount which would be
otherwise due from the owner of the stock to the tenant in
respect of the price of the feeding." A proviso is added that
so long as any portion of the stock shall remain on the hold-
ing, the right to distrain such portion shall continue to the
full extent of the price agreed to be paid (or of the part, if
any, remaining unpaid), for the feeding of the whole.
Sect. 10. — Proceedings in Distress.
(a) When to be made.
Must be betw^een sunrise and sunset. — A distress for rent
cannot be made after sunset and before sunrise, however
light it may be (o) ^ — because the tenant would not
[*453] have * any notice to make a tender of his rent, which
possibly he might do in order to prevent the dis-
tress ( 7^). It seems doubtful whether, for the purposes of a
distress, sunrise commences with the first beams of the sun
above the horizon, or when the middle of the sun is upon
the horizon, or when the sun has completely emerged ; "• per-
sons who distrain should bear in mind that a distress is to
be made in the daytime, and they ought not to go so near
the limits as to raise any doubt on the subject " (</). An
almanack is not evidence of the time of sunrise or sunset on
a particular day, nor will the court take judicial notice of
(n) As to time of sale, sec Sect. 10, ( ;,) Gilb. Distr. 50 ; Co. Lit. 142 a ;
sub-s. (/i), ]msl. Aldfiihiir}-!! v. IVaple, 0 C. & P. 212.
(o) 'ruttoii V. Darke and Nixon v. (^y) Tutton v. Darke and Nixon v.
Freeman, 5 II. & N. 047 ; Keen i;. Freeman, supra.
I'riest, 4 II. & N. 240, Watson, B. ;
Smith L. &T. 219 (2nd ed.).
' Russell V. Buckley, 25 N. B. 204.
708
Cu. Xr. S. 10.] PROCEEDINGS IN DISTRESS. *453
such time (z-)- It was ruled in one case, where rent being
due to the defendant from the plaintiff, who was about to
remove her goods, the defendant entered the house after
sunset, and for some hours prevented her from so doing, and
locked some of the doors, that the plaintiff was entitled to a
verdict, but only for the actual damage (s), but it seems that
the full value for the goods distrained ought to have been
given (^).
Must not be till after rent-day. — A distress cannot be made
the same day on which the rent becomes due, for it is not in
arrear until the next day (w).^ The custom of a place or an
(r) 5 H. & N. 647, 649, per Pollock, N. S. 280 ; Attack v. Braniwell, 3 B.
C. B. ; Collier v. Nokes, 2 C. & K. & S. 520 ; 32 L. J., Q. B. 146.
1013. («) Duppa V. Mayo, 1 Saund. 287 ;
(s) Lamb v. Wall, 1 F. & F. 503. 2 Salk. 578 ; Co. Lit. 47 b, note (b) ;
(<) Edmondson v. Nuttall, 17 C. B., BuUen, 119 ; Dibble v. Bowater, 2 E.
& B. 564.
1 Distress; \Arhen may be made. — (a) At common laio not till rent is in
arrears. Slay ?'. Milton, 64 Tex. 421 ; Scott v. Russell, 72 Ga. 35; M'Kinney
V. Reader, 6 Watts (Pa.) 34, 41 ; Evans v. Herring, 27 N. J. L. 243; Bailey
V. Wright, 3 M'Cord (S. C.) 484. A distress made on last day of term at noon
is too soon. Johnson r. Owens, 2 Cranch C. Ct. 160.
Rent payable in advance may be distrained for as soon as payable. Con-
way V. Starkweather, 1 Denio (N. Y.) 113 ; Beyer v. Fenstermacher, 2 Whart.
95; Anderson's Appeal, 3 Pa. St. 218; Williams v. Howard, 3 Munf. (Va.)
277 ; Peters v. Newkirk, 6 Cow. (N. Y.) 103 ; Russell v. Doty, 4 Id. 576, 581
(;3er Sutherland, J.).
Taking a promissory note suspends, but does not destroy, the right of
distress, Judge v. Fiskc, 2 Speers (S. C.) 436; Fife v. Irving, 1 Rich. L. (S. C.)
226 ; Snyder v. Kunklenian, 3 Pa. 487 ; even though lessor negotiates the
note if he takes it up, Giles v. Hays, 10 Md. 333; unless the note was taken
in satisfaction instead of security, as it would be primci facie presumed to be
in some states. It has also been held that landlord, after he has recovered
judgment, may distrain if it is unsatisfied. Chipman v. Martin, 13 Johns.
(N. Y.) 240.
Goods transferred or levied upon before rent is in arrears are ordinarily
thereby exempted from the landlord's preference lien. A voluntary assignee,
under assignment prior to accruing of rent, can hold the assigned property as
against the landlord, Burchard v. Rees, 1 Whart. (Pa.) 377 ; Belknap v.
Hastings, 1 Denio (N. Y.) 190 ; and landlord has no valid claim to be paid
one year's rent out of proceeds of goods levied upon prior to the accruing of
the rent, Mc Willie v. Hudson, Treadw. Const. (S. C.) 119; e.ven though goods
after levy are left on premises, Ayres v. Depras, 2 Speers (S. C.) 367.
Goods removed bona Jide from premises, before rent accrued, are thereby
ordinarily discharged from landlord's lien. Brown v. Duncan, Harper's L.
(S. C.) 337.
709
*454 DISTRESS FOR RENT. [Ch. XI. S. 10.
agreement between the landlord and tenant, if there be no
objection to it in point of law, may indeed empower the land-
lord to distrain for it earlier, for conventio vincit legem ; as
where a person took a shop, and agreed to pay a year's rent
in advance (x). So where, by the custom of the country,
half-a-y ear's rent became due on the day on which the tenant
entered, it was held that the landlord might distrain before
the half-year had expired (ij'). On the other hand, the right
to distrain may be jpostjjotied by agreement, ex. gr. until the
landlord has produced his receipt for the rent due from him
to the superior landlord (2). So a power of distress may be
granted after demand of the rent from the tenant personally,
or in some other specified manner ; but where the rent is to
be paid, "■ being lawfully demanded," the distress itself is a
sufficient demand (a).
May be -writhin six months after lease determined. — At com-
mon law a distress could not have been made after the ex-
piration of the lease (6). But by 8 Ann. c. 14, ss. 6, 7, "any
person or persons having any rent in arrear or due
[*454] upon any lease for life or * lives, or for years, or at
will, ended or determined (c), may distrain for such
(t) Jenner ?;. Clegg, 1 Moo. & R. (^() Browne ?>. 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, 0 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, 0 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, 0 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 (<?), nor does it under the
Stamp Act, 1870. One of several joint-tenants may sign a
warrant of distress, and 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 (cZ). Tenants in common may distrain,
each for his own share, but have no implied authority to dis-
train for each other : they may, however, join in a warrant
to distrain for rent due to all of them (g) : coparceners are
more like joint-tenants ; either they should all sign (/), or
any one may sign on behalf of herself and the others (^).
So one of several co-heirs in gavelkind may sign the distress
warrant on behalf of himself and his co-heirs without
[*460] express authority from them (^). * A mortgagor,
who is permitted to remain in possession and to
receive the rents and profits, has implied authority to dis-
train for the arrears as to the bailiff or agent of the mort-
gagee ; and he may so justify the distress notwithstanding
he took it in his own name as for rent due to himself (A).
Ratification of authority to distrain. — A man may distrain
without any express previous authority ; and if he afterwards
obtain the assent of the person in whose right the distress
was made, such assent will be equivalent to a previous com-
mand, and will have relation to the time of the distress
(b) See forms, Appendix D, No. 1. (/) Sterlman v. Pa<jo, 1 Salic. 390;
(c) Tyle V. Partridge, 15 M. & W. Home v. Lewin, 1 Ld. Rayni. 030.
20. (ft) Leitrh v. Shepherd, 2 Brod. &
(d) Robinson ;-. Hoffman, 4 Bing. B. 4(50 ; BuUen, 44, 130; antr, 422.
502 ; 3 C. & P. 234 ; fiH^p, 422. (A) Trent v. Hunt, 9 Excli. 14;
(e) Ante, 422; Bulien, 48. Snell v. Finch, 13 C. B., N. S. 051 ;
32 L. J., C. P. 117.
Replevin iic.'^ in all cases where distress is illegal. Dent v. Hancock, 5
Gill (M<\.) 120; Russell v. Buckley, 25 N. B. 204.
Excessive distress. ^Distraining for more than is due does not consti-
turc trespass, M'Kiiiiu>y r. Header, 0 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, 0 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, 0 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, 0 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, 0 Exch. 234;
20 L. J., Ex. 162.
' Notice of distress. — Notice given to tenant will bin<l owner. Cald-
oh'ugh r. IloUingswortli, 8 W. & S. (Pa.) .302. In computing time, day on
wliieii distress is made is to be excluded. Brisben v. Wilson, (iO I'a. St. 452 ;
.M'Kinney v. Header, G Watts (Pa.) 34. Sunday (being ilii-x mm juridicus) is
to be excluded. Same.
Notice is essential to validity of appraisal and sale. Briggs v. Large, 30
Pa. St. 287.
In several cases it has been held that failure to give notice, if there is no
sale, does not make landlord a trespasser ab initio. M'Kinney v. Header, 6
Watts (Pa.) 34 ; Keller v. Weber, 27 Md. (iOO. The first-named case was
where the jjroperty was replevied by tiie lessee, and the last case a case of
distress made after death of lessee.
7'50
Cii. XI. S. 10.] PliOCEEDINGS IN DISTRESS. *467
the time when the rent and charges must be paid or the
goods replevied. Tliis is usually done by wi'iting such
notice at the bottom of the inventory (6). A true copy of
the inventory and notice must then be served personally
upon the tenant or the owner of the goods, or left at the
house, or if there be no house on the premises, upon the most
notorious place. There should in all cases be a witness
present to prove the regularity of the proceedings. When
the distress has been thus made, it is the safest way to re-
move the goods immediately, and in the notice to acquaint
the tenant where they are removed to. The place to which
they are so removed must be mentioned in the notice (c).
In many cases, however, the tenant for his own convenience
requests the landlord to permit them to remain on the prem-
ises, and consents to allow him to retain possession beyond
the five days ; and in such cases a written consent should be
procured (c?), and some person left in possession of the goods
upon the premises. No stamp is necessary to such written
consent, or to a licence to re-enter and resume possession in
consideration of the distress being withdrawn for a time («).
(e) Distress on Goods fraudulently removed} ,
Fraudulent removal. — To prevent the clandestine removal
of goods off the demised premises by tenants, to avoid dis-
tress for rent, the 8 Ann. c. 14, s. 2, authorized landlords to
follow and distrain them within fi,ve days after such removal.
Goods may be seized w^ithin thirty days. — And by 11 Geo.
