tenant by the Courtesie âhe Coheir or parcener that surviâeth and the tenant by the Courteâe may make partition between ââem And if the tenant by the âourtesie will not consent there unââ the Surviving parcener may comâel him by a writ de Participatione ââcienda But if the tenant by the Courtesie ââsires to have partition and the âârceners surviving will not agree to ãâã the tenant by the Courtesie can âave no remedy for he cannot âave a writ de Participatione facienda against the surviving parcener although the parcener may have it against him Parceners by Custom This Tenure is Gavel-kind and iâ Partners by Custom used only in Kent except in some certain places in England besides and in North Wales But the meâ of Kent only claim this as a right remaining unto them unconquered and it is thus If a man be seized in Fee-Simple or Fee-Tail in Lands oâ tenements of the Custom and Tenurâ of Gavel-kind and hath issue diverâ Sons and dyeth All the Sons shall be Coheirs and equally inherit those Lands and tenements as Females do and may make partition by writ dâ Participatione facienda and divide as in the case of Daughters at the common Law Joynt-Tenants When a man being seized of certain Joynt-Tenants Lands and Tenements doth thereof enffeoff three or four oâ more to have and to hold to them and their Heirs or to hold to themselves for the term of their lives or for anothers life and they become seized by vertue of that Feoffment these are said to be Joynt-Tenants Likewise if two or more disseize Disseizorâ another of any Lands or Tenements to their own use the disseizors be Joynts-tenants but if it be but to the use of one of them they be not Joynt-tenants Now the nature of Joynt tenants is that the whole estate shall go to the Survivour As if there be Joynt-tenants in Fee-Simple and the one of them hath issue and dyeth the two that survive shall have the whole Tenements and nothing thereof shall go to the issue of him that is dead And if the second tenant have issue and dye the third who is the Survivour shall enjoy Survivour the whole and shall have it in Fee-Simple to him and his Heirs But now there is a difference in tenants in Parcenery for if there be three Copartners and one hath issue and dyeth before there be any partition made that part which belonged to her that is deceased shall descend to her issue And if such a Parcener dye without issue her part shall descend to her Coheirs so that this they have by discent and not by Survivourship as Joynt-Tenants have And as the Survivourship taketh Survivourship place amongst Joynt-tenants so it doth amongst all persons who have Joynt Estate or possession with others in Chattels Real or Personal As if a Lease be made to several persons for term of years the Survivour of the Lessees shall enjoy all the Tenements during the term by vertue of the Lease And in like manner Goods and Chattels personal whereof there be partners shall go to the Survivour And if a Bond be made to many persons for one Debt and some of the Obligees dye the Survivour shall have all the Debt And so it is in all Covenants and Contracts amongst Partners There may also be Joynt-tenants for term of life and yet they have several Inheritances If Lands be given to two men to Several Inheritances hold to them for term of their lives and to the Heirs of their two bodies here these Donees are Joynt-tenants for term of their lives and have several Inheritances For if one of them have issue and dye the Survivour shall enjoy the whole during his life by Survivourship And if the Survivour have also issue and dye then the issue of them both shall enjoy the estate equally between them as tenants in common and not Joynt-tenants Now the reason why these are said to have several Inheritances is because it is impossible for them to have an Heir between them as a Man and a Woman may have Therefore the Law maketh this distinction according to reason and the form of the gift that is to the Heirs that one getteth on the body of his Wife and so likewise of the other so that by this reason it must of necessity be that they have several inheritances And if after the death of the Donees the issue of one of the Donees dye also leaving no issue of his body Surviving in this case the Donor or his Heirs may enter into the moyety of the Lands as in his reversion though the other of the Donees hath issue living In like manner if Lands be given to two Females and to the Heirs of one of them in this case the one of them that is she that hath it but for life hath a freehold and the other hath a Fee-Simple and if she that hath the Fee dye the other who hath the Free-hold shall enjoy the whole during her life by vertue of her Survivourship And if Tenements be given to two and to the Heirs to be ingendred of the body of one of them here the one hath Free-hold and the other Fee-Tail If there be two Joynt-tenants and they are seized of an Estate in Fee-Simple and the one by Deed grants a Rent-charge to another out of that part which appertaines to him now during the life of the grantor this Rent-charge is good and effectual but it becomes void after the death of the Grantor For the Tenant that Surviveth shall hold all the Land by Survivourship discharged from the Rent-charge of the other But amongst Coheirs or Parceners Difference between Coheirs and Copartners it is otherwise for if there be two Parceners in Tenements in Fee-Simple and before partition one chargeth his part by his deed with a Rent-charge and dyeth leaving no issue whereby his moyety descends to the other Partners here that part shall not be freed of the Rent-charge because he cometh to this moyety by discent as Heir at Law If Joynt-tenants be desirous to make partition between them they may do it by consent and agreement amongst themselves and such partition is good and binding against each other but unless it be done by mutual consent amongst themselves the Law cannot enforce or compel them or either of them to do it because Joynt-Tenants cannot have a writ de Participatione facienda as tenants in Copartnership may have If there be a joynt Estate of Lands and Tenements made to a man and his wife and to a third Person her the third Person shall have as much as the man and his wise that is one moâety for the man and wife can have but half the estate because they arâ but one person in Law In like manner it is if Land were made to a man and his wife and to two others here the man and wife can have but a third part and the two others the other two
