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-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 incideâ—â—â— 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 â—ometimes in another and yet a good Custom if there be good Considerâ—tions for the Exchanging thereof at â—imes If the Lord have used at the Adâ—ission Fine at the Lords will of his Coppy-hold tenants â—ometimes to take for a Fine two â—ence or sometimes four pence for â—n Acre sometimes twelve pence an Acre this User is so uncertain that â—â— makes the Fines Arbitrable at the Lords will If the Lord of a Mannor have used Admission without Fine â—ime 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 â—hat Non User is no discharge to the â—enants 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 â—ome cases differ from Law and â—oth admit Execution of some Acts without some Ceremonies required â—y the Law yet the end and effect â—f Custom is to maintain the like â—eason and avoid the like incoveniâ—ncies as the Laws doth If the tenants of a Manner will â—rescribe to hold without paying any â—ents or Services for their Coppyâ—olds this is no good Custom But â—o prescribe to hold by Fealty for all â—anner of Services is good and reaâ—â—nable If a Lord will prescribe never to â—old a Court but when it pleaseth â—imself this is not good But to â—rescribe never to hold a Court for â—â—e special good of any one tenant â—â—cept the same tenant will pay him a â—ine for the same that is good and â—easonable If a Coppy-holder surrender his and to the use of a Stranger in conâ—â—deration that the same Stranger â—â—all Marry his Daughter before â—â—ch a day if the Marriage succeeds â—ot the Stranger takes no benefit by â—â—e 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 Civâ—â— 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 Feâ—â— Simple or fee-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— â—ne Heir to their Ancestor And â—â—ese Coheirs or parceners may have Writ called Breve de participatiâ—â—e facienda to have the Lands eâ—ually divided and shared amongst â—hem If a man seized of Lands dye withâ—ut issue and the tenements descend â—â— his Sisters or if he hath no Siâ—ers and it descends to his Aunts â—â—ey be Coheirs or parceners as aâ—resaid If there be two parceners one â—arries and hath issue and dyeth and â—fterwards her Husband holdeth one â—alf as
parts Tenants in Common Such as have Lands and Tenements Tenâ—nts 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-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-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-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 â—ives and the one of them grants all â—is 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 〈◊〉 in Câ—mmâ—nly Pâ—â—scription 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 Actiâ—â—s And in some cases they â—â—all 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
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
Woods spoiling their Fruit-trees fishing in their Ponds and such like In these and all such kind of actions wherein they are joyntly concerned the Tenants in Common shall have one joynt Action and recover damages joyntly Likewise if two Tenants in Common make a Lease of their two Tenements to another for term of years reserving unto themselves a certain yearly Rent if the Rent be in Arrear they shall have one Action of Debt for the Rent against the Lessee in both their names and not divers Actions If two persons or more have Tenants in Common by divers Titles Chattels real or personal in Common and by divers titles if one of them dye the other who Survive shall not have his part that is dead in those Chattels by Survivourship but the Executors of him that dyeth shall hold and enjoy his part with them that Survive as the Testator did or ought to have done in his life-time If two persons have an estate in common for term of years and on of them puts the other out of hiâ— possession and enjoyes all himself then he that is so put out of possession may bring his Ejectment against the other for his moyety But if two persons be possessed of Chattels personal in Common by divers titles as of an Horse or an Ox or a Cow or the like and one of them takes it into his own possession