privie in right and represent the person of the dead All Grantees of Reversions may enter upon Farmers for 32 H. 8. c. 34. Finch l. 2. c. 1. pa. 107. Herne's Law of Convey p. 31. any Forfeiture or Condition and have like advantages against them by Action onely for any other Covenants Conditions or Agreements contained in the Indentures of their Lease as the Lessors their Heirs or Assigns might and the like for the Lessees against the Grantees of the Reversions Recovery in value onely excepted If a man make a Lease for Lit. l. 3. c. 8. Co. 1 par Inst f. 292 b. 45 E. 3.8 17 H. 6.26 Cowel's Instit p. 193. Noye's Maximes p. 77. Years upon Condition that the Rent shall be paid at Michaelmas and in the mean time give a general Release to the Lessee of all Actions and Demands yet this doth not remit the Rent but the Lessor may sue for it and the Reason of this is because it was neither Debitum nor Solvendum at the time of the Release made and it is a thing not merely in Action because it may be granted over If two take a Lease joyntly for Years with Condition that Vid. 3 F. 6. Dyer 67. Farrington's Case Cowel's â—nstit 199. if the Lessees die before the term ended the Lease shall be void now the Lessees make division and one of them alienateth his part and dies in this case the Lessor cannot reassume the part of him that died but the Alienee shall have it during the life of him that surviveth If a Lease be made for Years Hil. 36 Eliz. Rot. 376. Cole and Taunton's Case Goldsb p. 184. pl. 122. Vid. the Case 31 H. 8.45 upon Condition that if the Lessee demise the premisses or any part thereof other then for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devises it to his Son by his Will this is a breach of the Condition If a man of his mere motion Dr. Stud. lib. 2. cap. 20. fo 93. a. enfeoffe H. by Indenture upon Condition that he shall yearly pay to I. S. out of the Lands a certain Rent and if he fail in payment that it shall then be lawful to the said I. S. to enter c. the Rent is behinde and unpaid in this case I. S. may not enter by Law for there is an ancient Maxime That no man shall take advantage of a Condition unless he be party or privy to it If the Grantee of a Rent-charge release parcel of the Dr Stud. lib. 2. c 16. 21 H. 7. 2. Co. 1 par Inst fo 147. b. 148. a. H. 14 Eliz. in C. B. Godbolt 139. Harding's Case M. 30 Eliz. in B. R. Rent to the Grantour or his Heirs the Remainder may be apportioned and the Land shall remain chargeable still for the residue but if he release in one Acre parcel of the Land charged then all the Rent is extinct and gone If the Lessor grant a Rent to a Stranger the Tenant cannot 49 E. 3.15 Finch lib. 1. c. 3. p. 36. Attorn nor put him in possession by the delivery of an Ox or such like thing because it is another thing but upon a Recovery of a Rent the Sheriff may deliver possession by such a thing If one that hath a Lease for Years grant his term to a Feme 14 Eliz. Pl. 418. â—inch l. 1. c. 3. p. 42. Covert and to another or if a Feme sole and another be Joint-tenants for years and she take a Husband yet the Estate of the Feme and Jointure doth continue so as the Survivor of the Wife or of the other shall have the whole Estate If a man grant an Estate to a Woman dum sola suit or durante 37 H. 6. 27.26 E. 3.69 14 H 8. 13. Bract. l. 4. f. 207. Fleta l. 3. c. 12. Co. 1 par Inst f. 42. a. Herne's Law of Conv. p. 45. viduitate or quamdiu se bene gesserit or to a man and a woman during the Coverture or as long as the Grantee dwells in such an house or so long as he pays 10 pound c. or until the Grantee be promoted to a Benefice or for any like incertain time in all these cases if it be of Lands or Tenements the Lessee hath in judgment of Law an Estate for Life determinable if Livery and Seisin be made And if it be of Rents Advousons or any other thing that Co. 1 par Inst f. 42. a. lies in Grant he hath a like Estate for Life by the delivery of the Deed. If a Lessee for another man's Life die living the other man Brit. f. 83. Fleta l. 3. c. 12. Brac. l. 4. f. 170. Co. 1 par Inst f. 41. b. he that doth first enter upon the Estate after his death shall be Tenant pur auter vie that is Tenant for the other man's Life and shall be liable to the payment of the Rent reserved and in Law is called an Occupant because his Title is by his first Occupation And so if a Tenant for his Co. ibid. 27 Ass p. 31. Pl. Com. fo 28. b. in Col hirst's Case â—â— Bâ—rr 303. own Life grant over his Estate to another if the Grantee die living Tenant for Life in this case he that first enters shall be an Occupant in like manner it is of an Estate created by Law for if Tenant by the Courtesie or Tenant in Dower grant over his or her Estate and the Grantee dieth during their Lives in this case also there shall be an Occupancy But there can be no Occupant Co. ibid. against the King for nullum tempus occurrit Regi It were good saith my Lord Cook to prevent the incertainty 11 H. 4.42 17 E. 3.48 Dyer 8 El. 253. Co. 1 par Institut f. 41. b. of an Estate of the Occupant by adding these words To have and to hold to him and his Heirs during the life of Cestui que vie and this shall prevent the Occupant And if a man