the Lessee before the ten years expired but after the expiration of the ten years if the Lessee doth continue the possession of the same Land and doth occupy the same by vertue of the Indenture then he hath Fee and shall pay the twenty pound as a Rent â—eck But if a man seized in Lands doth Co. 1. par Inst f. 218. b. â—et the same Land by Lease for term of life yeelding to him a Rose for the first six years and if he will â—old the Land over the six years then â—hen to pay three marks per annmm Here the free-hold is immediately in â—e Lessee A man makes a Lease for years Perkins 729 730. â—ith this condition that if the Lessor â—o aliene the Reversion within the 〈◊〉 granted by the Lease then the â—essee shall have the Fee and the â—essor doth aliene the Reversion in 〈◊〉 by fine to a stranger In this 〈◊〉 the Lessee shall not have the Fee 〈◊〉 the Free-hold and the Fee are â—â—wfully in the Conuzee before the â—â—ssee can take it by condition but the Lessor had granted the Lands a stranger by Deed only then the â—â—ssee should have had Fee by the â—â—ndition If a man have a Lease for years and Perkins 833. demise or grant the same upon condition and dye his Executors or Administrators shall enter for the condition broken for they are privy in right and represent the person of the dead If a man make a Lease for years Lit. lib 3. C. 8. upon a condition that the Rent shall be paid at Christmas and before that time come the Lessor give a general Release to the Lessee of all Actions and Demands this Release doth not acquit the Lessee of the Rent but the Lessor may sue for it because it was neither due nor to be paid at the time of the Releasâ— made and it is a thing not meerly iâ— Action because it may be granteâ— over If a Landlord lets a Lease foâ— Dyer f. 67. years to two Tenants to hold Joynâ—ly with a condition that if the Leâ—sees dye before the end of the terâ— the Lease shall be void Now the Lessees makes division and one them aliens his part and dyes this case the Lessor cannot enter uâ— on the part of him that dyed bâ— the Alienee shall enjoy his half 〈◊〉 during the life of the Surviving Lessee A Lease made for years upon condition that if the Lessee demise the premises or any part thereof other than for a year to any person or persons then the Lessor and his Heirs to re-enter the Lessee afterwards devises this Lease to his Son by his Will this is a breach of the condition If a man of his meer motion give Dr. St. lib. 3. cap. 20. fol. 93. Lands to H. H. and to his Heirs by indenture upon condition that he shall yearly at a certain day pay unto John at Style out of the same Land â— certain Rent and if he do not pay â—he Rent that then it shall be lawful â—o John at Style to enter and if the Rent in this case be not paid to John at Style the said I. S. may not enâ—er into the Lands by the Law though the words of the Indenture 〈◊〉 that he shall enter for there is an â—ncient Maxim in the Law that no man shall take advantage in a condition but he that is party or privy to the condition and this man is not â—arty nor privy and therefore he â—hall take no advantage of it In many cases the intent of the Dr. S. 20. C. f. 93. party is void to all intents if it be not grounded according to the Law As if a man make a Lease to another for term of life and after oâ— his meer motion he confirmeth hiâ— Estate for term of life to remain after his death to another and to hiâ— Heirs In this case that remainder is void in Law for by the Laâ— there can no Remainder depenâ— upon any Estate but that thâ— same Estate beginneth at the samâ— time that the remainder doth anâ— in this case the Estate began beforâ— and the confirmation enlarged nâ—â— his Estate nor gave him any new Estate But if a Lease be made to man for the term of another maâ— life and after the Lessor only of 〈◊〉 meer motion confirmeth the 〈◊〉 to the Lessee for term of his 〈◊〉 life the Remainder over in Feâ— this is a good Remainder over Fee No grant can be made but Dr. St. lib. 2 C. â—â— p. 94. him that is party to the Deed exceâ—â— it be by way of remainder Aâ—â— therefore if a man make a Lease for 〈◊〉 of life and afterwards the â—â—ssor grant to a stranger that the â—enant for term of life shall have â—e Land to him and Heirs that 〈◊〉 is void if it be made only 〈◊〉 his meer motion without recomâ—â—nce Likewise if a man make a Lease for Ibid. 