from the other now the other hath no remedy but to take this from him that hath done him the injury again to occupy in Common when he hath an opportunity that is in plain terms he may come by it as well as he can CHAP. II. Of Leases Covenants and Conditions Proviso's and Reservations Surrenders and Assignments of Leases IN all Leases as we have said before Leases and Covenants in the title of Tenant for term of Years there must be Lessor and Lessee He which demises or lets Land to Farm is the Lessor and he who takes the Land that is unto whom it is so let or demised is called the Lessee in more vulgar terms understood by the Country Farmer by the title of Land-lord and Tenant According to our general and Firmor or Farmor who it is common acceptation now adays every Lessee for Life Years or at Will though it be but of a Cottage or never so small a Tenement or House is called a Firmor or Farmer and the premises a Firm or Farm and so we say in the Writ A firma sua Ejecit which may be the reason they are called Farms But anciently the chief Messuage a Parish or Country Town was 〈◊〉 led by way of pre-eminency by tâ—â— name of a Farm and unto tâ—â— Farm belonged great Demeasâ—â— of all sorts as Gardens Meadowâ— Pastures Rivers Woods Mooâ— Waters Marishes Furzes Heatâ— and also Messuages Houses Tosts Mills and the like Aâ— all these are comprehended uâ—der the title of Lands These Dâ—measnes were used to be let out to others Demeasnes for term of life years or 〈◊〉 will These ancient Farms or Fermâ— which you will call them which appellation or dialect differs according to the Country In Essex Norfolkâ— and Suffulke they call them Fermâ— and Fermors but the West and beâ—â— are called Farms and Farmors thesâ— Farmes I say attained to this titlâ— from the old Saxon word Fermionâ— which signifies to feed provide or yeeld Victuals so that a Farmoâ—â— The name natuâ—e is now altered signifies a Victualler for anciently the Landlords did not receive money upon their Leases for their Rent but Corn and Victuals being such the Farm yeelded of its growth till it came by degrees into part â—oney and part Victuals and at 〈◊〉 about the time of King Henry â—â—e first the Rent reserved was â—â—rned into Money and so hath â—â—therto continued amongst most â—â—en Yet amongst some where the anâ—â—ent Ancient Rents Rents or Reservations are not â—â—tered the Rent is in Corn or Viâ—tuals to this day especially in Colâ—edg and Church-leases and doubtâ—ess many of those ancient reservatiâ—ns received their utmost period â—n the general dissolution of the Religious Houses to the no small detriment of the Industrious Farmer All Leases for years reserving Co. 7. par s 23. Rent must be made of Lands and Tenements whereunto the Lessor may come to distreyne so that a Rent cannot be reserved by a Common person out of any incorporeal inheritance as Advousons Commons Co. 1. par Inst p. 47. Offices Tythes Fairs Markets Liberties Franchizes and the like but if a Lease be made by Deed in writing of one of them one may have an Action of Debt by way of 〈◊〉 tract but one cannot distreyne if any Rent be reserved in such 〈◊〉 upon a Lease for life it is utteâ— void Leases for term of years 23 Lib. Ass 6. Chattels so that if a man have Lease of Lands for five hundrâ—â— years it is a Chattel and goes to Executor or Administrator if dispose not otherwise of it before death Every man who is seized of Lanâ— in Fee-Simple may Lease out 〈◊〉 Lands for what time or term 〈◊〉 pleaseth himself And so likewiâ—â— 32 H. 1. C. 28. 13 El. C. 10. 18 El. C 6. 1 Jac. C. 3. Hern. law of Convei pag 662. 67. 68. might Bishops have done formely before the Statutes restraine them A Tenant in tail being at age may by Deed in writing Lease ouâ— such Lands as have been let to Farmâ— twenty years next before the Leasâ— made reserving the old Rent oâ— more the Words Without Impeachment of Waste must be omitted in it and it must commence from the day of the making or date And if there be an old Lease in being it must be surrendred expired or ended within one year after the making the new one or else it is void a Lease thus made binds the of the Tenant in tail iâ— he dye â—re the term be out but if the 〈◊〉 in tail dye without 〈◊〉 the â—or may avoid the Leaâ—â— by his 〈◊〉 and so may â—e