hath an Estate Co. 1 par Inst ibid. already for another's Life without the words before named then it is good for him to assign his Estate to divers and their Heirs during the Life of Cestui que vie If a Lessee for 20 years of Lands and Tenements grant Perkins 693. the same Lands for parcel of the years to a Stranger reserving to himself 20 shill in this case he may distrain for the Rent reserved or have an Action of Debt at his pleasure because by common intendment he is to have the same Land after the years determined because he hath granted but parcel of the years so that the Remainder remains in him But if Cestui que use lease his Land in Use for term of Perkins 692. Years reserving Rent by word of mouth in this case he cannot distrain for the Rent reserved because no Reversion doth remain in him
but it is said he may have an Action of Debt for it but some doubt of it If I lease Lands to another Perkins 91. Co. 1 part Inst f. 46. b. for Years the term to begin at the Feast of Easter next and before the Feast the Lessee grants his term to a Stranger this is a good Grant for he hath an Interest before Entry which may be granted over If Rent be granted to me I Perkins 91. may grant it away to a Stranger before I be seised thereof If a man grant to another Perkins 108. Common of Pasture for 10 Kine in Lands in such a Town though the Grant be general yet the Grantee shall not have Common but in Lands Commonable so as the Grant shall extend but to Pasture-grounds Tenant at Will cannot grant 27 H. 6. f. 3. b. Kitchin p. 237. a. over his Estate for he hath no Interest certain If a Lease be made to Baron Hil. 17 El. in B. R. Co. 1 part Inst f. 46. b. and Feme for term of their Lives the Remainder to the Executors of the Survivor of them if the Husband grant away the term and die yet this shall not bar the Wife If the Husband and Wife be ejected of a Term in the right Co. 1 part Inst f. 46. b. 37 Ass p. 11. Pl. Co. 418. b. of his Wife and the Husband bring an Ejectione firme in his own name and do recover die in this case his Executors shall have it and not the Wife son the Recovery in his own name did vest the Term in himself If a man be possest of a Term Co. ibid. Pl. Co. 2â—0 b. Dame Hale's Case Co. 1 part Inst f. 351. a. See Finch lâ—â— c. 5. p. 72. Dyer 264. b Herne's Law of Conv. p. 81 82. of 40 years in right of his Wife and make a Lease for 20 years reserving Rent and die here the Executors of the Husband shall have the Rent for that Term but the Wife shall have the Remainder of the Term when the 20 years is out but if he had granted the whole Term then she had got nothing A Release made to Tenant Co. 1 part Inst fo 270. a. 49 E. 3.28.32 H. 6.8 Co. ibid f. 46. b. Perkins 602. See the Clerk of Assize p. 50. for Years before his Entry to encrease his Estate is void but a Release of the Rent before Entry is good The Tenant may grant away his Interest to another before Entry and although the Lessor die before Entry yet the Lessee notwithstanding may enter into the Lands or if the Lessee die before Entry his Executors or Administrators may enter and if the Lease be made to two and one die before Entry yet his Interest survives The Lessor cannot grant away Co. 1 par Inst fo 46. b. the Reversion before the Lessee's Entry by the name of a Reversion If a man grant to a Lessee for 12 El. 381. Finch l. 1. c. 3. p. 15. Vid. Lutterell's case 43 El. in B. R. Co. 4 lib. f. 86. Co. 1 par Inst f. 41. a. Vide Co. 5 l. in Spencer's case years that he shall have so many Estovers as shall serve to repair his House or that he shall burn within his House or such like during the Term this is appurtenant to the Land and shall run with the same as a thing appurtenant in whose hands soever the same cometh If a Lessee for years grant a Rent-charge and surrendreth 1 El. 198. Finch lib. 1. cap. 3. p. 27. Noye's Maximes p. 7. the Rent shall be paid during the Term to the Stranger If 2 Tenants in common do Pl. Com. Hill Grange's Case 171. 2 3 P. M. 140. b. 161. b. Finch l. 1. c. 3 p 63. Co. 1 par Inst f. 197. a. grant a Rent of 10 shill this is several and they shall be charged with 20 shill Rent but if they make a Lease and reserve 10 shill Rent they shall have no more but onely 10 shill between them If a man make a Lease provided â— N. B. 223. Mich. 3 Jac. in C B. Co. 1 par Inst f. 52. b. 45 El. in B. R. Dumpor's Case Co. 4 l. f. â—19 Hern's Law of Conveyances 110. that the Lessee or his Assigns shall not aliene the premisses without special licence of the Lessor c. and after the Lessor giveth licence to aliene the same or any part in this case the Lessee may aliene and his Assigns ad infinitum without any more License for the Proviso is determined for ever and if the Lessor die before the Lessee aliene yet that does not countermand it If the words of a Lease be M. 3. E. 6. Dyer 65 66. Hughes's gr Abr. 1 part p. 417. that it shall not be lawful for the Lessee to aliene without the assent of the Lessor on pain of Forfeiture this Restraint continueth but during the Life of the Lessor and Lessee If a Lessee for years devise Dyer f. 75. Cowel's Inst p. 142 143. Bro. Chattels 23. Donâ— 57. Herne's Law of Conv. p. 81. his whole term