〈◊〉 of life and after grant the Reâ—â—rsion to one for term of life the â—emainder over in Fee and the Teâ—â—nt Attorneth to him that hath the state for term of life only intendâ—â—g that he only should have advanâ—â—ge of the grant his intent is 〈◊〉 and both shall take advantage â—â—ereof and the Attornment shall 〈◊〉 taken good according to the 〈◊〉 If a Tenant for the term of anoâ—â—er Co. â— par Inst fol. 41. mans life dye living the other 〈◊〉 he that doth first enter upon the state after his death shall be Teâ—â—nt for the other mans life and shall 〈◊〉 liable to the payment of the Rent â—â—served If a Tenant hath a Lease for twenty Perkins 693. 〈◊〉 of Lands and Tenements and 〈◊〉 the same Lands for part of his term to a stranger reserving 〈◊〉 himself forty shillings Rent In thâ— case he may distreyn for the Rent râ—served or have an Action of Deâ—â— at his pleasure because by commoâ— Intendment he is to have the saâ—â— Land after the years determined because he hath granted but parcel 〈◊〉 the years so that the Remainder râ—mains in him If Rent be granted to a man 〈◊〉 Idem 108. may grant it away to another befoâ—â— he be seized thereof If a man and his wife be ejected Co. 1. par Iust fol. 46 a term in the right of his wise aâ—â— the husband bring an Ejectione 〈◊〉 in his own name and do recover 〈◊〉 dye In this case his Executors 〈◊〉 have it and not the wife because 〈◊〉 Recovery in his own name did 〈◊〉 the term in himself If a man be possest of a term Cook ibid. forty years in right of his wife 〈◊〉 make a Lease for twenty years reseâ—ving Rent and dye here the Exâ—cutors of the husband shall have 〈◊〉 Rent for that term but the wiâ—â— shall have the remainder of the terâ— when the twenty years is out but he had granted the whole ter◠〈◊〉 could have had nothing â— release made to a tenant for term Id. 1.
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
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-Tail or for term of life these are said to be tenants in Common because they ought by the Law to hold enjoy and occupy such Lands and Tenements in common and undivided and to take the profits in common and do come to the same Lands and Tenements by several titles and not by one joynt title If a man enfeoff two Joynt-tenants in Fee and one of them Aliens his part to another in Fee this Alienee and the other Joynt-tenant be Tenants in common because they now stand seized by several titles the one Joynt-tenant by vertue of the first Feoffment made to him and the other Joynt-tenant and the Alien be comes seized in his moyety by vertue of the Feoffment of the other Joynt-tenant so that the several Feoffments make their titles several whereby they become Tenants in common If there be three Joynt-tenants and one of them aliens his part to another person in Fee here the Alience is Tenant in Common with the other two Joynt-tenants and of the other two parts the two Joynt-tenants be seized joyntly and the Survivour of them shall have the whole of those two parts by vertue of Survivourship If there be two Joynt-tenants in Fee and one of them gives his part to another in tail here the Donce and the other Joynt-tenant become tenants in Common Also if Lands be given to two men and to the Heirs of their two bodies in this case these Doneeâ— have a Joynt-Estate during their lives and if both of them havâ— issue and dye both their issue shall hold the Land as Tenants in Common If Lands be given to two men and their Heirs to hold to eacâ— a moyety these are Tenants in Common If a man being seized in certain Lands doth enfe off another in thâ— half of it without limiting of the samâ— half in severalty at the time of the Feoffment made that is do not distinguish that half from the other by particular bounds and limits In thiâ— case the Feoffer and the Feoffee shalâ— hold their parts of those Lands in Common And as it is amongst Tenants in Difference between Tenants for Life and in Common Common in Lands or Tnements in Fee-Simple or Fee-Tail in the same nature it is also between tenants for term of life as if there be two Joynt-tenants seiz'd in Fee and one of them lets to a man his part for term of his life and the other Joynt-tenant lets to another man his part for term of life these two Lessees be tenants in Common for the term of their lives Likewise if a man lets Lands unto two persons for the term of their 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
