CHAP. I. Of Leases: Who may make them, and for what Term; and Who are called Tenants for Life, Tenants for term of Years, at Will and Sufferance.

LEASE is derived from Bract. lib. 4. fo. 220. Fleta lib. 3. cha. 12. Coo. on Lit. f. 43. b. Leapum or Leasum, for that the Lessee cometh in by Lawful means; and Di­mittere is in French Laisser, to depart with or forgoe.

In every Lease there must be Terms of the Law. verb. Lesser and Lessee. Lessor, and Lessee: he which lets the Land is called the Lessor; and he which farms it is called the Lessee.

A Lease for Years of Lands [Page 2] and Tenements, is good as well without Deed as with Deed; but of a Common or Rent, &c. it is not good without Deed.

If a Lease for Years be made 42 Eliz. in C. B. Butts Case. Co. 7. par. f. 23. reserving Rent, it must be of Lands and Tenements, where­unto the Lessor may have re­sort to distrain; and therefore 30 Ass. p. 5. 12 Ass. 20. 20 E. 4. 10. Co. 1 par. In­stit. f. 47. a. a Rent cannot be reserved by a common person out of any In­corporeal Inheritance, as Ad­vowsons, Commons, Offices, Corrody, Mulcture of a Mill, Tithes, Fairs, Markets, Liber­ties, Franchises, &c. But if the Lease be made by Deed in wri­ting of them, one may have an Action of Debt by way of Contract, but distrain one can­not: but if any Rent be reser­ved in such Cases upon a Lease for Life, it is utterly void. 3 Jac. in C. B. Bp of Bath's Case. Co. 6▪ par. f. 34, 35 40 Eliz. Rector of Chedington's Case. Co. 1 par. f. 155, 156. Bract. l. 2. c. 9. Co. 1 par. Inst. f. 45. b.

Every Lease for years must be for a time certain, and ought to express the Term, and when [Page 3] it should begin, and when it should end. And yet there may be a certainty in an uncer­tainty sometimes; for the Rule is, Id certum est, quod certum reddi potest: therefore look in the 4 Chapter, and you will finde some pretty Cases there about this Rule.

If a man have a Lease of 32 lib. Ass. 6. Lands for 500 years, it is but a Chattel, and falls to his Executors or Administrators after his death, if he do not otherwise dispose of it in his life-time.

Every one seised of an abso­lute Cowell Inst. p. 189. pure Estate in Fee-simple, may make a Lease of his Lands for as long a time as he pleaseth; and so might Bishops, &c. be­fore they were restrained by Statute. See 32 H. 8. c. 28. 13 El. Coo. 1 par. of Inst. f. 44. a. b. Noye's Maximes, p. 69. Bro. Lease 47. 32 H. 8. c. 28. Vide Herne's Law of Conve [...]. p. 66, 67, & 68. cap. 10. 18 Eliz. c. 6.1 Jac. c. 3.

Tenant in Tail, being of full age, by▪ Indenture in writing [Page 4] 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 [Page 5] 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 [Page 6] 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 [Page 7] 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 [Page 8] 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 [Page 9] 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. 1 [...]. Co. 1 par. Inst. [...]. 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 [Page 10] 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. [...]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 [Page 11] 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 may put him out when he pleases. The same Law is if it be at the Will of the Lessor, it is intended at the Lessee's Will also, for the Lessor cannot force him to stay longer then he pleases.

Tenant at sufferance is he Co. 1 par. Inst. f. [...]7. b. Brac. lib. 4. f. 318. 21 H. 6. f. 42. Kitchin, f. 238. a. 4 E. 3. 35. 24 E. 3.24. F. N. B. 201. D. Plow. Com. 138. who comes in by lawful Lease, and keepeth possession after his Lease is out, and wrong­fully holdeth over. Finch lib. 2. cap. 3. As Tenant for Life of I. S. who holdeth over after the death of the said I. S.

[Page 12] The Lessor cannot have an Coo. ubi suprá. Action of Trespass against such Tenant before his Entry into the Premisses.

CHAP. II. Of the Covenants, Conditions, Grants, Proviso's, Reserva­tions, Exceptions, Surren­ders, Assignments, &c. of Leases.

IF the Lessor Covenant to 38 Eliz. Sir An­thony Mayn's Case. Co. 5 par. f. 20. Noy's Ma­ximes, p. 13. Hughes▪ grand Abr. 1 par. p. 487. c. 16. make a new Lease upon Surrender of the old Lease, and afterwards he makes a Lease by Fine for more years to a Stranger, here the Covenant is broken, although the Lessee did not Surrender, the which by the words ought to be the first Act; for that the Lessor did disable himself either to take [Page 13] the Surrender, or make the new Lease.

If a man make a Lease for Noye's Maximes, p. 17. & 50. Dr. & Stud. lib. 1. ca. 24. Years, and the Lessee covenan­teth and granteth to pay to the Lessor, his Heirs and Assigns, yearly during, &c. 10 pound; here if the Lessor die, the Ex­ecutors shall have the Rent ar­rear.

If a man covenant and grant 37 H. 8. Bro. [...]eases 60. Kit. Court-Leet, p. 235. b. to R. A. that he shall have ten Acres of Land in C. for years, this is a good Lease, for Con­cessit is of such force as Di­misit.

If the Lessee covenant for Pasch. 25 Eliz. in B. R. Co. 5 par. f. 16, 17. Spencer's Case. M. 29 Eliz. in B. R. Barker and Fleetwell's Case. Godbolt's Rep. fo. 69, 70. Vide Hern's Law of Conv. p. 107, 108, & 109. him and his Assigns, to build a Brick-wall or an House upon the Lessor's Land, or pay a Col­lateral Summe of money to the Lessor, and after the Lessee as­signeth over his Term; in this case the Assign shall not be bound by this Covenant, be­cause the things were onely [Page 14] Collateral, and were not in esse, nor parcel of the Demise, at the time of the Lease made.

If there be a Covenant in a 38 Eli. Co. [...] par. f. 64. Pennant's Case. Cowell's Inst. p. 193. Dyer f. 51. Lease, that if the Rent be be­hinde for such a time, then the Lease to be void; here no ac­ceptance of the Rent after such failure will make the Lease good.

