the Lessee before the ten years expired but after the expiration of the ten years if the Lessee doth continue the possession of the same Land and doth occupy the same by vertue of the Indenture then he hath Fee and shall pay the twenty pound as a Rent â—eck But if a man seized in Lands doth Co. 1. par Inst f. 218. b. â—et the same Land by Lease for term of life yeelding to him a Rose for the first six years and if he will â—old the Land over the six years then â—hen to pay three marks per annmm Here the free-hold is immediately in â—e Lessee A man makes a Lease for years Perkins 729 730. â—ith this condition that if the Lessor â—o aliene the Reversion within the 〈◊〉 granted by the Lease then the â—essee shall have the Fee and the â—essor doth aliene the Reversion in 〈◊〉 by fine to a stranger In this 〈◊〉 the Lessee shall not have the Fee 〈◊〉 the Free-hold and the Fee are â—â—wfully in the Conuzee before the â—â—ssee can take it by condition but the Lessor had granted the Lands a stranger by Deed only then the â—â—ssee should have had Fee by the â—â—ndition If a man have a Lease for years and Perkins 833. demise or grant the same upon condition and dye his Executors or Administrators shall enter for the condition broken for they are privy in right and represent the person of the dead If a man make a Lease for years Lit. lib 3. C. 8. upon a condition that the Rent shall be paid at Christmas and before that time come the Lessor give a general Release to the Lessee of all Actions and Demands this Release doth not acquit the Lessee of the Rent but the Lessor may sue for it because it was neither due nor to be paid at the time of the Releasâ— made and it is a thing not meerly iâ— Action because it may be granteâ— over If a Landlord lets a Lease foâ— Dyer f. 67. years to two Tenants to hold Joynâ—ly with a condition that if the Leâ—sees dye before the end of the terâ— the Lease shall be void Now the Lessees makes division and one them aliens his part and dyes this case the Lessor cannot enter uâ— on the part of him that dyed bâ— the Alienee shall enjoy his half 〈◊〉 during the life of the Surviving Lessee A Lease made for years upon condition that if the Lessee demise the premises or any part thereof other than for a year to any person or persons then the Lessor and his Heirs to re-enter the Lessee afterwards devises this Lease to his Son by his Will this is a breach of the condition If a man of his meer motion give Dr. St. lib. 3. cap. 20. fol. 93. Lands to H. H. and to his Heirs by indenture upon condition that he shall yearly at a certain day pay unto John at Style out of the same Land â— certain Rent and if he do not pay â—he Rent that then it shall be lawful â—o John at Style to enter and if the Rent in this case be not paid to John at Style the said I. S. may not enâ—er into the Lands by the Law though the words of the Indenture 〈◊〉 that he shall enter for there is an â—ncient Maxim in the Law that no man shall take advantage in a condition but he that is party or privy to the condition and this man is not â—arty nor privy and therefore he â—hall take no advantage of it In many cases the intent of the Dr. S. 20. C. f. 93. party is void to all intents if it be not grounded according to the Law As if a man make a Lease to another for term of life and after oâ— his meer motion he confirmeth hiâ— Estate for term of life to remain after his death to another and to hiâ— Heirs In this case that remainder is void in Law for by the Laâ— there can no Remainder depenâ— upon any Estate but that thâ— same Estate beginneth at the samâ— time that the remainder doth anâ— in this case the Estate began beforâ— and the confirmation enlarged nâ—â— his Estate nor gave him any new Estate But if a Lease be made to man for the term of another maâ— life and after the Lessor only of 〈◊〉 meer motion confirmeth the 〈◊〉 to the Lessee for term of his 〈◊〉 life the Remainder over in Feâ— this is a good Remainder over Fee No grant can be made but Dr. St. lib. 2 C. â—â— p. 94. him that is party to the Deed exceâ—â— it be by way of remainder Aâ—â— therefore if a man make a Lease for 〈◊〉 of life and afterwards the â—â—ssor grant to a stranger that the â—enant for term of life shall have â—e Land to him and Heirs that 〈◊〉 is void if it be made only 〈◊〉 his meer motion without recomâ—â—nce Likewise if a man make a Lease for Ibid. 〈◊〉 of life and after grant the Reâ—â—rsion to one for term of life the â—emainder over in Fee and the Teâ—â—nt Attorneth to him that hath the state for term of life only intendâ—â—g that he only should have advanâ—â—ge of the grant his intent is 〈◊〉 and both shall take advantage â—â—ereof and the Attornment shall 〈◊〉 taken good according to the 〈◊〉 If a Tenant for the term of anoâ—â—er Co. â— par Inst fol. 41. mans life dye living the other 〈◊〉 he that doth first enter upon the state after his death shall be Teâ—â—nt for the other mans life and shall 〈◊〉 liable to the payment of the Rent â—â—served If a Tenant hath a Lease for twenty Perkins 693. 