Satisfactory against the â—â—eir Hare and Savills case M. Jac in com B. Brownl Râ—p 2. part 273. If a Tenant for years be to pay his Noâ—s Max. p. 80. 〈◊〉 at Michaelmas and to perform 〈◊〉 Covenants and if he be bound any Obligation to pay his Rent â—â—ecisely at the day he must in this 〈◊〉 seek out his Landlord to pay 〈◊〉 but if his Obligation be only perform the Covenants in the 〈◊〉 he may then tender his Rent 〈◊〉 the Land if no other place be 〈◊〉 agreement appointed for the payâ—ent thereof and it is sufficient for 〈◊〉 payment is of the nature of the Rent on a Lease for years he shall never 〈◊〉 void it for it was but voidable 〈◊〉 and his acceptance hath now coâ—firmed it If a man have Lands in the 〈◊〉 Acceptance of his Wife and he and his 〈◊〉 let these Lands for years reserviâ—â— a Rent and afterwards the 〈◊〉 band dyes and she before any dayâ—â— payment takes another Husbaâ—â— who accepts the Rent and dyes 〈◊〉 this acceptance the Lease is affâ—med In like manner if a man and 〈◊〉 Wife let the Lands of his Wife 〈◊〉 years rendring Rent and the Huâ—band dyes if the Wife accept 〈◊〉 Rent it is a good Lease Terms of 〈◊〉 Law Acceptance But if a Tenant for life Lease lanâ— for years and dyes the Lease is voiâ— and the Rent which is reserved upâ—â— the Lease is determined And 〈◊〉 though he in remainder do accept 〈◊〉 Rent yet his acceptanre will not 〈◊〉 it good for when it is once void 〈◊〉 death no acceptance after will 〈◊〉 it good So likewise if a Tenant in Dowâ— lease for years and dye the Leasâ— void and acceptance of the Rent by 〈◊〉 Heir will not make it good 〈◊〉 A Lease for years may be confirâ—â—d Noys Max. p. 78. for a time or upon condition or 〈◊〉 a piece of the land but if it be a â—ank-Tenement it shall enure to 〈◊〉 whole absolutely Observe this difference between Lease for life and a Lease for 〈◊〉 in case of a Lease for life â—â—ough the conclusion of the condiâ—â—n be that it shall be void yet acâ—tance of the Rent due after the 〈◊〉 doth affirm it and make it 〈◊〉 again Pennants case 38. Eliz. 3. l. If a Parson let a Lease for years Cook Inst f. 300. â—his Glebe-land if it be conâ—â—ed by Patron and Ordinary shall bind the Successor or else 〈◊〉 If a Lease be made to a man for Dr. St. 2. l 20. chap. f. 93. term of another mans life and â—â—rwards the Lessor only of his 〈◊〉 Motion confirmeth the Land â—â—is Lessee for term of his own 〈◊〉 the Remainder over in Fee 〈◊〉 is a good Remainder in the If a man let Lands for life oâ— Hern. l. Conv. p. 118. years reserving Rent and do entâ—â— into any part thereof and take iâ— profit the whole Rent is therebâ— extinguished and shall be suspend during his holding thereof Leonar Rep. 110. Goddards case 〈◊〉 34. Eliz. com Banc. Owens Rep. 〈◊〉 10. If the Tenant come to the Larâ—â—lord Co. 1. par Inst f. 202. at any place upon the ground the day of payment and tender Rent to the Landlord it is good nough and shall save the conditioâ— and the Landlord is bound to ceive it although it were not at 〈◊〉 most notorious place nor last instâ—â—â— of the day for he may tender Rent at any time of the day althou the last instant be the legal time payment But observe by the way tha tender of Rent must be of the whâ— Rent without deduction of Taxes Assessments or any other chargâ— for stoppage is no payment in Law Tr. 23. Car. in B. R. Reg Co. 1. par Inst f. 202. pract p. 327. If a man let Land by Lease years to another reserving the 〈◊〉 the Land to be paid at Michaelâ—â—s and our Lady-day or within â—een dayes after and for default of â—â—yment to re-enter In this case it sufficient and lawful for the Tent to tender his Rent the last day if the money 〈◊〉 be told in that time before it dark and so it is sufficient for Landlord to demand it the same â—ur If a Lease be made with this 〈◊〉 1. Par. Inst p. 211. That in case of non-payment Landlord to re-enter here if Landlord distreyn he may not enter but he may accept of the â—nt and yet re-enter but if he do 〈◊〉 the next Rent again then he not re-enter for that establisheth Lease Entry into an acre of land he name