in 〈◊〉 though he accept the Rent â—he doth not thereby confirm the â—e 〈◊〉 man that is seized in Lands in Simple or fee-Fee-tail in the right is Wife may make a Lease by 〈◊〉 in writing of his Wifes 〈◊〉 in the name of himself and Wife and she to seal thereunto 〈◊〉 the Rent to himself and his 〈◊〉 and to the Heirs of his Wife Lease shall be good against the man and her Heirs after her 〈◊〉 〈◊〉 Deans and Chapters 〈◊〉 the Rules aforesaid may â—e Leases of such Estates as they seized of in Fee in Right of Churches and so may 〈◊〉 Provosts and Fellows of â—edges and Wardens of 〈◊〉 if they be not prohibited by the private Statutes of their Foundâ—tions But neither Tenant in tail nor aâ— of the Persons before named can 〈◊〉 for any longer term than 〈◊〉 lives or one and twenty years 〈◊〉 for what term under they pleasâ— But if they do not observe the Rules in their
tenant by the Courtesie â—he Coheir or parcener that surviâ—eth and the tenant by the Courteâ—e may make partition between â—â—em And if the tenant by the â—ourtesie will not consent there unâ—â— the Surviving parcener may comâ—el him by a writ de Participatione â—â—cienda But if the tenant by the Courtesie â—â—sires to have partition and the â—â—rceners surviving will not agree to 〈◊〉 the tenant by the Courtesie can â—ave no remedy for he cannot â—ave 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 moâ—ety 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
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
down in the first Chapter under the Title of Tenant at Will sor if a Tenant at Will Sowe his Land and the Landlord put him out before the Corn be ripe he shall have liberty to Reap and carry away his Corn because he knew not when his Landlord would put him out But it is contrary with a Tenant who hath a Lease for years for if his Lease be out before the Corn be ripe his Landlord shall have it because he knew the end of his Lease wherefore if he Sowed it is in his own wrong unless there be a Covenant in his Lease between the Lessor and him that he shall have his way-going Crop But if a Tenant at Will set Roots or Sowe Hemp or Flax or any thing that brings in any yearly profit if after the planting the Lessor out him or if the Lessor dye yet the Tenant or his Executors shall have the Crop But it is otherwise if he plant young Fruit-Trees or other young Trees as Oaks Ashes or Elmes or Sow the ground with Acorns In this case if the Lessor out him he shall have none of these because these yeeld no yearly profit at present If a Tenant for life Soweth the ground and dye before the Crop be ripe his Executors shall have it and so they shall have Grass if it be cut but if it be unmown they shall not have it for that is part of the Inheritance till it be severed Every Tenant that hath an Estate incertain shall have the corn sown by him though he be outed before it be ripe If a man be seized in Lan Jure See my Consultam pacis p. 83. uxoris and Sow this Land and dye before the Corn be ripe his Executors shall have the Crop but if they be Joynt-tenants of Lands and the Husband soweth the ground and dyeth the Wife shall then have the Crop But if a Woman who holds Land Hern. l. of con p. 239. Durante viduitate sua while she continues her Widdow-hood and Sows the ground and marries a Husband before the Corn be ripe here the Lessor shall have the Corn because her Estate ends by her own act If a man lets a Lease of his Wifes Noys Max. p. 70. Land she not joyning with him this Lease is void after his death but if the Lessee have Sown the Land he shall reap the Crop Cowel Inst p. 142. A Tenant holds by Lease and the Land is recovered against the Landlord by a title Paramount in this â—ase if the Tenant have Sown the Land he that hath recovered it shall have the Crop if it be not reaped before Judgment There is three kinds of Estovers in Estovers or Boote the Law which is incident to the estate of every Tenant whether it be for life or years House-boote of which is two kinds the one to repair the Houses the other to burn which is called Fireboote Then there is Estovers called Plough-boote that is stuffe to mend the Tenants Ploughs Carts Harrows Wayns and making Rakes and Forks for getting in his Hay and Corn. Thirdly There is another kind of Estovers called Hedge-boote