〈◊〉 of Lands and Tenements and 〈◊〉 the same Lands for part of his term to a stranger reserving 〈◊〉 himself forty shillings Rent In thâ— case he may distreyn for the Rent râ—served or have an Action of Deâ—â— at his pleasure because by commoâ— Intendment he is to have the saâ—â— Land after the years determined because he hath granted but parcel 〈◊〉 the years so that the Remainder râ—mains in him If Rent be granted to a man 〈◊〉 Idem 108. may grant it away to another befoâ—â— he be seized thereof If a man and his wife be ejected Co. 1. par Iust fol. 46 a term in the right of his wise aâ—â— the husband bring an Ejectione 〈◊〉 in his own name and do recover 〈◊〉 dye In this case his Executors 〈◊〉 have it and not the wife because 〈◊〉 Recovery in his own name did 〈◊〉 the term in himself If a man be possest of a term Cook ibid. forty years in right of his wife 〈◊〉 make a Lease for twenty years reseâ—ving Rent and dye here the Exâ—cutors of the husband shall have 〈◊〉 Rent for that term but the wiâ—â— shall have the remainder of the terâ— when the twenty years is out but he had granted the whole ter◠〈◊〉 could have had nothing â— release made to a tenant for term Id. 1.
this pure Tenure most subject to be spotted and involved in troubles above any other Which the Law calls Incombrances If a man were to deal as purchaser Incombrances of Fee-Simple with a Tenant in Fee-Simple he hath a happy bargine if he meets with a Simple Tenure and a Simple Tenant I mean the one free from Incombrances and the other from deceit which many have found it a difficult thing to obtain I shall therefore by way of caution set down the several troubles and incombrances this pure and Simple Tenure called Fee-Simple is subject unto Fee-Simple may be incombred with several Judgments Statutes Merchant and of the Staple Recognizances Mortgages Wills Precontracts Bargains and Sailes Feoffments Fines Amerciaments Joyntures Dowers and many other fraudulent Conveyances if a knave once possesse it and last of all may be quite forfeited for Treason But Fee-Simple being free from any of the aforementioned incombrances is the most free absolute and ample Estate of Inheritance that that any man can have And therefore a Tenant in Fee-Simple is said to be Seistus in Dominico suo ut de feodo that is seized in his Demeasne as of Fee Tenant in Fee-Taile All Free-hold inheritances before Fee-Tail the Statute of Westminster 2. Cap. 1. were Fee-Simple at the common Law so that Tenant in tayle was instituted by force of that Statute By which Statute there is a twofold Tenant in Tayle viz. General and special Tayle He is said to be Tenant in general General Tail Tayle who holdeth Lands or Tenements to him and to the Heires of his body begotten For if in this case he Marry many Wives and have issue by them all every one of them may the Elder dying come to inherit this Land because every one is the issue ingendred of his body It is the same case if Lands or Tenements be invested upon a Woman and the Heirs of her body And she have several Husbands and Children by them all every one of them is in a possibility to inherit those Tenements being all begotten of her body But where Lands or Tenements are setled upon a man and his wife and the Heirs of their bodies between them two lawfully to be begotten Special Tail this is Tenant in Special Tayle because in this case none can inherit but such Children as are by this man begotten upon the body of this wife named in the Grant And if that wife dye and the man taketh another wife and hath issue of her body the issue by the latter wife cannot inherit by vertue of such a grant And if the first husband dye and the wife marry again and have issue by a second husband that issue cannot inherit There be several other Estates in Special Tail according to the Devises Limitations and Conditions Special tail with limitation invented and setled by the Donor as sometimes to a man and his Wife and the Heirs Males of their bodies between them two to be begotten in this Case the Females cannot inherit So that if Lands be invested upon a man and his Heirs Males of his body and he hath issue two Sons and dyeth the eldest enters according to the grant and hath issue a Daughter and dyeth this Daughter shall not inherit the Land but the Brother because he is the Heir Male. And if a man hath Lands granted to him and to his Heirs Males of his body and he hath no