of the whole is a good 〈◊〉 if the Land do all lye in one 〈◊〉 â—n a Lease for years if the Lessee enant that if he or his Executors Assigns do alien that then the 〈◊〉 shall re-enter and afterwards makes his Wife Executrix and 〈◊〉 and the Widdow marries 〈◊〉 and her second Husband aliens In this case the Lessor may re-enter because the second husband is Assignee in the Law If a man make a Lease for term oâ— Dr. St. l. 1. c. 20. f. 35. years yeelding to him and to hâ—â— Heirs a certain Rent upon condition that if the Rent be behind anâ— unpaid by the space of forty dayâ—â— after any of the dayes of payment that then it shall be lawful to thâ— Lessor and his Heirs to re-enter And after the Rent is behind fortâ— dayes and is demanded by the Lessor and is not paid the Lessor dyetâ— and his Heir enters In this case hâ—â— entry is lawful but if the Lessor haâ— dyed after the Feast-day and beforâ— the fortieth day so that he had noâ— demanded the Rent and his Heiâ— had demanded the Rent at the fortieth day and for non-payment he re-enters in this case his re-entry 〈◊〉 not lawful If a Lease be made to H. for onâ— Dyer 254. and forty years if he live so long anâ— if he dye within the aforesaid terâ— that then the Wife of the aforesai H. shall have it for the residue oâ— the said years this limitation is voiâ— for if H. dye the term ends and hâ— Wife shall have nothing in it If a man let all his Meadow in D. Dâ—er s 80. containing ten Acres if there be â—wenty Acres of it all passes in this case If a man make a Lease for years 1. part Inst s 48. and afterwards make a Deed of Feoffment and delivers Seizin If the Lessee be upon part of the premises and neither know nor assent to it yet the Livery is void for though the Lessor hath the Freehold and Inheritance in him yet the possession is in the Lessee and Livery must be given of the possession but if the Lessee be absent and hath neither Wife Children nor Servants though he have Cattel upon the ground the Livery shall be good If a Lease be made to hold from Daâ—es the day of the making or from the day of the date or from the date the Lease shall begin the day after
to distreyn for Co. 1. par Inst f. 161. Rent and see the Cattel and the Lessee or his Servants drive them out of his Fee he cannot have a Writ of Rescous because the Cattel were not in his possession but he may follow after them and distreyn them in another mans ground it being for Rent but not for damage feasant for they must be taken damage feasant that is doing damages If a man distreyn goods and declare Claytons Rep. p. 64. pl. 111. not the cause or reason wherefore he doth it if they be put in â— House the owner may break the House and take them out Or if a man distreyn goods without cause the owner may rescuâ— them but if they be pounded bâ— cannot break the pound and takâ— them out because they are then iâ— the custody of the Law But if he find the pound-door unlockt he may take them out Although there be a general prohibition in the Laws of England thaâ— it shall not be lawful for any man to enter upon the Free-hold or Possession of another without permission and Authority of the owner or of the Law yet this is not without exception For if a man drive Beasts along Dr. St. l. 1. c. 16. the High-way and the Beasts run into any Mans Corn or Grasse and he that driveth them goeth after them into the Grounds to fetch them out he may justifie that entry into the Grounds to fetch them out If a man make a Feoffment and Dr. S. l. 2. c. â— that in Fee by Indenture reserving a Rent he cannot distreyn for that Rent unless a distress be expresly reserved And if the Feoffment be made without an Indenture reserving Rent that reservation is void in the Law And the like Law is where a gift in Tail or a Lease for term of life is made the remainder over in Fee reserving a Rent that reservation is void in the Law Also if a man seized of Land for Ibid. term of life granteth away his whole Estate reserving a Rent that reservation is void in the Law without it be by Indenture and if it be by Indenture he shall not distreyn for the Rent without a clause of distress be reserved Also for Amerciaments in a Leet Ibid. the Lord may distreyn although it be in the High-way but for Amerciaments in a Court-Baron he cannoâ— distreyn neither