2, c. 19, s. 1, this term was extended to thirty days, with a
power to break open places of concealment, but a saving for
(b) See Forms, Appendix D., Nos. (e) Hill v. Ramm, 5 M. & G. 789 ;
4, 5. Fishwick v. Milnes, 4 Exch. 825; Cox
(c) 11 Geo. 2, c. 19, s. 9. v. Bailey, 6 M. & G. 193.
(c?) See Form, Appendix C, Sect. 3.
1 Distress on goods fraudulently removed. — The time limited in New
Jersey, Pennsylvania, Virginia, and West Virginia is thirty days ; in Nova
Scotia,^ twenty-one days ; in Quebec, eight days ; in Delaware, forty days ; in
Maryland, twenty days ; in Louisiana, fifteen days ; and special provisions
exist in New Brunswick, Illinois, Georgia, Kentucky, Texas, and, perhaps, in
other states, for protecting the landlord's interests.
7?.l
*468 DISTRESS FOR RENT. [Ch. XI. S. 10.
bona fide sales. By sect. 1, it is enacted that " in case any
tenant or tenants, lessee or lessees for life or lives, term of
years, at will, sufferance or otherwise, of any messuages,
lands, tenements or hereditaments, upon the demise or hold-
ing whereof any rent is or shall be reserved, due or made
payable, shall fraudulently or clandestinely convey away, or
carry off or from such premises, his, her or their goods or
chattels to prevent the landlord or lessor, landlords or lessors
from distraining the same for arrears of rent so reserved, due
or made payable, it shall and may be lawful to or for every
landlord, &c., or any person or persons by him, her or them
for that purpose lawfully empowered, within the space of 30
days next ensuing such conveying away or carrying off such
goods or chattels as aforesaid, to take and seize such goods
and chattels wherever the same shall be found, as a distress
for the said arrears of rent ; and the same to sell or other-
wise dispose of, in such manner as if the said goods
[*468] and * chattels had actually been distrained by such
landlord, &c., in and upon such premises for such
arrears of rent."
Saving for bona fide sale. — Sect. 2 provides, "that no land-
lord or lessor, or other person entitled to such arrears of
rent, shall take or seize any such goods or chattels as a dis-
tress for the same, which shall be sold bona fide and for a
valuable consideration, before such seizure made, to any per-
son or persons not privy to such fraud as aforesaid" (/).
Power to break open places of concealment -with aid of con-
stable, &c. — Sect. 7 enacts,^ "that where any goods or chattels
fraudulently or clandestinely conveyed or carried away by
any tenant or tenants, lessee or lessees, his, her or their ser-
vant or servants, agent or agents, or other person or persons
aiding oi- assisting therein, shall be put, placed or kept in
any house, barn, stable, out-liouse, yard, close or place, locked
up, fastened or otherwise secured, so as to prevent such
(f) Sections .3-(; are stated, post, 470.
' In several of the states tliere are special statutory provisions authorizing
the officer or laniUord, with the aid of an officer, to break and enter to procure
goods fraudulently removed. See ante, note, " Entry, how made."
782
Ch. XI. S. 10.] PROCEEDINGS IN DISTRESS. *469
jyoods or chattels from being' taken and seized as a distress
for arrears of rent ; it shall and may be lawful for the land-
lord or landlords, lessor or lessors, his, her or their steward,
bailiff, receiver, or other person or persons empowered, to
take and seize as a distress for rent such goods and chattels
(first calling to his, her or their assistance the constable,
headborough, borsholder or other peace-officer of the hun-
dred, borough, parish, district or place where the same shall
be suspected to be concealed, who are hereby required to aid
and assist therein); and, in. case of a dwelling-house (oath
being also first made before some justice of the peace of a
reasonable ground to suspect that such goods or chattels are
therein) in the day time, to break open and enter into such
house, barn, stable, out-house, yard, close and place, and to
take and seize such goods and chattels for the said arrears of
rent, as he, she or they might have done by virtue of this or
any former act, if such goods and chattels had been put in
any open field or place." The subsequent proceedings under
a distress after a fraudulent removal are precisely the same
as in ordinary cases.
What cases are within statutes as to " fraudulent removal." —
To justify a distress under this statute the defendant w^as
bound to plead speciall}', even before the Judicature Act (,</).
Where the removal has been after the landlord has conveyed
away his reversion, he cannot seize under the statute (7i);
The removal must have taken place after the rent became
due (^), and as rent becomes due on the morning of the day
on which it is payable, but it is not in arreai' until the follow-
ing day (A;), if the tenant fraudulently removes his goods on
the very day the rent becomes due, the landlord may on the
next day (but not before), or within thirty days after such
removal, follow and distrain upon them pursuant to the
statute (/r).
* But after the tenant has given up possession [*469]
(//) Fletcher 1-. Marillier, 9 A. & E. (/) Watson v. Main, 3 Esp. 15;
457; West v. Nibbs, 4 C. B. 172; Rand r. Vaughan, 1 Bing. N. C. 767 ;
Williams v. Roberts, 7 Exch. 618. Bullen, 127.
(A) Ashmore v. Hardy, 7 C. & P. (k) Dibble v. Bowater, 2 E. & B.
501. ' 564.
733
*469 DISTBESS FOR RENT. [Ch. XI. S. 10.
upon the expiration of a tenancy, the landlord cannot follow
and seize, inasmuch as the statute of Anne (8 Anne, c. 14,
ss. 6 and 7), which allows a distress after the expiration of
a tenancy, allows it only when the tenant continues in actual
possession Q}.
The act applies to all cases where a landlord is, by the
conduct of his tenant in removing goods from premises for
which rent is due, turned over to the barren right of bring-
ing an action for his rent. Thus where a tenant openly, and
in the face of day, and with notice to his landlord, removed
his goods without leaving sufficient on the premises to satisfy
the rent then due, and the landlord followed and distrained
the goods, it was held, that although the removal might not
be clmidestine^ yet if it was fraudulent (which was a ques-
tion for the jury), the landlord was justified under the
statute (m).
It is to be observed that the words of the act are " fraudu-
lently or clandestinely." The mere removal is not of itself
fraudulent as against the landlord : to justify him in follow-
ing them he must show that the goods were removed with a
view to elude a distress, and also that sufficient goods were
not left upon the premises (n). It would seem that it is a
question for the jury whether the removal be fraudulent
within the statute, although it be admitted at the trial that
the removal was to avoid a distress (o).
Statute applies to goods of tenant only. — The statute ap-
plies to the goods of the tenant only, and not to those of a
stranger or lodger ; therefore a defence justifying the follow-
ing goods off the premises, and distraining them for rent in
arrear, must show that they were the tenant's goods (/>);^
(/) 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, 0 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, 0 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, 0 ('/) 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.;, (</) Divrgan v. Davica, L. R., 2 Q.
(«) Co. Lit. 47 b; BuUen, 143. n. 1). 118; 4(5 L. J., M. C 122; 35 L.
T. 810.
740
Ch. XI. S. 10.] PROCEEDINGS IN DISTRESS. *474
confined as aforesaid, without being liable to any action of
trespass or any other proceeding by any person whomsoever
for or by reason of such entry for the purposes aforesaid:
and the reasonable cost of such food and water shall be paid
by the owner of such animal, before such animal is removed,
to the person who shall supply the same^ and the said cost may
be recovered in like manner as herein provided for the
recovery of penalties under this act," i.e. by summary pro-
ceedings before a justice.
Expenses of food and -water — how recovered. — By 17 & 18
Vict. c. 60, s. 1, "every person who since the passing of the
said act of the twelfth and thirteenth years of her Majesty
has impounded or confined, or hereafter shall impound or
confine as in the said act mentioned, any animal, and has
provided and supplied, or shall hereafter provide and supply
such animal with food and water as therein mentioned, shall
and may and he is hereby authorized to recover of and from
the owner or owners of such animal not exceeding double
the value of the food and water so already or hereafter to
be supplied to such animal, in like manner as is by the said
last-mentioned act provided for the recovery of penalties
under the same act ; and every person who has supplied or
shall hereafter supply such food and water shall be at liberty,
if he shall so think fit, instead of proceeding for the recovery
of the value thereof as last aforesaid, after the expiration of
seven clear days from the time of impounding the same, to
sell any such animal openly at any public market (after hav-
ing given three days' public printed notice thereof) for the
most money that can be got for the same, and to apply the
produce in discharge of the value of such food and water so
supplied as aforesaid, and the expense of and attending such
sale, rendering the overplus (if any) to the owner of such
animal." Where several animals are distrained for rent, one
of them may be sold for the expenses of all — and this may
be repeated toties quoties (7-).
Liability of distrainer. — A distrainer is liable for any injury
which animals distrained receive in consequence of the wet,
(r) Leyton r. Hurry, 8 Q. B. 811.
741
*475 DISTKESS FOR RENT. [Cii. XI. S. IC
muddy or otherwise unfit state of the pound at tlie time of
impounding (s). The distrainer cannot tie or bind a beast
in the pound, though it be to prevent its escape (0 ; for any
act of his which tends to the injury of the thing distrained
is done at his peril; but if animals distrained die in the
j)0und, or are stolen, without any fault of the distrainer or
insufficiency of the pound, in such case he who made the
distress is not answerable, but has an action of tres-
[*475] pass, if the distress was for damage feasant, or *may
distrain again if the distress was for rent (zt). The
distrainer cannot work or use the thing distrained, whether
it be in pound overt or covert: because the distrainer has
only the custody of the thing as a pledge. An exception to
this rule exists in respect to milch kine, which may be milked
by the distrainer, because it may be necessary to their pres-
ervation, and consequently of benefit to the owner (x).
Liability of pound-keeper. — A pound-keeper is bound to
receive everything offered to his custody, and is not answera-
ble whether the thing were legally impounded or not (j/) : an
action of trespass, therefore, will not lie against him merel}'
for receiving a distress, though the original taking be tortious ;
for the pound being the custody of the law, if the distress be
wrongfully taken, the distrainer is answerable, not he. When
the cattle are once impounded he cannot let them go without
a replevin or the consent of the party (s). Neither can a
pound-keeper bring an action if tlie pound be broken, but it
must be brought by the party interested («).
Cattle may not be driven more than 3 miles, &o. — By 1 & 2
Ph. & M. c. 12, s. 1, no distress of cattle is to be driven out
of the hundred, rape, wapentake or latlie, wliere the same is
taken, except it be to n 'pound overt ivithln the same shire, nor
al)ove three miles from the place where the same is taken,
(s) Wilder I'. SpecT, 8 A. & K. 547 ; (x) Cm. Jac. 148; Rao. Ahr. tit.
l{i<,'nell V. Clarke, G II. & N. 485 ; 20 Distress (I). 2).
L. J., Ex. 257. (,/) I'.adkiii r. Towell. (^)wp. 17(1,
(0 Oilb. on Distr. G5; Smith L. & 478; Uraiidiiitr r. Kent. 1 T. I{. 02.