Son but only a Daughter and the Daughter hath a Son and dyeth living her Father and after that the Donee dyeth in this case the Donee dying without issue Male in the Law the Son of his Daughter which is his Grandchild shall not inherit but the entayle is extinct and the Land shall Revert to the Donor Tail Tenures Incumbrances These grants in Tail are the causes of much strife and stir up many chargeable suits though in my judgment they are useless for the intent of the Donor is seldome observed in them he intending to preserve the Memory of his own name to perpetuity which cannot be since a Fine and Recovery will docke it Tenant in Tail after possibility of Issue extinct When Lands and Tenements be Possibility of Issue extinct granted to a Man and his Wife in special Tail and one of them dye before they have issue the Survivour is Tenant in Tail after possibility of issue extinct but if they have issue during the life of the issue the Survivour cannot be said to be tenant in Tail after possibility of issue extinct But if the issue dye without issue and leave none to inherit by vertue of the Entail then the Surviving Donee is tenant in Tail after possibility of issue extinct And none can be tenant in Tail after Donee in special Tail possibility of issue extinct but one of the Donees in special Tail which tenant in Tail after possibility of issue extinct is not chargeable with committing of Wast because the inheritance was once in him but if he doth Allien in Fee it is a forfeiture of his Estate and the Heir in Reversion may enter Tenant by the Courtesie of England When a Man marries a Wife seized in Fee-simple or in general Fee Tail or one that is Heiress unto Lands or Tenements in Special and hath a Child by the same Wife male Tenant by the courtesie or female born alive and the Wife dye whither the Child be living or dead the Husband shall hold the same Lands during his Life as Tenant by the Courtesie of England which is a Tenure used in none other Country but in England And although the Child dye assoon as it is born if it were but heard cry the Husband shall hold the Lands after his Wifes decease during his Life as Tenant by the courtesie the crying of the Child being a sufficient Testimony of its being born alive Tenant in Dower Tenant in Dower This kind of Tenant is always of the Feminine gender and is when a man is who seized of Lands or Tenements in Fee-Simple or in general Tail or as Heir in Special Tail marries a Wife and dies the Wife after the death of her Husband shall have during Her life the third part of such Lands or Tenements as her Husband had during the Coverture whether she had any issue by him or not so she be above nine years of age at her Husbands death This is the Dower at the Common-Law Dower at Common-Law but by custome in many places it is otherwise for in some places she shall have the half and in others the whole and in all these cases she is Tenant in Dower In Kent it is the custome for the Dower by the Custom Woman to have half her Husbands Lands durante viduitate so long as she continues a Widdow but if she marry again she looses all so likewise is the custome there if a man marry a Wife having an Estate in Lands c. and she dye without issue
it is delivered If the Habendum of a Lease Co. 1. par Inst â— 46. be for a term of one and twenty years without mentioning when it shall begin it shall then begin Cro. 2. par 263 264. from the Delivery So if an Indenture of Lease bear Date upon dayes impossible as Feb. 30. or March 40. There being no such dayes in one Accompt in this case if the term be limited to begin from the Date it shall take effect and beginning from the Delivery as if there had been no Date at all If Lands descend to an Heir he may Noys Max. p. 67. make a Lease thereof before his entry into the same If a man makes a Lease to day to one for ten years and to morrow makes another Lease of the same Lands to another person for twenty years this second Lease shall be good after the first is expired for so many years as 〈◊〉 therein to come If a man make a Lease to another Co. 1. par Inst fol 45. for one and twenty years and after another Lease to commence from the end and expiration of the said term of years and after the first Lease is surrendred In this case the second Lease shall commence presently upon the surrender But if it had been made to commence from the end of the said one and twenty years there though there had been a surrender yet it should not have commenced till the term had been out so that by this you may observe the Law puts a distinction between term of years and time of years If a man lets Lands to another to hold till the Lessee hath levyed twenty pounds this is a good Lease