If the Lessee enter before Livery and enjoy then the Free-hold Co. 1 part Inst f. 49. b. and the Reversion are still in the Lessor and he cannot then make Livery to the Lessee after Entry for he is then in possession and Livery cannot be made to one in possession The Statute of the 21 of H. 8. cap. 15. gives liberty and Co. 1 part Inst f. 46. a. Rastall's Recoveries 2. f. 371. a. Wingate's Abr. Stat. p. 405. power to falsify all Recoveries that shall be had against the Tenant of the Free-hold through the Knavery of the Lessors intending thereby that the Lessees shall be outed before their Term be out whenas perhaps they pay'd a great Fine at their Income and so it were an hard case if they should lose their Terms upon such Recoveries by Collusion CHAP. IV. Of the Dates Commencements Continuance and Determinations of Leases LEases for Life or Years are Co. 1 part Inst f. 45. b. of Three natures Some be good in Law some voidable by Entry and some void without Entry some in futuro and some in praesenti of all which you have several Examples in this little Treatise If a Lease be made for 3 See Clayton's case 37 Eliz. in C. B. Cook 5 lib. f. 1. 12 Eliz. Dyer 286. 14 Eliz. Dyer 307. Co. 1 part Inst f. 46. b. Noye's Maximes p. 66. But see Osborn and Rider's case H. 13 Jac. in B. R. Cro. 2 part 135. See Barwick's case 39 El. in the Exchequer Co. 5. l. fo 93. Hern's Law of Conv. p. 14 15. years beginning from henceforth and is delivered the 19 day of June 1663 in this case the day must be taken inclusivè and the Lease must end the 18 day of June in the third year after But if a Lease be made to hold from the day of the making or from the day of the Date or from the Date here the Lease shall begin the day after it is delivered and the day of the delivery is exclusive and so note the diversity If the Habendum of a Lease Co. 1 part Inst ibid. Herne's Law of Conv. p. 15 131. be for the term of 21 years without mentioning when it shall begin it shall then begin from the Delivery If an Indenture of Lease Co. ibid. See Goddard's Case 26 Eliz. Co. 2 l. f. 5. See M. 8 Jac. B. R. Osley Sr Bapâ—ist Hicks's Case Cro. 2 part 263 264. there being pretty matter concerning the Date and Delivery of a Deed. Herne's Law of Conveyances ubi suprá pa. 1â—2 bear date the 30 Febr. or 40 of March which is impossible in this case if the term be limited to begin from the Date it shall then begin from the Delivery as if there had been no Date at all If Lands descend to an Heir Noye's Max. p. 67. he may make a Lease thereof before his Entry into the same If a man make a Lease to one ibid. p. 68. 26 H. 8. Bro. Lease 48. for 10 years and the next day after make another for 20 years to another man this second Lease shall be good for 10 years after the first is expired If a Lease be made for 21 Co. 1 part Inst f. 45. b. see 40 El. in the Rector of Cheddington's case Co. 1 lib. f. 154. and Herne's Law of Convey p. 135. 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 to commence from the end of the said 21 years there though there had been a Surrender yet it should not have commenced till the term had been out and so note a diversity between Terminum Annorum and Tempus AnnoruÌ„ A man cannot make a Lease See the 39 El. in Barwick's case Co. 5. l. f 93. for Life to commence at a day to come for he cannot make a present Livery to a future Estate and therefore in this case nothing doth pass If A seised of Lands in Fee do grant to B that when he Co. 1 part Inst f. 45. b. See many prety cases in the B. of Bâ—â—he Wells's case Co. 6. l. f. 34 35. payes him 20 s. that then from that time he shall have and occupy the Land for 21 years and after B paies the 20 s this is a good Lease for 21 years from that time notwithstanding the Rule of Bracton That every Lease must have a certain beginning and ending Quia â—d certum est quod certum reddi potest And so if a man leases Land 3. M. 1. Br. Leases 67. the end to another till the Lessee hath levied 20 pound this is a good Lease notwithstanding the incertainty If a man make a Lease to another Co 1 part Inst f. 45 b. See Say Fuller's case for so many years as R. A. shall name this at the beginning Pl. Co. Kitchin p. 235. b. Vide Philipps's Pr. of Law p. 36. is incertain but when R. A. hath named the years it is then good for so many years as he names If A leaseth his Lands to B Co. 1 part Inst f. 45. b. for so many years as B hath in the Mannor of Sale and B hath 10 years in it this is a good Lease to B of the Lands of A for the said said 10 years But if a Parson make a Lease Co. ibid. So resolved Hil. 26 El. Rot. 935. in C. B. of his Glebe for so many years as he shall be Parson there this is void for the incertainty for Terminus vitae est incertus licet nihil certius est morte Brac. l. 2. c. 9. nil tamen incertius est horâ mortis If a Parson make a Lease of his Co. ibid. Glebe for 3 years and so from 3 years to 3 years so long as he continues Parson this is a good Lease for 6 years and void for the Remainder but this must be understood if he continue Parson so long If a Lease be made to one See in the 40 El. in the Rector of Cheddington's ca. Co. 1. l. for so many years as his Executors shall name this is void for the incertainty A Lease for a year and so from year to year during the Noye's Max. p. 66. Life of R. A is a Lease but for 2 years and if the Termor stay longer he is afterwards but Tenant at Sufferance If I make a Lease to R. B. to 33 Ass p. â— 2 M. 1. Br. Leases 67. Co. 1 par Inst f. 42. a. hold the Lands till 100 pound be paid and make no Livery of Seisin he hath an Estate but onely at Will and may be put out at pleasure but if Livery be given he hath an Estate for Life upon Condition implied to cease upon the payment of the 100 pound A Lease from year