T. 2.34 (2n(l ed.). (z) Uadkiii v. I'owell, ('(.up. 47(i,
(it) Vns])vr V. Eddovv.s, 1 Salk. 248; 478.
1 Ld. liayin. 719; Holt, 250. (") M. IT't; Fitz. N. B. 228; 2
Ciiit. I'l. 51'J (7tli ed.).
742
Cii. XI. S. 10.] PllOCEEDIXGS IN DISTRESS. *47G
nor impounded in several places, whereby the owner may be
constrained to sue several replevins, on pain of forfeiting
to the party grieved one hundred shillings and treble dam-
ages.
Fee on impounding. — By sect. 2, no person shall take for
keeping in pound or impounding any distress above four-
pence for any one whole distress ; and where less has ])een
used, there to take less, on pain of forfeiting 51. to the party
grieved, besides what he should take above four-pence.
Decisions. — On this statute it has been held that where
lands lying in two adjoining counties were let under one
demise at one entire rent, and the landlord distrained cattle
in both counties for rent in arrear, he might chase them all
into one county ; but that if the counties had not adjoined
it would have been otherwise (6). The offence created by
this statute for impounding a distress in a wrong place is but
a single offence, and satisfied with one forfeiture, though
three or four are concerned in doing the act, as the offence
cannot be severed so as to make each offender separately
liable to the penalty : the meaning of the statute being, that
the penalty shall be referred to the offence, not to the
person (c) : thus where three persons distrained * a [*476]
flock of sheep, and severally impounded them in
three several pounds, it was held, that .they should forfeit
but one 51. and one treble damages (c?). The second section
does not extend to cases where the goods are impounded on
the premises by virtue of the statute next mentioned (e),
which is the statute usually resorted to, as it is obviously for
the advantage of both landlord and tenant that the distress
should remain in a situation equally and easily accessible to
both (/).
Impounding on the premises. — By 11 Geo. 2, c. 19, S. 10,
"any person lawfully taking any distress for any kind of
rent may impound or otherwise secure the distress so made,
(b) Walter v. Rumball, 1 Ld. ((/) Partridge v. Naylor, Cro. Eliz.
Raym. 53; 1 Salk. 247; Woodcroft 480; Moor, 453.
V. Thompson, 3 Lev. 48 ; Gimbart v. (e) Child v. Chamberlain, 5 B. &
Pelah, 2 Stra. 1272 ; Bullen, 145. Adol. 1049.
(c) Rex V. Clarke, Cowp. 612. (/) Smith L. & T. 237.
743
*477 DISTRESS FOR RENT. [Ch. XI. S. 10.
of what nature or kind soever it may be, in such place, or on
such part of the premises chargeable with the rent as shall be
most jit and convenient for the impounding and securing such
distress ; and may appraise, sell and dispose of the same upon
the premises, in like manner, and under the like directions
and restraints to all intents and purposes as any person
taking a distress for rent may now do off the premises, by
virtue of 2 W. & M. sess. 1, c. 5, or 4 Geo. 2, c. 28 ; and any
person whatsoever may come and go to and from such place
or part of the said premises, where any distress for rent shall
be impounded and secured as aforesaid, in order to view,
appraise and buy, and also in order to carry off or remove
the same on account of the purchaser thereof; and if any
pound-breach or rescous shall be made of any goods and
chattels, or stock distrained for rent, and impounded or
otherwise secured by virtue of this act, the person aggrieved
thereby shall have the like remedy as in cases of pound-
breach or rescous is given and provided by the said statute."
The distrainer ought either to put all the goods distrained
into one room, and keep possession of that only, or to remove
such goods out of the house, in the absence of any consent
to the contrary ; but very slight evidence of such a consent
will be sufficient (^). Two or three rooms may be used, if
necessary, as may appear most fit and convenient (li\
An open field is a sufficient pound for cattle (/). The
agent of a landlord went into a field where the tenant's cattle
were feeding, and placing his hands on one of the beasts,
said he distrained them all, counted them, and took a note
of them, whi(;li he left witli the tenant, and then went away,
doing nothing further with the beasts ; the next morning he
left with the tenant a notice, stating he had distrained tlie
cattle, and had impounded them in the place or
[*477] * places therein mentioned, and the notice afterwards
stated they were impounded " on the premises ; " it
(7) Waslihorn v. Black, 11 East, (/i) Woods d. Durrant, 10 M. & W.
40r) ; Tcnnant v. Field, 8 K. & B. ;i30; 149.
Sinitl. L. & T. 2;}8 (2nd ed.). (i) Castleinan v. Ilick.s, 1 C & M.
206,
744
Cii. XI. S. 10.] niOCEEDINGS IN DISTRESS. *477
was held, that this impounding was sufficient to make a ten-
der of the rent and costs afterwards too late (/r).
Tenant may not be excluded, — It has been ruled, that if
necessary to secure a distress in a cottage, it might be locked
up so as to exclude the tenant altogether (Z). But it would
rather seem that the landlord is never entitled to lock up the
whole of the demised premises, so as to exclude the tenant
therefrom, except with his express consent ; rather than do
that he must remove the goods distrained (m).
Corn may not be removed. — Corn loose or in the straw,
hay, &c., which is distrained by virtue of 2 W. & M. sess. 1,
c. 5 (n), cannot be removed from the premises, but must
be impounded where found (o). And growing corn, &c.,
distrained under 11 Geo. 2, c. 19, s. 8, must, after it is cut,
be placed in a proper place on the premises, and cannot
be removed except in default of there being such proper
place (ja).
(g) Notice of Distress.
Notice, sale and appraisement. — The distress, being con-
sidered merely as a pledge, could not at the common law be
sold (g). But by 2 W. & M. sess. 1, c. 5, s. 2, "where any
goods shall be distrained for rent reserved and due upon any
demise, lease or contract whatsoever, and the tenant or
owner of the goods so distrained shall not, within Jive (r)
da^s next after such distress taken, and notice thereof (with
the cause of such taking) left at the chief mansion-house or
other most notorious place on the premises, replevy the
same, in such case, the person distraining shall cause the
goods so distrained to be appraised by two appraisers, and
after such appraisement (i-) may sell the same for the best
price that can be gotten for them, towards satisfaction of the
(k) Thomas i;. Harries, 1 M. & G. (p) Ante, 436.
695. ((?) Ante, 412.
(/) Cox V. Painter, 7 C. & P. 767. (r) Or fifteen days, if tlie Agricul-
(/n) Smith v. Ashforth, 29 L. J., tural Holdings Act applies. See s.
Ex. 259 ; Bullen, 147. 51 of that act, and post.
(n) Ante, 436. (s) If the Agricultural Holdings
(o) Sect. 3; Bullen, 141, note (2) ; Act applies, appraisement is nniuct v-
12 Q. B. 674. sary. See s. 50 nf that nn.
745
*478 DISTRESS FOE RENT. [Ch. XI. S. 10.
rent and charges of the distress, appraisement and sale ;
leaving the overplus (if anj^) for the owner's use."
Appraisers need not be sworn. — This statute also required
the appraiser to be sworn, by a sheriff, under-sheriff or con-
stable, on the spot, but the Parish Constables Act, 1872 (35
& 36 Vict. c. 92), s. 13, has repealed that part of it. The
11 Geo. 2, c. 19, s. 9, requires that the tenants have notice
of the j)lace where the distress is lodged when it is re-
moved.
[*478] * What is a sufficient notice of distress. — The notice
of distress must be in writing Q}, and its object
being to enable the distrainer to sell under 2 W. & M. sess.
1, c. 5, s. 2, it ought to inform the tenant or the person
whose effects are taken what goods are distrained, and the
amount of rent in arrear (?f). A notice stating that the dis-
trainer had distrained the goods, chattels and things men-
tioned in the inventory thereunder written, — which inven-
tory was "one clock and weights, &c., &c., atid any other
r/oods and effects that may he found in and about the said
premises, to pay the said rent and expenses of this dis-
tress," — has been held sufficient in a case where it appeared
that the distress was in fact meant to include all the goods
on the premises (.r). But where a notice stated a distress of
the several goods specified in the schedule, which, after
enumerating certain goods, concluded thus — " and all other
fjoods that may he required^ in order to satisfy the above rent,
together with all necessary expenses ; " it was held, that this
notice was too vague and uncertain to justify the sale of the
goods of a stranger which he had deposited on the prem-
ises (3/). No defect in the notice, nor even the total omission
to give any such notice, will render the distress itself invalid
or illegal ; the notice is only required by the statute to
entitle the landlord to sell under the distress (z). It is only
irregular to sell without due notice (a). Tlir notice need
(0 Wilson V. Xiglitingalc, 8 Q. B. (//) Kerby v. Ilanliiig, snprn,
1034 ; sec Form, Appendix D., No. 4. (-) Trent v. Hunt, 9 Fxch. 14.
(m) Kerhy v. Harding, 0 Exch. 234 ; (n) Lucas v. Tarleton, 3 H. & N.
20 L. .1., Ex. 103. 110; Wilson v. Nightingale, 8 Q. B.
(r) Wakeman v. Lindsey, 14 Q. B. 1034; Robinson v. Waddington, 13 Q.
620. B. 753.
746
Cii. XI. 8. 10.] PROCEEDINGS IN DISTRESS. *479
not set forth at what time the rent became due for which
the distress is made, nor the correct amount of the arrears
really due, as the tenant is supposed to know all this and
must tender the proper amount at his peril (b~). Any defect
or mistake in the notice on the above or similar points is
immaterial, for a man may distrain for one cause and avow
or justify for another ((?). Notice to the owner of the goods
distrained (uot being the tenant) is sufficient as against him,
unless a replevin has been sued by the tenant (c?). In all
cases personal notice is sufficient, and indeed preferable to
notice left at the mansion-house or other notorious place, on
account of the difficulty of proof (cZ).
Time of removing and selling. — The landlord cannot sell
the goods distrained until after the expiration of the five
days (or fifteen days, if the Agricultural Holdings Act ap-
plies,) allowed by the statute for the tenant to replevy, and
those days must be calculated exclusively of the day of
taking and notice, and also exclusively of the day of
sale. Therefore where a distress is taken *and, [*479]
notice thereof given on a Saturday, the five days
expire on the following Thursday, and the goods cannot
lawfully be sold before Friday (e). A distress taken on
Monday or Tuesday cannot lawfully be sold until the follow-
ing Monday (/)• But no action will lie for selling too soon
unless actual damage be shown (//). The landlord should
remove the goods from the tenant's premises at the end of
the five days allowed the tenant to replevy, or witliin a rea-
sonable time afterwards, otherwise he may be deemed a
trespasser for keeping them there (7i) : thus where A. en."
tered under a warrant of distress for rent in arrear, and con-
tinued in possession of the goods upon the premises fifteen
(6) Ante, 416. (e) Robinson r. "Waddington, 13 Q.