can he distreyn foâ— an Amerciament in the Leet in place seized into the Kings hands foâ— the Kings Debt Also if a man make a Lease at Michaelmas Ibid. for a year reserving a Reâ—â— payable at the Feasts of the Annunciation of our Lady and St Michaâ—â— the Arch-Angel in this case he maâ— distreyn for the Rent due at our Lady-day but not for the Rent due a Michaelmas because the time is expired But if a man make a Lease at thâ— Feast of Christmas for to endure to the Feast of Christmas next following viz. for a year reserving a Renâ— at the aforesaid Feasts of our Lady-day and Michaelmas In this case he shall distreyn for both the Rents as long as the term continues that is to say till the aforesaid Feast of Christmas And if a man have Lands for Dr. St. ibid. term of life of J. N. and makes a Lease for terms of years reserving a Rent the Rent is behind and J. N. dyeth there he shall not distreyn because his reversion is determined And if a Town or Parish be Amerced and the Neighbours by Assent Assesse a certain Sum upon every Inhabitant And agree that if it be not paid by such a day that certain persons thereunto assign'd shall distreyn in this case the distress is lawful If there be Lord and Tenant and Ibid. if the Tenant do hold of the Lord by Fealty and Rent and the Lord doth grant away the Fealty and reserve the Rent and the Tenant Attorneth In this case he that was Lord may not distreyn for the Rent for it is become a Rent-Seck But if a man make a Gift in Tail to another reserving Fealty and certain Rent and after that he granteth away the Fealty reserving the Rent and the Reversion to himself in this case he shall distreyn for the Rent for the grant of the Fealty is void for the Fealty cannot be severed from the reversion Also for Heriot-service the Lord Dr. St. ibid. f. 75. may distreyn but for Heriot-custome he cannot distreyn but may Seize Also if a Rent be assigned to make a partition or assignment of Dower Egal he or she to whom that Rent is assigned may distreyn And in all these cases aforesaid where a man may distreyn he may not distreyn in the night but for damage feasant that is where he finds Beasts doing hurt in his ground he may distreyn them night or day when he finds them but for Waste Reparations Accompts or for Debts upon Contracts or such like no man can lawfully distreyn CHAP. V. Of Rescous in what cases it may be Lawful of Replevins how they are to be sued out and of Avowries to Declarations upon Replevins THe word or term Rescous is Cook 1. par Inst 160. derived from an old Norman verb Rescourrer which is in the Latine recuperare that is to take from to get again or recover So that Rescue is as much as to say to recover or get again what another hath taken away And in the sense of the Law Rescous is a taking away and setting again at Liberty goods distreyned or the body of a Person Arrested and in an Officers custody by vertue of legal process Such kinds of Rescous as appertain unto our present subject are of distresses taken in what cases it may be justifiable to Rescue Goods or Cattel distreyned and whe 〈…〉 not If a Landlord distreyn when the 〈…〉 Co. l. 4. f. 11. is no Rent due the Tenant may ma 〈…〉 a Rescue and hinder that distress In like manner if a Landlord com 〈…〉 1. Par. inst f. 160. to distreyn and the Tenant tend 〈…〉 his Rent unto him and the Lor 〈…〉 will distreyn notwithstanding i 〈…〉 this case the Tenant may make Rescous If Rent be in Arrear and the Lorâ— Cook ibid Magna Charta f. 25. distreyn the Tenants Cattel in thâ— High-way wtthin his Fee here alsâ— the Tenant may Rescue them for nâ— man man distreyn in the High-way but the King and his Officers by special Authority In like manner if a Landlord distreyn Ibid. f. 122. Averia caracae goods of thâ— Plough where there is a sufficient distress to be taken besides or if the Lord distreyn any thing Bastal â—it distress 10. that is not distreynable by common Law or Statute in this case it iâ— lawful for the Tenant to make Rescue But if a Lord come to distreyn Hâ—ghs grâ—abr abr 1. paâ—t p. 117. C 21 Cattel which he seeth within his Fee and the Tenant or any others to prevent
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
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