If a man let a House and Trin. 1649. Rot. 348. in B. R. Compton and Al­len's Case▪ Styles 162. F. N. B. fo. 145. K. Noye's Max. p. 16. 40 E. 3. 5. Finch, p. 64. 38 Eliz. Sir Antho­ny Mayn's Case. Co. 5 par. l▪ 20. Lands for years, and the Les­see covenanteth to uphold the Houses, and to leave the Hou­ses and Lands in as good a plight and estate as he found them; in this case, if the Hou­ses be blown down by Tem­pest or fired by accident, or otherwise destroyed, if the Les­see do not repair and build them again, and leave them as good as he found them, the Lessor may bring an Action of Cove­nant against him at the end of his term: but if he maketh [Page 15] Wast in the cutting of Timber, the Lessor may have an Action of Covenant before the end of the Term for that.

And if the Lessee for years Mich. 44 Eliz. in B. R. Dean and Chapter of Wind­sor's Ca. Co. 5 par. f. 24. Hughes's grand Abr. 1 par. p. 492. c. 19. covenant and grant for him and his Executors with the Lessor, to repair the Houses as often as need requires, and after the Lessee assigns over his term, and the Assignee suffers the Hou­ses to decay; in this Case an Action of Covenant lies against the Assignee, although he be not named in the Covenant.

If the Lessor covenant with Co. 1 par. Inst. f. 41. B. Dyer, f. 19. the Lessee, that he shall have sufficient Hedge-bote by the Assignment of him or his Bai­liff; here he may not take it without Assignment, Quia modus & Conventio vincunt Legem.

If a man take a Lease by In­denture Perkins Tit. C [...] ­ditions. 738. M. 1649. B R. Styles prac. Regist. p. 7 [...]. of a ruinous House, or that wanteth Reparations, and [Page 16] do Covenant in the Lease to leave the House at the end of the term in good Repair; here he is bound to leave it in good Repair whatsoever happen, by the Rule aforesaid: but if he do not covenant to doe it, he is not bound by Law in such case to doe it.

If a Lease for Years be made Pasc. 14 H. 8. 32. Perkins 738. 40 E. 3. 6. Hughes's gr. Abridgment, p. 499. c. 2. Phi­lips's Principles of Law, p. 2. of a Wood by Deed indented, and it is there covenanted that the Lessee shall leave the Les­sor's Wood in as good plight as it was at the time of the Lease made, and during the term the Wood is destroyed by a sudden Tempest; in this case the Lessor can have no Action of Covenant against the Lessee, for the non-performance of this Covenant, for it is not possible for him to perform the same, and Lex non cogit Impossi­bilia. 22 H [...]. See Goldsborough's▪ Re [...]. p. 16. in the▪ [...]nd▪

If a Lease be made for Years [Page 17] rendring Rent, and the Lessee is bound to perform all Cove­nants and Agreements, if he do not pay the Rent the Obliga­tion is forfeited; for the pai­ment of the Rent is an Agree­ment.

If a man be bound in an Ob­ligation Dr. & Stud. lib. [...]. cap. 47. to repair the Houses of the Obligee as often as need shall require during such a time, and after the Houses need Re­parations; in this case, though the Obligor knoweth not that they need Reparations, yet he is bound to take notice at his peril, for Ignorance here excu­seth not.

But if the Condition had Dr. & Stud. ibid. been to repair such Houses as the Obligee should assign, and after he assigneth, &c. but the Obligor hath no notice of it; here the ignorance shall excuse him, for the Obligee ought to give him notice: but if the As­signment [Page 18] had been appointed to a Stranger, there the Obli­gor must have taken notice at his peril.

If a Lease for Years be made Lit. 166. 26 H. 8. 3. Finch, lib. 2. c. 3. p. 115. with Warranty, this sounds not in the nature of a Warranty, but of a Covenant, because it is but a Chattel; and if the Lessee be ousted, yet he may have an Action of Cove­nant.

If I be seised of 10 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 10^s 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 [Page 19] 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, 8 [...]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 [Page 20] 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 [...]. 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 [Page 21] 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 L [...]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 [Page 22] 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 [Page 23] 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. [...] 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 [Page 24] 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. Pri­ [...]i [...]. Vide 21 H. 7.18. a. & Co. 1 part of Instit. f. 214. b. [Page 25] 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 pri­vie in right, and represent the person of the dead.

All Grantees of Reversions may enter upon Farmers for 32 H. 8. c. 34. Finch, l. 2. c. 1. pa. 107. Herne's Law of Convey. p. 31. any Forfeiture or Condition, and have like advantages a­gainst them (by Action one­ly) for any other Covenants, Conditions or Agreements contained in the Indentures of their Lease, as the Lessors, their Heirs or Assigns might; and the like for the Lessees against the Grantees of the Reversi­ons (Recovery in value onely excepted.)

If a man make a Lease for Lit. l. 3. c. 8. Co. 1 par. Inst. f. 292 b. 45 E. 3.8. 17 H. 6.26. Cowel's In­stit. p. 193. Noye's Maximes, p. 77. Years upon Condition that the Rent shall be paid at Michael­mas, and in the mean time give a general Release to the Lessee [Page 26] of all Actions and Demands; yet this doth not remit the Rent, but the Lessor may sue for it: and the Reason of this is, because it was neither De­bitum nor Solvendum at the time of the Release made; and it is a thing not merely in Acti­on, because it may be granted over.

If two take a Lease joyntly for Years with Condition, that Vid. 3 F. 6. Dyer 67. Farrington's Case. Cowel's [...]n­stit. 199. if the Lessees die before the term ended the Lease shall be void; now the Lessees make division, and one of them alie­nateth his part, and dies; in this case the Lessor cannot reassume the part of him that died, but the Alienee shall have it du­ring the life of him that survi­veth.