notwithstanding the incertainty Bracton saith that every Lease must have a certain beginning and ending Quia id certum est quod certum reddi potest Yet you see by the case before this Rule is contradicted so that it holds not always although in the generality it doth For if a man make a Lease to another for so many years as I. S. shall name although this be incertain at the beginning yet when I. S. hath named the years it is then good for so many years as he names So likewise if A. be seized of Co. 1. par Inst fol. 45. Lands in Fee and do grant to B. that when he payes him twenty shillings that then from that time he shall have and occupy the Land for one and twenty years and after B. pays unto A. the twenty shillings thiâ— is a good Lease for one and twenty years from that time Co. 6. l. f. 34 35. If a Parson make a Lease of his Glebe for so many years as he shall be Parson there this is void because of the uncertainty thereof for the Parsons time there terminates with his life then which nothing is more uncertain If a Lease be made for one hundred years if A. and B. live so long in this case if either of them dye the Lease is ended If an Infant who is seized of Lands Co 1. par Inst fol. 45. in Soccage make a Lease at his age of fifteen years this is good and shall bind him If a Tenant in Fee marry a Wise Co. 1. par Inst fol. 46. and make a Lease of his Lands for years and after dye and the Wife is thereof endowed here she shall avoid the Lease but after her death it shall be in force again against the Heir If a man have a term of years in Co lib. 8. â— 49. in the right of his Wife if she dye it remains to him but if she survive him it remains to her and not to his Executors without he dispose of it in his life-time If a man license another to enter and occupy his Lands this is a good Lease for years in Law Brownl 2. part p. 250. A Lease for years although it be never so long cannot be intayled because it is a Chattel which cannot be turned into an Inheritance Styles Regist pract p. 197. If a man seized in Fee-Simple let a Lease to another to have and to hold the same Lands for term of life and do not mention whose life it shall be taken for the Lessees life because the act of every one shall be taken most strongly against himself But if a Tenant in Tail let such a Lease without expressing whose life it shall be taken for the life of the Lessor If a Joynt-Tenant make a Lease Co. 1. par Inst f. 185. for Years of his part though the Lessee never had possession or though it be to begin at a Day to come and the Joynt-Tenant that made it dye before the day yet the Survivour shall be bound by the Lease for the Lessee hath a present Interest If two take a Lease for their lives and make partition either of them dying his part immediately reverts to the Lessor If there be two Joynt-Tenants Golds Rep. 187. for life and one of them makes a Lease for eighty years to begin after his Death and after dyes This Lease is good against the Survivour If a Lease be made to the Husband Dr. St. lib. 2. c. 33. and the Wife yeelding a greater Rent then the Land is worth if the Husband dye the Wife after the Husbands death may refuse the Lease to save her from the payment of the Rent but if the Husband over-live the Wife and then make his Executors and dyes if they have Assets that is if they have goods sufficient of their Testator to pay the Rent they cannot refuse it but if they have no goods sufficient of their Testator to pay the Rent to end of the term if they relinquish the occupation they may by special pleading discharge themselves of the Rent and the Lease If I let Lands in which are Mynes or Trees I cannot enter to take the Trees or Mynes but am a Trespasser unless I do reserve such a priviledge to my self when I let the Lands But if a Lessor do come upon the grounds Leased he is no Trespasser for it shall be intended that he came â—o see if Wast were done If a Tenant for years happen by any casualty to loose his Lease yet he shall not loose his term in the Lands let by such Lease which is lost if it can be proved that there was such a â—erm let to him by Indenture And â—hat it is not determined CHAP. IV. Of Corn sown who shall have the Crop of Estovers and Trees blown down of Distresses What things may be distreyned and how used who may take a Distress for what cause when and where IT is a usual saying and generally received opinion that he that Sows must Reap but as there is no general rule without some exception so this holds not always that he that Sows shall Reap But touching the Sowing of Corn if the Tenant be outed or his term ends before it be ripe who shall have the Corn I have already set