(c) Crowther v. Ramsbottom, 7 T. B. 753; overruling Wallace v. King,
R. G54; Ethorton v. Popplewell, 1 1 H. Blac. 13; and see Harper v.
East, 139 ; Wootley v. Gregory, 2 Y. Tasvvell, 6 C. & P. 166.
& J. 536; Trent v. Hunt, 9 Exob. 14 ; (/) Lucas v. Tarleton, 3 H. & N.
22 L. J., Ex. 318 ; Phillips >: 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. <i40; Bishop v. Bryant, 0 C. & P.
484.
74S
Ch. XI. S. 10.]
PROCEEDINGS IN DISTRESS.
*480
sional appraisers Qs} : it must not be appraised by the party
making it (^), for he is interested in the business. A land-
lord, who was a broker, having distrained goods for rent,
was sworn one of the appraisers, and together with another
broker valued them to the plaintiff, who became the pur-
chaser according to such valuation ; it was held, that the
sale was irregular (w). So the landlord cannot sell the
goods to himself (x). It has been held, that if the tenant,
to save expense, requests that appraisers may not be called
in, and in consequence the broker who made the seizure
values the goods, the tenant cannot in an action complain
of that which was done as an irregularity (^).
The appraisers proceed to appraise the goods, and usually
write their appraisement upon the inventory (2).
Stamp on appraisement. — By the Stamp Act, 1870 (33 &
34 Vict. c. 97), s. 08, and Sched. tit. "Appraisement or
Valuation," the following stamp duties are made payable on
appraisements and valuations made on and after 1st January,
1871: —
Where the amount of the appraisement or £ s. d.
valuation does not exceed 51.
Exceeds 5^. and does not exceed lOZ.
10?.
20/.
SOL
40Z.
501.
1001.
2001.
500Z.
20Z.
30Z.
40Z.
50/.
100?.
200/.
500/.
0
0
3
0
0
6
0
1
0
0
1
6
0
2
0
0
2
6
0
5
0
0
10
0
0
15
0
1
0
0
Where goods are distrained, and at the end of the five
,^ys appraised but not sold, the act of appraisement does
(s) Roden v. Eyton, 6 C. B. 427 ;
Clarke v. Holford, 2 C. & K. 540;
Child V. Chamberlain, 6 C. & P. 213.
They need not be sworn ; ante, 477.
(t) Westwood V. Cowne, 1 Stark. R.
172.
(u) Lyon v. Weldon, 2 Bing. 3.34.
(x) King V. England, 4 B. & S. 782;
33 L. J., Q. B. 145.
(i/) Bishop V. Bryant, 6 C. & P. 484.
(z) See Form, Appendix D., No. 3.
749
*481 DISTRESS FOR RENT. [Ch. XI. S. 10.
not take away the tenant's right to replevy them (rt). Until
they are duly sold, the property in them remains vested in
the tenant or other owner (^').
A bailiff who seizes goods under a distress warrant, if his
authority to sell on behalf of the landlord is afterwards
withdrawn, has no right to go on and sell for his ex-
penses (c).
[*481J * Procedure under Agricultural Holdings Act. — If
the Agricultural Holdings Act applies ((?), appraise-
ment is unnecessary by s. 50 of that act, the effect of which
is that the landlord, if he has an appraisement, cannot throw
the expenses of it upon the tenant ; and by the same section,
for the purposes of sale the goods " shall," at the request in
writing of the tenant or owner, be removed '^ at the expense
of the party requesting removal to a public auction room, or to
some other fit and proper place specified in such request, and
be the resold," not necessarily, it will be observed, by auction.
Mode of selling. — Before an}^ sale takes place, the county
court re2"istrar's office should be searched to see if the p-oods
have been replevied; if that is not the case, and the rent and
charges remain unpaid at the end of the five days allowed by
law, the goods should be sold for the best price which can be
got for them. If the distress is for less than 20/., a person
selling the goods l)y auction need not have an auctioneer's
licence (e). It seems that there is no order required by law
to be observed on the sale of goods distrained, — as that
beasts of the plough should be postponed to other goods (,/")•
Landlord may not buy. — The landlord cannot sell the
goods to himself or take them at the appraised price (//). It
is not unusual for the appraisers to buy them at their own
valuation. A distress sold at the appraised value was taken,
when appraisers were sworn, to have been sold at the best
price, since tlie law relied upon the appraisers having been
sworn (A) ; but it was held, that U[)on a count for not selling
(a) Jacob r. Kiiitr, 5 Taunt. l.")1. (r) 8 & !) Vict. c. If), s. 5.
(/<) Mooro V. Pyrkc, 11 East, r)2, 54 ; ( /) .Tenner v. Yolland, (5 Price, 5;
King V. England, stiprn, note (x). 2 Chit. Tl. 107.
(r) Harding v. IFail, 14 W. R. 040; ('/) King i*. England, .'-w^w-a, note ('/).
14 L. T., N. R. 410. ()() Waiter r. RumbalJ, 1 Ld. R;iyni.
id) Sect. 5, ante, 485. 53; 1 Salk. 247 : Buiien, 100.
750
Cii. XI. S. 10] PROCEEDINGS IN DISTRESS. *482
goods distrained at the best prices, the plaintiff might go
into evidence to show that the goods were allowed to stand
in the rain, and that they were improperly allowed (*).
Where a tenant is under a covenant not to carry hay and
straw off tho premises, a distraining landlord is not entitled
to sell it too cheap, on the condition that the purchaser shall
consume it on the premises (/c). If goods on the tenant's
lands be sold under a distress with a condition, to which the
tenant is a party, that they may remain on the land up to a
certain day, and that the buyer may enter and take the
goods, the tenant cannot revoke this licence to enter on the
land (?)• But such a licence is not implied by law, though
the goods may have remained on the land with the tenant's
assent (wi). The whole produce of the sale may, if neces-
sary, be applied in or towards satisfaction of the rent and
expenses of the distress ; but if the produce be more than
sufficient for that purpose, the residue should be left
in the hands of the. sheriff, * under-sheriff, or con- [*482]
stable — usually the latter — for the use of the owner
of the goods distrained (n'). And if the goods have been
removed for sale, the surplus thereof remaining unsold (if
any) should be returned to the premises from which they
were taken (o).
(i) Costs of Distresses.
Fixed limit -where distress for 20?. or less. — By 57 Geo. 3,
c. 93, for regulating the costs of distresses levied for pay-
ment of small rents, after reciting that divers persons acting
as brokers, and distraining on the goods and chattels of
others, or employed in the course of such distresses, had of
late made excessive charges, to the great oppression of poor
(0 Poyntcr v. Buckley, 5 C. & P. (/) Wood v. Manlcy, 11 A. & E.
512. 34; Wood v. Leadbitter, 13 M. & W.
(A-) llidgway v. Ld. Stafford, 6 838.
Kxch. 404 ; overruling Abbey v. (m) Williams c. ^lorris, 8 M. & W.
Petch, 8 M. & W. 419 ; and followed 488.
in Hawkins v. Walrond, 45 L. J., C. (n) Post, 485.
P. 772; see also Frusher v. Lee, 10 (o) Evans r. Wright, 2 H. & N. 527;
M. & W. 709 ; Roden v. Eyton, C. C. 27 L. J., Ex. 50.
B. 427 ; Smith L. & T. 210 (2nd ed.).
751
*483 DISTRESS FOE, KENT. [On. XI. S. 10.
tenants and others, and that it was expedient to check such
practices, it was enacted, sect. 1, " that no person making
any distress for rent, where the sum demanded and due shall
not exceed 20?. for and in respect of such rent, nor any per-
son whatsoever employed in any manner in making such dis-
tress, or doing any act whatsoever in the course of such
distress, or for carrying the same into effect, shall have, take
or receive out of the product of the goods or chattels dis-
trained upon and sold, or from the tenant distrained on, or
from the landlord, or from any other person whatsoever, any
other or more costs and charges for and in respect of such
distress, or any matter or thing done therein, than such
as are fixed and set forth in the schedule " annexed and
appropriated to each act which shall have been done in the
course of such distress ; and no person or persons whatsoever
shall make any charge for any act, matter or thing mentioned
in the schedule, unless such act shall have been really done.
Party aggrieved by extortion may apply to justice of the
peace. — By sect. 2, "if any person shall in any manner levy,
take or receive from any person whatsoever, or retain or
take from the product of any goods sold for the payment of
such rent, any other (^) or greater costs and charges than
are mentioned and set down in the schedule, or make any
charge whatsoever for any act, matter or thing mentioned in
the schedule, and not really done, the party aggrieved by
such practices may apply to any one justice of the peace
for the county, city or town, and acting for the division
where such distress shall have been made, or in any manner
proceeded in, for redress ; whereupon such justice shall
summon the person complained of to appear before him, and
shall examine into tlie matter of such complaint, and hear
the defence of tlu; person complained of ; and if the fact
shall appear to such justice, he sliall order and adjudge treble
the amount of the monies so unlawfully taken to be paid, by
the person so having acted, to the party who shall
[*483] have made complaint * thereof, together with full
costs; and, in case of non-payment, shall issue his
(/>) 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.
0
3
0
0
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 0 10 0
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 (<?), but not an
action for money had and received, to recover the amount of
such overplus (f). The "overplus" means what remains
after payment of the rent, and the reasonable charges of the
distress, which may be questioned in such special action (/).
Whether the amount deducted for rent can be questioned in
such action, is not clear. Although the tenant or owner of
the goods has received the balance from the broker, it is a
question for the jury whethe-r it was accepted in full satis-
faction : and if not, then whether it was sufficient to satisfy
the real balance (^).
No action for rent till sale. — And althouph the distress be
o
insufficient, no action can be maintained for the rent until
a sale has been had (A), after which the landlord may sue for
the balance (i). Where goods distrained for rent in arrear
have been removed to a convenient place for sale, and suffi-
cient sold to satisfy the distress, including the expenses, the
proper course is for the broker to leave the surplus money
with the sheriff, under-sheriff or constable (generally the
constable), and return the surplus goods to the premises
from whence he took them (k').
Sect. 11. — Second Distress.
Second distress in case of insufficiency on first. — By 17
Car. 2, c. 7, s. 4, " in all cases wlicrc the value of the cattle
(d) Lyon v. Tonikios, 1 M. & W. 603; Knight v. Egerton, 7 Ex<-'h. 407
603. (Gth issue, and verdict thereon).
(e) Yates v. Eastwood, 6 Exch. 805 ; (r/) Lyon v. Toinkies, siijirn.
20 L. J., Ex. 303 ; Evans »;. Wright, 2 ("/O Lehain /•. Philpott, L. R., 10
H. & N. 527 ; 27 L. J., Ex. 60 ; 2 Chit. Lx. 242 ; 44 L. J., Ex. 225.
PI. 544 (7tli ed.). (/) IMiilpott r. Loliain, 35 L. T. 856.