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-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
demises yet their Leâ—ses shall be good against them 〈◊〉 their lives If a Lessee for years grant a Renâ— Cook 8. Jac. 144. charge and after surrender yet 〈◊〉 the benefit of the Grantee the 〈◊〉 hath continuance although in 〈◊〉 veritate it is determined and 〈◊〉 Grantor himself shall not derogaâ—â— from his own grant to make it 〈◊〉 at his pleasure Tenant for years of an Advowsâ— granteth the next Avoidance 〈◊〉 Donation if the same Church shouâ—â— become void during the term â— And afterwards surrenders his terâ— yet if the next Avoidance be wiâ—â— in the term the grant is good 〈◊〉 the years cannot determine but 〈◊〉 effluxion of time and the Law iâ—plies a limitation if the Church 〈◊〉 become void during the term 〈◊〉 expressio eorum quae lacite ni sunt nihil 〈◊〉 A Lessee covenanteth for himself Idem 25 Eliz. Fol. 16. 〈◊〉 Executors and Administrators â—ith the Lessor That he his Execuâ—â—rs or Assigns shall build a Brickall upon part of the demised preâ—ises And afterwards the Lessee â—akes an assignment of his Lease to â— D. for his term in this Case 〈◊〉 Assignee is not bound to build the â—all When a Covenant extends to a 〈◊〉 in being parcel of the demise â—hen the thing to be done by force of 〈◊〉 Covenant is annexed and appurâ—â—nant to the thing demised And â—â—all bind the Assignee although by â—â—press words in the Covenant he be â—ot bound But if the Covenant extends to a 〈◊〉 which had no being at the time 〈◊〉 the demise made that cannot be â—nnexed or appurtenant to a thing â—hich had no being If a Lessee Covenant to repair the â—ouses demised to him during his â—ease This is part of the Contract 〈◊〉 shall bind the Assignee although 〈◊〉 the Covenant he be not expresly â—ound But where the Covenant concerâ— a thing not it being at the time the demise 〈◊〉 to be made afreâ— this shall bind the Covenantor 〈◊〉 Executors aâ—d Administrators 〈◊〉 not the Assignee If a Lessee Covenant for him 〈◊〉 his Assigns to build a House upâ—â— the Land of the Lessor which is 〈◊〉 parcel of the demise or to pay 〈◊〉 collateral sum of Money to 〈◊〉 Lessor or to a Stranger this shall 〈◊〉 bind the Assignee If a man demise Lands for yearâ— with a stock of Cattel or sum of Mâ—ney rendring Rent And the Lessâ— Covenants for him his Executorâ—â— Administrators and Assigns to dâ—liver the stock of Cattel or the 〈◊〉 of Money at the end of the terâ— This Covenant shall not charge 〈◊〉 Assignee If an Assignee of a Lessee be â—â—â—victed he may have a writ of Covâ—nant so shall a Tenant by Statuâ— or by Elegit or he to whom Lease is sold by vertue of an Execâ—tion If a man grant to a Lessee for terâ— of years that he shall have so maâ—â— Estovers as shall serve to repair his â—ouse or that he shall burn in his â—ouse or the like during the term â—hat is appurtenant to the Land and â—â—all run with the same as a thing apâ—urtenant in whose Hands soever 〈◊〉 same cometh The Statute extendeth only to Coâ—â—nants 32 H. 8. C. 24. which touch the thing deâ—ised and not to collateral Coveâ—ants An Assignee of an Assignee Exeâ—â—tors of an Assignee Assignes of â—xecutors or Administrators of eâ—ery Assignee may have an Action 〈◊〉 Covenant for all are comprised Cooke lib. 5. â—â—thin this word Assignees and 〈◊〉 same Right that was in the Testaâ—â—r or Intestate descends to the Exâ—â—utors or Administrators A Lease is made for life the reâ—ainder Crompton 49 6 over for life the remainder 〈◊〉 in Fee the first Lessee maketh â—aste And because he in the Fee 〈◊〉 no remedy by the Commonâ—â—w and Waste is a wrong proâ—â—bited he shall have releife in Chanâ—â—ry A Woman sole takes consideraâ—â—on 4 Eliz. for making a Lease for one and twenty years and then Marries and she and her Husband made the promised Lease at the one and twentâ— years end The Lessee surrenders and takes a new Lease for one anâ— twenty years more the Husbanâ— dyes the Wife oustes the Lessee who sues in Chancery to have thâ— first Lease continued rest for thâ— first one and twenty years and coulâ— not have remedy because the surrender was voluntary and the Couâ—â— gives no relief against a voluntarâ— Act. A Lease is made of House aâ—â— Woods wherein it is Covenanted That the Lessee shall have Housâ— boote and fireboote by this