he shall have half while he remains sole but if he marry again he looseth all And in Kent they say the reason thereof is because they do not love that their Lands should help to maintain any Children but such as are of their own getting but how sure they are hereof Ignoramus Tenant for Life He that holdeth Lands or Tenements for the term of his own Life or for term of the Life of any other person In this case the Lessee either for term of his own Life or for anothers is Tenant for term of Life And this Tenant for Life hath in him the Freehold this being the lowest degree of Freehold In a grant for term of Life it is Lessor and Lessee said to be from Lessor to Lessee Note there is Feoffer and Feaffee Donor and Donee Lessor and Lessee so there is likewise Grantor and Grantee Obligor and Obligee Mortgagor and Mortgagee Feoffer and 〈◊〉 He that enfeoffeth another in Lands or Tenements is called the Feoffer he to whom the feoffment is made is the Feoffee So when a man giveth Lands or Donor Donec Tenements to another in tail he is called the Donor and he to whom the gift is made is the Donee And likewise he that letteth to another Grantor and Grantee any Lands or Tenements to hold for term of Life for Years or at Will is called the Lessor and he to whom the Lease is made is called Lessee which Lessee for Life as I said before is tenant of Freehold So also he that pawneth Lands to another Mortgagor and Mortgagee is called Mortgagor and he to whom it is pawned is called the Mortgagee Tenant for Years Tenant for term of Years is when Tenant for years a man demiseth and letteth any lands or tenements to another to hold for a certain number of years agreed upon between the Lessor and the Lessee by force and vertue of which Lease the Lessee entreth into the said tenements This Lease for term of years may be granted by word of mouth and this is called a Lease parol which shall bind the Lessor so long as the term is accorded for if the Witnesses live to prove the Lease Parol But the more safe and usual way is to take a Lease by Deed indented which needs no other Execution but only sealing and delivered For by vertue of that Lease the tenant may enter whensoever he will But a Lease for term of Life must Livery Seizin in Lease for Life be executed by Livery and Seisin because the freehold passeth with that Lease which it cannot do without Livery and Seizin This was the Case of Allen and Waller at the Lent-Assizes at Maidstone 1654. Waller brought an Ejectione firme against Allen the Defendant proved a Lease Parol at a certain rent during his Life which last word of the Defendants witness gave the verdict against him because none can be tenant for Life without Livery and Seizin Also if a man make a Lease to one for Years the remainder to another for Life or in tail or in Fee here the Lessor ought to make Livery and Seizin to the Lessee for Years or else nothing shall pass to him in remainder though the Lessee enter and enjoy his term of Years but the Free-hold and the Reversion remaines in the Lessor But if the Lessor makes Livery and Seizin to the Lessee then the Freehold passes over to them in the Reversion according to the grant Likewise if a man make a Lease of Lease for Years takes right after the delivery Lands or tenements to another for term of Years and the Lessor dye before the Lessee enter into the tenements nevertheless he may enter notwithstanding the death of the Lessor because the Lessee hath right to the tenements by vertue of his Lease immediately after the sealing and delivery of it Tenant at Will When a man demises Lands to another Tenant at Will to hold to the Lessee at the will of the Lessor and by vertue of this Lease the Lessee is in possession here the Lessee is tenant at Will and hath no certain Estate in the tenements he holdeth but the Lessor may eject him when he pleases But if the Lessee sow the Land and the Lessor eject him out afterwards He that sows shall Reap if Tenant at Will before the Corn be ripe the Lesseâ— shall nevertheless have his Crop and shall have free Egress and Regress to cut and carry it away because he knew not when the Lessor would enter upon him But if a tenant for years sow his Land so near the end of his term that his Lease expire before the Corn be ripe he shall not come to reap it but the Lessor or other who hath the Reversion shall have the Crop because the Lessee knew certainly the end and determination of his term and Lease In like manner if a house be let to Not so in Tenants for years a man to hold at Will and the Lessee enters the House and bringeth in thither his Goods and Houshold-stuff and afterwards the Lessor ejects him out here he shall have liberty of egress and regress to fetch away his Houshould-stuff Also if one