If a Lease be made for Years Hil. 36 Eliz. Rot. 376. Cole and Taunton's Case. Goldsb. p. 184. pl. 122. Vid. the Case 31 H. 8.45. upon Condition, that if the Lessee demise the premisses or any part thereof other then for [Page 27] a year to any person or persons, then the Lessor and his Heirs may re-enter; the Lessee after devises it to his Son by his Will; this is a breach of the Condition.

If a man of his mere motion Dr. & Stud. lib. 2. cap. 20. fo. 93. a. enfeoffe H. by Indenture upon Condition that he shall yearly pay to I. S. out of the Lands a certain Rent, and if he fail in payment, that it shall then be lawful to the said I. S. to en­ter, &c. the Rent is behinde and unpaid; in this case I. S. may not enter by Law, for there is an ancient Maxime, That no man shall take advantage of a Condition unless he be party or privy to it.

If the Grantee of a Rent­charge release parcel of the Dr & Stud. lib. 2. c 16. 21 H. 7. 2. Co. 1 par. Inst. fo. 147. b. 148. a. H. 14 Eliz. in C. B. God­bolt 139. Hard­ing's Case. M. 30 Eliz. in B. R. Rent to the Grantour or his Heirs, the Remainder may be apportioned, and the Land shall remain chargeable still for the [Page 28] residue: but if he release in one Acre parcel of the Land char­ged, then all the Rent is extinct and gone.

If the Lessor grant a Rent to a Stranger, the Tenant cannot 49 E. 3.15. Finch lib. 1. c. 3. p. 36. Attorn nor put him in possessi­on by the delivery of an Ox or such like thing; because it is another thing: but upon a Re­covery of a Rent, the Sheriff may deliver possession by such a thing.

If one that hath a Lease for Years grant his term to a Feme 14 Eliz. Pl. 418. [...]inch, l. 1. c. 3. p. 42. Covert and to another, or if a Feme sole and another be Joint-tenants for years, and she take a Husband; yet the Estate of the Feme and Jointure doth continue, so as the Survivor of the Wife or of the other shall have the whole Estate.

If a man grant an Estate to a Woman dum sola suit, or du­rante 37 H. 6. 27.26 E. 3.69. 14 H 8. 13. Bract. l. 4. f. 207. Fleta, l. 3. c. 12. Co. 1 par. Inst. f. 42. a. Herne's Law of Conv. p. 45. [Page 29] viduitate, or quamdiu se bene gesserit, or to a man and a woman during the Coverture, or as long as the Grantee dwells in such an house, or so long as he pays 10 pound, &c. or until the Grantee be promoted to a Benefice, or for any like incer­tain time; in all these cases, if it be of Lands or Tenements, the Lessee hath in judgment of Law an Estate for Life determi­nable, if Livery and Seisin be made.

And if it be of Rents, Ad­vousons, or any other thing that Co. 1 par. Inst. f. 42. a. lies in Grant, he hath a like E­state for Life by the delivery of the Deed.

If a Lessee for another man's Life die, living the other man, Brit. f. 83. Fleta l. 3. c. 12. Brac. l. 4. f. 170. Co. 1 par. Inst. f. 41. b. he that doth first enter upon the Estate after his death shall be Tenant pur auter vie, that is, Tenant for the other man's Life, and shall be liable to the pay­ment [Page 30] of the Rent reserved, and in Law is called an Occupant, because his Title is by his first Occupation.

And so if a Tenant for his Co. ibid. 27 Ass. p. 31. Pl. Com. fo. 28. b. in Col hirst's Case, [...]. B [...]rr 303. own Life grant over his Estate to another, if the Grantee die, living Tenant for Life; in this case he that first enters shall be an Occupant: in like manner it is of an Estate created by Law; for if Tenant by the Courtesie or Tenant in Dower grant over his or her Estate, and the Grantee dieth during their Lives, in this case also there shall be an Occupancy.

But there can be no Occu­pant Co. ibid. against the King, for nul­lum tempus occurrit Regi.

It were good, saith my Lord Cook, to prevent the incertain­ty 11 H. 4.42. 17 E. 3.48 Dyer, 8 El. 253. Co. 1 par. In­stitut. f. 41. b. of an Estate of the Occu­pant, by adding these words, [To have and to hold to him and his Heirs during the life of [Page 31] Cestui que vie:] and this shall prevent the Occupant.

And if a man hath an Estate Co. 1 par. Inst. ibid. already for another's Life with­out the words before named, then it is good for him to assign his Estate to divers and their Heirs during the Life of Cestui que vie.

If a Lessee for 20 years of Lands and Tenements grant Perkins, 693. the same Lands for parcel of the years to a Stranger, reserving to himself 20 shill. in this case he may distrain for the Rent re­served, or have an Action of Debt at his pleasure, because by common intendment he is to have the same Land after the years determined, because he hath granted but parcel of the years, so that the Remainder remains in him.

But if Cestui que use lease his Land in Use for term of Perkins, 692. Years, reserving Rent by word [Page 32] of mouth; in this case he can­not distrain for the Rent reser­ved, because no Reversion doth remain in him; but it is said he may have an Action of Debt for it, but some doubt of it.

If I lease Lands to another Perkins, 91. Co. 1 part Inst. f. 46. b. for Years, the term to begin at the Feast of Easter next, and before the Feast the Lessee grants his term to a Stranger; this is a good Grant, for he hath an Interest before Entry which may be granted over.

If Rent be granted to me, I Perkins, 91. may grant it away to a Stran­ger, before I be seised there­of.

If a man grant to another Perkins, 108. Common of Pasture for▪ 10 Kine in Lands in such a Town, though the Grant be general, yet the Grantee shall not have Common but in Lands Com­monable, so as the Grant shall extend but to Pasture-grounds.

[Page 33] Tenant at Will cannot grant 27 H. 6. f. 3. b. Kitchin, p. 237. a. over his Estate, for he hath no Interest certain.

If a Lease be made to Baron Hil. 17 El. in B. R. Co. 1 part Inst. f. 46. b. and Feme for term of their Lives, the Remainder to the Executors of the Survivor of them, if the Husband grant away the term and die, yet this shall not bar the Wife.