parts Tenants in Common Such as have Lands and Tenements Tenânts in Common by several title and not joynt title and none of them knoweth what is several to him whether it be in Fee-Simple Fee-Tail or for term of life these are said to be tenants in Common because they ought by the Law to hold enjoy and occupy such Lands and Tenements in common and undivided and to take the profits in common and do come to the same Lands and Tenements by several titles and not by one joynt title If a man enfeoff two Joynt-tenants in Fee and one of them Aliens his part to another in Fee this Alienee and the other Joynt-tenant be Tenants in common because they now stand seized by several titles the one Joynt-tenant by vertue of the first Feoffment made to him and the other Joynt-tenant and the Alien be comes seized in his moyety by vertue of the Feoffment of the other Joynt-tenant so that the several Feoffments make their titles several whereby they become Tenants in common If there be three Joynt-tenants and one of them aliens his part to another person in Fee here the Alience is Tenant in Common with the other two Joynt-tenants and of the other two parts the two Joynt-tenants be seized joyntly and the Survivour of them shall have the whole of those two parts by vertue of Survivourship If there be two Joynt-tenants in Fee and one of them gives his part to another in tail here the Donce and the other Joynt-tenant become tenants in Common Also if Lands be given to two men and to the Heirs of their two bodies in this case these Doneeâ have a Joynt-Estate during their lives and if both of them havâ issue and dye both their issue shall hold the Land as Tenants in Common If Lands be given to two men and their Heirs to hold to eacâ a moyety these are Tenants in Common If a man being seized in certain Lands doth enfe off another in thâ half of it without limiting of the samâ half in severalty at the time of the Feoffment made that is do not distinguish that half from the other by particular bounds and limits In thiâ case the Feoffer and the Feoffee shalâ hold their parts of those Lands in Common And as it is amongst Tenants in Difference between Tenants for Life and in Common Common in Lands or Tnements in Fee-Simple or Fee-Tail in the same nature it is also between tenants for term of life as if there be two Joynt-tenants seiz'd in Fee and one of them lets to a man his part for term of his life and the other Joynt-tenant lets to another man his part for term of life these two Lessees be tenants in Common for the term of their lives Likewise if a man lets Lands unto two persons for the term of their âives and the one of them grants all âis Estate of the part belonging unto him unto a third person then this third person to whom this grant is made and the other Tenant for term of life be both tenants in Common during the lives of both the Lessees If there be three Joynt-tenants and one of them releaseth all his right which he hath in the Land by his Deed to one of his fellows then he to whom the release is made hath the third part of the Lands by vertue of that release and shall hold that third part with himself and his fellow in Common and they two shall hold the other two parts joyntly Also if a joynt-estate be made unto a man and his wife and to a third person and that third person releaseth his right which he hath in that estate to the Husband then the Husband hath the third persons moyety and the wife hath nothing therein at all And if such third person releaâ his right in his moyety to the wise not naming her Husband in the release then the Wife hath the thirâ persons moyety and the Husband hath nothing at all in it but only Jure uxoris in the right of hiâ Wife because the release shall worâ to invest the Estate in the person to whom the release is made of all that appertained to him that made such release There may be also Tenants in Common ãâã in Câmmânly Pââscription by title of Prescription that is when two have holden Lands in Common undivided the one one half from his Ancestors and the other the other the other half from his Ancestors or from whom the Estate is derived unto them undivided time whereof the memory of man hath not known the contrary these are Tenants in Common by title of prescription Now these Tenants in Common ought in some cases to have for the maintenance of their possession several Actiââs And in some cases they ââall all joyn in one Action for if their be two Tenants in Common and they be disseized they two cannot bring against the disseizor one Assize in both their names but they must have against him two Assizes for every of them ought to have an Assize of his half because the Tenants in Common are seized by several titles But amongst Joynt-tenants it is otherwise for if their be never so many of them and they be disseized they shall have but one Assize in all their names because they have all but one joynt-title There is likewise a difference in Tenants by divers Descents suing real Actions between Partners that be in divers descents and Tenants in Common For if a man who is seized in Lands in Fee dieth leaving only two Daughters his Coheirs and these two Daughters enter and have each of them a Son and dye without making any partition between them so that the Lands descend equally to their two Sons the one moyety to one of them and the other unto the other and they enter and enjoy the same in Common and be disseized they shall not in this case bring two Assizes but one Assize in both their names for though they came in by divers discents yet they be Parceners and a writ de Participatione facienda lyeth between them Nevertheless they be not Parceners by reason of the seizin and possession which they have from their Mothers but in respect to their Estate which descended to their Mothers from their Grand-father And so in respect and consideration of their first descent that was to their Mothers they have a title in Parcenery which maketh them Parceners and they be but as one Heir to their common Ancestor their Grandfather from whom the Land descended to their Mothers And therefore before partition made between them they should have but one Assize though they came in by several discents And likewise in personal Actions in Trespass and such like cases which concern their Tenements in Common the Tenants in Common ought to bring such personal Actions joyntly in all their names as for breaking their Houses Closes or Pastures wasting treading down or otherwise spoiling their Grass cutting or felling of their