the property of the goods in him at the time of the taking for if the Defendant that is he that distrained claim property the Sheriff cannot grant a Replevin upon Complaint to him made for it is a Rule in Law that Property must be tried by Writ And therefore in this case the 31 H. 6. Prop. pro-banda 5.1 E. 4.9 21 E. 4.64 66. 2 El. Dyer 173. Co. 1 part Inst f. 145. b. Vide Sheppard's Surv. of County Judic p. 50 51 52. Plaintiff that is he that sues out the Replevin may have a Writ De proprietate probanda directed to the Sheriff to try the Property and if it be found for the Plaintiff then the Sheriff to make Deliverance and if for the Defendant the Sheriff can proceed no farther unless the Plaintiff get a Replegiari facias to the Sheriff and then though he return the property c. yet it shall proceed in the Common Pleas where the property shall be put in issue and finally tried The Sheriff may take a Plaint upon the Stat. Marlebr out of Co. ubi suprá his County and make Replevin presently for it should be inconvenient for the Owner to forbear his Cattel till the County-day If he that distrained the Beasts see cause he may have a Writ of Recordare and so remove the Suit upon the Replevin out of the Sheriff's County-Court into the Comon-Pleas-Court and if the Plaintiff declare not he that distrained may have a Retorno habendo and if he declare not still then the Avowant shall have a Writ to enquire of Dammages Note there be two kinds of Co. 1 part Inst f. 145. b. 42 E. 3. 18. 11 H. 4. 17. 7 H. 4.17 48 E. 3. 20. Vide Sheppard's Survey of County Judicatures p. 46. Properties a general property which every absolute Owner hath and a special property as goods pledged or taken to manure his Lands or the like and of both these a Replevin doth lie It is to be noted that a man 5 E. 3.38 11 H. 4. 4. 17 E. 2 Prop. prob 6. Co. 1 part cannot claim property by his Bailiff or Servant and the Reason Inst f. 145. b. Philipps Prin. of Law p. 69. Vide Sheppard's Survey of County Judicatures p. 52 53. is for that if the Claim fall out to be false he shall be punished for his contempt which the Lord cannot be unless he make Claim himself for Nemo punitur pro alieno Delicto If a man by his Deed grant Co. ubi suprá Bract. l. 4. f. 233. a b. 31 E. 3. Gage Deliver 5. a Rent with Clause of Distress and grant farther that he shall keep the goods distrained against Gages and Pledges until the Rent be pay'd yet shall the Sheriff Replevie the goods distrained for it is against the nature of such a Distress to be Irrepleviable and by such an Intention the Current of Replevins should be overthrown to the hindrance of the Commonwealth If the Beasts of divers several Co. 1 part Inst f. 145. b. 28 E. 3.92 3 H. 4. 12. 34 H. 6. 37. Sheppard's Sur. of County Judicatures p. 46 47 52. men be distrained they cannot join in a Replevin but every one must have a several Replevin for in a Replevin it is a good Plea to say that the property is to the Plaintiff and to a Stranger and where there be two Plaintiffs that the property is to one of them The Tenant shall have a Replevin F. N. B. 69. b. 4 H. 7.40 11 H. 7. 10. Compl. Att. p. 131. Philipps Pr. of Law p. 143. Finch l. 1. c. 3. p. 46. against the Lord that did wrongfully distrain though the Beasts be come back again to the Owner because he can have no Action of Trespass against the Lord. A Replevin ought to be certain Tr. 23 Car. in B. R. Regest Practicale p. 193. in setting forth the number and kindes of the Cattel distrained or else it is not good CHAP. X. Of Avowries a word or two briefly concerning the same Avowry is where one taketh Terms of the Law verb. Avowry a Distress for Rent or other thing and the Owner of the goods sueth out a Replevin then he that taketh the Distress shall justifie in his Plea for what cause he took it and if he took it in his own Right he must shew that and so avow the taking and that is called his Avowrie But if he took the Distress Terms of the Law verb. Avowry in or for the Right of another then when he hath shewed the cause he must make Conusance of the taking as Bailiff or Servant to him in whose Right he took it In Avowrie if the Plaintiff Rastall Tit. Avowry and Wingate's Abr. p 34 be Non-suit or otherwise barred Vide Tr. 15 Car. B. R. Tintnye James's Case in Winche's Rep. f. 30 31. in Cro. 1 part 358 385. the same case where there is excellent matter about Avowrie◠or overthrown then the Avowants shall recover their Dammages and Costs against the said Plaintiffs as the same Plaintiffs should have done or had if they had recovered in the Replevin or Second Deliverance found against the said Avowants The Lord may avow the taking Rastall and Wingate ubi suprá Co. 1 part Inst f. 269. b. a Distress as in Lands holden of him within his Fee without