to A provided if he die while I. S. is alive then the Residue shall remain to I. S A alienes and dies in this case I. S. is without remedy If a man make a Lease for 27 H. 8.19 Finch l. 1. c. 3. p. 65. years reserving Rent to him Mich. 5 Jac. inter Woâ—ton Edwin in B. R. Co. 1 part Inst f. 47. a. Goldsbor Rep. p. 148. pl. 68. Vid. Pacis Consultum p. 92. without naming his Heirs the Rent shall then determine upon his death if he die within the Term or if it be to him and his Assigns or Executors it is all one but if it be reserved generally without shewing to whom it shall go to his Heirs If a man lease Land to another See 17 El. in B. R. inter Pepal Hammington Poph. 117 118. by Deed indented except and alwaies reserved to the Lessor all great Trees growing upon the same Land by this Lease the great Trees shall not pass If two Copartners make a Finch l. 1. c. 3. p. 9. Lease reserving Rent they shall have this Rent in common as they have the Reversion but if afterwards they grant the Reversion excepting the Rent then they shall be Joint-tenants of the Rent If a man let Lands for years Dyer 56 82. Co. 1 par Inst f. 148. b. Hughes's gr Abr. p. 193. 1 par c. 6. reserving Rent and a Stranger doth recover part of the Land then the Rent shall be apportioned that is to say divided and the Lessee shall pay having respect to that which is recovered and to that which yet remaineth in his hands according to the value If a man make a Lease of a 1 2 P. M. 104. Finch l. 1. c. 3. p. 18. Perkins 643. 11 H. 4. 2. Philipps Pr. of Law p. 122. Mannor
except an Acre this Acre is no part of the Mannor as to the Lessor but as to him that hath right to demand the Mannor by an eigne Title it remains parcel and therefore he shall make no fore-prise in his Writ A Lease of a Mannor excepting the Services the Exception Finch ibid. p. 53. is void for it is parcel of the thing let If one make a Lease excepting a Close and Wood now 14 H. 8. â— the Law giveth him a way to come to it If the Lessor make a Feoffment Noye's Maximes p. 59. and the Lessee for years giveth leave to the Lessor to make Livery and Seisin of the premisses saving to himself his Lease and he doth so here the Term is not surrendred for the Lessee had an Interest which could not be surrendred without his consent to surrender and here no such intent doth appear wherefore he may enter and have his Term and the Rent is renewed but it is otherwise with a Lessee for Life for there the Rent is extinct If a Lessee for years do take a new Lease for more years this Perkins 117. Vide Watt Maidwell's Case Hil. 3 Car. â—â—â— 1302. B. R. Hutton's Rep. 104. is a Surrender in Law of the old Lease A Lessee for years cannot surrender before his Term begin Perkins 601. Noye's Maximes 74. neither can he surrender part of his Lease but he may grant part of it If two Joynt-tenants in Fee are of one Acre of Land and 5 E. 3.19 sâ—â— Perkins 80. lease the same Acre to a Stranger for Life and the Lessee granteth his Estate to one of the Lessors this is a Surrender for the whole Acre and not for a Moiety Tamen quaere If a Lessee for Life of an Acre of Land lease the same Acre to his Lessor for years the Remainder to a Stranger in Fee this is no Forfeiture though he do make Livery and Seisin to the Lessor If a Lessee for Life or Years Herne's Law of Convey p. 76. Perkins pl. 609. of Land say to his Lessor that he will occupy his Lands no longer which he holdeth of him for Life or Years and so wills him to enter in this case if the Lessor consent it is a good Surrender But if the Lessee for Life or 1 Ass p. 20. Tr. 8 E. 3.46 Perkins 117. Years of a House and Lands remove his goods out of the House and Land by reason of the greatness of the Rent or because he is behinde in his Rent or for any other cause and the Lessor do enter into the House and Lands this is no Surrender of the Tenant If a Lessee for Years assign 37 â—l B. R. Overton and Siddal's Case cited in Co. 3. l. in Walker's Case there over his Term and die his Executors shall not be charged for Rent due after his Death Noye's Maximes p. 72. If the Executors or Administrators Co. ibid. in Walker's Case ut suprá Noye's Maximes p. 72. of a Lessee for Years do assign over their Interest neither doth an Action of Debt lie against them for Rent due after the Assignment If a Lessee assign over his Marrow Turpin's Case P. 41 Eliz. Rot. 2485. Vide March Brace's Case M. 11 Jac. in B. R. Bulst 2 part 151. Hern's Law of Conv. p. 110. Term the Lessor may charge which of them he will but if he once accept of the Rent from the Assignee knowing of the Assignment he cannot then after bring an Action of Debt against the Lessee for Rent due after the Assignment If the Lessor grant away the 36 Eliz. Ungle Glover's Case Reversion after the Assignment Vid. Co. 3 l. in Walker's Case there and see Humble Oliver's Case M. 36. El. in B. R. Popham 55. of the Lessee in this case the Grantee cannot have an Action against the Lessee for the Rent because there is no privity between them If a Tenant for Life enfeoff 19 E. 3. Surr. 8. Co. 1 par Inst f. 42. a. him in Remainder for Life this is a Surrender and no Forfeiture If a Tenant for Life make a Co. ibid. 13 â— â— Dower 