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
for nothing can be a Custome unless it be Tempore quo non extat Memoria time out of mind that certain tenants within the said Mannor have used to have Lands or tenements to hold to them and their Heirs in Fee-Simple or Fee-tail or for term of life or upon any other condition at the Will of the Lord after the custome of the same Mannor such tenants are called Coppy-holders that is tenants by Coppy of Court-Roll for a Coppy of the Court-Roll is all the evidence they have for their estates in the said Lands Now a tenant by Coppy of Court-Roll Coppy holder cannot alien by Deed. may not alien his estate by Deed for if he do it is a forfeiture to the Lord and the Lord may enter and take the forfeit But if any tenant by Coppy of Court-Roll will alien his Lands he may do it by a surrender into the hands of the Lord to the use of him that shall have it and any kind of estate that a Free-holder can make of his Land by Deed a Coppy-holder may do the same by surrender The tenant by Coppy of Court-Roll is also bound by the custome to repair his houses and if he suffer any tenement or house to fall down for want of repair or if he pull it down he forfeits his Coppyhold to the Lord of the Manner There are seven Properties incideâââ for the Maintenance of a good Custome First It must be reasonable 2 Ed 4. 24. 13 Ed. 3. 4. 42 Ed. 3. 4. Secondly It must be certain Thirdly It must be according tâ Common Right Fourthly It must be on good consideration Fifthly It must be Compulsory 5 H. 7. 9. 42 Ed 3. 3 H. 6 13 31 Ed 3. Prescript 1. 22. Sixthly It must be without prejudice to the King Seventhly It must be to his profit that claimeth the same In Customes there is User Non user Abuser and Interuser Vser Is when according to time and occasion a Custome is used Non user Is when for want of time and occasion or through negligence or forgetfulness a custom is not used Abuser Is when Custom is ill used for as User doth nourish Custom so doth Abuser destroy a Custom Interuser is in some cases where a Custom may be used in one sort and âometimes in another and yet a good Custom if there be good Considerâtions for the Exchanging thereof at âimes If the Lord have used at the Adâission Fine at the Lords will of his Coppy-hold tenants âometimes to take for a Fine two âence or sometimes four pence for ân Acre sometimes twelve pence an Acre this User is so uncertain that ââ makes the Fines Arbitrable at the Lords will If the Lord of a Mannor have used Admission without Fine âime out of mind to admit his Coppy-hold tenants without Fine this Usage shall bind the Lord as well as a Fine certain If the Lord have used to have certain Work of Tenants Work-dayes of his tenants And that hath not been used by the space of twenty years last past yet âhat Non User is no discharge to the âenants so that there be any alive that can remember the same If the tenants have used when they Interuser for Rent Sow their Lands to pay the Lord Rent-Corn and when it lyeth in Pasture to pay their Rents in money this is a good Interuser If the tenants have used to payâ Idem their Lord every fourth year a double Rent and every sixth year an half Rent this is a good Interuser If the tenants have used to have Aluser by Cattle Common of Pasture in their Lords Woods for their Horse-Cattel and they put in their Neate-Cattel and destroy the Woods this is an abuser But it is but fineable and no forfeiture of the Common no more than if they have Common for a certain number of Beasts in the Lords Soyl and they exceed the number this abuse by the Surchargeing is only fineable and no forfeiture If a man have a Faire to be used Forfeiture two dayes and he keeps it three dayes this abuse is a forfeiture Every good Custom is grounded Customs must be reasonable upon good Reason and that shall be said in reason a good Custom that in reason is a good Law for Law and Custom be of that affinity as both do allow like Reason and both do forbid like Inconveniencies And the final effect of both is to discusse and to discern every mans true right and to give to every man that which is his own for although Custom in âome cases differ from Law and âoth admit Execution of some Acts without some Ceremonies required ây the Law yet the end and effect âf Custom is to maintain the like âeason and avoid the like incoveniâncies as the Laws doth If the tenants of a Manner will ârescribe to hold without paying any âents or Services for their Coppyâolds this is no good Custom But âo prescribe to hold by Fealty for all âanner of Services is good and reaâânable If a Lord will prescribe never to âold a Court but when it pleaseth âimself this is not good But to ârescribe never to hold a Court for ââe special good of any one tenant ââcept the same tenant will pay him a âine for the same that is good and âeasonable If a Coppy-holder surrender his and to the use of a Stranger in conââderation that the same Stranger ââall Marry his Daughter before ââch a day if the Marriage succeeds âot the Stranger takes no benefit by ââe surrender But if the surrender be in consideration that the Strangeâ shall pay such a Sum of money aâ such a day though the money bâ not paid yet the surrender standetâ good Many Customs there are which at the beginning were voluntary and now by continuance arâ grown Compulsary Quae initiâ fuerunt voluntatis ex post facto fuerunt necessitatis Sayeth the Civââ Law which also in many Casâ doth agree with the Common Law Tenant in Coparcenery There are two kinds of tenants iâ Tenants in Copercenery Coparcenery that is Parceners aâ the Common Law and Parceners bâ custome After the course of the Commoâ Law when a Man or Woman seized in Lands or tenements in Feââ Simple or Fee-tail and hath no other issue but Daughters and dyeth the tenements descend to the Daughters equally as Co-heirs and theâ shall enjoy every one an equal parâ thereof as tenents in Parcenery oâ Copartnership and are all as it werâ âne Heir to their Ancestor And ââese Coheirs or parceners may have Writ called Breve de participatiââe facienda to have the Lands eâually divided and shared amongst âhem If a man seized of Lands dye withâut issue and the tenements descend ââ his Sisters or if he hath no Siâers and it descends to his Aunts ââey be Coheirs or parceners as aâresaid If there be two parceners one âarries and hath issue and dyeth and âfterwards her Husband holdeth one âalf as