naming any person in certain and this is by the Statute of the 21 H. 8. c. 19. But by the Common Law they could not do this but were forced to avow upon a person in certain which proved often very prejudicial to the Lords for by the secret Fines Recoveries Grants and Feoffments which the Tenants made purposely to defraud their Lords they thereupon were put from the knowledg of their Tenants upon whom by order of Law they should make their Avowry and so to prevent this Inconvenience the said Statute was made But the Lord may avow still Co. ubi suprá Vide Mich. 6 Jac. Co. 8. l. Sir Will. Foster's case 32 H. 8. ch 2. Rastall Tit. Limitation 3. Wingate's Abr. p. 295. by the Common Law if he will and although he do avow by the Statute upon the Lands generally as in Lands c. within his Fee or Seigniory yet nevertheless he must alledg Seisin by the hands of some particular Tenant in certain within 40 years In an Avowrie made according Rastall Tit. Avowry Wingate's Abr. p. 34. to the Statute every Plaintiff in the Replevin or Second Deliverance be he Termor or other may have every Answer to the Avowrie that is sufficient and also have Aid and every other Advantage in Law Disclaimer onely excepted for disclaim he cannot because the Avowry is made upon no person certain If the Lord come to distrain and the Tenant chase his Beasts Co. 9. l. in Case de Avowry f. 22. which were within the Lord's view out of the Land holden c. yet if
the Lord freshly follow and take them although it be out of his Fee and Seigniorie he may by the Equity of the Statute avow the taking as in Lands holden of him within his Fee and Seigniory If there be Lord and Tenant Co. 1 part Inst f. 269. b. see Co. 3 l. f. 65 66. in Pennant's case and the Rent is behind for divers years and the Tenant makes a Feoffment in Fee if the Lord accept the Service or Rent of the Feoffee due in his time he shall lose the Arrearages due in the time of the Feoffor for after such acceptance he shall not avow upon the Feoffor nor upon the Feoffee for the Arrearages in the time of the Feoffor But if the Feoffor dieth albeit the Lord accept the Rent or Service by the hands of the Feoffee due in his time yet he shall not lose the Arrearages for now the Law compelleth him to avow upon the Feoffee and that which the Law compelleth him unto shall not prejudice him There are four manner of Vide Aiscough's case 9 Jac. Co. 9. l. f. 135 136.20 H. 6.9 26 H. 6. Avowr 17. 9 Eliz. Dyer 257.20 â— 3. Avowry 131.5 H. 7.11 Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular Estate 3. Upon his Tenant by the manner where the Lord had but a particular Estate And these 3 are by the Common Law 4. Upon the matter in the Land as within his Fee and this is by the Statute and the safest way CHAP. XI Of Waste What shall be Waste in Houses Gardens Woods Pastures c. and what not IF Lessee for Life Years in 34 F. â— Waste 143. Vide 10 H. 7. f. 2. b. 12 H. 4. f. 4. Co. 1 part Inst f. 53. a. Vide Hern's Law of Conv. p. 51. Dower c. pull or prostrate down the Houses or suffer them to be uncovered whereby the Sparrs or Rafters Planchers or other Timber of the Houses are rotten this is Waste If the House be uncovered when the Tenant cometh in it Co. ubi suprá Herne's Law of Conv. ubi suprá is no Waste in the Tenant if he suffer the same to fall down But although the House be 40 Ass pl. 22. 23 H. 6.24 29 E. 3. 33. Co. ubi suprá Compl. Aâ— p. 166. Herne ubi suprá uncovered and ruinous at the time of the Tenant's coming in ye if he pull it down it is Waste unless he do build it again If Glass-windows though Vide Co. 4. l. f. 63. in Harlackenden's case Swinburn's Wills 3 par sect 6. f. 165. Herne ubi suprá glased by the Tenant himself be broken down or carried away it is Waste for the Glass is part of the House And so it is of Wainscoat Co. 1 part Inst f. 35. a. Vide Keilway f 88. Harlackenden's case ubi suprá 22 H. 6. 18.22 E. 4.18 Swinburn ubi suprâ— Compl. Att. ubi suprá whether it be fixed to the Walls or Posts of the House with great Nailes or little Nailes Screws or Pins it is all one if it be fixed to the Free-hold once it is Waste to take it away again The same Law of Benches Co. 1 part Inst f. 53. a. 10 El Dyer 2â—2 42 E. 3. f. 6. Noye's Maximes p. 3â— Doors Windows Furnaces and the like annexed or fixed to the House either by him in the Reversion or the Tenant The Rasing of a new Frame of a House which was never 40 Ass pl. 22. Pr. Waste â—17 Kitchin f. 242. b. covered is no Waste The House uncovered by 12 H 4. f. 4. Kitchin f. 241. b Co. ubi suprá 19 E. â— Wâ—st â—0 Herne's Law of Convey p. 52. sudden Tempest or otherwise it is no Waste in the Tenant if he let it lie so till the main Timber be rotten and then he shall be punished in Waste for not repairing it in time If the House fall by sudden Tempest or be burnt by Lightning Co ubi suprá Vide in Co. 4. l. f. 63. Harlackenden's case Dr. St. l. 2. c. 4. or prostrated by Enemies or the like without any Default of the Tenant or was Ruinous at his coming in and fall down this is no Waste And the Tenant may build the same again with such materials Co ubi suprá 43 E. 3.6.11 H. 4.32 â—1 H. 6.18 Herne's Law of Conv. p. 52. as remain and with other Timber growing upon the ground which he may take for his habitation but he must not make the House larger then it was for if he do he is punishable in Waste Though there be no Timber Co. ubi suprá 44 E. 3.21.38 Ass pl. 1. Com. Att. p. 166. Herne's Law of Conv p. 51. growing upon the ground yet the Tenant at his peril must keep the Houses from wasting If the Tenant build a new Co. ubi suprá Kitchin f. 242. a. 42 E. 3.21 12 H. 4. f. 6.17 E. 2. Wast 118. House where none was before it is Waste and if he suffer it to be wasted it is a new Waste If the Tenant either doe or Co. 1 part Inst f. 53. a. 40 E. 3. f. 6. 