If the Husband and Wife be ejected of a Term in the right Co. 1 part Inst. f. 46. b. 37 Ass. p. 11. Pl. Co. 418. b. of his Wife, and the Husband bring an Ejectione firme in his own name, and do recover, & die; in this case his Executors shall have it, and not the Wife, son the Recovery in his own name did vest the Term in himself.

If a man be possest of a Term Co. ibid. Pl. Co. 2 [...]0. b. Dame Hale's Case. Co. 1 part Inst. f. 351. a. See Finch l [...]. c. 5. p. 72. & Dyer 264. b▪ Herne's▪ Law of Conv. p. 81, & 82. of 40 years in right of his Wife, and make a Lease for 20 years, reserving Rent, and die; here the Executors of the Husband shall have the Rent for that Term, but the Wife shall have [Page 34] the Remainder of the Term when the 20 years is out; but if he had granted the whole Term, then she had got no­thing.

A Release made to Tenant Co. 1 part Inst. fo. 270. a. 49 E. 3.28.32 H. 6.8 Co. ibid f. 46. b. Perkins, 602. See the Clerk of Assize, p. 50. for Years before his Entry to encrease his Estate is void; but a Release of the Rent before Entry is good. The Tenant may grant away his Interest to another before Entry; and al­though the Lessor die before Entry, yet the Lessee not­withstanding may enter into the Lands; or if the Lessee die before Entry, his Executors or Administrators may enter: and if the Lease be made to two, and one die before En­try, yet his Interest sur­vives.

The Lessor cannot grant a­way Co. 1 par. Inst. fo. 46. b. the Reversion (before the Lessee's Entry) by the name of a Reversion,

[Page 35] If a man grant to a Lessee for 12 El. 381. Finch, l. 1. c. 3. p. 15. Vid. Lutterell's case. 43 El. in B. R. Co. 4 lib. f. 86. & Co. 1 par Inst. f. 41. a. Vide Co. 5 l. in Spencer's case. years, that he shall have so many Estovers as shall serve to repair his House, or that he shall burn within his House, or such like, during the Term; this is appurtenant to the Land, and shall run with the same as a thing appurtenant in whose hands soever the same cometh.

If a Lessee for years grant a Rent-charge and surrendreth, 1 El. 198. Finch, lib. 1. cap. 3. p. 27. Noye's Maximes, p. 7. the Rent shall be paid during the Term to the Stranger.

If 2 Tenants in common do Pl. Com. Hill & Grange's Case. 171. 2 & 3 P. & M. 140. b. 161. b. Finch, l. 1. c. 3▪ p▪ 63. Co. 1 par. Inst. f. 197. a. grant a Rent of 10 shill. this is several, and they shall be char­ged with 20 shill. Rent; but if they make a Lease and reserve 10 shill. Rent, they shall have no more but onely 10 shill. be­tween them.

If a man make a Lease, pro­vided [...]. N. B. 223. Mich. 3 Jac. in C B. Co. 1 par. Inst f. 52. b. 45 El. in B. R. Dumpor's Case. Co. 4 l. f. [...]19 Hern's Law of Conveyances, 110. that the Lessee or his Assigns shall not aliene the premis­ses without special licence of [Page 36] the Lessor, &c. and after the Lessor giveth licence to aliene the same or any part; in this case the Lessee may aliene and his Assigns ad infinitum without any more License, for the Pro­viso is determined for ever; and if the Lessor die before the Lessee aliene, yet that does not countermand it.

If the words of a Lease be, M. 3. E. 6. Dyer 65 66. Hughes's gr. Abr. 1 part, p. 417. that it shall not be lawful for the Lessee to aliene without the assent of the Lessor, on pain of Forfeiture; this Re­straint continueth but du­ring the Life of the Lessor and Lessee.

If a Lessee for years devise Dyer f. 75. Cow­el's Inst. p. 142, 143. Bro. Chat­tels 23. Don [...] 57. Herne's Law of Conv. p. 81. his whole term to A, provided if he die while I. S. is alive, then the Residue shall remain to I. S; A alienes and dies: in this case I. S. is without re­medy.

If a man make a Lease for 27 H. 8.19. Finch, l. 1. c. 3. p. 65. [Page 37] years, reserving Rent to him, Mich. 5 Jac. inter Wo [...]ton & Ed­win in B. R. Co. 1 part Inst. f. 47. a. Goldsbor. Rep. p. 148. pl. 68. Vid. Pacis Consultum, p. 92. without naming his Heirs, the Rent shall then determine upon his death, if he die within the Term; or if it be to him and his Assigns or Executors, it is all one: but if it be reserved ge­nerally without shewing to whom, it shall go to his Heirs.

If a man lease Land to an­other See 17 El. in B. R. inter Pepal & Hammington. Poph. 117, & 118. by Deed indented, except and alwaies reserved to the Lessor all great Trees growing upon the same Land; by this Lease the great Trees shall not pass.

If two Copartners make a Finch l. 1. c. 3. p. 9. Lease, reserving Rent, they shall have this Rent in com­mon as they have▪ the Reversi­on; but if afterwards they grant the Reversion excepting the Rent, then they shall be Joint­tenants of the Rent.

If a man let Lands for years, Dyer 56, & 82. Co. 1 par. Inst. f. 148. b. Hughes's gr. Abr. p. 193. 1 par c. 6. reserving Rent, and a Stranger [Page 38] doth recover part of the Land, then the Rent shall be apporti­oned, that is to say divided, and the Lessee shall pay, having respect to that which is reco­vered and to that which yet remaineth in his hands, accor­ding to the value.

If a man make a Lease of a 1 & 2 P. & M. 104. Finch, l. 1. c. 3. p. 18. Perkins 643. 11 H. 4. 2. Philipps Pr. of Law, p. 122. Mannor except an Acre, this Acre is no part of the Mannor as to the Lessor, but as to him that hath right to demand the Mannor, by an eigne Title it remains parcel, and therefore he shall make no fore-prise in his. Writ.

A Lease of a Mannor excep­ting the Services, the Exception Finch. ibid. p. 53. is void, for it is parcel of the thing let.

If one make a Lease excep­ting a Close and Wood, now 14▪ H. 8. [...]. the Law giveth him a way to come to it.