95. Lease by Deed or without Deed to him in Remainder or Reversion and after he in Remainder taketh wife and dieth in this case she shall not be endowed for the Tenant for Life shall injoy the Land again for it cannot be a Forfeiture because he in Remainder was a party and Surrender it cannot be for that his whole Estate was not given If a Tenant for Life take an Co. 1 par Inst f. 42. a. 29 Ass p. 64. Husband and by Deed indented they make a Lease to him in the Reversion for the Life of the Husband reserving a Rent this is neither Forfeiture nor absolute Surrender for the reasons in the last Case mentioned But if a Tenant for Life take Husband and they by Deed indented make a Lease to him in Reversion for the Life of the Wife reserving Rent this is a Surrender for their whole Estate is granted and the Reservation is void If a Lessee for 20 years take Co. 1 par inst â— 218. b. Pl. Com. in Fulmerston's Case 107. b. Vid. Poph. Rep f 9. V. Herne's Law of Conv. p. 73 74. Finch l. 1. c 4. p. 62. 1 2 P. M. 107. a Lease for 10 years to begin presently upon Condition if such a thing be not done to be void now the first Lease is surrendred in Law and though the second Lease be void upon the Condition broken yet the Surrender remaineth good If a Lease for years be made to a man without any Consideration Perkins 536. the Lessee shall be seised to his own use If a man make a Lease to another Dr. Stud. l. 1. c. 24. See the Clerk of Assize p. 63. and his Heirs for 20 years intending that his Heirs shall have it yet if the Lessee die notwithstanding the intent the Executors and not the Heir shall have it If a man let a House cum pertinent Pl. Com. f. 85. b. f. 270 273. 31 H. 8. tit Lease 55.23 H. 8. tit Feoffment 53. no Lands pass but if it be cum omnibus terris pertinent here the Lands used with the same do pass Herns L. of Con. p. 104. If a man take a Lease of his Br. Estoppel 221. M. 31 32 El. in C. â— in â—ondon's Case adjudged Co. 1 part Inst f. 47. b. Vide Terms of the Law verb. Estoppel own Land by Deed indented he is then concluded to say that the Lessor had nothing in the Land at the time of the making of the said Lease but after the Lease is out the Estoppel is removed If two Joynt-tenants are of a 24 Car. See Beverley's Case Clayton's Rep. p. 111. pl. 189. see Green's Case An. 1650. Idem p. 146. pl. 265. Lease for Years and one bid the other go out of the House
to year so 14 H. 8.16 Noy's Max. p. 66. Br. Lease 13.22 long as both parties please is a good Lease after Entry in any year for that year till warning be given to depart If a Lease be made to A and his Assigns for his Life and the See Rosse's case 41 42 Fl. Co. 5. l. f. 13. Herne's Law of Conv. p. 12. Life of B and C this is a good Lease for 3 Lives But if a Lease be made for an See in Co. said 5. Book in Brudenel'â—câ— 34 â—l in B. R. see Brownl 2 part p. 292. hundred years if A and B live so long in this case if either of them die the Lease is ended A Lease rendring Rent to See Co. 5. l. f 111. in Mallery's ca. 43 Eliz. Herne's Law of Conv. p. 142. one and his Heirs or his Heirs alone but of a Feoffment Tenendum to one or his Heirs is but an Estate onely for the Life of the Feoffee If a man make a Lease to See 3 Jac. Savin's ca. in C. B. Co. 5. l. f. 123. commence after the end or determination of a former Lease in esse and after the first Lease is out and the second Lessee entreth not but he in the Reversion enters and makes a Feoffment and levieth a Fine with Proclamations and 5 years pass without Entry or Claim of the second Lessee in this case the Fine barrs him for the Stat. 4 H. 7. c. 24. speaks of Interest and a Lease for years is an Interest within the Statute If an Infant who is seised of Co. 1 part Inst f. 45. b. Land held in Soccage make a Lease at his age of 15 this is good and shall bind him If Tenant in Tail make a 10 E. 3.26 34 Ass 15.23 E. 3. Dower 130. Co. 1 part Inst f. 46. a. Lease for Years according to the Statute rendring Rent and die without Issue now as to him in the Reversion the Lease is void but if he endow the Wife of that Land it shall be good against her or if Tenant in Tail die without Issue his wife enseint with a Son and he in Reversion enters and after the Wife is delivered in this case the Lease is again revived although it were once void by the Entry of him in Reversion Nota. If Tenant in Fee take a Co 1 part Inst f. 46. a. Wife and make a Lease for Years and after die 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 an Husband have a term of years in Right of his Wife Idem ibid. b fo 35â— â— Mich. 26 27 El. adjudged in boâ—h Court intâ—r Amnor Loddington And â—â—e 7 Jac. in Manning's case Co. 8. l. f. 94. if she die it remains to him but if she survive him it remains to her and not to his Executors without he make disposition of it in his life-time 14 El. Pl. Com. 419. If a man lease for Life to I. S and the next day leases to W. B. 37 H. 8 Br. Leases 48. the end for 20 years the second Lease is void if it be not a Grant of a Reversion with Attornment for in Law the Free-hold is more worthy and perdurable then a Lease for Years yet if the Lessee for Life die within the Term the Lease for Years is good for the rest of the years to come If a man license another to Brownl 2 part p. 250. 