38 Ass pl. 1. Vide Kitchin f. 242. a. Herne's Law of Conv. p. 51 52. suffer Waste to be done in the Houses yet if he repair them before any Action brought he is clear but he cannot plead quòd non fecit vastum but the special matter The pulling down of a Stone-wall Kitchin ubi suprá 10 H. 7. f. 2. b. Com. Att. p. 166. or Mud-wall of an House is Waste A Wall uncovered when the Co. ubi suprá Tenant comes in is no Waste if he suffer it to decay If the Tenant of a Dove-house Brit. f. 134.5 R. 2. Wast 97. Pl. Com. 322. Hobart's Rep. f. 234. Co. ubi suprá Hern's Law of Conv. p. 52. Park Warren Vinary Estangues c. do take so many as such sufficient store be not left as he found when he entered this is Waste and to suffer the Pale to decay whereby the Deer are dispersed is Waste If the Tenant suffer the F. N. B. 59. k. Kitchin f. 2 â—â— â— Co. 1 part Inst f. 53. b. Houses to be wasted and then fell Timber to repair them this is a double Waste If a Termor fix a Furnace and not to the Walls nor Posts 21 H. 7 f. 26. per Kingsmil of the House if he take it away within his term it is no Waste for the House is not impaired If Tenant in Fee fix a Furnace Kitchin ubi suprá or Fatt in the middle of the House the Heir shall have it and not the Executors If an House fall by a great 34 E. 3. f. 3. b. 11 H. 4. f. 21. Wind or Tempest the Lessor shall have the Timber for it is no Waste and the Lessee is not bound to re-edifie it
full age by Indenture in writing may make a Lease of such Lands and Inheritances as have been formerly letten to Farm for the space of 20 years next before the Lease made or if it be but letten 11 years at one or several times within those 20 it is sufficient reserving the old Rent or more without impeachment of Waste must not be in it and it must commence from the day of the making or from the making and if there be an old Lease in being it must be either surrendered expired or ended within one year after the making of the new one or else it is not good except in the Case of a Bishop which you will find afterwards And if the Lease be thus made it binds the Issue of Tenant in Tail if he die before the Term be out but if he die without Issue the Donor may avoid the Lease by Entrie and so may he in Remainder and though he accept the Rent yet it shall not affirm the Lease The Husband seised in Fee-simple Co. 1 par Inst f. 44. Cowell's Inst p. 189 Noye's Maximes p. 69. or Fee-Tail in right of his Wife may make such a Lease of his Wife's Land by Indenture in writing in the name of the Husband and Wife and she to seal thereunto and the Rent must be reserved to the Husband and his Wife and to the Heirs of the Wife according to her Estate of Inheritance and this shall binde her and her Heirs after his death Bishops Deans and Chapters Co. 1 par Inst f. 44. a. Cowel's Inst p. 189. Parsons Law p. 29. c. seised of any Estate in Fee in right of their Churches observing the Rules aforesaid may make Leases and so may Masters and Fellows of Colleges and Wardens of Hospitals if their private Statutes will permit them But note well that Tenant Co. ubi suprá 32 H. 8. cap. 28. in Tail and the persons before named though they do observe these Rules yet they cannot let for any longer term then Three Lives or 21 years but for what term they will under If Tenant in Tail or any of the aforesaid persons observe Co. 1 par Inst f. 45. a. not these Rules in their Demises yet notwithstanding the Leases shall be good against them for their Lives And if a Lease be made by a Bishop for 21 years according Co. 1 par Inst f. 45. a. Pasc 28 El. in B. R. The Countess of Sussex's Case Leonard's Rep. 1 par 131. Parsons Law p. 27 28. Vide Hern's Law of Conv. p. 69 70. to the Rules aforesaid which is spent within 3 years or more now if the Bishop make a new Lease to another for 21 years to commence from the making which is confirmed by the Dean and Chapter this is a good Lease and the second Lessee may enter when the first Lease is out and hold for the Remainder of his term of 21 years then to come Demise Grant Betake to Co. 1 par Inst f. 45. b. Bro. Leases 60. 