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 âeck But if a man seized in Lands doth Co. 1. par Inst f. 218. b. âet the same Land by Lease for term of life yeelding to him a Rose for the first six years and if he will âold the Land over the six years then âhen to pay three marks per annmm Here the free-hold is immediately in âe Lessee A man makes a Lease for years Perkins 729 730. âith this condition that if the Lessor âo aliene the Reversion within the ãâã granted by the Lease then the âessee shall have the Fee and the âessor doth aliene the Reversion in ãâã by fine to a stranger In this ãâã the Lessee shall not have the Fee ãâã the Free-hold and the Fee are ââwfully in the Conuzee before the ââssee can take it by condition but the Lessor had granted the Lands a stranger by Deed only then the ââssee should have had Fee by the âândition 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 Joynâly with a condition that if the Leâsees 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 ãâã 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 âhe Rent that then it shall be lawful âo 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 enâer into the Lands by the Law though the words of the Indenture ãâã that he shall enter for there is an âncient 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 âarty nor privy and therefore he âhall 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 nââ 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 ãâã meer motion confirmeth the ãâã to the Lessee for term of his ãâã life the Remainder over in Feâ this is a good Remainder over Fee No grant can be made but Dr. St. lib. 2 C. ââ p. 94. him that is party to the Deed exceââ it be by way of remainder Aââ therefore if a man make a Lease for ãâã of life and afterwards the ââssor grant to a stranger that the âenant for term of life shall have âe Land to him and Heirs that ãâã is void if it be made only ãâã his meer motion without recomâânce Likewise if a man make a Lease for Ibid. ãâã of life and after grant the Reâârsion to one for term of life the âemainder over in Fee and the Teâânt Attorneth to him that hath the state for term of life only intendââg that he only should have advanââge of the grant his intent is ãâã and both shall take advantage ââereof and the Attornment shall ãâã taken good according to the ãâã If a Tenant for the term of anoââer Co. â par Inst fol. 41. mans life dye living the other ãâã he that doth first enter upon the state after his death shall be Teâânt for the other mans life and shall ãâã liable to the payment of the Rent ââserved If a Tenant hath a Lease for twenty Perkins 693. ãâã of Lands and Tenements and ãâã the same Lands for part of his term to a stranger reserving ãâã himself forty shillings Rent In thâ case he may distreyn for the Rent râserved or have an Action of Deââ at his pleasure because by commoâ Intendment he is to have the saââ Land after the years determined because he hath granted but parcel ãâã the years so that the Remainder râmains in him If Rent be granted to a man ãâã Idem 108. may grant it away to another befoââ 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 aââ the husband bring an Ejectione ãâã in his own name and do recover ãâã dye In this case his Executors ãâã have it and not the wife because ãâã Recovery in his own name did ãâã the term in himself If a man be possest of a term Cook ibid. forty years in right of his wife ãâã make a Lease for twenty years reseâving Rent and dye here the Exâcutors of the husband shall have ãâã Rent for that term but the wiââ shall have the remainder of the terâ when the twenty years is out but he had granted the whole terâ ãâã could have had nothing â release made to a tenant for term Id. 1.
TENANTS LAW A TREATISE of great Use FOR TENANTS and FARMERS Of all Kinds And all other Persons whatsoever WHEREIN The several natures differences and kinds of Tenures and Tenants are discussed and several Cases in the Law touching Leases Rents Distresses Replevins and other accidents between Landlord and Tenant and Tenant and Tenant between themselves and others Especially such who have suffered by the Late Conflagration in the City of London Flamma Consumpta Resurgo The second Edition By R. T. Gent. LONDON Printed by T. M. for S. S. and are to be sold by W. Jacob by Barnards-Inn in Holborn and John Amâây over-against St. Clements Church in the Strand 1670. To the Tenants of England especially those of the City of London I Have often observed many Inconveniences and Damages to happen to Tenants oftentimes by their Ignorance and Timerosity not knowing how to defend themselves against insulting and cruel Landlords and oftentimes they commit many delinquencies to the Landlord and trespasses and Nusances against one another unwittingly not knowing when they offend and most often they plung themselves into the Mire and are insâared in the Net of trouble like a Bird by their over-much striving to get themselves free and at liberty from it and intangle themselves more and more and work themselves the farther and faster in till they beat themselves out of breath and break their Wings and lose so many Feathers that they scarce ever get flush again One cause hereof is many delight to delude and flatter themselves by setting a fairer gloss upon their cause then it will bear when it comes to the Test and to give wrong instructions to their Clerk or Attorney whereby it cannot be rightly Stated to learned Council and then what the Event of this will be I leave to your selves to Judge I have taken the pains to compose this Treatise to teach you to undeceive your selves and not to seek refuge from the Law in such cases when you your selves have done the injury and likewise to shew you how you may ward your blows and defend your selves against such as are injurious unto you Malicious and Superbous I have methodized the particular Directions enacted for ending Controversies between all Persons concerned in the late dreadful Fire of the City of London whereby they may with more ease compose their own differences inform themselves of the Rules for New Building I wish you much profit which is all the designe herein intended by a Lover of his Country R. T. Gent. The Contents CHAP. I. A Division of the several kinds of