If the Lessor make a Feoff­ment, Noye's Maximes, p. 59. [Page 39] and the Lessee for years giveth leave to the Lessor to make Livery and Seisin of the premisses, saving to himself his Lease, and he doth so; here the Term is not surrendred, for the Lessee had an Interest which could not be surrendred with­out his consent to surrender, and here no such intent doth appear, wherefore he may enter and have his Term, and the Rent is renewed: but it is otherwise with a Lessee for Life, for there the Rent is extinct.

If a Lessee for years do take a new Lease for more years, this Perkins 117. Vide Watt & Maid­well's Case, Hil. 3 Car. [...]. 1302. B. R. Hutton's Rep. 104. is a Surrender in Law of the old Lease.

A Lessee for years cannot surrender before his Term be­gin, Perkins 601. Noye's Maximes, 74. neither can he surrender part of his Lease, but he may grant part of it.

If two Joynt-tenants in Fee are of one Acre of Land, and 5 E. 3.19. & s [...] Perkins, 80. [Page 40] lease the same Acre to a Stran­ger for Life, and the Lessee granteth his Estate to one of the Lessors; this is a Surren­der for the whole Acre, and not for a Moiety. Tamen quaere.

If a Lessee for Life of an Acre of Land lease the same Acre to his Lessor for years, the Re­mainder to a Stranger in Fee; this is no Forfeiture, though he do make Livery and Seisin to the Lessor.

If a Lessee for Life or Years Herne's Law of Convey. p. 76. Perkins, pl. 609. of Land say to his Lessor, that he will occupy his Lands no longer which he holdeth of him for Life or Years, and so wills him to enter; in this case if the Lessor consent, it is a good Sur­render.

But if the Lessee for Life or 1 Ass. p. 20. Tr. 8 E. 3.46. Per­kins, 117. Years of a House and Lands re­move his goods out of the House and Land, by reason of the greatness of the Rent, or [Page 41] because he is behinde in his Rent, or for any other cause, and the Lessor do enter into the House and Lands; this is no Surrender of the Tenant.

If a Lessee for Years assign 37 [...]l. B. R. Over­ton and Siddal's Case, cited in Co. 3. l. in Walker's Case there. over his Term and die, his Ex­ecutors shall not be charged for Rent due after his Death. Noye's Maximes, p. 72.

If the Executors or Admini­strators Co. ibid. in Wal­ker's Case ut su­prá. Noye's Ma­ximes, p. 72. of a Lessee for Years do assign over their Interest, nei­ther doth an Action of Debt lie against them for Rent due after the Assignment.

If a Lessee assign over his Marrow & Tur­pin's Case. P. 41 Eliz. Rot. 2485. Vide March & Brace's Case. M. 11 Jac. in B. R. Bulst. 2 part 151. Hern's Law of Conv. p. 110. Term, the Lessor may charge which of them he will; but if he once accept of the Rent from the Assignee knowing of the Assignment, he cannot then after bring an Action of Debt against the Lessee for Rent due after the Assignment.

If the Lessor grant away the 36 Eliz. Ungle & Glover's Case. [Page 42] Reversion after the Assignment Vid. Co. 3 l. in Walker's Case there: and see Humble & Oli­ver's Case. M. 36. El. in B. R. Pop­ham, 55. of the Lessee; in this case the Grantee cannot have an Action against the Lessee for the Rent, because there is no privity be­tween them.

If a Tenant for Life enfeoff 19 E. 3. Surr. 8. Co. 1 par. Inst. f. 42. a. him in Remainder for Life, this is a Surrender, and no Forfei­ture.

If a Tenant for Life make a Co. ibid. 13 [...]. [...]. Dower 95. Lease by Deed, or without Deed, to him in Remainder or Reversion, and after he in Re­mainder taketh wife and dieth; in this case she shall not be en­dowed, for the Tenant for Life shall injoy the Land again, for it cannot be a Forfeiture, because he in Remainder was a party; and Surrender it cannot be, for that his whole Estate was not given.

If a Tenant for Life take an Co. 1 par. Inst. f. 42. a. 29 Ass. p. 64. Husband, and by Deed inden­ted they make a Lease to him [Page 43] in the Reversion for the Life of the Husband, reserving a Rent; this is neither Forfeiture nor absolute Surrender, for the rea­sons in the last Case mentioned.

But if a Tenant for Life take Husband, and they by Deed in­dented make a Lease to him in Reversion for the Life of the Wife, reserving Rent; this is a Surrender, for their whole Estate is granted, and the Reservation is void.

If a Lessee for 20 years take Co. 1 par. inst. [...]. 218. b. Pl. Com. in Fulmerston's Case. 107. b. Vid. Poph. Rep f 9. V. Herne's Law of Conv. p. 73, & 74. Finch, l. 1. c 4. p. 62. 1 & 2 P. & M. 107. a Lease for 10 years to begin presently, upon Condition if such a thing be not done to be void: now the first Lease is sur­rendred in Law; and though the second Lease be void upon the Condition broken, yet the Surrender remaineth good.

If a Lease for years be made to a man without any Conside­ration, Perkins, 536. the Lessee shall be seised to his own use.

[Page 44] If a man make a Lease to an­other Dr. & Stud. l. 1. c. 24. See▪ the Clerk of Assize. p. 63. and his Heirs for 20 years, intending that his Heirs shall have it; yet if the Lessee die, notwithstanding the intent, the Executors, and not the Heir, shall have it.

If a man let a House cum per­tinent. Pl. Com. f. 85. b. & f. 270, 273. 31 H. 8. tit. Lease 55.23 H. 8. tit. Feoff­ment 53. no Lands pass; but if it be cum omnibus terris perti­nent. here the Lands used with the same do pass. Herns L. of Con. p. 104.

If a man take a Lease of his Br. Estoppel 221. M. 31, 32 El. in C. [...]. in [...]ondon's Case adjudged. Co. 1 part Inst. f. 47. b. Vide Terms of the Law, verb. Estoppel. own Land by Deed indented, he is then concluded to say that the Lessor had nothing in the Land at the time of the making of the said Lease, but after the Lease is out the Estoppel is re­moved.