37 H. 8. Farm-let and whatsoever words amount to a Grant may serve to make a Lease Generally now every Lessee Terms de Ley verb. Farm for Life Years or at Will although it be of never so small a Cottage or house is called a Farmor or Fermor and the premisses he possesseth are called a Farm or Ferm But formerly the chief Mesuage ibid. in a Village or Town whereunto belonged great Demesnes of all sorts which were used to be let for term of Life Years or at Will was called a Farm or Ferm They are called Farms or Ferms of the Saxon word Feormion ibid. which signifies to feed or yield Victuals for in ancient time their Reservations were for the most part in Victuals until at the last and that chiefly in the time of K. H. 1. by agreement the Reservation of Victuals was turned into Money and so hitherto hath continued amongst most men Under the name of Lands are comprehended not onely Gardens Meadows Pastures Rivers Woods Moors Waters Marishes Furzes and Heath but also Mesuages Houses Tofts Mills Castles and such like If the Lessor seal the Indenture Noye's Maximes p. 57. Finch l. 2. cap. 2. p. 109. and not the Lessee yet it is as good against the Lessor as if both had sealed And if at any time there happen Noye's Maximes p. 57. Lit. 88. 14 Eliz. Finch l. 2. c. 2. p. 109. any variance between the Indentures it shall be taken as the Deed of the Lessor is and the other shall be intended onely the misprision of the writer for the Lessor's is the principal Deed and the other but onely a Counterpane Now we have spoken briefly something concerning Leases and who may make them we shall next speak something of the several sorts of Tenants mentioned in this Treatise and so conclude this Chapter Tenant for Life is he who Lit. Tenures lib. 1. c. 6. Noye's Maxims p. 30. hath Lands or Tenements for his own or another mans Life and this Tenant hath a Free-hold but none other of lesser Estate hath a Free-hold If a man be Tenant for term Co. 1 par Inst fo 42 a. of his own Life he hath an higher Estate then he that is Tenant for another mans Life Tenant for term of Years Lit. Tenures l. 1â— Co. 1 par Inst â—â— 43. b. 44. a. is where a man letteth Lands of Tenements to another for a certain term of Years as it is agreed between them and when the Lessee entereth he is then Tenant for term of years and if the Lessor reserve to him a Rent he may either distrain on the premisses or have an Action of Debt if the Rent be arrear There needs no Livery and Co. 1 par Inst f. â—8 a. Seisin to be given upon a Lease for Years but the Lessee may enter when he will but a Lessee for Life must have Livery or else no Free-hold passeth If a man make a Lease by paroll Lit. Tenures l. 1. Finch l. 2. cap. 2. p. 109. 38 H. 8. Br. Estoppel 8. to another it behoves that he be seised of the Lands or premisses at the time of the Lease made for else the Lessee may plead that the Lessor had nothing in the premisses at the time of the Lease made and then he is barred of his Action but if it be by Indenture in writing then the Lessee cannot plead this Plea Tenant at Will is where Co. 1 par Inst f. 55. a. Fleta l. 3. c. 15. Lands or Tenements are let by one man to another to have and hold to him at the Will of the Lessor now when the Lessee enters he is Tenant at Will and the Lessor may put him out when he pleases But if a man let Lands to another Coo. ib. by Lease to hold the same during the Will of the Lessee in this case the Law intends it to be at the Will of the Lessor also and he
Acres Pasch 9 E. 4. 1. P. 24 E. 4. 34. P. 45 E. 3. 3. M. 44 E. 3.37 Perkins 825. of Land and lease the same to a Stranger for Life or Years reserving 10s Rent to me c. payable at the Feast of Easter and the Lessee doth bind himself to me in a bond of 100 pound to pay the Rent reserved upon the Lease justly according to Law if before any day of payment I do put the Lessee out of part of the Land and he doth occupy the residue for the whole term and will not pay any Rent yet the Bond is not forfeited for by the putting out of the Lessee of parcell of the Land the whole Rent is in suspence but if one in B. R. Page and Par's Case Styles Rep. 243. day of payment be incurred before the ouster then he must pay the Rent or else the Bond is forfeited If a Stranger who hath not 22 H 6. ac Perkins 826. See Paradine Joxe's Case M. 23 Car. in B. R. Styles Rep. f. 47 48. any right doth put out the Lessee for years of the same Land before any day of payment and keep possession thereof until the day of payment be past yet the Lessee ought to pay me the Rent at the day whereon it ought to be pay'd or otherwise he forfeits his Bond. If three Copartners be seised P. 9 F. 4.1 M. 12 H. 8. 3. Perkins 8â—8 of a Mannor and one of them in her own name and without the agreement of the other two doth lease the whole Mannor unto I. S. for 4 years yielding 5 pound yearly at the Feast of Easter unto the Lessor and her Heirs and I. S. doth bind himself in 40 pound unto his Lessor to pay the Rent reserved c. and before any day of payment the other two Copartners which did not consent to the Lease do put the Lessee out of the whole Mannor and keep the possession until the day of payment of the Rent be incurred yet it behoveth the Lessee to pay the Third part of the Rent reserved to his Lessor otherwise he forfeits his Bond for the two Copartners who put him out have no Right but to two parts of the Mannor If a Lease be made to three 28 Eliz. Lord Stafford's Case 28 Eliz. in â— B. Leeds and Crompton's Case Hughes's gr Abr. 1 par p. 428.4 5 P. M. Dyer 152. Vid. Co. 4 par Dumpor's Case 45 Eliz. in B. R. upon Condition that they nor any of them should aliene without licence if the Lessor give leave to one of them to aliene now the other two may aliene without licence for the Condition being determined to one is determined to all If the Lessor do enter for Noye's Maximes pa. 72. Condition broken or the Lessee do surrender or the Term end yet the Lessor may have an Action of Debt for the Arrearages If a Lease be made upon Dr. Stud. lib. 2. c. 35. M. 31 H 8. Dyer f. 45. Co. l. 8. f. 90. b. 7 E. 4. 