Tenants and Tenures Pag. 1. CHAP. II. Of Leases Covenants and Conditions Provisoes and Reservations Surrenders and Assignments of Leases 41. CHAP. III. Of Payment of Rent Acceptance and Extinguishment thereof Demands Entries Dates Continuance Limitations and Determinations of Leases 71 CHAP. IV. Of Corn sown who shall have the Crop of Estovers and Trees blown ãâã of Distresses what things may be distreyned and how used who may take a Distress for what cause when and where 90 CHAP. V. Of Rescous in what cases it may be lawful Replevins how to be sued out and of Avowries to Declarations upon Replevin 109 CHAP. VI. What cases a Tenant or other shall be said to commit waste in Houses Gardens Woods Pastures Orchards c. And what waste shall be punishable and what not 120 CHAP. VII The Tenants Law touching New Buildings within the City of London 133 Tenants Law CHAP. I. A Division of the Several kinds of Tenants and Tenures EVery Subject of this The kinds of Tenants and Tenures Kingdom that occupieth any Lands or inhabiteth in any House or Tenement is said to be a Tenant Tenens a Tenendo because he must hold of some Lord or other And divers and various are the natures and kinds of Tenants and Tenures in this Land at this time Although they have been more numerous and indeed excessive slavery to the people so that their exhorbitant Cruelty hath caused their Dissolution Those which are ceased to be are Tenure in Villenage where the Villenage Lord might vassal and enslave his Tenants person at his pleasure but not kill him Pillenage where the Lord might Pillenage pillage his Tenant of all his goods Frank-Almoigne or free Almes Free-Alms was a Tenure begun and had its original either at or soon after the foundation of Monasteries and Religious Houses and extripated with them The nature of it in old time was when a man being Seized of Lands or Tenements in his Demeasne as of Fee of the same Land did enfeoffe some Abbot or Prior and their Covents or some Dean and Chapter and their Successors or some Parson of a Church and his Successors or any other Religious person who was in a Capacity to take such Alms to hold the same Lands and Tenements to them and their Successors in Liberam Eleemosynam in Free-Alms or Frank-Almoigne of the grantor and his Heires and such as held in Free-Alms were bound in consideration of such grant or Feoffment to perform certain Divine and Religious Services and Exercises for the Souls good Life and Prosperity of the grantors and all others And they confirmed all their grants with grievous Anathema's and Imprecations against all such as should in any wise diminish or take away such their grant or convert the same unto any other use which some justly believe to be none of the least Causes why Purchasers of Church-Lands find such ill success as seldome to enjoy it to the fourth Generation But as I said before this Tenure and the Religious Houses ended together or immediately one after the other So that none can grant any Lands or Tenements in Liberam Eleemosynam at this day Tenure in Capite and Knights-Service Knight-Service is also by Act of Parliament in the twelfth Year of his now Majesties Reign together with the Court of Wards which was dependent upoâ that Service taken away and aââ those Tenures are now turned into common Soccage So that the more usual Tenants amongst us at this day are Tenant in Fee-Simple in Fee-Taile Fee-Simple Tenant in Tail after possibility of Fee-Tail issue extinct Tenant in Dower by the courtesie Dower Courtesie Term of life for years At Will of England Tenant for Term of Life for years upon Lease in writing or Lease parol Tenant at will by the common Law or by custome Tenant by Coppy of Court-Roll Coppy Tenants in Coparcenery Joynt-Tenants Coparcenery and Tenants in common Fee-Simple A man that is seized in Lands or Fee-Simple Tenements to hold to him and his Heires for ever is said to be Tenant in Fee-Simple and such an Estate is called Feodum Simplex The word Feodum in Latine being taken to signifie Inheritance and Simplex implies pure plain or unmixt and indeed Fee-Simple is the most pure holding that is being unmixt or entangled in it self But as the whitest Colour will be soonest stained so is
a ãâã Perkids Tit. conditions 738. of a House that is old ruinous wanteth repairs and covenants ãâã the Lessor to leave this House at ãâã end or expiration of the Lease good repair In this case he is ãâã to leave this House in good repaiâ âut if he do not covenant to do it he Law then will not oblige him to âo it A man by Indenture takes a Lease Hughs grand Abridg p. 4â9 âor years of a Wood and covenants âith the Lessor to leave his Wood ãâã as good a condition as it was ãâã the time of the Lease made And during the term the Wood is estroyed and blown down by viâlent Winds and Tempests in this âase the Landlord can have no Actiân against the Tenant for the not âerforming of this Covenant beâause it is impossible for him to performe it and the Law enforceth âo impossibilities otherwise it is if âe take a House and that be blown own Touching bonds for performance Goldâ borow p. 16. âf Covenants if a man take a Lease or years rendring Rent and enter ââto bond to the Lessor to perform âll Covenants and Agreements conained and comprized in the Lease ãâã he fail in payment of his Rent the ãâã is forfeited for the payment âf Rent is an agreement Dr. St. lib. 2. cap. 47. If a man be bound in a bond to âepair the House of the Obligee as often as need shall require during certain time and afterwards thâ Houses want reparations In thâ case although the Obligor doââ not know that they want Reparâtions yet he is bound to take nâtice of it at his peril for ignorance will be no excuse in this casâ because he hath bound himself ãâã it But if the Condition had beeâ that he should repair such Houses ãâã he to whom he was bound should aâsigne and after he assigneth certaââ Houses to be repaired but he ãâã is bound hath no knowledge of thâ assignment this ignorance shall excuse him in the Law because he hatâ not bound himself to any reparatioâ in certain but to such as the Obligââ will assigne and if he assigne nonâ the Obligâr is bound to none Anâ therefore because he that shouââ make the Assignment is privy to thâ Deed he is bound to give notice ãâã his own Assignment but if the Aâsinment had been appointed to havâ been made to a stranger then thâ Obligor had been bound to have tâken notice thereof at