it â—â— implied and meant that he shall noâ— have any of the Woods to use oâ— convert to any other purpose 〈◊〉 that the doe belonging to the Lessor And the Lessor shall have help iâ— Chancery leaving to the Lesse sufficient for House-boote and Fire boote If a man demise any Lands or Tenements Lit. Ten. l. 1. to another by Lease parol the Lessor ought to be seized of thâ— Lands or Tenements which he so le ts at the time of the Lease parol made or else he cannot maintain an Action for his Rent for the Lessee may plead that the Lessor had nothing in the premises at the time of the Lease made and then he is barred of his Action but if the Lease be made by Deed Indented then the Lessee cannot plead this plea thereunto If a man lets Land to another by Cook 1. par Inst 55. Lease to hold the same at the will of the Lessee the Law intends it to be at the will of the Lessor also and he may put the Lessee out when he pleases likewise if it be let at the will of the Lessor it is intended at the Lessees will also for the Lessor cannot force him to stay longer then he pleases A Covenant made between Landlord Covenants and Tenant that the Tenant shall have a new Lease upon the surrender up of his old Lease And afterwards Noys Maxims p. 13. the Lessor makes a Lease by Fine for more years to a third person in this case the Lessor hath broke his Covenant although the Lessee did not surrender which by the words of the Covenant ought to have Covenants in his Lease for such breach the Landlord may bring hiâ— Action of Covenant before the enâ— of the term A man takes a Lease for years and Hughs Grand Abridgments 1. par P. 492. C. 19. covenants and grants to and with thâ— Lessor for him and his Executors to repair the Houses as often as neeâ— requires and afterwards the Lesse assigns over his Lease to another and the Assignee suffers the House to decay for want of repairs in thâ—â— case the Lessor may bring an Actioâ— of Covenant against the Assignee aâ—though he be not named in the Covenant A Landlord lets a Lease and covâ—nants Co. 1. par Inst sol 41. with his Tenant that he shâ—â—â— have sufficient hedge-boote to assigned him by the Landlord or 〈◊〉 Bailiffe In this case the Tenant 〈◊〉 not take hedg-boote without assignment If a man by Indenture take
nor Sheafes Cook ibid. 〈◊〉 Shocks of Corn cannot be diâ—â—reyned But Carts or Waggons â—aded with Corn may be distreyâ—ed either for Rent or damage feaâ—â—nts No mans Tools wherewith he Cook ibid. â—orks at his Trade shall be distreyâ—ed as the Carpenters Axe or a â—â—collars Books c. Neither can any thing which is fixâ—â— to the Free-hold be distreyned as â—â—rnaces Coppers or Fat 's fixed for â—â—ers or Brewers although the â—â—nant may remove them during 〈◊〉 term nor the Windows or Doors a House while they are upon Hinges But if they be removed off from the Hinges they may be distreyned The 〈◊〉 cannot distreyâ—â—â— Tabâ—â—◠〈◊〉 the Houseâ— of 〈◊〉 Tenant 〈…〉 which cannot be 〈◊〉 in an Assize neither can any thing be distreyned of which the Sheriff cannot makâ— a Replevin or that cannot be râ—stored again in as good a condition as it was when it was distreyned But a man may distreyn the Beaâ—â— of a stranger that come by escapâ— for Rent though they have not beâ—â— Levant and Couchant upon 〈◊〉 ground according to Cook 1. par 〈◊〉 f. 47. The Lord of a Leet may sell distress taken for an Amerciamâ— in his Leet as the King may 〈◊〉 a distress because it is the Kiâ—â— Court If a man distreyn Goods or 〈◊〉 Dr. St. l 2 C. 27. he may put them where he weither in a pound Covert or Oveâ— but if they take any harm he 〈◊〉 answer for them If they be living Cattel they ouâ— to be put in a common Pound 〈◊〉 in some open place as in his own â—ard or Close that distreyned them 〈◊〉 in some others by his consent so â—â—at the owner may come lawfully to â—eed them And the owner of the Cattel must have notice where they 〈◊〉 if they be not in a common â—ound and then if they dye for 〈◊〉 of meat it is the owners fault 〈◊〉 as it is said before but if they be a Pound covert or out of the â—ounty and dye for want of meat 〈◊〉 he that distreyned them shall â—ake satisfaction for them Cattel taken damage feasant may Kitchin f. 207. 