If two Joynt-tenants are of a 24 Car. See Be­verley's Case. Clayton's Rep. p. 111. pl. 189. & see Green's Case An. 1650. Idem p. 146. pl. 265. Lease for Years, and one bid the other go out of the House, and he does so; in this case he may have an Ejectione firme against [Page 45] his fellow as well as if he had put him out by force.

CHAP. III. Of Payments, Rents, Accep­tance, Confirmations, Extin­guishments, Demands, Re­entries, Limitations, &c. of Leases.

IF the Lessee be to pay his Rent to his Lessor at May­day Vide Clun's Case 11 Jac. in B. R. Co. 10 lib. f. 227. Co. 1 part Inst. f. 202. a. And see Hare & Savil's Case. M. 7 Jac. in C. B. Brownloe's 2 part, p. 273. Herne's Law of Conv. p. 23. and Martinmas, or within 15 daies next after either of the said Feasts; in this Case the Tenant need not pay till the 15^th day, for that is the legal day, and the other onely a vo­luntary day of Payment: and if there be a Clause, that if the Rent be behind by the space of 15 daies after any of the said daies of payment, then the Lease [Page 46] to be void; in this case the Les­see shall have 30 daies after ei­ther of the Feasts to save his Lease: but if the Clause in the Lease be, that if the Rent be behind for the space of 15 daies next after either of the said Feast-daies of payment; here the Tenant hath but 15 daies onely allowed him: and so the diversity is to be noted.

If a Tenant in Tail let part Co. 1 par. Inst. f. 44. b. Vid. Lord Mount-joy's Case. Co. 5. l. f. 3. Anno 31, 32 Eliz. in B. R. of the Land accustomably let­ten, reserving the Rent pro Rata or more, this is a good Lease for such Lands: or if the accu­stomable Rent were formerly payable at four Feasts, and now it is reserved and payable all at one Feast, yet it is good enough.

If a man lease for Years, ren­dring 11 Jac. in B. R. Clun's Case. Co. 10 l. f. 227. See Hare & Savil's Case. M. 7 Jac. in C. B. Brownl. Rep. 2 part. p. [...]73. V. Hern's Law of Conv. p. 22, & 23. Rent at the Feasts of the Annunciation and Michaelmas, or within 15 daies after; here if the Lessor dy after either of [Page 47] the Feasts and before the 15 daies be out, the Heir shall then have the Rent; for the disjun­ctive is added for the benefit of the Tenant; and the first day is but voluntary, but the legal payment is at the end of the 15 daies: and if the Lessee before the day pay the Rent, this is voluntary, and not satisfacto­ry; but it is good to give Sei­sin, if payment be in the Mor­ning and the Lessor die at Noon; though this payment be volun­tary too, yet it is satisfactory against the Heir.

If a man lease for Years, ren­dring See Manley and Jennings Case. Pasch. 10 Jac. in C. B. Brownlo. Rep. 2 par. p. 176. Noye's Maximes p. 80. 6 E 6. Br. Tender 20. Rent at Martinmas and other Covenants, if the Lessee be bound in an Obligation to pay the Rent precisely; in this case he must seek the Lessor to pay him: but if he be bound to per­form the Covenants, &c. he may then tender it upon the Land, (if no other place be [Page 48] agreed upon) and it sufficeth, for the payment is of the nature of the Rent reserved.

Rent payable at a day, the 1 Mar. 172. b. Finch, l. 1. c. 3. p. 38. Noye's Ma­ximes, p. 81. Vide Wade's Case. 43 Eliz. C. B. Co. 5. l. f. 111. Hern's Law of Conv. p. 30. party hath all the day till Night to pay it: but if it be a great summe, as 500 or 1000 pound, he must then be ready as long before Sun-set as the mony may be told; for the other is not bound to tell it in the Night.

If a Parson let his Glebe to a Lay-man, the Lessee shall pay 32 H. 8. Bro. Dismes 17. Finch, l. 2. c. 1. p. 88. Tithes to the Parson besides the Rent, because they are of com­mon Right.

If a man make a Lease for See Clun's case. 11 Jac. Co. 10. l. f. 227. Years, rendring Rent at the Feast of St. Michael; in this case if the Lessor die on Micha­elmas-day in the morning, if the Rent be unpay'd, the Heir shall have it; but if the Tenant pay it that morning before the Lessor die, the Executors shall then have it.

[Page 49] If a man lease a Stock of Cat­tel Co. 1 par. Inst. f. 47. b. & 292. b. F. N. B. 267. or other goods, rendring Rent at several daies, he shall not have at Action of Debt till all the daies be expired; and so it is upon an Obligation; for these are personal Contracts: but in case of a Lease for Years, which is a real Contract, it is otherwise; for there the Lessor may have an Action of Debt after every day, or he may di­strain.

A man is not bound to pay an Annuity without an Acquit­tance, See in Pennant's Case, 38 Eliz. Co. 3. l. Perkins, 780. but a Rent-service or Rent-charge he is.

If the King make a Lease, Vide in Co. 4 lib. Borou [...]hs's Case, 38 Eliz. in B. R. Co. 1 par. Inst. f. 201. b. An [...] [...]ee Goldsbor. Rep. p. 124▪ pl. 9. Hern's Law of Conv. p. 27. rendring Rent, without limiting any place or to whose hands, the Lessee may either pay it to the Exchequer, or to the Bailiffs or Receivers of the King: when a Common person appoints no place of payment, the Law ap­points it to be upon the Land, [Page 50] and there the Demand must be made, as is shewed afterwards in this Chapter.

If two Joynt-tenants be, and they make a Lease for Years by 5 E 4.4. Co. 1 part Inst. f 47. a. Co. 8 l. f. 70, 71. paroll or Deed-poll, reserving a Rent to one of them; yet this shall enure to them both: but if it be by Deed indented, it shall enure to him alone by way of Conclusion.