13. Philips's Pr. of Law p. 14. Condition that the Lessee shall not aliene to A if the Lessee aliene to B and he aliene to A the Condition is not broken for a Condition that goes to the breaking of an Estate shall be taken strictly If a man seised of Lands in Lâ—t lib. 3. cap. 5. Co. 1 par Inst f. 216. a. b. 217. a. b. Vide Lord Stafford's Case Co. 8 part f. 73. Vide Herne's Law of Conveiance p. 48. see Nichols Case Pl. Com. f. 487. Kitchin f. 219. a. Fee lease the same to a Stranger by Indenture for five years upon Condition that if the Lessee pay to the Lessor five pound within the two first years that then he shall have Fee in the same Land in this case if he pay the mony he hath a good Estate in Fee if Livery and Seisin were made according to the Deed. But if a man seised of Land in Fee lease the same to a Stranger Perkins 708. Vid. 9 H. 6.29 for years upon condition that if the Lessee be ousted within the term by his Lessor that then he shall have Fee here if the Lessee be ousted by a Stranger without the Lessor's assent he shall not have Fee If a man seised of Lands in Fee leaseth the same to a Stranger Perkins 710. by Indenture yielding 5 pound by the year and the Indenture is that if the Lessee will hold over 10 years to him and his heirs that he shall then pay 20 pound by the year and Livery and Seisin is made to the Lessee accordingly in this case for the Rent behind within the 10 years the Lessor shall have an Action of Debt which proveth the Free-hold and the Fee are not in the Lessee before the 10 years ended but if when the ten years be past and ended the Lessee doth continue the possession of the same Land and doth occupie the Land by force of the Indenture then he hath Fee and shall pay the 20 pound as a Rent sect But if a M. 40 E. 3.27 Perkins 711. Coo. 1 par Inst f. 218. b. man seised of Land doth lease the same Land for Life yielding unto him a Rose for the first six years and if he will hold the Land over the six years that he shall pay 3 Marks by the year in this case the Lessee hath the Free-hold presently If a Lease for Life or Years be 4 H. 7.4.8 E. 4. 13. P. 2 E. 4. 3. â— Perkins 725 723 Vide Herne's Law of Conv. p. 115. made upon Condition that if the Lessee kill I. S. within the term that then he shall have and hold the Land leased unto himself and his Heirs for ever now if he kill I. S. within the term yet his Estate is not inlarged thereby because the Condition is against Law the Estate doth begin to be inlarged upon the performance of the Condition yet the Lease is good because the same doth not begin by the Condition If a Lease be made for Years Perkins 729 730. upon Condition that if the Lessor do aliene the Reversion within the term then the Lessee shall have Fee and the Lessor doth aliene the Reversion in Fee by Fine to a Stranger now in this case the Lessee shall not have Fee for the Free-hold and the Fee are lawfully in the Conusee before the Lessee can take it by Condition but if the Lessor had granted by Deed onely to a Stranger then the Lessee should have had Fee by the Condition and the reason is because the Reversion is not in the Grantee before Attornment If a man have a Lease for Perkins 833. Terms of the Law verb. Priâ—iâ— Vide 21 H. 7.18 a. Co. 1 part of Instit f. 214. b. Years and demise or grant the same upon Condition c. and die his Executors or Administrators shall enter for the Condition broken for they are
of May to begin at Mid-summer and the Feoffees make a Lease the second of May for 30 years to the Lessee to begin at Midsummer also this is no Surrender of the first Lease but it shall enure as a Confirmation for 20 years a new Lease for 10 years If a Parson let a Lease for Vide Co. 1 part Inst f. 300. See Dyer 69. See Parsons Law chap. 4. Philipps Pr. of Law p. 78. Years of his Glebe-land if it be confirmed by Patron and Ordinary it shall binde the Successor otherwise not If Tenant in Tail lease his 32 H. 8. Br. Acceptance 13. Lands for 20 years rendring Rent and die and the Lessee leases to another for 10 years and the Issue accepts the Rent of the second Lessee this is no Affirmance of the Lease for there is no privity between the second Lessee and the Issue contrary if he accepts it of him as Bailiff of the Lessee But if the first Lessee had Bro. ibid. leased over all his Term in parcel of the Land let and his Assignee pays the Rent to the Issue in Tail who accepts it this affirms the intire Lease for Rent upon a Lease for Years is not apportionable If a man make a Lease to one Dr. Stud l. 2. c. 20 f. 93. b. for Life and after confirm the Estate of the Tenant for Life the Remainder over to A B in Fee this is a void Remainder notwithstanding the intent for no Remainder can depend upon an Estate but where the Estate begins at the same time when the Remainder doth and in this case the Confirmation neither inlarged the Lessee's Estate nor gave him a new one But if a Lease be made to Dr. Stud. l 2. c. 20. p. 93. b. one for another man's Life and after the Lessor confirms the Estate to the Lessee for the Lessee's own life the Remainder over this is good for here the Estate is inlarged If a man let Lands for Years Sâ—e Cibill and Hill's Case M. 30 Eliz. n C. B. Leonard's Rep. 110. Vid Noye's Max. p. 70. Howe â—râ—om Hil. 43 El. 