〈◊〉 impounded in the same Pound â—here they are damage feasant but â—oods or Cattel taken for other â—â—ings may not No man ought to drive a distress Co. 1. part inst p. 57. Rastal title distress 11. Wingar abr p. 133. â—ut of the County where it is taken or out of the hundred but to a â—ound Overt within three miles neiâ—â—er may a distress be impounded several places nor above four 〈◊〉 taken for the Fees of impoundâ—â—g one whole distress on pain of five â—ound If a man distreyn Beasts damage Dr. St. l. 1. c. 27. â—â—asant and put them in the Pound Overt within the same County not above three miles out of the hundred and the owner suffers the Beasts to dye for lack of meat the loss is his own and he that distreyned them may be at liberty to bring his Action for the trespass if he will and if it be not a lawful pound then it is at the peril of him that distreyned them and so it is if he drive them óut of the Shire and they dye there If the owner of the Cattel tender Ibid. amends to him that distreyned and he refuse it yet the owner may not take his Cattel out of the pound for he may not be his own Judge and if he do a Writ De parco fracto for breaking the pound lieth against him but he must sue a Replevin to have his Cattel delivered him out of the pound and afterwards plead his tender of amends of which the Jury must end the controversie If the owner of the Cattel procure Ibid. a Replevin to deliver them and he that distreyned them resist it and will not deliver them in this case if they dye after for want of meat it is at the peril of him that distreyned and the owner shall recover damages against him in an Action upon the Statute for not obeying the Kings Writ If a man sends his Servant to take a distress for a Rent or Service who puts it in the pound if the owner of the Beasts or a stranger take them out I shall have an Action De parco fracto for breaking of the pound And if one distreyn Cattel and pound them in another mans Close with his consent and the owner of the Cattel come and take them out in this case he that made the distress shall have his Action for Pound-breach and the owner of the close an Action of trespass for breaking of his Closs There be certain cases where a Co. 1. par Inst f. 204 205. man may distreyn of common right and where not of common right a man may distreyn for Rent-Service Homage Fealty Escuage Suit of Court or for Rent reserved upon a gift in Tail Lease for life years or at Will though there be no clause of distress in the Lease because these distresses are of common right But for Debt Accompt Trespass Dr. St. l. 2. C. 9. or for Reparations or the like a man cannot distreyn neither can any distress be taken for any Services which are not certain nor can be reduced or brought into any certainty And upon an Avowry damages cannot be recovered for that which neither hath certainty nor can be reduced to certainty Nevertheless although it be a Paradox in some cases there may be a certainty in an incertainty As for a man to hold of his Lord to shear all his sheep depasturing within the Lords Mannor and this is certain enough although the Lord hath not always a certain number of sheep but sometimes a greater number and sometimes a lesser yet this incertainty being reduced to the Manner which is certain the Lord may distreyn for And a distress is inseparably incident to every Service that may be reduced to certainty A man may not distreyn for Rent after the Lease is ended nor out of the premises except in some special cases nor in the night unless it be damage feasant But the Executors or Administrators of him who had Lands in Fee or Fee-tail or-for life may either have an Action of Debt against him that should pay it or distreyn for it and so may the Husband after the death of his wife his Executors or Administrators and he which hath Rent for anothers life for the Arrearages after his death A man puts Cattel into my pasture Noys Max p. 33. for a week and afterwards I give him notice that I will keep them no longer and he will not fetch them away I may then distreyn them damage feasant If a man take Cattel damage feasant and as he is driving them to Pound they run into the Yard or House of the man that owes them and he refuses to let them out again he that distreyned them may have a Writ of Rescous against the owner of the Beasts for so doing If a Landlord come