If a Lease be of Land and Trin. 35 H. 8. Dy­er 56. 2 Mar. Dy­er 100. and see 20 El. Dyer 361. Sheep, and the Sheep die, or part of the Land is surrounded with the Sea; some are of opinion that the whole Rent shall issue out of the rest. Tamen quaere.

If a man lease Land and die See Goldsbor. Rep. p. 98. pl. 17. Trin. 30 El. Vide Herne's Law of Conv. p. 22, & 24. before one of the Rent-daies, the Heir shall have the Rent due at the next day after his death; but if there were any Rent ar­rear at the Rent-day before the Lessor's death, the Executors or Administrators shall have that, and may either di­strain [Page 51] or have an Action of Debt for it.

The Lessor upon a Lease at Co. on [...]it. f. 57. b. Will may distrain for Rent ar­rear; but if he impound the Di­stress in the ground letten at Will, the Will is then deter­mined.

Upon a Lease for Years a man may reserve the Rent to be Co. 1 part Inst. 142. a. and see Perkins, 696. in the delivery of Hens, Ca­pons, Geese, Turkies, Oxen, Sheep, Roses, Spurs, Bows, Shafts, Horses, Hawks, Pepper, Cumine, Wheat, or other pro­fit that lieth in Render, Office, Attendance, and such like, as well as in paying of Mony.

If the Heir make a Lease for 7 H. 5.4. Co. on L [...]t. f. 42. a. Life reserving a Rent, against whom the Mother recovers her Dower and dieth, the Lessee shall have the Land again for his Life, and the Rent is revived.

The Acceptance of the Rent 22 H. 8. Br. Acce­ptance 14. upon a void Lease will not [Page 52] make the Lease good again; but Vide Browning's Case. Pl. Co. 136. if it be onely voidable, it wil.

The Acceptance of a Rede­mise to begin presently, is a Sus­pension Noye's Maximes, p. 70. of the Rent before any Entry; but otherwise if it be to begin in futuro.

Acceptance of a Rent which See Co. 3. l. in Pennant's Case there. is not in Esse nor due to him that accepts it doth not affirm the Lease: as where Lands are given to the Husband and Wife, and the Heirs of the body of the Husband, and he leases the same and dies, and the Issue accepts the Rent of the Lessee in his Mother's life, and after she dies; now the Issue may avoid the Lease, for when he accepted the Rent, it was due to his Mother, and not to him.

If the Successor of a Parson [...]4 H. 8. B [...]. [...]ea­ses 19. [...] H. 8. Br Dean [...]0. Leases 52 See Co. 3. l. fo. [...]5, 66. in Pennant's Case See Revel & Ha [...]'s Case. Goldsb. Rep. pa. 138. pl. 44. or Vicar accept the Rent of a Lease for Years made by his Predecessor, yet it is worth nothing; for the Lease is void [Page 53] by Death: but it is other­wise of a Lease for Life.

But if the Successor of a Bi­shop, Co. ibid. 2 F. 6 Br. [...]eases 33. 32 H. 8. Dyer 46. Abbot or Prior, accept the Rent upon a Lease for Years, he shall never avoid it, for it was but voidable onely, and his acceptance hath now confirmed it.

If he that hath Rent-Service See Hopkins & Mo [...]on's Case vouched in Pen­nant's C [...]. Co 3. l. Hern's Law of Conv. p. 40. Co. 1 par. Inst. f. 373. a. 11 H. 4. 55. 10 Eliz. Dyer 271. or Rent-Charge accepts the Rent due at the last day, and gives an Acquittance for it, all the Arrearages due before are thereby discharged.

If Tenant in Tail make a Lease for 40 years, to com­mence Pl Co. f. 437. a. Co. 1 par. Inst. f. 46. b. 10 years after his Death, rendring Rent, and after he dies, and the Issue enters and enfeoffs B, the 10 years expires, & then the Lessee enters; if B. accept the Rent, the Lease is good.

If the Husband and Wife let the Land of the Wife for years, Tamen quaere. P. 5 Mar Dyer 160. and see 4 Ma [...]. Dyer 141. Gough's Case. rendring Rent, and after the [Page 54] Husband dies, and she before any day of payment takes ano­ther, who accepts the Rent and dies; by this the Lease is affir­med.

If Tenant for Life lease Lands for years and dies, the Lease is void, and the Rent re­served upon the Lease is deter­mined, and Acceptance by him in Remainder will not make it good; for when it is once void by Death, no Acceptance after will make it good.

If the Husband and Wife let the Lands of the Wife for 3 H 6. f. 22 H. 6. f. ibid. 21 H. 6.24. & Kitchin p 234. B. Terms of the Law, verb. Ac­ceptance. years, rendring Rent, and the Husband dies, if the Wife ac­cept the Rent, it is a good Lease.

If Tenant in Dower lease for years and die, the Lease is void, [...] H. 8. Br. Tit. Auncest. 14. and Acceptance of the Rent by the Heir will not make it good again.

If a man seised in Fee let for 1 F. 6. Br. 18 and see Finche's Law l. 1. c. 4. p. 68. [Page 55] 10 years, and after selleth the Land, and taketh back an Estate to him and his Wife, and then the Husband and Wife let for 20 years, reserving Rent, and the Husband dieth, the Wife accepts the Rent during the first 10 years; in this case the se­cond Lease is not affirmed, for 21 Eliz. 563. Phi­lips Prin. of Law, p. 164. the Acceptance of the Rent be­fore the Lease beginneth, and so before any Rent be due, is no Acceptance at all.

A Lease for Years may be Noye's Maximes, p. 78. confirmed for a time, or upon Condition, or for a piece of the Land; but if it be a Frank­tenement, it shall enure to the whole absolutely.

There is a diversity between See in Pennant's case, 38 [...]liz. Co. 3. l. f. a Lease for Life and for Years. In case of a Lease for Life, though the Conclusion of the Condition be that it shall be void, yet acceptance of the Rent due after the breach doth [Page 56] affirm it and make it good again; for the Free-hold being created by Livery cannot be determined before Entry.