this is Timber and wood for making Gates and Styles and Boughs and Bushes for mending and repairing Hedges and Fences So there is Estoverium edificandi ardendi House-boote Estoverium arandis or Plough-boote Estoverium Claudendi or Hedge-boote Estover is a word something harsh in sound being unusually heard in the Ears of Tenants but Boote iâ— well known unto them The one is Norman the other Saxon and both have the same signification viz. an allowance Compensation or Satisfaction Any of all these Bootes a Tenant may take without assignment of the Landlord unless he be by the Landlord restreyned by special covenant in his Lease which is very usual amongst many Landlords especially if the Farm be any thing considerable then they commonly limit the Tenant how much House-boote or Plough-boote or Hedge-boote he may take without assignment and how much by assignment If a Tenant for life or years cut Co. l 4. 31. down Trees or pull down Houses or suffer them to fall down the Lessor shall have the Trees and Timber of the said Houses for the Lessee had them only as things annexed to the Land and this severance will not give him a greater estate in them The Landlord shall likewise have Windsals that is Timber-Trees blown down by Wind and Tempest because they are parcel of his Inheritance so that the Tenant for life nor years cannot have them unlesse it be to build withal where Houses are in decay But if they be Pollards without Timber the Tenant shall have such when they are blown down Distresses is a Law of custome Distress â—hat is if Rent be in Arrear and unâ—aid the Landlord may take a lawful â—istress and that he shall put in â—ound Overt there to remain untill 〈◊〉 be satisfied of what he distreyned 〈◊〉 So that if a Landlord distreyn the Dr. St. l. 1 C. 5. p. 10. â—attel for Rent and put them in a â—ound Overt and the Beasts dye â—ere for lack of meat it is at the 〈◊〉 of him that ow'd the Beasts and â—ot of him that distreyned for in 〈◊〉 that distreyned there can be asâ—â—gned no desault but the default was the other because the Rent was â—â—paid Now a distress must be made of 〈◊〉 a thing wherein some body 〈◊〉 a certain and valuable Property therefore such things as 〈◊〉 Ferae natura cannot be distreyned neither can any one distreyn a Horâ—â— if any body be on the back of him nor any thing which a man holds iâ— his hand or carrieth about him aâ—â— nexed to his body And although the Law be that Landlord may distreyn any thiâ—â— that he finds Levant or Couchant uâ— on the premises for his Rent behinâ— whose Goods or Chattels soever be and may detain the same uâ— till his Rent be satisfied yet thâ— general Rule hath some Restrict on and Limitation for there are sevral things whereof a Distress cannâ—â— be taken Such things as are for the maintnance What cannot be distreyned for Rent and benefit of trades câ—â—not be distreyned for Rent as Horse in a Smith Shop nor Horse in an Inn cannot be distreyed Noys Max p. 124. for the Rent thereof nor 〈◊〉 Materials in a Weavers Shop 〈◊〉 the making of Cloth nor Cloth Terms of the Law titl distress Garments in a Taylers Shop 〈◊〉 sacks of Corn nor Meal in a Mill the Rent of the Mill nor any 〈◊〉 that the Tenant hath distreyned damage feasant for that is in the custody of the Law Likewise Oxen of the Plough Cook on Lit. f. 47. may not be distreyned nor a Milstone though it be raised to be picked so long as it lies upon the other Stone Neither may a Distress be taken of Sheep if there be a sufficient Distress â—esides Neither can a man sever Horses â—oyned together or to a Cart. Likewise Victuals
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-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