his peril If a man makes a Lease for years ãâã warranty yet this is not a warâânty in the Law but a Covenant beââuse the Lease is but a Chattel and the Lessee be ousted he may bring ãâã Action of Covenant against the ãâã If A. be seized of twenty acres of ând and let the same to B. by ãâã for life or years and A. reâârves to himself five shillings Rent ââyable at Christmas and B. binds ââmself to A. in a bound of one hunâred pound to pay the Rent reserââd upon the Lease justly according ãâã the Law if before any day of ââyment A. puts B. out of any part ãâã the Land and he doth occupy the ââsidue for the whole term and will ãâã pay any Rent yet the bond is âot forfeited for by putting the teâânt out of parcel of the Land the âhole Rent is in suspence but if ãâã day of payment be past before ãâã Ouster then the Tenant must ãâã the Rent or else he forfeits his ãâã But if a stranger who hath no âight in the Lands do put out the âessee for years out of the same Land before any day of payment and kepâ possession thereof untill the day ãâã payment be past In this case the Tenant ought to pay his Rent at the daâ whereon it is appointed to be paiâ or else he forfeits his bond If thrââ Perkins 828. Copartners Copartners be seized of a Mannor and one of them without the consenâ of the other two lets a Lease of thâ whole Mannor in her own name unto I. D. for five years paying ãâã pound yearly at Christmas unto thâ Lessor and her Heirs and I. D. enters into bond in five pound to ãâã the Rent accordingly and beforâ any day of payment is come the other two Copartners who agreed nââ to the letting of the Lease do put thâ Lessee out of the whole Manner anâ keep the possession till a day of payment be come here the Lessee oughâ to pay a third part of the Rent reserved to his Lessor or otherwisâ he forfeits his bond because the other two Copartners who ejecteâ him out have right but in two partâ of the mannor A man makes a Lease to threâ Hughs gâ Abr. 1. par p. 428. persons upon this condition that neither they nor any one of them shaââ alien set or let that Lease to any oer without license first obtained ârom the Landlord Now if the âandlord do give license to any one âf them to let or aliene then the âther two may alien without liâense for the condition being deâermined to one is determined to ãâã In the same nature is a release where many persons commit a tresâass if he against whom the trespass ãâã committed do release one of the ârespassers that release is as effectual to all the rest as if they âad been particularly named therein If a Landlord do enter for a condition Noys Maxims pag. 72. broken or the Tenant surrender up his Lease or his term be expired yet the Landlord may have an Action of Debt for the Arrears of Rent if any be If a man lets a Lease of Lands upon Dr. St. lib. 2. C. 35. a special condition that is that the Lessee shall not alien the same to such a man or such a man then the condition shall be taken according to the words And notwithstanding that condition they may be aliened to any other but to them to whom ãâã is expresly prohibited that the Landâ should not be aliened unto Anâ if the Lands in that case be aliened to one that is not excepted in the condition then he may alien the Land to him that is first excepted withouâ breaking of the condition for conditions be taken strickly in the Law and without equity As If a Lease be made to ãâã upon condition that he shall not ãâã or alien the same to B. if the Tenant alien it to C. and he alien it to B. the condition is not broken If a man be seized of Lands in Fee Perkins 7 10. and let the same by Indenture of Lease to a stranger paying five pound Rent per annum with a condition that if the Lessee will hold over ten years to him and his Heirs that them he shall pay twenty pounds per annum and the Indenture is executed by Livery and Seizin to the Lessee In this case the Lessor shall have an Action of Debt for the Rent Arrear within the ten years which proveth the free-hold and the Fee are not in
Satisfactory against the ââeir Hare and Savills case M. Jac in com B. Brownl Râp 2. part 273. If a Tenant for years be to pay his Noâs Max. p. 80. ãâã at Michaelmas and to perform ãâã Covenants and if he be bound any Obligation to pay his Rent ââecisely at the day he must in this ãâã seek out his Landlord to pay ãâã but if his Obligation be only perform the Covenants in the ãâã he may then tender his Rent ãâã the Land if no other place be ãâã agreement appointed for the payâent thereof and it is sufficient for ãâã payment is of the nature of the Rent on a Lease for years he shall never ãâã void it for it was but voidable ãâã and his acceptance hath now coâfirmed it If a man have Lands in the ãâã Acceptance of his Wife and he and his ãâã let these Lands for years reserviââ a Rent and afterwards the ãâã band dyes and she before any dayââ payment takes another Husbaââ who accepts the Rent and dyes ãâã this acceptance the Lease is affâmed In like manner if a man and ãâã Wife let the Lands of his Wife ãâã years rendring Rent and the Huâband dyes if the Wife accept ãâã Rent it is a good Lease Terms of ãâã Law Acceptance But if a Tenant for life Lease lanâ for years and dyes the Lease is voiâ and the Rent which is reserved upââ the Lease is determined And ãâã though he in remainder do accept ãâã Rent yet his acceptanre will not ãâã it good for when it is once void ãâã death no acceptance after will ãâã it good So likewise if a Tenant in Dowâ lease for years and dye the Leasâ void and acceptance of the Rent by ãâã Heir will not make it good ãâã A Lease for years may be confirââd Noys Max. p. 78. for a time or upon condition or ãâã a piece of the land but if it be a âank-Tenement it shall enure to ãâã whole absolutely Observe this difference between Lease for life and a Lease for ãâã in case of a Lease for life ââough the conclusion of the condiâân be that it shall be void yet acâtance of the Rent due after the ãâã doth affirm it and make it ãâã again Pennants case 38. Eliz. 3. l. If a Parson let a Lease for years Cook Inst f. 300. âhis Glebe-land if it be conââed by Patron and Ordinary shall bind the Successor or else ãâã If a Lease be made to a man for Dr. St. 2. l 20. chap. f. 93. term of another mans life and âârwards the Lessor only of his ãâã Motion confirmeth the Land ââis Lessee for term of his own ãâã the Remainder over in Fee ãâã is a good Remainder in the If a man let Lands for