(/) Lyon V. TomkicB, 1 M. & \V. (/>) 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 ; <li.\ I)., No. 0.
3 T>. & 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, 0 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, 0 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 0 & 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, 0 M. & W.
(h) Taylor r. Lanyon, 0 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
(<i) 19 & 20 Vict. c. 108, 8. 75 ; 7)o.s/, Dowl. 410; Hible r. llussey, 2 Ir.
490; 24 Vict. c. 10, s. 10; post, 497. Com. L. R. 308; 10 W. R. 710.
(c) Waring v. Dewl)orry, 1 Stra. (Ii) See Lane v. Crockett, 7 Price,
97; and sec Colyer c. Speer, 2 Brod. 50(5; Palgrave v. Windham, 1 Stra.
& li. 67 ; Smith v. Russell, 3 Taunt. 212, 214.
400. (/■) Palgrave r. Windham, supra.
(/) Gawler 1;. Chaplin, 2 Exch. 503,
507.
768
Ch. XI. S. 13.] SATISFACTION OF AltKEARS. *495
Such notice should al-ways be given. — The notice to the
sheriff is only lor the purpose of establishing beyond all
doubt his knowledge of the landlord's claim (/c), and should
always be given by or on behalf of the landlord (Z). As the
statute has not specified any particular form, there can be no
dispute about the terms (wi), A notice to the sheriff stat-
ing that the rent is due to J. S. and the mortgagees of his
estate, and signed by a person who is not the receiver ap-
pointed by the mortgage deed, is sufficient (w). The notice
may be given before or after the goods have been removed
from the demised premises, and even after they have been
sold, but before the proceeds have been actually paid over to
the execution creditor (o).
Sheriff's duty on receiving notice. — When the sheriff has
notice or knowledge of rent due to the landlord, he should
endeavour to secure legal evidence on that point, and if
possible inspect the lease (|?). He should also forthwith
give notice to the execution creditor or his solicitor
of the rent in arrear, and * request him to pay the [*495]
same to the landlord or his bailiff pursuant to the
statute, in default whereof the sheriff will withdraw from
possession of the goods seized (5'). In case of non-compli-
ance with this notice, within a reasonable time, the sheriff
should withdraw from possession and make a return of nulla
bona (?') ; unless, indeed, there are other goods within his
bailiwick, in which case the levy should be confined to them.
" The sheriff," it is observed, in Cocker v. Musgrove, " is not
called upon by law to advance money to pay the rent ; it is
plain that such advance must be made by the execution
creditor ; and if he neglects to make it, after notice of the
rent being due at all events (and it is not necessary now to
say whether notice be requisite), the sheriff cannot be called
(it) Andrews v. Dixon, 3 B. & A. 249; Bible y. Hussey, 2 Ir. Com. L.
645. R. 308; 16 W. K. 710.
f/) See Form, Appendix D., No. 9. (/>) 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 (<?), and if such claim be made, the bailiff or * offi-
cer making the levy shall in addition thereto distrain
for the rent so claimed and the costs of such distress, and shall
not within five days next after such distress sell any part of
the goods taken unless they be of a perishable nature, or
upon the request in writing of the party whose goods shall
have been taken ; and the bailiff shall afterwards sell such
of the goods under the execution and distress as shall satisfy,
first, the costs of and incident to the sale, next the claim of
-such landlord not exceeding the rent of four weeks where the
tenement is let by the week, the rent of two terms of pay-
ment where the tenement is let for any other term less than
a year, and the rent of one year in any other case, and lastl}^
the amount for which the warrant issued ; and if any replevin
be made of the goods so taken, the bailiff shall, notwith-
standing, sell such portion thereof as will satisfy the costs of
and incident to the sale under the execution, and the amount
for which the warrant issued : and in either event the over-
plus of the sale, if any, and the residue of the goods, shall be
returned to the defendant ; and the poundage of the high
bailiff and broker for keeping possession, appraisement and
sale under such distress shall be the same as would have
been payable if the distress had been an execution of the
county court, and no other fees shall be demanded or taken
in respect thereof."
If the bailiff seize under a warrant of the county court, on
the defendant's premises, goods belonging to a stranger, he
cannot distrain such goods under this enactment for the rent
(o) See Form, Aiiiniiilix 1)., No. 11.
772
Cii. XI. S. i;].] SATISFACTION OF ARREARS. *498
of the landlord ; and if he does so the true owner is entitled
to have his goods back (p). The notice to the bailiff does
not constitute him the landlord's agent to distrain : but in
doing so he acts as an officer of the court pursuant to the
statute (5-). It seems that the Interpleader Act applies trt
a landlord's claim for rent ; and tliat where the landlord
appears upon the hearing of an interpleader summons in a
county court, he as well as the execution creditor and the
claimant, has a right of appeal (r).
(c) Under Admiralty Process.
Notice to sheriff. — If a claim for rent be made upon goods
seized under Admiralty process, the judges of the Probate,
Divorce and Admiralty Division will adjudicate upon the
claim. It was enacted by the Admiralty Court Act, 1861
(24 Vict. c. 10), s. 16, as follows : — "If any claim shall be
made to any goods or chattels taken in execution
under any * process of the High Court of Admiralty, [*498]
or in respect of the seizure thereof, or any act or
matter connected therewith, or in respect of the proceeds or
value of any such goods or chattels, by any landlord for rent,
or by any person not being the party against whom the pro-
cess has issued, the registrar of the said court may, upon ap-
plication of the officer charged with the execution of the
process, whether before or after any action brought against
such officer, issue a summons calling before the said court
both the party issuing such process and the party making
the claim, and thereupon any action which shall have been
brought in any of her Majesty's superior courts of record, or
in any local or inferior court, in respect of such claim, seiz-
ure, act or matter as aforesaid, shall be stayed, and the court
in which such action shall have been brought, or any judge
thereof, on proof of the issue of such summons, and that the
(p) Beard v. Knight, 8 E. & B. (r Wilcoxon v. Searby, In re
865; 27 L. J., Q. B. 359; Foulger v. Foulger v. Taylor, 5 H. & N. 202;
Taylor, 5 H. & N. 202; White v. 29 L. J., Ex. 154; Gage v. Collins,
Binstead, 13 C. B. 304. supra.
(</) Gage r. Collins, L. R., 2 C. P.
381; 3(3 L. J., C. P. 144.
773
*498 DISTRESS FOB RENT. [Ch. XI. S. 13.
goods and chattels were so taken in execution, may order the
party bringing the action to pa}' the costs of all proceedings
had upon the action after issue of the summons out of the
said Admiralty Court, and the judge of the said Admiralty
Court shall adjudicate upon the claim, and make such order
between the parties in respect thereof and of the costs of
the proceedings as to him shall seem fit, and such order shall
be enforced in like manner as any order made in any suit
brought in the said court. Where any such claim shall be
made as aforesaid the claimant may deposit with the officer
charged with the execution of the process either the amount
or value of the goods claimed, the value to be fixed by
appraisement in case of dispute, to be by the officer paid into
court to abide the decision of the judge upon the claim, and
the sum which the officer shall be allowed to charge as costs
for keeping possession of the goods until such decision can
be obtained, and in default of the claimant so doing the offi-
cer may sell the goods as if no sucli claim had been made,
and shall pay into court the proceeds of the sale, to abide
the decision of the judge." And by the Judicature Act of
1873, sect. 84, matters within the exclusive cognizance of the
High Court of Admiralty before the passing of that act are
assigned to the Probate, Divorce and Admiralty Division of
the High Court of Justice.
774
* CHAPTER XII.
[*499]
REMEDIES FOR WRONGFUL DISTRESS.
8BCT.
PAGE
1. Recovery of the Goods dis-
trained by Replevin .
499
(a) Nature of Replevin . .
499
(b) Mode of Proceeding . .
501
(c) Replevin in County Court
509
(d) Replevin in High Court .
513
(e) Removal to High Court
by Certiorari ....
518
(f) Proceedings on Replevin
Bond
520
(g) Recovery of Deposit in
lieu of Bond ....
521
SECT. PAGE
2. Recovery of Damages by
Action 521
(a) Summary Remedy in
Metropolis ....
(b) Action for Double Dam-
ages (on sale) . . .
(c) Action proper ....
Remedy by Proceedings be-
fore Justices or County
Court under Agricul-
tural Holdings Act". .
522
522
522
52G
We will now consider the remedies which the law pro-
vides for the tenant in cases where the distress levied by
the landlord is illegal, irregular, or excessive. ^ The pecu-
liar remedy by the act of the party termed " rescue," which
is only available before impounding, and, therefoie, of little
or no practical value, has been already considered (a).
Sect. 1. — Replevin.
(a) Nature of a Replevin^ and in what Cases applicable.
Nature of a replevin. — Replevin is a remedy for the owner
of goods or cattle which have been wrongfully taken under
a distress for rent (5), whereby he obtains them back in a
(a) Ante, Ch. XI., Sect. 10.
(6) Replevin has been said not to
be confined strictly to distresses, but
to extend to all wrongful takings of
goods or cattle ; George v. Chambers,
11 M. & W. 149 ; 7 Jur. 836 ; Allen
V. Sharp, 2 Exch. 352; 17 L. J., Ex.
209; Mellor v. Leather, 1 E. & B.
619; 22 L. J., M. C. 76; but see
Mennie v. Blake, 6 E. & B. 842 ; 25
L. J., Q. B. 399. It applies to
distress damage feasant.
1 See ante, ch. 11, sec. 10, (d), note, "Liability for illegal distress.'
775
*500 REMEDIES FOR WRONGFUL DISTRESS. [Cii. XII. S. 1.
summary manner, through the registrar of the County Court
of the district within which the goods or cattle were taken,
upon giving security to try the validity of the distress or talcing^
in an action of replevin to be forthwith commenced
[*500] by him against the distrainer * and prosecuted with
effect (c), and without delay (c?), either in the County
Court or in the High Court, and to return the goods or cattle,
if such return shall be awarded (e).
"When replevin lies. — The essence of proceedings in re-
plevin being, that the tenant enjoys the subject-matter of the
distress in specie pending the trial of the action, it is mate-
rial to consider when this action lies. It may be said briefly
that replevin lies in case of a distress which is wholly illegal,
and not merely irregular or excessive. Thus, it lies where
no rent is due, or where the rent Avas tendered in time, or
where goods exempt by laAv from distress are seized (with
the exceptions, however, of animals ferae naturae (/), and
perhaps fixtures (^)). The proceeding consists of two
distinct parts, viz.: 1. The replevy, whereby the goods or
cattle are obtained back ; 2. The subsequent action of
replevin to try the legality of the distress or taking. But
it is in effect no remedy where the distress was originally
lawful (A) ; unless it has become illegal by a sufficient
tender of the rent or damage done, with expenses, being
made before the impounding, and a subsequent wrongful
detention which in effect and construction of law amounts
to a new wrongful taking (/) : and, therefore, the fact ahme
that the distress is for more tlian the sum due, does not
(r) This is to say "with success"; dcliiv, sec Gent r. Cutts, 11 Q. B. 288-,
Morgan v. Griffith, 7 Mod. 080; Harrison r. Wanlle, 5 H. & Add. 14(5;
Tumor v. Turner, 2 Brod. & B. 107 ; Axford i-. Berrett, 4 Bint?. 58G.