the distress drive the Cattel away out of the Fee the Lord may follow them with fresh Suit and distreyn the Cattel and the Tenant cannot justifie a Rescous of them because in the judgment of the Law the distress is taken within his Fee But if the Lord be coming to distreyn Co. 1. par Inst fol. 161. and have not sight of the Cattel within his Fee though the Tenant drive them off on purpose or if the Cattel after the view go out of the Fee of their own accord or if the Tenant after the view removeth them for any other cause then to prevent the distress then if the Lord distreyn them out of his Fee the Tenant may justifie a Rescue If a man come to distreyn Cattel Cook ibid. damage feasant and see the Beasts in his Ground and the owner of the Cattel drives them out before the distress taken the owner of the Ground cannot follow and take them for if he do the owner of the Cattel may Rescue them for they must be damage feasant that is doing hurt at the time of the distress taken and the owner of the ground may bring his action of trespass The Lord cannot break open any Cook ibid. Gate that is locked nor break open any Inclosure to take a distress So that if a Tenant lock up his Gates and inclose his Ground so that the Lord cannot come to distreyn if the Rent be behind and the Lord have had actual possession this is a disseisin For the â—ase and speedy remedy of Replevin the Country in case of distresses where the Cattel be pounded the Statute hath provided that every Sheriffe at his first County-day or within two months after he first receives his Patent is to depute and proclaim in his Shire-Town four Deputies to make Replevins within his County which must reside within twelve miles one of another on pain of five pounds a moneth for every moneth they are wanting So that when any mans goods are distreyned or impounded he may repair to one of the Sheriffs Deputies for that purpose and there he may have a Replevin upon Plegii de â—etorn habendum si c. to cause the â—oods distreyned to be delivered to he owner There is likewise a Writ de Relegiari facias at the common Law â—hereby the Sheriff is commanded â—aking pledges of Prosecuting to reâ—eliver the goods distreyned to the â—wner but since the other is the â—eadier and easier way this Writ is â—ut of fashion In a Replevin he whose goods are â—istreyned or impounded becomes â—he Plantiff and declares against the â—ther for unjustly taking and deâ—aining his Goods or Cattel contra â—vad pleg c. If a Landlord distreyn and carry Rastal tit distresses 7. the distress to hold or out of the County so that the Sheriff upon a Replevin cannot redeliver the goods then upon the Sheriffs return of the Replevin may have a Writ of Withernam directed to the Sheriff to take as many of the Lord Beasts or as much goods in his keeping till he have made deliverance of the first distress and if the Goods or Cattel be conveyed to a Fort or Castle the Sheriff may command the power of the County and beat down If a distress be made in a Franchise or Bailiwick the Sheriff is tâ— direct his Replevin to the Bailâ— thereof to deliver them upon Pleâ—ges c. The Plantiff in the Replevin ougâ—â— Property to have the property of the goods iâ— him at the time of the distress made for if the defendant claim property the Sheriff cannot Replevie the dâ—stress but the property must be tryeâ— by Writ So that if the defendant claim property Co. 1. par Inst f. 145. in the goods distreyned theâ— must the Plantiff in the Repleviâ— have a Writ de Proprietate probanda directed to the Sheriff to try thâ— property and if the Jury find foâ— the Plantiff then the Sheriff must make deliverance of the distress and if it pass for the defendant the Sheriff can proceed no further unless the Plantiff bring Writ of Replegiari facis directed to the Sheriff and then though he do return the property yet it shall proceed to tryal in thâ— Common Pleas upon the issue of the property The defendant in a Replevin that is he that made the distress may if he see cause bring a Writ of Recordare and so remove the plant upon the Replevin out of Sheriffs County-Court into the Common-Pleas and if the Plantiff declare not he may have a Retorn habend And then if he declare not a Writ to enquire of damages If a man by his Deed grant a Rent with a clause of distress and grant further that he shall keep the goods distreyned against sureties and pledges till the Rent be paid this grant is not good but the Sheriff may Replevie the goods distreyned notwithstanding for if such a distress should be irrepleviable the currant of Replevins should be stopped to the great damage of the Subject If the Goods or Cattel of several Co. 1. par Inst f. 145. men be destreined they cannot joyn in a Replevin but every man must have a several Replevin for in a Replevin it is a good Plea to say the property is to the Plantiff and to a stranger and