10 E. 4. f. 4. 5 H. 7. f. â— enter and occupy his Lands this is a good Lease for Years in Law If a man lease for 60 years and so from 60 years to 60 â—l Com. f. 273.29 H. 8. Br. Leases 49. years until 200 years be ended this is all the same Lease and good for the term If a man have a Lease for 32 l. Ass 6. 500 years it is but a Chattel notwithstanding the long time A Lease for Years though it be never so long cannot be H. l. 2â— Car. in B. R. Sâ—yles Regest Practicale p. 197. Intailed for the nature of a Chattel cannot be turned into an Inheritance If a man seised of Land in Co. 1 part Inst f. 4â— â— Vid. â—hâ—lipps â—â— of Law p. 88. Fee-simple make a Lease of the same to another To have and to hold the same for term of Life and do not mention whose Life in this case it shall be taken to be for the Lessee's Life for the Act of every man shall be taken most strongly against himself But if Tenant in Tail let Co. ibid. f. 183. b. Finch l. 1. c. 4. p. 60. such a Lease without expressing whose Life it shall be taken to be for the Life of the Lessor A Lease for a thousand daies 14 H. 8. f. 1. Finch l. 1. c. 5. p. 67. is a Lease for Years A Lease for Years and a Release Finch cod loco Co. Lit. f. 207. a. amounteth to a Feoffment If Joynt-tenant make a Lease Finch l. 1. c. 3. p. 97. Mich. 3 Eliz. Dyer 187. Lit l. 3. c. 3. Co. 1 part Inst f 185. a. 186. a. b. But see Dyer f. 178. Harbâ—n Baâ—tonâ—s case Goldsb p. 187. pl. 1â—0 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 which made it die before the day yet the Survivor shall be bound by the Lease for the Lessee hath a present Interest But it is otherwise of a Grant Co 1 part Inst f. 184. b. Finch ibid. 5 El. Plo. 203. Brownâ— â—â— Com. 263. b. in Dame Hales case to have a Lease if the Grantee pay 10 pound before Midsummer next and the Joynt-tenant which made the Grant die before the day for here is no Interest at all but a Communication till the mony be paid If a man let Land for Life without saying more the Reversion Finch l. 2. c. 3. p. 113. â—it of the Fee-simple is in the Lessor If Tenants for Life or Years of Land make a Feoffment in Idem ibid. Br. Foâ—is 96. Fee and give Livery they forfeit their terms If two take a Lease for their Lives and make partition either See Farrington's case Dyer 67. Cowell's Inst p. 199. of them dying his part immediately reverts to the Lessor If a Lease be made to a Feme sole for 40 years if she so long See Sayer and Hardye's case Goldsb p. 179. pl. 112. live sole and continue unmarried now if she die the Lease is determined or if I make a Lease for 40 years if the Lessee dwell upon the thing let during the term here if the Lessee die the term is determined But if it be a Lease for 40 years if the Lessee dwell upon Idem in Save 's Hardye's câ—se the thing let during his Life in this case if the Lessee dieth the
this case shall abate because every kind of Action of Waste must be ad exhaereditationem If there be two Joynt-tenants Co. 1 part Inst f. 200. b. Westm 2 chap. 22. Vide Rastall Waste 6. Wingate's Abr. Stat. p. 552. Ferrer's Mag. Charta fo 71. b. Co. â— part Inst fo of a Wood Turbary Piscary or the like and one of them doth Waste against the will of the other here the other may have an Action of Waste against him and he that did the Waste hath election before Judgment either to take his part in certainty by the Sheriff and the Oath of 12 men c. or that he grant that from thenceforth he shall not doe Waste but according to his proportion c. and if he make choice of a certain place then the place wasted shall be assigned to him And this doth extend as well Co. 1 part Inst fo 200. a. b. 47 E. 3. 22. b. 2 H. 5. 1 3. to Tenants in common and Joynt-tenants for Life as to an Estate of Inheritance but if one Tenant in common or Joynt-tenant out of a Dove-house destroy the whole Flight of Doves no Action of Waste doth lie in that case upon the Statute but the other may have an Action of Trespass against him that destroyed them quare vi armis Columbare le Pl fregit 200 Columbas Pret. 40 interfecit c. If a Lease be made to hold to one without any impeachment Co. 1 part Inst f. 220. a. Vide Co. Reports l. 2. f. 23. l. 9. f. 9. l. 12. f. 83. of Waste then the Lessee may cut down Trees and convert them to his own use but if the words be to hold without impeachment for any Action of Waste then in thâ—â— case if the Lessee cut dowâ— Trees the Lessor shall havâ— them for the discharge extends but to the Action If Lessee for Life grant a Co. 1 part Inst f. 233. b. 234. a. Rent-charge 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 A Parson Vicar Arch-deacon Prebend c. may have Co. 1 part Inst f. 341. a. 10 H. 7. 5. F. N. B. 55. d. 57. c. an Action of Waste and the Writ shall be said ad exhaeditationem Ecclesiae c. ipsius B or Praebendae ipsius A. If Tenant in Fee release to his Tenant for Life all his Co. 1 part Inst f. 345. b. 42. F. 3. â— 23 F. N. B. 60. â— 41 E. 3. Wast 83. 42 E. 3. 