Berreau v. Bcavan, 5 B. & C. 284, (p) 10 & 20 Vict. c. 108, ss. G3-71 ;
.300; Jackson i-. Hanson, 8 M. & W. 2:5 & 24 Vict. c. 120, s. 22.
477; 1 Dowl., N. S. 09; TunniclilTe {/») Bac. Abr. tit. Replevin (F.).
V. Wiimot, 2 C. & K. 620; Tuminons (7) Niblet v. Smitli, 4 T. R. 504.
V. Ogle, 0 E. & B. 571 ; 25 L. J., (i. B. (h) See per Lord Campbell, C. J.,
403. in Johnson v. Upham, 28 L. J., Q. B.
(d) That is to say, with " due 250.
diligence " ; as to what is improfjcr (/) Ante, Ch. XI.
776
Cii. XII. S. 1.] REPLEVIN. *501
entitle the tenant to replevy' the goods, but only to bring
an action for an excessive distress (/r).
Replevin only an optional remedy. — Replevin is only an
optional remedy ; the tenant may, in any case where replevin
lies, waive his right to replevy, and bring his action for
damages instead.
Within Twhat time must be made. — The tenant may avail
liimself of the right to replevy at any time, notwithstanding
the goods have been removed after five days, and appraised,
so long as they remain unsold (?).
Notice, &o., before action unnecessary. — The stat. 24 Geo.
2, c. 44, s. 6, which enacts that no action shall be brought
against a constable acting in obedience to the warrant of a
justice of the peace till demand of a copy of the warrant
and refusal thereof ; and statutes 2 & 3 Vict. c. 93, s. 8, and
1 & 2 Will. 4, c. 41, s. 19, which require a calendar month's
notice of action to be given to any constable for anything
done in the execution of his office, and similar protecting
statutes, do not apply to actions of replevin (m).
* Replevy made per incuriam. — If the replevy be [*501]
made per incuriam or mistake of the officer, it by no
means follows that the subsequent action of replevin cannot
be maintained (w). Quod fieri non debet, factmn valet. The
remedy for such mistake is by a summary application to the
court to set aside the replevy, or to attach the officer, or
the party, or both, for the contempt (o). Where goods taken
under a warrant of distress granted by Commissioners of
Sewers were replevied, and the proceedings removed into
the King's Bench, that court refused to quash them on a
summary application, leaving the defendant in replevin to
put his objection in a more formal manner upon the
{k) See \ Chit. PI. 184 ^Tth ed.). (n) Allen i'. Sharp, 2 Exch. 361 ;
(0 Jacob V. King, 5 Taunt. 451 ; 17 L. J., Ex. 209.
Griffiths ('. Stephens, 1 Chit. R. 196. (o) As to attachment, see Rex v.
(?n) Fletcher v. Wilkins, 6 East, Burchet, 8 Mod. 209; Willes,673, n.,•
283 ; Jones r. Johnson, 6 Exch. 1.S8; Rex r. ISIonkhouse, 2 Stra. 1184;
20 L. J., M. C. 11 ; Gay v. Mattliews, Rex v. Oliver, Banbury, 14; Bull. N.
32 L. ,T., M. C. 58 ; in Ex. Ch., 4 B.& S. P. 53; and as to setting aside the
425. See, however, Mellorc. Leather, proceedings, Rhymney R. Co. j;.
1 E. & B. 619; 22 L. J., M. C. 76, as Price, 16 L. T. 394.
to the protection of constables.
777
*502 REMEDIES FOK WliONGFTJL DISTRESvS. [Ch. XII. S. I.
record (|>). 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 (</).
(b) Mode of Proceeding to Replevy.
Preliminary matters to be considered. — Before proceeding
to replevy the following points should be considered, viz. :
1. Whether the cUstress or taking was wholly illegal, and not
merely excessive or irregular, or taken for the wrong cause
(as stated in the notice of distress) instead of the right one.
2. Whether it is practicable and expedient to make a tender
of the rent or damage, with costs of the distress, which
tender cannot be made after the impounding. 3. Whether,
considering the value of the goods taken with reference to
the amount of the rent or damage claimed, it is worth while
to replevy, seeing that whatever may be the value of the
goods, secui-ity must be given for such an amount as the
registrar shall deem sufficient to cover the alleged rent or
damage in respect of which the distress was taken, and the
probable costs of the cause in the County Court, or in the
High Court, as the case may be. 4. Whether the action of
replevin should be commenced and prosecuted in the County
Court for the district within which the distress was taken, or
in the High Court, or in the court of the lord of any honor
or franchise having exclusive jurisdiction to grant replev-
ies (r). It is not optional to bring replevin in the High
Court unless the rent or damage claimed exceeds 20Z., or the
title to some corporeal or incorporeal hereditament, or to
some toll, market, fair or franchise is in question. In all
other cases the action must be brouglit in the County Court.
Even wliore any title is in question the action maji be l)i()nght
in the County Court, subject to the power of removal
[*502] by *the defendant under 19 & 20 Vict. c. 108, s.
67 (h) ; and to an appeal were the rent claimed
(/)) Pritchard v. Stephens, 6 T. R. (r) Mounscy v. Dawson, (J A. &. E.
522. 752.
(7) Sabourin v. Mursliall, 3 B. & (s) Re Fordliam r. Ackers, 4 B. &
Ad. 440. S. 578; 33 L. J., Q. B. G7 ; b. c,
778
Cii. XII. S. 1] REPLEVIN. *502
exceeds 201. (^). 5, By whom the replevy shoukl be made
and the action brought. It should be brought by the party
whose goods have been distrained (y/) ; i.e. by him who has
the property, absolute or qualified, in the goods (a;), a mere
possessory right having been said to be not sufficient (?/). It
was, in the case of Fenton v. Logan (2), apparently assumed
that replevin would lie at the instance of the real owner of
the goods seized, although he was a person other than th<;
tenant distrained upon ; and if the point, whether replevin
was a remedy open to others than tenants, were distinctly
raised, it would be probably so decided. If goods of A. and
B., the separate property of each, be unlawfully distrained,
they cannot join in a replevin, but each may replevy his own
goods («). Joint owners and tenants in common may and
should join in a replevin (i). Coparceners are joint own-
ers (^). Executors may maintain re[)levin for goods of their
testator wrongfully taken in this lifetime (c-). If the goods
of a feme sole be taken, and she afterwards marries, the hus-
band alone may replevy (t?) without joining his wife, and,
indeed, if the goods are taken after the marriage, sh(;
ought not to sue either alone (e) or with her husband (/).
6. Against whom the proceedings should be adopted. It
may be against him who took or commanded the taking, or
both (^). The landlord or person who caused the distress
to be made is generally best able to pay damages and costs ;
but to fix him with liability his authority to make the distress
noni. Reg. v. Gurdon, 12 W. R. (6) Year Bk. 3 Hen. 4, 16 a; Co.
201. Lit. 145 b; Bull. N. P. 53 ; 1 Chit.
(0 This was done in White, app., PI. 183 (7th ed.) ; 2 Selw. N. P. 1150
Greenish, resp., 11 C. B., N. S. 209. (IStii ed.).
(«) 19 & 20 Vict. c. 108, s. 64. (c) Bro. Abr. tit. Replevin, pi. 59;
(x) Com. Dig. tit. Pleader (3 K. Arundell v. Trevill, Sid. 82 ; Bull. N.
1) ; Co. Lit. 145 b; Bro. Repl. fol. 8, P. 53; Gilb. Repl. 156.
20; 1 Chit. PI. 182, 183 (7th ed.) ; 2 (rf) Fitz. N. B. 69 k; Gilb. Repl.
Selw. N. P. 1150 (13th ed.). 156; 2 Selw. N. P. 1150 (13th ed.).
(i/) Templeman v. Case, 10 Mod. (e) Clarke v. Davies, 7 Taunt. 72.
25. But see Fell v. Whitaker, L. R., (/) Bern (•. Mattaire, Cas. Temp.
7 Q. B. 120, and post, p. 525. Hardw. 119; 2 Selw. N. P. 1150 (13th
(z) 9 Bing. 676. ed.).
(a) Co. Lit. 145 b; Bro. Abr. tit. (r/) Com. Dig. tit. Pleader (3 K. 1) ;
Replevin, PI. 12; Gilb. Repl. 152; 2 2 Roll. Abr. 431, I. 5; Gilb. Repl.
Selw. N. P. 1150 (13th ed.). 152 ; Jones v. Johnson, 5 Exch. 862.
779
*503 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1.
must be proved (A) ; and if only some of the goods or cattle
were illegally taken (being privileged from distress), and the
replevin is confhied to them, it must be proved not merely
that he signed a distress warrant in the usual form, but that
he authorized the taking of those goods or cattle which were
so ilL\o-ally taken : or that, knowing what had been done in
his behalf, he ratitied and adopted such illegal act (i). He
should always be made a defendant where the plaintiff intends
to pay money into court (^). The agent who signed
[*503] the distress warrant, or who directed * the distress,
may be made a defendant ; as may also the broker (^),
But although they may be made defendants, it does not follow
that they should be, in any particular case : that is matter of
discretion, with reference to the acts done, and other inci-
dental facts, including the evidence and the pecuniary ability
of the parties. The pound-keeper, it seems, is not liable (in').
It has been said that replevin cannot be maintained against
a corporation aggregate, but only against their bailiff or
agent (w), but this seems inconsistent with several recent
cases (o). It has been long since decided that a corporation
may appoint a bailiff to distrain, without a Avarrant under
their common seal ( p) ; and there seems no reason why they
should not be responsible for acts so authorized ; for other-
wise they might, by appointing a pauper to act for them,
avoid all liability direct or indirect. 7. It should further be
considered whether all the goods or cattle should be rej^levied,
or only some of tliem, on the ground that they were legally
exemi)t from the distress (^). The value of such goods or
(li) Ante, 4^)9. ()i) 1 Kyii on Corporations, 223;
(i) Ante, 459. Bjic. Abr. tit. Corporations (E. 2).
(/■) The C. L. P. Act, 1800, 23 & (o) Sec Eastern Counties K. Co. v.
24 Vict. c. 12(5, 8. 23, wliich specially Broom (in error), (5 Excli. 314, which
allowed payment into Court l>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 0 2 6
For a replevin bond, where the alleged rent
or damage (e) does not exceed 20^. ... 0 10 6
For a replevin bond, where the alleged rent or
damage (^) exceeds 20/ 110
For notice to the distrainer 0 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 0 10 0
(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 . . . 0 15 0
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 ;;. Cruii<shank, L. R., 8
ante, 504. C. 1'. 4.54 : 42 L. .1., C. P. 273; 28 L.