where there be two Plantiffs that the property is to one of them If a Lord distreyn his Tenaâ— wrongfully although the Cattelâ— come back again to the owner 〈◊〉 the Tenant may have a Replevin against the Lord because he cannâ—â— have an action of trespass against hiâ— The Plantiff in a Replevin ougâ—â— to be careful in giving his instructions for it for it must be certain in setting down the number and kinds of the Cattel which are distreyned otherwise the Replevin is noâ— good The Avowant is the defendant in Avowry Replevin that is he that made thâ— distress and when he justifies in hâ—â— Plea for what cause he distreyned that Plea is called his Avowry As if a Landlord distreyns for 〈◊〉 in Arrear and the Tenant or owner of the Cattel brings a Replevin and declares against him for unjustly taking and detaining his Cattel and the Defendant justifies he took it in his own right and so shewing the cause of the taking in his Plea this is an Avowry But if the Defendant took the distress for or in the right of another then when he hath shewed the cause â—n his Plea he must make Conusance 〈◊〉 acknowledgement of the taking â—he distress as being Bailiff or servant â—nto him in whose right he took it There are four manner of Avowries which a Lord may make upon a Reâ—levin 1. Avowry upon his very Tenant Co. l. 9. f. 135. 136. 2. Upon his very Tenant by the Mannor where the Tenant had but a párticular estate 3. Upon his Tenant by the Manâ—or where the Lord had but a particular estate and these three are Avowryes at the common Law 4. The Lord may
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 defraâ—â— their Lords they were ignorant upâ—â— 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 〈◊〉 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 〈◊〉 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 Feoffmeâ—â— in Fee and the Lord accept the Reâ—â— or Service of the Feoffee due in hâ—â— time he shall loose the Arrerages 〈◊〉 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 â—â—e Feoffee and what the Law 〈◊〉 him to shall not be prejudicial â—â—to him If the Plantiff in a Replevin be â—n-suit or otherwise by Avowry 〈◊〉 or overthrown then the â—efendant or Avowant shall recover 〈◊〉 and damages against the Planâ—â—â—f as the Plantiff should have 〈◊〉 or had if he had revovered the Replevin against the 〈◊〉 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 〈◊〉 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 â—roken down or carried away it is Waste though the Tenant glazed â—â—em himself for the Glasse is â—art of the House It is also Waste 〈◊〉 take away VVainscot if it be 〈◊〉 to the Walls or Posts of the â—ouse It is likewise Waste to take away â—oors or Windows or any thing anâ—exed or fixed to the Free-hold although the Tenant fixed them there â—â—mself If a Tenant build a new House â—here none was before it is Waste â—nd â—â— he suffer it to be wasted it is a â—ew 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 â—ove-House or the like do not â—ave such sufficient store as he found â—hen he entred it is Waste and so is to suffer a Park-pale to decay thereby the Deer are lost or disâ—ersed If a Tenant suffer the Houses Co. 1. par Inst f. 53. 〈◊〉 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. â—uick fence of white-thorn it is wast Burning of a house by negligence 〈◊〉 mischance is Wast Where is a Wood and nothing â—rowing there but under-wood â—he Tenant cannot cut all but if it 〈◊〉 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 aâ—ong the ground It is also Wast to cut Damsinâ—rees or any fruit-trees growing in garden or orchard To dig for Gravel Chalk Clay Brick Earth or Stones or the like 〈◊〉 Wast and so it is if a Tenant dig â—or any Mynes which were not open â—t the time of the Lease made To suffer a bank or Wall of the â—ea to be in decay so that by the â—lux and Reflux of Sea the Marsh is overflown so that it becomes unprofitable is Wast But if the Sea break in suddenly â—y a violent tempest it is no Wast It is Wast also if a Tenant suffer the banks of any River or Water to â—ecay 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 〈◊〉 Guardian in Soccage but an Action of Accompt or trespass Neither doth Wast lye against 〈◊〉 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