18. Right yet he shall have an Action of Waste And if Tenant in Tail make a Lease for his own Life yet Idem Ibid. he shall have an Action of Waste But if Tenant for Life be the Remainder to another in Co. 1 part Inst f. 345. b. 43 Ass pl. 13.41 E. 3. Wast 83.11 H. 4.67.13 H. 7.10 Plo. Com. 482. Tail and he in the Remainder release to the Tenant for Life all his Right and State in the Land in this case he cannot afterwards have an Action of Waste If the Lessor bring an Action Co. 1 part Inst f. 356. a. 46 E. 3. 20. 8 H. 6.13.30 H. 6. 7. of Waste against his Lessee the Lessee cannot plead generally Riens en le Reversion but he must shew how and by what means the Reversion is devested out of him But if the Grantee of a Reversion bring an Action of Co. ubi suprá Waste the Lessee may plead generally that he hath nothing in the Reversion If a Bishop make a Lease Co. 1 part Inst f. 356. for Life or Years and dies and the Lessee the See being void doth Waste in this case the Successor shall have an Action of Waste And so if Lessee for Life be disseised and Waste is done Co. ubi suprá and the Lessee re-enters here an Action of Waste lieth against him If Lessor and Lessee for Years c. join in the cutting Mich. 18 H. 8 â— Perkins 202. down of 20 Oaks c. growing upon the Lands leased the Lessor shall not punish the Lessee for the same If the Lessee before his term begin enter into the Lands let to him and doe an Act which amounteth unto Waste the Lessor shall not have an Action of Waste for the same None shall have Judgment to Finch l. 1. ch 3. p. 29. recover in an Action of Waste where the Waste comes but to 12d or such a petty Summe for De minimis non curat Lex If Waste be done upon Co. 2 part Inst â— 303. Reges Prac. p. 343. Lands let for term of Years or Life by one against whom the Lessee can have no Remedy in Law for committing the same Waste the Lessee in such case is not punishable for the same by the Lessor except there be a special Covenant in the Lease that he shall not commit nor suffer Waste to be done Note well what hath been here said concerning Guardians in Chivalry and their Wards is but onely to shew what the Law was formerly in those cases for now by the Stat. of 12 Car. 2. chap. 24. Wardship that former undoing of many Gentlemen Primer-Seisins and all Ouster le mains c. are quite taken away and all hold now in free and common Soccage and every Father whether he be at age of 21 years or under may by Deed executed in his life-time or by his last Will and Testament in writing in the presence of two or more credible Witnesses delivered dispose of his Children under the age of 21 years and not married at the time of his Death for and during such time as they shall remain under the age of 21 years or any lesser time to the Custody and Tuition of any person or persons in Possession or Remainder Popish Recusants excepted and such Disposition of such Child or Children since the 24 Febr. 1645 or hereafter to be made shall be good against all and every person and persons claiming such Child or Children as Guardian in Soccage or otherwise c. CHAP. XIII An Abridgment of the Statute of the 43 Elizab. and the 15 of Car. 2. about the unlawful cutting stealing or spoiling of Wood c. necessary for all Gentlemen to know IF any shall be convicted by his own Confession or by the Testimony of one Witness upon Oath before one Justice of Peace or Head-Officer to have unlawfully cut or taken away any Grain growing robbed any Orchard or Garden digged up or taken away any Fruit-Trees broken any Hedges Pales or other Fences cut or spoiled any Woods or Under-woods standing and growing or the like or to have been accessary thereunto he shall within such time as the Justice or Head-Officer shall appoint pay for the first Offence to the party
may put him out when he pleases The same Law is if it be at the Will of the Lessor it is intended at the Lessee's Will also for the Lessor cannot force him to stay longer then he pleases Tenant at sufferance is he Co. 1 par Inst f. â—7 b. Brac. lib. 4. f. 318. 21 H. 6. f. 42. Kitchin f. 238. a. 4 E. 3. 35. 24 E. 3.24 F. N. B. 201. D. Plow Com. 138. who comes in by lawful Lease and keepeth possession after his Lease is out and wrongfully holdeth over Finch lib. 2. cap. 3. As Tenant for Life of I. S. who holdeth over after the death of the said I. S. The Lessor cannot have an Coo. ubi suprá Action of Trespass against such Tenant before his Entry into the Premisses CHAP. II. Of the Covenants Conditions Grants Proviso's Reservations Exceptions Surrenders Assignments c. of Leases IF the Lessor Covenant to 38 Eliz. Sir Anthony Mayn's Case Co. 5 par f. 20. Noy's Maximes p. 13. Hughes grand Abr. 1 par p. 487. c. 16. make a new Lease upon Surrender of the old Lease and afterwards he makes a Lease by Fine for more years to a Stranger here the Covenant is broken although the Lessee did not Surrender the which by the words ought to be the first Act for that the Lessor did disable himself either to take the Surrender or make the new Lease If a man make a Lease for Noye's Maximes p. 17. 