〈◊〉 â—ep p. 125 pl. 15. p 114. pl. 6. Herâ—e's Law of Conv. p. 118. See in Walker's Case Co. 3. lib. see Goddard's Case Mich. 34 El. Com. Bâ—â—co Oweâ—'s Rep. f. 10. or Life reserving Rent and do enter into any part thereof and take the profit the whole Rent is thereby extinguished and shall be suspended during his holding thereof If there be two Joint-tenants M. 2 3 â—liâ— Dyer 187. Finch l. â— c. â— p. 13. for Life and one let his part for years rendring Rent and dies the Term shall continue against the Survivor but the Rent is gone If a man have a Lease for Pâ—r Whorwood Hales Br. â—xâ—â—nguishment 54. â—eases 63. Surrender 52. Years as Executor to A and after purchases the Reversion of the Land in Fee the Lease is extinct and yet it shall be Assets in the hand of the Executor It behoveth such persons as Co. 1 part Inst f. 20â— b. 40 Ass 11. Noye's Maximes p. 83. Marche's Rep. p. 147. pl. 218. But note it may be covenanted that the Lessor shall re-enter without Demand if both parties please will re-enter upon their Tenants to make demand of the Rent at the House upon the Land if there be one if the payment be not appointed elsewhere by the Agreement of the parties where the Lessor himself or his sufficient Attorney a little before Sun-set in the presence of 2 or 3 sufficient Witnesses shall say Here I demand of R. A. 10 pound due to me at the Feast of St. Martin the Bishop last past for a Messuage Barn c. which he holds of me in Lease by Indenture for 20 years bearing Date c. and so remain there upon the Land the last day that the Rent is due to be paid until it be dark that he cannot see to tell the money But note this Demand must 49 Ass 5. 15 â—l Dyer f. â—29 Perkins 838. be made at the Fore-door of the House and not at the Back-door Co. 1 part Inst f. 201. b. 153. a. b. Herne's Law of Conv. p. 28. for if it be it is not good because the Demand must be at the most notorious place and it is not material whether any person be there or no and if the Lessee be in the house and the door open yet the Lessor need go no farther then the Fore-door If there be no House the Dyer 329. 15 El. Perkins 838. Co. 1 part Inst f. 202. a. 49 Ass 5. See a pretty Case in Poph. Rep. 58. upon a Lease of two Barns the â—essor demanded at the one the Lessee did tender at the other and it was held to be a good Tender to save a Re-entry Demand must be made at the most notorious place of the Land as at some High-way leading through the same for if it be either at the back-door of the House or some obscure place in the ground it is void and the Lessor shall not take advantage by such Demand for Re-entry or breach of any other Condition If the Rent be reserved to be paied at any place from the See Kidwell's Case Pl. Com. f. 70. Boroughs's case 38 El. in B. R. Coo. 4. l. f. 73. Co. 1 part instit f. 202. a. Land yet it is in Law a Rent and the Lessor must demand it at the place appointed by the parties observing the Rules aforesaid of the most notorious place But if the Lessee come to the Co. 1 part Inst f. cod Perkins 837. Herne's Law of Conv. p. 29. Lessor at any place upon the ground at the day of payment and tender his Rent to the Lessor this is good enough and shall save the Condition and the Lessor is bound to receive it although it were not at the most notorious place nor last instant of the day for he may tender it at any time of the day though the last instant be the legal time of payment But this Tender must be of Tr. 23 Car. in B. R. Regest Pract. p. 327. the whole Rent without deduction of Taxes or Assessments or other Charges Co. 1 part Inst f. 202. a. 20 H. 6.30 See Pl. Com. â—ill and Grange's case f. 167.172 and Cranly and Kingswell's Ca. Pasc 15 Jac rot 710. Hobart's Rep. f. 207. Hern's Law of Conv. p. 25 26 29. 6 H. 7.3 Where one leases Land to another for Years rendring Rent of the Land at the Feasts of St. Ellenmas and Martinmas or within 15 daies and for default of payment to re-enter in this case it is satisfactory and lawful for the Tenant to tender it the last hour of the last day if the mony may be told in that time and so it sufficeth for the Lessor to demand it the same hour If a man grant a Rent-charge Vide Trin. 36 Fl. Thyn
be ripe the Wife dies But if a Woman who holds Lands durante viduitate suâ V. Oland's Case 44 El. in B. R. Co. 5. l. f. 116. Co. on Lit. f. 55. b. Vid. Goldsb Re. p. 189. pl. 136. Hern's Law of Conv. p. 239. sow the ground and then take Husband here the Lessor shall have the Corn and so if Tenant at Will sow the Land and then will occupy the Land no longer he shall lose the Corn and the reason of this is because that the determination of their Estates grew by their own Act. A Lease made by the Husband Noye's Maximes p. 70. Vid. Stat. 32 H. 8. ch 28. alone of the Wives Land is void after his death but if the Lessee have sown the Land he shall have the Corn. If there be Land-lord and Tenant and the Land is recovered Tr. 37 H. 6.35 Perkins 515. Cowel's Inst p. 142. by a Title paramount against the Land-lord in this case if the Tenant have sown the Land he that recovered shall have the Corn if it be not severed before Judgment Note that to every Tenant Brac. l. 4. f 222 231 232. Fleta l. 4. c. 19 25 26 27. F. N B. 180. 