seized in Fee-Simple Fee-tail or for term of Life in an House and hath Goods in that House and makes his Will appointing his Executors and dies now to whosoever the house descends the Executors shall have liberty in some reasonable time to enter and carry away the goods And if a man by Deed of Feoffment grants certain Lands to another and delivers him the Deed but executes it not by Livery and Seizin the Feoffee in this case may enter that Land and hold it at the will of the Feoffer but the Feoffer may eject him out again when he will If a man dwell in a House as tenant Tenant at Wâ—ll not bound to repaiâ—s at will he is not bound to repair the said house as a tenant for term of years is bound to do But if a tenant at will shall commit voluntary wast as to pull down Houses and Cut Grub Fell or destroy Trees the Lessor may bring his Action of trespass against him for so doing and the Lessor upon a Lease at Will if he hath reserved a yearly rent may either distreyne or bring an Action of debt for the same if it be in Arreare which he pleases Tenant by Coppy of Court-Roll Tenant by Coppy of Court-Roll This is a very ancient tenure and depends only upon custome and there are so many and various kinds of customes in Coppy-holds in several Mannors and Countries that it would take up a large Volumn to discourse of them all which is not now our present Intention but we shall refer that Subject to a further opportunity and here shortly in general terms set forth the nature of a tenant by Coppy of Court-Roll In a Mannor wherein there is a Custome and hath been so used time out of mind
nor Sheafes Cook ibid. 〈◊〉 Shocks of Corn cannot be diâ—â—reyned But Carts or Waggons â—aded with Corn may be distreyâ—ed either for Rent or damage feaâ—â—nts No mans Tools wherewith he Cook ibid. â—orks at his Trade shall be distreyâ—ed as the Carpenters Axe or a â—â—collars Books c. Neither can any thing which is fixâ—â— to the Free-hold be distreyned as â—â—rnaces Coppers or Fat 's fixed for â—â—ers or Brewers although the â—â—nant may remove them during 〈◊〉 term nor the Windows or Doors a House while they are upon Hinges But if they be removed off from the Hinges they may be distreyned The 〈◊〉 cannot distreyâ—â—â— Tabâ—â—◠〈◊〉 the Houseâ— of 〈◊〉 Tenant 〈…〉 which cannot be 〈◊〉 in an Assize neither can any thing be distreyned of which the Sheriff cannot makâ— a Replevin or that cannot be râ—stored again in as good a condition as it was when it was distreyned But a man may distreyn the Beaâ—â— of a stranger that come by escapâ— for Rent though they have not beâ—â— Levant and Couchant upon 〈◊〉 ground according to Cook 1. par 〈◊〉 f. 47. The Lord of a Leet may sell distress taken for an Amerciamâ— in his Leet as the King may 〈◊〉 a distress because it is the Kiâ—â— Court If a man distreyn Goods or 〈◊〉 Dr. St. l 2 C. 27. he may put them where he weither in a pound Covert or Oveâ— but if they take any harm he 〈◊〉 answer for them If they be living Cattel they ouâ— to be put in a common Pound 〈◊〉 in some open place as in his own â—ard or Close that distreyned them 〈◊〉 in some others by his consent so â—â—at the owner may come lawfully to â—eed them And the owner of the Cattel must have notice where they 〈◊〉 if they be not in a common â—ound and then if they dye for 〈◊〉 of meat it is the owners fault 〈◊〉 as it is said before but if they be a Pound covert or out of the â—ounty and dye for want of meat 〈◊〉 he that distreyned them shall â—ake satisfaction for them Cattel taken damage feasant may Kitchin f. 207. 〈◊〉 impounded in the same Pound â—here they are damage feasant but â—oods or Cattel taken for other â—â—ings may not No man ought to drive a distress Co. 1. part inst p. 57. Rastal title distress 11. Wingar abr p. 133. â—ut of the County where it is taken or out of the hundred but to a â—ound Overt within three miles neiâ—â—er may a distress be impounded several places nor above four 〈◊〉 taken for the Fees of impoundâ—â—g one whole distress on pain of five â—ound If a man distreyn Beasts damage Dr. St. l. 1. c. 27. â—â—asant and put them in the Pound Overt within the same County not above three miles out of the hundred and the owner suffers the Beasts to dye for lack of meat the loss is his own and he that distreyned them may be at liberty to bring his Action for the trespass if he will and if it be not a lawful pound then it is at the peril of him that distreyned them and so it is if he drive them óut of the Shire and they dye there If the owner of the Cattel tender Ibid. amends to him that distreyned and he refuse it yet the owner may not take his Cattel out of the pound for he may not be his own Judge and if he do a Writ De parco fracto for breaking the pound