life oâ Hern. l. Conv. p. 118. years reserving Rent and do entââ into any part thereof and take iâ profit the whole Rent is therebâ extinguished and shall be suspend during his holding thereof Leonar Rep. 110. Goddards case ãâã 34. Eliz. com Banc. Owens Rep. ãâã 10. If the Tenant come to the Larââlord Co. 1. par Inst f. 202. at any place upon the ground the day of payment and tender Rent to the Landlord it is good nough and shall save the conditioâ and the Landlord is bound to ceive it although it were not at ãâã most notorious place nor last instâââ of the day for he may tender Rent at any time of the day althou the last instant be the legal time payment But observe by the way tha tender of Rent must be of the whâ Rent without deduction of Taxes Assessments or any other chargâ for stoppage is no payment in Law Tr. 23. Car. in B. R. Reg Co. 1. par Inst f. 202. pract p. 327. If a man let Land by Lease years to another reserving the ãâã the Land to be paid at Michaelââs and our Lady-day or within âeen dayes after and for default of ââyment to re-enter In this case it sufficient and lawful for the Tent to tender his Rent the last day if the money ãâã be told in that time before it dark and so it is sufficient for Landlord to demand it the same âur If a Lease be made with this ãâã 1. Par. Inst p. 211. That in case of non-payment Landlord to re-enter here if Landlord distreyn he may not enter but he may accept of the ânt and yet re-enter but if he do ãâã the next Rent again then he not re-enter for that establisheth Lease Entry into an acre of land he name of the whole is a good ãâã if the Land do all lye in one ãâã ân a Lease for years if the Lessee enant that if he or his Executors Assigns do alien that then the ãâã shall re-enter and afterwards makes his Wife Executrix and ãâã and the Widdow marries ãâã and her second Husband aliens In this case the Lessor may re-enter because the second husband is Assignee in the Law If a man make a Lease for term oâ Dr. St. l. 1. c. 20. f. 35. years yeelding to him and to hââ Heirs a certain Rent upon condition that if the Rent be behind anâ unpaid by the space of forty dayââ after any of the dayes of payment that then it shall be lawful to thâ Lessor and his Heirs to re-enter And after the Rent is behind fortâ dayes and is demanded by the Lessor and is not paid the Lessor dyetâ and his Heir enters In this case hââ entry is lawful but if the Lessor haâ dyed after the Feast-day and beforâ the fortieth day so that he had noâ demanded the Rent and his Heiâ had demanded the Rent at the fortieth day and for non-payment he re-enters in this case his re-entry ãâã not lawful If a Lease be made to H. for onâ Dyer 254. and forty years if he live so long anâ if he dye within the aforesaid terâ that then the Wife of the aforesai H. shall have it for the residue oâ the said years this limitation is voiâ for if H. dye the term ends and hâ Wife shall have nothing in it If a man let all his Meadow in D. Dâer s 80. containing ten Acres if there be âwenty Acres of it all passes in this case If a man make a Lease for years 1. part Inst s 48. and afterwards make a Deed of Feoffment and delivers Seizin If the Lessee be upon part of the premises and neither know nor assent to it yet the Livery is void for though the Lessor hath the Freehold and Inheritance in him yet the possession is in the Lessee and Livery must be given of the possession but if the Lessee be absent and hath neither Wife Children nor Servants though he have Cattel upon the ground the Livery shall be good If a Lease be made to hold from Daâes the day of the making or from the day of the date or from the date the Lease shall begin the day after
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 ãâã 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 âo 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 âerm let to him by Indenture And âhat 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
nor Sheafes Cook ibid. ãâã Shocks of Corn cannot be diââreyned But Carts or Waggons âaded with Corn may be distreyâed either for Rent or damage feaâânts No mans Tools wherewith he Cook ibid. âorks at his Trade shall be distreyâed as the Carpenters Axe or a ââcollars Books c. Neither can any thing which is fixââ to the Free-hold be distreyned as âârnaces Coppers or Fat 's fixed for ââers or Brewers although the âânant may remove them during ãâã 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 ãâã cannot distreyâââ Tabâââ ãâã the Houseâ of ãâã Tenant ãâ¦ã which cannot be ãâã in an Assize neither can any thing be distreyned of which the Sheriff cannot makâ a Replevin or that cannot be râstored again in as good a condition as it was when it was distreyned But a man may distreyn the Beaââ of a stranger that come by escapâ for Rent though they have not beââ Levant and Couchant upon ãâã ground according to Cook 1. par ãâã f. 47. The Lord of a Leet may sell distress taken for an Amerciamâ in his Leet as the King may ãâã a distress because it is the Kiââ Court If a man distreyn Goods or ãâã 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 ãâã answer for them If they be living Cattel they ouâ to be put in a common Pound ãâã in some open place as in his own âard or Close that distreyned them ãâã in some others by his consent so ââat the owner may come lawfully to âeed them And the owner of the Cattel must have notice where they ãâã if they be not in a common âound and then if they dye for ãâã of meat it is the owners fault ãâã as it is said before but if they be a Pound covert or out of the âounty and dye for want of meat ãâã he that distreyned them shall âake satisfaction for them Cattel taken damage feasant may Kitchin f. 207. ãâã impounded in the same Pound âhere they are damage feasant but âoods or Cattel taken for other ââings may not No man ought to drive a distress Co. 1. part inst p. 57. Rastal title distress 11. Wingar abr p. 133. âut of the County where it is taken or out of the hundred but to a âound Overt within three miles neiââer may a distress be impounded several places nor above four ãâã taken for the Fees of impoundââg one whole distress on pain of five âound If a man distreyn Beasts damage Dr. St. l. 1. c. 27. ââasant 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