(/) Not to the Judfje at nisi prius; T. 7.'55 ; 21 VV. R. 734.
Tunniclitfe v. Wilmot, 2 C. & K. G2(i,
70K
Cn. XII. S. 1.] liEPLEVlN. *517
But now in lieu of such double costs he is entitled to receive
such full and reasonable indemnity as to all costs, charges
and expenses incurred in and about the suit as shall be taxed
by the proper officer in that behalf (?).
Costs of distress not recoverable. — Under 17 Car.
2, c. 7, a successful defendant in replevin is not * en- [*r)17]
titled to the costs of making the distress (m) ; and
the term '^ full costs " in that statute has been held to mean
ordinary costs as between party and party, and not costs as
between solicitor and client (w).
Execution for defendant. — If the defendant have judgment,
he has execution by a writ de retorno habendo, to have a
return of the goods or cattle distrained, and a fi. fa. for his
costs (w). It seems that the writ of retorno habendo and a
fi. fa. for damages and costs may be included in one writ (w).
Writ de retorno habendo. — The sheriff, under the writ of
retorno habendo, might, under the old practice (which would
seem to be still in force, if the proceedings should be carried
so far), cause the goods or cattle which were replevied to be
taken from the plaintiff and re-delivered to the defendant ;
but this was seldom done. The usual practice was for the
sheriff to return elongata, viz., that the goods or cattle were
eloigned and removed to places unknown.
Capias in withernam. — Upon this return being filed the de-
fendant might have a " capias in withernam," by which the
sheriff was commanded to take the cattle, goods, and chat-
tels of the plaintiff, to the value of the cattle, goods, and
chattels before taken, to be delivered to the defendant, to be
kept by him till the sheriff can cause to be returned the
cattle, goods, and chattels before taken, &c. (o). If this was
returned nihil the defendant might sue out an alias, and
after that a pluries ( j9) : but if these all proved unsuccessful
he had to sue the plaintiff and his sureties on the replevin
bond.
(/) 5 & 6 Vict. c. 97, s. 2. But see (o) The meaning of " in witlier-
Garnett r. Bradley, ante, 489 (17). nam " seems to be "by way of re-
(m) Jamieson v. Trevelyan, 10 prisal." See Steph. Com. (7th ed.),
Exch. 748 ; 24 L. J., Ex. 74. Vol. III., p. 423, and for form, see
(n) See Chit. Forms, 12th ed., vol. Chit. Forms (12th ed.). Vol. 2, p. 627.
2, p. 025 <t se,j. (jj) 2 Chit. Arch. 1086 (11th ed.).
799
*518 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1.
The sheriff was not bound to execute a writ de retorno
habendo by actually delivering the goods or cattle therein
mentioned to the defendant, unless the defendant or some
person on his behalf attended to point out the particular
goods or cattle and to receive the same. If that were not
done the sheriff mioht make a return to the writ that no
person did so attend (^).
The writ of retorno habendo was generally sued out for
the purpose of founding proceedings on the replevin bond ;
but this is unnecessary, for as such bond is condition to
prosecute the suit " with effect," and also to make a return,
if return be awarded, the bond is forfeited by the plaintiff
not prosecuting his suit with success (r). The bond is con-
sidered as a further and better security for such return,
&c. (s).
New trial. — In replevin, where the verdict is for
[*518] the plaintiff, the court %vill not *in general grant a
new trial, even on payment of costs, without very
clear grounds ; for the landlord has other remedies for his
rent, and a new trial would renew the liability of the sureties,
and the plaintiff's risk of paying full costs, charges and ex-
penses (Q.
(e) Action of Repleviii removed by Certiorari from County
Court into the High Court.
Not by plaintiff. — A plaintiff who has elected to bring an
action of replevin in the County Court cannot afterwards
remove it into the High Court (ii).
By defendant. — The defendant in an action of replevin
commenced in the County Court may sometimes cause such
action to be removed by writ of certiorari into the High
Court, pursuant to 19 & 20 Vict. c. 109, s. 67 (x).
Application for certiorari. — The application for such writ
(7) 2 Wms. Saund. 74 b, c ; 2 Cliit. (/) Parry ;-. Duncan, 7 Bing. 243.
Arch. 1080. But see Edgson v. Cardwell, L. R., 8
(r) Watson, Sheriff, 421. C. 1'. 047 ; 28 L. T. 810.
(s) Tumor v. Turner, 2 Brod. & B. (m) Ante, 508.
107. (^x) See Mungean v. Wheatley, 6
Exch. 88 ; 20 L. J., Ex. 106.
800
Cii. XII. S. 1] REPLEVIN. *519
should generally be made to a judge at chambers, and not to
the court except under special circumstances i^ij).
Affidavit in support. — It should be supported by an affi-
davit entitled in the court to which, or to the judge of which
the application is made ; but not in any cause or matter (z).
It must show the special facts on which the defendant relies
in support of the application, and ^particularly 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 taken exceeded 20L (a).
Order or summons. — The judge may in his discretion order
the writ to issue upon an ex parte application ; but more
frequently only a summons to show cause is granted in the
first instance (6).
Stay of proceedings. — The court or judge may direct that
the rule nisi or summons shall operate as a stay of proceed-
ings (t-).
Service thereof. — It should be drawn up and served with-
out delay, on the opposite party and on the registrar of
the County Court. If not so served two clear days before
the day fixed for the hearing of the cause the judge of
the County Court may, in his discretion, order the party
who obtained the rule or summons to pay all the costs of
the da}', or so much thereof as he shall think fit, unless the
High Court or a judge thereof shall have made some order
respecting such costs (c?). Where the writ has been granted
on an ex parte application, and the party who obtained it
shall not lodge it with the registrar, and give notice to the
opposite party, two clear days before the day fixed for hear-
ing the cause to which it shall relate, the judge of
the County Court may, in his * discretion, order the [*519]
party who obtained the writ to pay all the costs of
the dav, or so much thereof as he shall think fit, unless the
(v) Bowen v. Evans, 3 Exch. Ill ; (ft) 2 Chit. Arch. 1088.
6 D. & L. 193. (c) 19 & 20 Vict. c. 108, s. 40.
(c) 2 Chit. Arch. 1088 (llth od.). (rf) 19 & 20 Vict. c. 108, s. 40.
(o) See forms of aflSdavit, Chit.
Forms, 583 (9th ed.).
^ 801
*519 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1.
High Court or a judge thereof shall have made some order
respectmg such costs (e).
No renewed application ; unless, &c. — By 19 & 20 Vict. C.
108, s. 44, " when any superior court or a judge thereof
shall have refused to grant a writ of certiorari [&c.] "no
other superior court or judge thereof shall grant such writ "
[&c.] : "but nothing herein shall affect the right of appealing
from the decision of the judge of the superior court to the
court itself, or prevent a second application being made for
such a writ " [&c.] " to the same superior court or a judge
thereof, on grounds different from those on wliich the first
application was founded."
The summons or rule nisi is heard and determined in like
manner as in other cases.
Order or rule absolute. — When an order or rule absolute
is obtained, the writ of certiorari may be issued (/). The
defendant must thereupon give security, to be approved of by
one of the masters, for such amount, not exceeding 150?., as
such master shall think fit, conditioned as pointed out in 19
& 20 Vict. c. 108, s. 67 (,^). The security is in the form of
a bond, with two sureties, to the plaintiff (A). Or instead
of a bond, a deposit may be made with a memorandum (z).
Tlie writ is then delivered to the judge or registrar of the
County Court, with such bond or memorandum annexed,
who will thereupon make a return to the writ (A;) ; and when
such writ and return are filed at the master's office the pro-
ceedings are removed into the superior court.
Appearance. — The defendant should then enter an appear-
ance in the High Court in the usual form (?), and give notice
thereof to the plaintiff or his solicitor. It seems, however,
that if the defendant will not enter an appearance, there may
be considerable difficulty in compelling him to do so, but it
will probably be always possible to obtain an order at cham-
(e) Id. 8. 41. (i) For forms of bond, deposit, and
(/) Form, Cliit. Forms, 084 (9th return, see /*o.s7, Appendix E., Sect. 3,
ed.). (b),4, 6, 7.
(y) Ante, 605. (/) See Appendix to Uules of
(//) Sect. 70, ante, 606. Supreme Court.
0) Sect. 71, ante, 606.
802
Cn. XII. S. 1.] REPLEVIN. *520
bers for the purpose (m) ; and, on the other hand, the
defendant could not non pros, the pLiintiff for not declaring,
because no day is given by the writ of certiorari to tlie par-
ties to appear in the superior court (n), but this will not
now prevent an order being made to dismiss for want of
prosecution under Order XXVll. of the Rules of the Su-
preme Court. And it must not be forgotten that if the
plaintiff do not proceed in the action with due diligence he
will forfeit the condition of his bond given when the goods
or cattle were replevied, notwithstanding the removal
of the cause into a superior court : at all events, * this [*520]
was so when the proceedings were removed by re. fa.
lo., in which the parties had a day given them to appear in
the superior court (o).
Subsequent proceedings. — The subsequent proceedings are
in all respects similar to those where the action is com-
menced in the High Court (^). If the defendant succeed
in the action, he must (unless the plaintiff discontinues, or
does not prosecute the action, or becomes nonsuited therein)
prove before the High Court that he, 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 was taken exceeded 201. (^).
The mode of doing this has been already suggested (r).
(f) Proceedings on the Replevin Bond.
The condition of a replevin bond varies according to the
court in which the action of replevin is to be commenced
and prosecuted (s).
An action on the bond may be brought immediately on
the condition being broken (t). It must be brought in the
(m) See 2 Clnt. Arch. 1089 (11th 293; Gent v. Cutts, 11 Q. B. 288;
ed.) ; Chit. Forms, 587 (9th ed.). Evans v. Bowen, 7 D. & L. 320.
(n) See Clerk v. Mayor, &c. of {p) Ante,b\^.
Berwick, 4 B. & C. 649"; Carton );. (7) 19 & 20 Vict. c. 108, s. G7 ; ante,
Great Western B. Co., 1 E. &. E. 258 ; 469.
28 L. J., Q. B. 103; 2 Ciiit. Arch. (r) Ante, 505.
1316. (s) Ante, 501.
(o) Morris v. Matthews, 2 Q. B. (J) Gilb. Repl. 225; see Waterman
803
*521 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1.
name of the obligee, his executors or administrators. It may
be brought against all the obligors jointly, or against any
one of them separately ; but not against any two, unless the
other be dead. The court in which the action is 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(tt). The obligees are liable only
to the amount of the penalty on the bond and the costs of
the action thereon Qx}. Therefore proceedings in such suit
may be stayed on payment of the penalty and costs, though
the plaintiff's costs in the replevin suit much exceed the
penalty (^). A judge at chambers may order the stay of
proceedings (?/). The sureties are liable only to the amount
of the rent in arrear at the time of the distress, and the
costs of the action of replevin and of the action on the bond ;
but not for any subsequent rent.