lieth against him but he must sue a Replevin to have his Cattel delivered him out of the pound and afterwards plead his tender of amends of which the Jury must end the controversie If the owner of the Cattel procure Ibid. a Replevin to deliver them and he that distreyned them resist it and will not deliver them in this case if they dye after for want of meat it is at the peril of him that distreyned and the owner shall recover damages against him in an Action upon the Statute for not obeying the Kings Writ If a man sends his Servant to take a distress for a Rent or Service who puts it in the pound if the owner of the Beasts or a stranger take them out I shall have an Action De parco fracto for breaking of the pound And if one distreyn Cattel and pound them in another mans Close with his consent and the owner of the Cattel come and take them out in this case he that made the distress shall have his Action for Pound-breach and the owner of the close an Action of trespass for breaking of his Closs There be certain cases where a Co. 1. par Inst f. 204 205. man may distreyn of common right and where not of common right a man may distreyn for Rent-Service Homage Fealty Escuage Suit of Court or for Rent reserved upon a gift in Tail Lease for life years or at Will though there be no clause of distress in the Lease because these distresses are of common right But for Debt Accompt Trespass Dr. St. l. 2. C. 9. or for Reparations or the like a man cannot distreyn neither can any distress be taken for any Services which are not certain nor can be reduced or brought into any certainty And upon an Avowry damages cannot be recovered for that which neither hath certainty nor can be reduced to certainty Nevertheless although it be a Paradox in some cases there may be a certainty in an incertainty As for a man to hold of his Lord to shear all his sheep depasturing within the Lords Mannor and this is certain enough although the Lord hath not always a certain number of sheep but sometimes a greater number and sometimes a lesser yet this incertainty being reduced to the Manner which is certain the Lord may distreyn for And a distress is inseparably incident to every Service that may be reduced to certainty A man may not distreyn for Rent after the Lease is ended nor out of the premises except in some special cases nor in the night unless it be damage feasant But the Executors or Administrators of him who had Lands in Fee or Fee-tail or-for life may either have an Action of Debt against him that should pay it or distreyn for it and so may the Husband after the death of his wife his Executors or Administrators and he which hath Rent for anothers life for the Arrearages after his death A man puts Cattel into my pasture Noys Max p. 33. for a week and afterwards I give him notice that I will keep them no longer and he will not fetch them away I may then distreyn them damage feasant If a man take Cattel damage feasant and as he is driving them to Pound they run into the Yard or House of the man that owes them and he refuses to let them out again he that distreyned them may have a Writ of Rescous against the owner of the Beasts for so doing If a Landlord come
him But against a Tenant in Mortgage Noy Max. p. 33. either an action of Wast or an accompt will lye against him because his estate is conditional If two or more Joynt-Tenants or Tenants in common be in a house and one will repair the house and the other will not in that case he that will repair it may have a writ de Reparatione faciend If a Landlord covenant to repair the house and doth it not in this case the Lessee may cut timber growing upon the ground and repair it though he be not compellable thereunto and shall not be punishable in Wast for so doing No man can have an action of Cook 1. part Inst p. 53 wast unless he have the immediate estate of inheritance but somtime another shall joyn with him As if a Reversion be granted to two and the Heirs of the one they two shall joyn in an action of wast In like manner the Surviving Copartners and the Tenant by the courtesie shall joyn in an action of waste If a Tenant for years commit Waste and dye no action of Waste lyeth against his Executors or Administrators for waste done before their time If there be two Copartners of a â—itchin s 214. Reversion and one of them dye the Aunt and Neece shall joyn in an Action of waste If a Tenant for life commit waste and after surrender his estate and the Lessor accepts it the Lessee is then discharged of the waste If a stranger commit Waste upon the lands which one holdeth for life or years the Tenant shall suffer for it and is left to take his remedy over against he that did it If a Landlord covenant to deliver