Avow upon the 21. H. 8. C. 19. matter in the Land as within his Fee this is provided by the Statute 21. H. â C. 19. and is the safest way for the benefit of the Lords for by this Statute a Lord may Avow the taking a distress as in Lands holdon of him within his Fee without naming of any person in certain which by the Common Law they could not do but were thereby compelled to Avow upon a Person in certain which often proved much to their damage and prejudice for by the secret Fines Recoveries Grants and Conveyances which the Tenanâ used purposely to frame to defraââ their Lords they were ignorant upââ whom to make their legal Avowry which inconveniencies the forementioned Statute hath prevented Now in an Avowry upon this Statute the Plantiff in the Replevin ãâã he Tenant for years or otherwise may have every sufficient answer anâ aid and every other advantage in the Law to the Avowry Disclaims only excepted for because the Avowry ãâã made upon no certain person he cannot disclaim If a Tenant hath Rent behind foâ Co. 1. par Inst s 266. divers years and makes a Feoffmeââ in Fee and the Lord accept the Reââ or Service of the Feoffee due in hââ time he shall loose the Arrerages ãâã his Rent due in the time of the Feoffor For after such acceptance the Lord cannot Avow upon the Feoffer nor upon the Feoffee for the Arrerages due in the time of the Feoffor but if the Feoffor dyeth although the Lord accept the Rent or Service by the hands of the Feoffee due in his time yet he shall not loose the Arrerages because he is now by the Law compelled to Avow upon ââe Feoffee and what the Law ãâã him to shall not be prejudicial ââto him If the Plantiff in a Replevin be ân-suit or otherwise by Avowry ãâã or overthrown then the âefendant or Avowant shall recover ãâã and damages against the Planâââf as the Plantiff should have ãâã or had if he had revovered the Replevin against the ãâã CHAP. VI. In what cases a Tenant or other shall be said to commit wasâ in Houses Gardens Woods Pastures Orchards c. and what Wast shall be punishable and what not IT concerns every Tenant ãâã what nature soever his Tenurâ be to be very careful herein for he may in committing Wasâ soon become obnoxious to the Law and incur great damage I shall therefore by way of caution shew you in what cases a Tenanâ may commit Wast so as to rendeâ himself lyable to loss and punishment and then how far a Tenant may acâ upon his Tenure and not commit any punishable Wast If a Tenant for life or years oâ Cook I. paâ Inst f. 53. in Dower do pull down any of the Houses or Tenements or suffer them to be uncovered to the rooting oâ destroying of the Timber or Material of the House this is Waste So likewise if Glass-windows be âroken down or carried away it is Waste though the Tenant glazed ââem himself for the Glasse is âart of the House It is also Waste ãâã take away VVainscot if it be ãâã to the Walls or Posts of the âouse It is likewise Waste to take away âoors or Windows or any thing anâexed or fixed to the Free-hold although the Tenant fixed them there ââmself If a Tenant build a new House âhere none was before it is Waste ând ââ he suffer it to be wasted it is a âew Waste The pulling down of a Stone-Wall Cook ibid. or Mud-Wall of a House is Waste If a Tenant of a Park Warren âove-House or the like do not âave such sufficient store as he found âhen he entred it is Waste and so is to suffer a Park-pale to decay thereby the Deer are lost or disâersed If a Tenant suffer the Houses Co. 1. par Inst f. 53. ãâã be Wasted and then Fell Timber to repair them this is a doubâ Waste Waste is properly in Houses Gardens and Timber-trees that is Oak Ash and Elme which are counteâ Timber generally in all places except in some Coppy-holds Elme not Now these Timber-trees are saiâ to be Wasted either by cutting theâ down lopping or topping them oâ any other wayes decaying the Timber And in some Countries when Idem Timber is scarce Beech is accounteâ Timber or other Trees used foâ building Houses and there the cutting of them is Waste Or if a Tenant suffer the younâ Germens of Trees to be destroyed this is destruction and punishable iâ Waste To cut down any Trees as Willows Birch or the like which stanâ and grow in the defence and with in view of the dwelling House iâ Waste It is Waste to cut down Hazeâ which grow not under the greaâ Trees but in a quarter of the Wooâ by themselves If a Tenant grub up or destroy a Co. 1 par Inst s 53. âuick fence of white-thorn it is wast Burning of a house by negligence ãâã mischance is Wast Where is a Wood and nothing ârowing there but under-wood âhe Tenant cannot cut all but if it ãâã a Wood where great trees grow amongst the underwood there he may cut all the underwood It is Wast to cut apple-trees if they bear fruit though they lye aâong the ground It is also Wast to cut Damsinârees or any fruit-trees growing in garden or orchard To dig for Gravel Chalk Clay Brick Earth or Stones or the like ãâã Wast and so it is if a Tenant dig âor any Mynes which were not open ât the time of the Lease made To suffer a bank or Wall of the âea to be in decay so that by the âlux and Reflux of Sea the Marsh is overflown so that it becomes unprofitable is Wast But if the Sea break in suddenly ây a violent tempest it is no Wast It is Wast also if a Tenant suffer the banks of any River or Water to âecay whereby the ground is surroundded or becomes unprofitable so it is to suffer pasture-ground tâ be surrounded so as it becomâ Rushy or Arable land so that becomes tough clay It is wast for any Tenant to convert Arable into Wood or Meadoâ into Arable The punishment in Wast is treblâ damages and forfeiture of the placâ Wasted There is voluntary or actuâ Wast and permislive Wast An action of Wast lyeth against Tenant by the courtesie Tenant foâ life or years half a year or Tenanâ in Dower by him that hath the estate of Inheritance in any of alâ these cases before mentioned But Wast doth not lye against ãâã Guardian in Soccage but an Action of Accompt or trespass Neither doth Wast lye against ãâã Tenant by Elegit Stature-Merchanâ or the Staple but an Action of Accompt after the Debt and damage levyed Waste doth not lye against a Tenant Co. 1 par Inst 54. at will but if such Tenant voluntarily pull down houses or cuâ down Timber-trees or the like in this case the Lord may have an action of trespass against
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 âitchin 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. paââ Iâst 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 Regâst 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