21 H. 6.46 10 F. 4.3 Vide â—uâ—terel's case 43 Fl in B. R. Co. 4. l. f. 86 87. Terms of the Law verb. Haybote verb. Fâ—â—â—bote and Housebote Philiâ—s Pr. of Law p. 65. for Life or Years the Law as incident to his Estate giveth him without provision of the party three kind of Estovers that is Housebote which is twofold viz. Estoverium aedificandi ardendi that is for repairing the Houses and burning then Ploughbote that is to say Estoverium arandi that is for mending his Ploughs Harrows Wains and making Rakes and Forks for getting his Hay and lastly Haybote and that is Estoverium claudendi and this is for repairing and mending his Stack-bars Gates Stiles and Hedges but these Estovers must be reasonable Bote in the Saxon tongue and Estovers in the French tongue in this case are all of one signification that is to have Compensation or satisfaction for these purposes These Estovers the Lessee Co. on Lit. f. 41. b. may take without the Assignment of the Lessor unless the Lessee be restrained by special Covenant for Modus conventio vincunt legem Estovers granted to be burnt Finch l. 1. c 3. p. 15. 12 El. 381. 5 H. 7.1.7 gr 58. P. 26 H. 8.4 Perkins 104. Kitchin f. 51. a. in such an House shall go to him that hath the House by whatsoever Title for one is inseparably incident to the other If Tenant for Life or Years cut down Trees or pull down Vide Co. 4. l. 31 El. in B. R. in Harlackenden's case there Co. 11. l. in Lewis Bowles's case 13 Jac. Houses or suffer them to fall the Lessor shall have the Trees and Timber of the said Houses for the Lessee had them onely as things annexed to the Land and he shall not have a greater Interest in them by this tortious Severance If Timber-Trees be blown down by the wind the Lessor Vide Co. ubi suprà 16 El Dyer 332. F. N. B. 59 M. 20 E. 3. Wast 32. shall have them for they are parcel of the Inheritance and not the Tenant for Life or Years unless it be to build withall where Houses are in decay but if they be Dotards without any Timber in them then the Tenant shall have such when they are blown down Lessee for Years or for Life Co. ubi suprá Noye's Max. p. 68. Tenant in Dower or by the Courtesie have onely a special Interest or property in the Trees as a thing annexed to the Land so long as they are annexed thereunto but if they or any other sever the Trees from the Land then their Interest is determined and the Lessor may take the Trees as things that are parcel of his Inheritance the Interest of the Lessee being determined CHAP. VI. Of Distresses Of what things a Distress may be taken and how it must be used c. THE word Distress is a Co. on Lit. f. 96. a. French word and in Latine it is called Districtio sive Angustia because the Cattel distrained are put into a Streight which we call a Pound A Distress must be of a thing 14 H. 8. 25.2 F. 2. Tit. Distress 6 R. 2. Rescous 11. Co. ibid. f. 47. a. Dr. Stud. l. 1. c. 5. whereof a valuable property is in some body and therefore Dogs Bucks Does Conies and the like that are ferae naturae cannot be distrained nor an Horse when a man or woman is riding on him nor an Ax in a man's hand cutting of wood for they are for that time privileged Neither can things which are 22 E. 4.36.7 H. 7. 1. b. 22 E. 4.49 b. for the maintenance and benefit Co. ibid. Noye's Max. p. 43. Comp. Attorney p. 124. Terms of the Law verb. Distress of Trades be distrained for Rent as an Horse in a Smith's Shop nor an Horse in an Inne for the Rent thereof nor the Materials in a Weaver's Shop for making of Cloth nor Cloth or Garments in a Tailor's Shop nor Sacks of Corn or Meal in a Mill for the Rent of the Mill nor any thing that the Lessee hath distrained for dammage feasant for it is in the Custody of the Law A distress may not be taken Co. on Lit. f. 47. a. 51 H. 3. Stat. de Districtione Scaccar Bra. l. 4. f. 217. F. N. B. 90. a. Fleta l. 2. c. 21. 14 H. 8. f. 29. Finch l. 2. c. 6. p. 135. of Oxen of the Plough nor a Mil-stone though it be raised up to be picked so long as it lies upon the other Stone nor Sheep if there be a sufficient Distress besides neither may a man sever Horses joyned together or to a Cart. Nothing shall be distrained Co. ibid. 18 E. 3.4 a. 11 H. 7.14 a. 21 H. 7. 39. b. Terms of the Law verb. Distress of which the Sheriff cannot make a Replevin or that cannot be restored again in as good a plight as it was at the time of the Distress taken Victuals nor Sheafs or Co. ibid. 21 E. 4. 50. b. 2 H. 4.15 Finch l. 2. c. 6. p. 135. Shocks of Corn cannot be distrained but Chariots or Carts with Corn may either for Rent or for Dammage feasant No man may be distrained Co. ibid. by the Utensils or Instruments of his Trade as the Ax of a Carpenter or the Books of a Scholar Neither can Furnaces Caldrons Idem f. 47. b. 20 H. 7. f. 13. 3 E. 3. 21 H. 7.26 Ass 49. 9. Finch ubi suprá Compleat Att. p. 124. or the like fixed to the Free-hold nor Fat 's fixed for a Dier's pan although the Lessee may remove them during the term nor the Windows or Doors of the House whilest they are on the Hinges c. be distrained But
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