timber out of the same land to repair the house let and will not deliver it and for defect thereof the Tenant will not repair it but suffers the house to fall down this is waste in the Tenant and he is punishable for it But if the timber be to be taken out of other lands and be not delivered then the Tenant is excusable if he suffer the house to fall and no action of waste lies against him If a single woman Rent lands and Idem marryes and her husband commits waste and dyes she shall be punished for this waste done by her husband But if a Lease be made to a man and his wife and the husband commits waste and dyes in this case the wife shall not be punished for such waste unless she agree to the estate If a woman be Tenant for her life Cook 1. paâ—â— Iâ—st 54. and marries and her husband commit waste and the wife dyeth the man is not punishable for this waste but if a woman be possessed of a term of years and takes a husband who commits waste and the wife dyes here the man is liable to an action of waste for the waste by him committed because he enjoyeth the term of the Lease If a man make a Lease for life or years and after grants the Reversion for years the Lessor shall have no action of waste during the years for he himself hath granted away the Reversion in respect whereof he is to mainteyn his action If an action of waste be brought and the Term end while it is depending yet the writ shall not abate for although the Plaintiffe cannot recover the place wasted yet he shall recover the treble damages Likewise if one be Tenant for Co. 1. part Inst f. 285. term of anothers life and makes waste and afterwards the Cestui que vie dyes here the Lessor shall recover treble damages but cannot recover the place wasted for that falls to him by the death of the Cestui que vie It waste be done in one corner of Cook 1 part Inst s 54. a Wood that place only which is wasted shall be recovered but if it be done here and there about the wood then the whole wood shall be recovered or as much wherein the waste sparsim is done And so in Houses so many Rooms Idem shall be recovered wherein there is waste done If a man make waste in cutting Regâ—st pract p. 343. trees which grow in hedge-rowes which inclose pastures nothing shall be recovered but the place wasted that is the circuit of the roots and not the whole pasture but if trees grow scatteringly about the pasture then the whole pasture is forseited if they be cut It is good plea in bar to a writ of Waste to say that the house fell by a sudden tempest although the Tenant did covenant to repair it but it is no plea in an action of covenant It is also a good plea in a writ of Waste to say that the house was Ruinous at the time of the Lease making and the Timber so putrified and Rotten that it fell It also a good plea to say that the Plaintiffe hath entred upon the Land before which entry no waste was made or that he Surrendred and the Plaintiff did accept before which time no Waste was made If a Tenant doth waste and afterward Cook 1 part Inst f. 285. Surrenders and the Lessor agrees yet the Lessor may have an action of waste and recover treble damages If an action of waste be brought by husband and wife in remainder in special tail and the wife dyeth the suit depending without issue in this case the writ of waste shall abate If a Lease be made to hold to one Idem f. 220. without any impeachment of waste then the Tenant may cut down trees and convert them to his own use but if the words be to hold without impeachment for any action of wasteâ— in this case if the Lessee cut down trees the Lessor shall have them If a Tenant for life grant a rent-charge Cook 1. part Inst 233. 234. and after doth waste and the Lessor recover in an action of waste he shall hold the land charged during the life of the Tenant for life but if the rent were granted after the waste done the Lessor shall then avoid the grant made by the Lessee for life If a Tenant in Fee release to his Idem f. 345. Tenant for life all his right yet he shall have an action of waste And if a Tenant in Tail make a Lease for his own life yet he shall have an action of waste But if there be a Tenant for life the remainder to another in Tail and he in the remainder release to the Tenant for life all his right and State in the land he cannot afterwards have an action for waste If the Grantee of a Reversion bring an action of waste the Lessee may plead generally that he hath nothing in the reversion If a Lessee before his term begin enter into the lands let to him and do an act which amounteth unto waste the Lessor shall not have an action or waste for the same None shall have judgement to recover in an action of waste where the waste comes but to 12