50. Dr. Stud. lib. 1. ca. 24. Years and the Lessee covenanteth and granteth to pay to the Lessor his Heirs and Assigns yearly during c. 10 pound here if the Lessor die the Executors shall have the Rent arrear If a man covenant and grant 37 H. 8. Bro. â—eases 60. Kit. Court-Leet p. 235. b. to R. A. that he shall have ten Acres of Land in C. for years this is a good Lease for Concessit is of such force as Dimisit If the Lessee covenant for Pasch 25 Eliz. in B. R. Co. 5 par f. 16 17. Spencer's Case M. 29 Eliz. in B. R. Barker and Fleetwell's Case Godbolt's Rep. fo 69 70. Vide Hern's Law of Conv. p. 107 108 109. him and his Assigns to build a Brick-wall or an House upon the Lessor's Land or pay a Collateral Summe of money to the Lessor and after the Lessee assigneth over his Term in this case the Assign shall not be bound by this Covenant because the things were onely Collateral and were not in esse nor parcel of the Demise at the time of the Lease made If there be a Covenant in a 38 Eli. Co. â— par f. 64. Pennant's Case Cowell's Inst p. 193. Dyer f. 51. Lease that if the Rent be behinde for such a time then the Lease to be void here no acceptance of the Rent after such failure will make the Lease good If a man let a House and Trin. 1649. Rot. 348. in B. R. Compton and Allen's Case Styles 162. F. N. B. fo 145. K. Noye's Max. p. 16. 40 E. 3. 5. Finch p. 64. 38 Eliz. Sir Anthony Mayn's Case Co. 5 par l 20. Lands for years and the Lessee covenanteth to uphold the Houses and to leave the Houses and Lands in as good a plight and estate as he found them in this case if the Houses be blown down by Tempest or fired by accident or otherwise destroyed if the Lessee do not repair and build them again and leave them as good as he found them the Lessor may bring an Action of Covenant against him at the end of his term but if he maketh Wast in the cutting of Timber the Lessor may have an Action of Covenant before the end of the Term for that And if the Lessee for years Mich. 44 Eliz. in B. R. Dean and Chapter of Windsor's Ca. Co. 5 par f. 24. Hughes's grand Abr. 1 par p. 492. c. 19. covenant and grant for him and his Executors with the Lessor to repair the Houses as often as need requires and after the Lessee assigns over his term and the Assignee suffers the Houses to decay in this Case an Action of Covenant lies against the Assignee although he be not named in the Covenant If the Lessor covenant with Co. 1 par Inst f. 41. B. Dyer f. 19. the Lessee that he shall have sufficient Hedge-bote by the Assignment of him or his Bailiff here he may not take it without Assignment Quia modus Conventio vincunt Legem If a man take a Lease by Indenture Perkins Tit. Câ—â—ditions 738. M. 1649. B R. Styles prac Regist p. 7â— of a ruinous House or that wanteth Reparations and do Covenant in the Lease to leave the House at the end of the term in good Repair here he is bound to leave it in good Repair whatsoever happen by the Rule aforesaid but if he do not covenant to doe it he is not bound by Law in such case to doe it If a Lease for Years be made Pasc 14 H. 8. 32. Perkins 738. 40 E. 3. 6. Hughes's gr Abridgment p. 499. c. 2. Philips's Principles of Law p. 2. of a Wood by Deed indented and it is there covenanted that the Lessee shall leave the Lessor's Wood in as good plight as it was at the time of the Lease made and during the term the Wood is destroyed by a sudden Tempest in this case the Lessor can have no Action of Covenant against the Lessee for the non-performance of this Covenant for it is not possible for him to perform the same and Lex non cogit Impossibilia 22 H â— See Goldsborough's Reâ— p. 16. in the â—nd If a Lease be made for Years rendring Rent and the Lessee is bound to perform all Covenants and Agreements if he do not pay the Rent the Obligation is forfeited for the paiment of the Rent is an Agreement If a man be bound in an Obligation Dr. Stud. lib. â— cap. 47. to repair the Houses of the Obligee as often as need shall require during such a time and after the Houses need Reparations in this case though the Obligor knoweth not that they need Reparations yet he is bound to take notice at his peril for Ignorance here excuseth not But if the Condition had Dr. Stud. ibid. been to repair such Houses as the Obligee should assign and after he assigneth c. but the Obligor hath no notice of it here the ignorance shall excuse him for the Obligee ought to give him notice but if the Assignment had been appointed to a Stranger there the Obligor must have taken notice at his peril If a Lease for Years be made Lit. 166. 26 H. 8. 3. Finch lib. 2. c. 3. p. 115. with Warranty this sounds not in the nature of a Warranty but of a Covenant because it is but a Chattel and if the Lessee be ousted yet he may have an Action of Covenant If I be seised of 10