[*521] * (g) Proceedings to obtain Sum deposited in lieu of a
Bond.
Where a sum of money has been deposited with a mem-
orandum pursuant to 19 & 20 Vict. c. 108, s. 71 (a) ; " 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, order such sum so deposited to
be paid out to such party or parties as to him sliall seem
just "(a). The application should be founded on a sufii-
cient affidavit or affidavits of the facts, showing a breach or
breaches of the condition or full performance thereof, as the
case may be.
V. Yea, 2 Wils. 41 ; Tumor v. Turner, (r) Ilefford v. Alger, 1 Taunt. 218;
2 Brod. & v.. 107 ; 2 Chit. Arch. 1101 Branscoinbe v. Scarborough, 0 Q. B.
(12th cd.). i;}.
(»0 19 & 20 Vict. c. 108, 8. 70; (y) Ward v. Ilcnley, 1 Y. & J. 285.
ante, 505. (a) Ante, 500.
804
Cii. XU. S. 2.] KECOVERY OF DAMAGES. *522
Sect. 2. — Damages for Wrongful I) i sirens.
(a) Summarg Remedy within the 3Ietropolitan Police District.
By 2 & 3 Vict. c. 71, " An Act regulating the Police Courts
in the Metropolis," it is enacted (sect. 39), " That on com-
plaint made to any of the said magistrates by any person who
shall, ivithin the 77ietropolitan police district, have occupied any
house or lodging hg the week or month, or whereof the rent
does not exceed the rate of fifteen 'pounds hy the year, that
his goods have been taken from him by an unlawful distress,
or that the landlord, or his broker or agent, has been guilty
of an irregularity or excess in respect of such distress, it
shall be lawful for such magistrate to summon the party
complained against ; and if upon the hearing of the matter
it shall appear to the magistrate that such distress was im-
properly taken, or unfairly disposed of, or that the charges
made by the party having distrained, or having attempted to
distrain, are contrary to law, or that the proceeds of the sale
of such distress have not been duly accounted for to the
owner thereof, it shall be lawful for the magistrate to order
the distress so taken, if not sold, to be returned to the tenant
on payment of the rent which shall appear to be due at such
time as the magistrate shall appoint ; or if the distress shall
have been sold, then to order paj^ment to the said tenant of
the value thereof, deducting thereout the rent which shall so
appear to be due, such value to be determined by the magis-
trate ; and such landlord or party complained against, in
default of compliance with any such order, shall for-
feit to the party * aggrieved the value of such distress, [*522]
not being greater than fifteen pounds, such value to
be determined by the magistrate."
This enactment (which is permissive only, and does not
prevent a tenant suing for double value where he can) is
confined to distresses for rent made within the metropolitan
police district, the limits whereof are defined in the schedule
to 10 Geo. 4, c. 44 ; also to cases where the rent does not
exceed 15Z. per annum, or the tenancy was by the week or
month. It would seem that it might be very beneficially
805
*522 REMEDIES FOK WRONGFUL DISTRESS. [Ch. XII. S. 2.
extended to the whole kingdom, and to larger tenancies,
and also to be made applicable to distresses for damage
feasant, &c.
(b) Action for Double Value under 2 Will. ^ Mary, sess. 1, c. 5.
Case of sale vrhere no rent owing. — In cases where no rent
was owing, and the distress has been sold, the owner may-
recover double the value of the goods distrained. This very-
full remedy is given by 2 Will. & Mary, sess. 1, c. 5, s. 4 (^) ;
which provides that "in case any such distress and sale as
aforesaid [i.e. sale after five days, failing a replevy] shall be
made by virtue and colour of this present act for rent pre-
tended to be in arrear and due, where in truth no rent is in
arrear and due to the person or persons distraining, or to
him or them in whose name or names or right such distress
shall be taken as aforesaid, then the owner of such goods or
chattels distrained and sold as aforesaid, his executors or
administrators, shall and may, by action of trespass, or upon
the case, to be brought against the person or persons so dis-
training, any or either of them, his executors or administra-
tors, recover double of the value of the goods or chattels so
distrained and sold, together with full costs of suit (c). If
such an action be brought, the jury must be directed to give
double value as damages, and cannot give nominal dam-
ages (c?).
(c) Ordi^iarji Action for Damages.
Ordinary action for vrrongful distress. — Upon the system of
procedure in the superior courts of law under the Common
Law Procedure Acts, the action differed according as the act
of the landlord in distraining was (1) wrongful and illegal,
or (2) excessive only, or (3) merely irregular. In the first
case the tenant might have recourse to an action of trespass
or trover or detinue; in the second to an action on the case
for damages under the statute of Marlebridge, 52 Hen. 8, c. 4,
{h) Mere distress is not enough ; (c) As to (;osts, sec now K. S. C,
tlierc must be u sale for tlie statute 188.3, Order T>XV.
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., {<i) Fell i-. Whitaker, L. R., 7 Q. B.
Ex. 259. 120 ; 41 L. J., Q. B. 73 ; 25 L. T. 880 ;
0/) Willoufrliby V. Backhouse, 2 B. 20 W. U. 317.
A C. 821; Poles v. Iloare, i Bing. (b) 11 Geo. 2, c. 19, s. 21. See
401 ; 1 C. & P. 28; and see this case Nash v. Lucas, L. K., 2 Q. B. 590.
commented on in Glynn v. Thomas, (c) R. S. C. Order XIX., Rule 12;
11 Exch. 870, 876. Order XXII., Rule 19.
(s) Pliillips V. Berryman, 3 Doug. (d) Ncale w. Mackenzie, 1 C. M. &
286; Whitf. V. Willis, 2 Wils. 87; R. 61 ; 2 Dowl. 702.
SlO
Cn. XII. S. 2.] RECOVERY OF DAMAGES. *526
" In all actions of trespass, or upon the case, to be brought
against any person, or persons entitled to rents or services of
any kind, his, her or their bailiff or receiver, or other person,
relating to any entry by virtue of this act, or otherwise, upon
the premises chargeable with such rents or services, or to any
distress or seizure, sale or disposal, of any goods or chat-
tels thereupon, it shall and may be lawful to and
* for the defendant or defendants in such actions to [*526]
plead the general issue and give the special matter
in evidence, any law or usage to the contrary notwithstand-
ing ; and in case the plaintiff or plaintiffs shall become non-
suit, discontinue his or their action, or have judgment against
him, her or them, the defendant or defendants shall recover
double costs of suit."
This section is very wide, but it would seem to include
cases of irregular and excessive distress only, and not to
apply to unlawful distress.
The defendant is not bound to avail himself of the section,
but may, it is conceived without leave, enter a defence in the
ordinary form. If the defendant has not previously so ten-
dered and pays money into court, the plaintiff is entitled
only to his ordinary costs of suit, and not to the full costs,
&c., which are given by 5 & 6 Vict. c. 97, s. 1, in lieu of the
double costs given by 11 Geo. 2, c. 19, s. 21 (e).
Under the defence of " not guilty by statute " the tenancy
and ownership of the goods, as well as other matter of justi-
fication, is put in issue (/).
Measure of damages. — The measure of damages appears to
be, in cases of excessive distress, the fair value of the goods
(not merely what they would have fetched at a broker's sale),
minus, however, the rent due and the cost of the distress ( (/) ;
and although the plaintiff fail to prove that he has sustained
actual damage, yet on proof only that the distress was exces-
(e) Handcock v. Foulkes, 9 M. & (g) See Biggins r. Goode, 2 C. &
W. 431; 1 Dowl., N. S. 658. 11 Geo. J. 364;' Knight v. Egerton, 7 Exch.
2, c. 10, s. 21 is repealed by 5 & 6 407 ; Piggott v. Birtles, 1 M. & W.
Vict. c. 97, s. 1, so far as costs are 441 ; and at nisi prius, Knotts v. Cur-
concerned, tis, 5 C. & P. 322; Wells v. Moody, 7
(/) Williams v. Jones, 11 A. & E. C. & P. 59; Whitworth v. I\Iadden, 2
643; Ross v. Clifton, Id. 631. C. & K. 517.
811
*527 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 3.
sive he is entitled to recover some damages (A). If, how-
ever, the distress be merely irregular the defendant must
succeed, unless actual damage be proved (^).
Sect. 3. — Remedy by proceedings before Justices or County
Court, under Agricultural Holdings Act.
Summary determination of dispute. — If a distress has been
made upon a holding to wliich the Agricultural Holdings
Act applies (^), a special and summary mode of determining
any dispute arising out of such distress may, but need not of
necessity, be resorted to. For it is provided by sect. 46 of
that act that " where any dispute arises," either (a)
[*527] as to a distress having * been levied contrary to the
act (Z), or (b) as to the ownership of live stock dis-
trained or as to the price for feeding (7;t), or (c) as 'to any
other matter or thing relating to a holchng to which the act
applies, " such dispute may be heard and determined by the
county court (w), or a court of summary jurisdiction " (o),
either of which courts may make an order for restoration,
&c., " or may make any other order which justice requires."
By the same section there is an appeal from the court of
summary jurisdiction, but none from the county court, and
it is further provided by sect. 49 that no order of the county
court or of a court of summary jurisdiction shall be removed
by certiorari.
Application of s. 46. — This Section appears to be open to
any party, whether landlord, tenant or other, to a dispute
within its meaning. It gives a cumulative remedy, and no
party is bound to have recourse to it. By having recourse
to it, a party would not be legally bound to carry his com-
(A) Chandler v. Doulton, .'i H. & C. (m^ See s. 44 of the act, ante, 452.
553; 34 L. J., Ex. 89. («) That is by s. 61 the county
(/) Lucas V. Tarleton, 3 II. & N. court within tlie district within wliicli
11 'i; 27 L. J., Ex. 246; Rodgers v. the larger part thereof is situate.
I'arker, 18C. B. 112; 2.'") L. J., C. P. (o) That is by justices of the
220. peace, i)resumably of tlie petty ses-
(k) See Chap. XI., Seel. 5, ante. sional division, but the act is silent
(/) See 8. 44 of the act, Sect. 5, as to this.
ante, 430.
812
Cii. XII. S. 3] RECOVEKY OF DAMAGES. *527
plaint through up to decision, but would, it is conceived, be
bound by any decision arrived at. The words " may be
heard and determined " would seem to have a compulsory
force, so as not to admit of the courts named declining juris-
diction (/>).
(/O See Maxwell on Statutes, 2nd L. R., 1 Q. B. D. 201, and other
ed., p. 218. citing Reg. v. Adamson, cases.
813
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