Idem ibid. Brit. f. 168. b. 6. El. in Griffins ' case of the Sea to be in decay so as by the flowing and reflowing of the Sea the Meadow or Marsh is surrounded whereby the same becomes unprofitable but if it be suddenly by 6 El. ubi suprá ◠N. B. 59. n. the rage and violence of the Sea occasioned by some Tempest or the like without any default of the Tenant this is no Waste punishable If the Tenant repair not the Co. ubi suprá 29 H. 8. Dyer 33. 22 H. 6.4.10 H. 7. 5. a. Kitchin f. 241. b Banks or Walls of Rivers or other Waters whereby his Ground is surrounded and becomes rushy and unprofitable this is Waste To suffer Pasture-ground to Kitchin ibid. 20 H. 6. f. 1. be surrounded with water so that it becomes rushy and nothing worth or Arable-Land to be surrounded so that nothing remains but tough Clay this is Waste If the Tenant convert Arable-Land Co 1 part Inst f. 53. b. 29 H. 8. Dyer 37. Hobart Rep. f. 234. Vide Kitchin f. 241. b. 10 H. 7.5 a. 44 E. 3.44 Com. Att. p. 168. into Wood or è converso or Meadow into Arable it is Waste for it doth not onely change the course of his Husbandry but the proof of his Evidence To suffer Arable-Land to lie 2 H. 6. f. 11. F. N. B. 59. n. fresh so that it is full of Thorns is no Waste If a man lease his Lands in Co. 1 par Inst f. 54. b. 17 E. 3.7 9 H. 6.66 F. N. B. 149. c. 59. n. Vide Hil 15 Jac. in the Lord Darcy Askwith's case Hobart's Rep. f. 234. Herne's Law of Conv. p. 54 55. which are Mines of Coals or the like without mentioning the Mines in the Lease the Lessee for such Mines as are open at the time of the Lease made may dig lawfully and take the profits thereof but he may not dig for any new ones it is Waste If there be open Mines and Co. ubi suprá the Owner make a Lease of the Vide Saunders's case 41 El. in Co. B. Co. 5. l. f. 12. Herne's Law of Conv. p. 54 55. Land with the Mines therein this shall extend to the open Mines onely and not to any hidden Mines but if there be no open Mines and the Lease is made of the Land together with all Mines therein in this case the Tenant may dig for them and enjoy the benefit thereof otherwise the words should be void If a Lease be made to one of 17 E. 3. Tit. 101. Kitchin f. 248. a. Lands to occupy the same after the best way he can or to make his best profit of them yet this shall be intended onely to be after such manner as is according to Right and Law for in this case the Lessee may not plow up Meadow or pull down Houses c. for if he do he shall be punished in Waste If the Lessee make the Villanes Co. 1 part Inst f. 53. b. or Tenants at VVill poor where they were rich when he came in whereby they depart from their Farms this is Exile and punishable CHAP. XII Who are punishable in Waste and for what Waste c. WAste in Latine is called Co. 1 part Inst f. 52. b. Vastum à Vastando from wasting and depopulating There are two kinds of Idem f. 53. a. Waste that is to say Voluntary or Actual Waste and Permissive Waste An Action of Waste lieth Noye's Max. p. 33. Co. 1 part Inst f. 53. a. 2 part Inst f. 302. Pl. Com. f. 467. b. 68. a. Philipps Pr. of Law p. 32. Vid. Mag. Charta ch 4. Stat. Glouc. against Tenant by the Courtesie Tenant for Life for Years or half a year Tenant in Dower or Guardian in Chivalry by him that hath the Estate immediate ch 5. Rastal Wast 1.4.5 Wingate's Abr. Stat. p. 551 552. 4 H. 6. f. 11. Kitchin f. 338. a. of Inheritance for Waste or Destruction in Houses Gardens VVoods Trees Lands Meadows c. or in Exile of men to the disherison of him in the Reversion or Remainder and they shall lose the place wasted and treble Dammages It doth not lie against Guardian in Soccage but an Action Co. 1 part Inst f. 54. a. Ferrer's Mag. Charta f. 26. b. of Account or Trespass Waste lieth not against Tenant Noye's Max. p. 33. F. N. B. 59. c. 16 E. 3. Tit. Wast 100.2 E. 2. Wast 1. by Elegit Statute-Merchant or the Staple but an Action of Account after the Debt and Dammages levied Neither doth it lie against Tenant at Will but if such Co. 1 par Inst f. 57. a. 21 H. 6.38 48 E. 3. f. 25. 11 H. 6. f. 38. 12 E. 4. f. 8.22 E. 4.5.21 H. 6. f. 43. Kitchin f. 237. a. b. Walgrave Somerset's ca. Mich. 29 30 El. Goldsb Rep. p. 72. pl. 17. Tenant voluntarily pull down the Houses or cut down Timber-trees c. in this case the Lord may have an Action of Trespass against him Quare vi armis c. but for permissive Waste the Lord hath no Remedie against him Either Waste or Account will lie against Tenant in Mortgage Noye's Max. ubi suprá for he hath Fee Conditional There are 5 several Writs of Waste 2 at the Common Co. 1 part Inst f. 54. a. Law for Waste done by Tenant in Dower or the Guardian and 3 by the Statute-Law for Waste done by Tenant for Life for Years and Tenant by the Courtesie If two or more Joint-tenants Co. 1 part Inst f. 200. b. Reg. 163. f. N. B. 127. 1 part Inst f. 54. b. or Tenants in common be of a House of Habitation and the one of them will not repair the House the other in that case may have a Writ De reparatione facienda If the Lessor covenant to repair 12 H. 8. f. 1. Co. 1 par Inst f. 54. b. Vid. Herne's Law of Conv. p. 54. the House and doth 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 punished in Waste for cutting the Wood. If a man make a Lease of an Co. ubi suprá House and Lands without impeachment of Waste for the House yet may the Lessee notwithstanding repair the House with the Timber growing upon the ground though he may utterly waste the House if he will No person shall have an Action Co. 1 part Inst f. 53. b. F. N. B. 59. f. 8 R. 2. Wast 47.27 H. 8.13 of Waste unless he hath the immediate state of Inheritance but sometime another shall joyn with him for Conformity as if a Reversion be granted to two and the Heirs of the one they two shall joyn in an Action of Waste And in like sort the surviving Idem ibid. Coparcener and the Tenant by the Courtesie