If a Prebend lease for 70 years, and Patron Dean and See [...]oo [...]d' [...] Ca. 37 [...]l in C. B. Co. 5. l. f. 81. Chapter confirm the Demise aforesaid in form aforesaid made for 51 years and no farther; this is a Confirmation of all the Term: but if they had recited the Lease, and confirmed the Land for 51 years, this had been good. But by whatsoever words they confirm a Lease for Life, or Gift in Tail for part, this shall confirm all, because they are intire.

If the Tenant of the Land and a Stranger join in a Lease for Co. 1 p [...]r [...] [...]st. [...] H. 4. 1. 27▪ [...]. 8.16. Years by Deed indented of the same Land, this is the Lease of the Tenant onely and Confir­mation of the Stranger; and yet the Lease as to the Stranger works by Conclusion.

[Page 57] If two several Tenants of se­veral Co. ibid. Lands join in a Lease for Years by Deed indented, these be several Leases, and several Confirmations of each of them, and work not by way of Con­clusion.

If B, who is Tenant for Life Co. ib [...]. Vid. T [...] ­port's case, M. [...]7 El. in B. R. Co▪ [...]. l. f. 15. Vide Ellis▪ & Chowne's case 44 [...]l. in C. B. Rot. 1459. of C, and he in the Remainder or Reversion in Fee, make a Lease by Deed indented; in this case this is the Lease of B during the Life of C, and the Confirmation of him in Re­mainder; and after the Death of C it is then the Lease of him in Remainder, and Confirmati­on of B: and in this case there is no Conclusion.

If Tenant for Life and he in Remainder in Fee▪make a Lease Co. 1 par. Inst f. 45. a. 2 [...] H. 8. [...]. See Bredon's case 39 & 40 [...]liz. [...] 1. l. f. 76. [...] Dyer 234. by Deed indented, and the Les­see be ejected during the Term in the Life of Tenant for Life, he must then declare in his A­ction of a Lease from Tenant [Page 58] for Life; and if it be after his Death, he then must declare of a Lease from him in Remainder.

If Cestui que use make a Mich. 35 H. 8. Dyer 58. Lease for 20 Years the first 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 [Page 59] 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. [Page 60] 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 S [...]e Cibill and Hill's Case, M. 30 Eliz. n C. B. Leo­nard's Rep. 110. Vid Noye's Max. p. 70. & Howe & [...]r [...]om, Hil. 43 El. [...] [...]ep. p. 125 pl. 15. & p 114. pl. 6. Her [...]e's Law of Conv. p. 118. See in Walker's Case, Co. 3. lib. & see Goddard's Case, Mich. 34 El. Com. B [...]co. Owe [...]'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 [...]li [...]. Dyer 187. & Finch l. [...]. c. [...] 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 P [...]r Whorwood & Hales. Br. [...]x­ [...]nguishment 54. [...]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 [Page 61] in the hand of the Execu­tor.

It behoveth such persons as Co. 1 part Inst. f. 20 [...]. 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 [...]l. Dyer f. [...]29. Per­kins 838. [Page 62] be made at the Fore-door of the House, and not at the Back­door; 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 [...]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 [Page 63] 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. [...]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 [Page 64] 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 & Cholm­ley's case▪ Goldsb. Rep. p. 186. See Sir Jo. Spen­cer & Sir John Poynes case, Tr. 5 Jac. in B. R. God­bok's Rep. 154 & Remmington & Kingerbies case, 18 Car in B. R. in Styles Rep. 4. Sir Rich. Grobham and Thornbo­rough's case. Ho­bart f. 82. to another with Condition, that if the Rent be behind for ten daies after any Rent-day, that the Lessee, the Executors, &c. shall pay 3^s 4^d for every day un­till the aforesaid Rent so behind shall be satisfied; in this case the Rent must be demanded, or otherwise the Nomine Poenae shall never be recovered. Ho­bart fo. 133. Howel's Case.

If a Lease be made upon Pennant's case, 38 [...]l. Co. 3. l. 65. Vid. Green's case, 18 [...]l. in B R. Leon. Rep. 262. & March & Cur­tie's case 40 El. C. B. ro [...]. 1302. vou­ched in Pennant's case. Co. 1 par. In­stit. f. 211. b. Pl. Com. fo. 133. Hern's Law of Conv. p. 26, & 94▪ Condition of Non-payment to re-enter, if the Lessor distrain he may not re-enter, but he may accept of the Rent, and yet re-enter; but if he receive the next Rent again, then he [Page 65] cannot, for that establisheth the Lease. Entry into an Acre in the name of all is good enough, if the Land lie all in one County.

If a Lease for Years be ren­dring 38 [...]l in Pennan [...]'s case. Co. 3. l. f. 65. & see 40 [...]l. in C. B. Rot. 1302, in March & Curtie's case vouched there. Hughes's gr Abr. 1 part, p. 14. C. 10. Rent, with Condition that if the Lessee assign his term, the Lessor may re-enter; the Les­see assigneth, and the Lessor re­ceiveth the Rent of the hands of the Assignee, not knowing of the Assignment; now not­withstanding the acceptance of the Rent, yet the Lessor may re-enter if he please, for the re­ceiving the Rent ba [...]s him not, because he knew not of the Assignment.

In a Lease for Years, if the 28 H 8 Dyer 7. Hughes's gr. Ab. 1 par. pa. 240. C. 1. Lessee covenant that if he, his Executors or Assigns, do ali­ene, that then the Lessor shall re-enter, and afterwards he makes his Wife Executrix and dies, who takes Husband again, [Page 66] and he alienes; in this case the Lessor may re-enter, for the Husband is Assignee in Law.

A Lease which is onely void­able, 21 Car. B. R. Styles Regestum Practicale, p. 196. Vide Hanson & Norcliff's case, Hil. 18 J [...]c. & Amphurst & Palmer's case, P. 19 Jac. Hobart 331. and not absolutely void, must be made void by the Les­sor's entry; but if it be abso­lutely void, there needs no En­try.

If a man make a Lease for Years yielding to him and his Dr. & Stud. l. 1. c 20 p. 35. a. See the Clerk of As­size▪ p. 56. Heirs a Rent, upon Condition that if it be behind by the space of 40 daies, &c. that then it shall be lawful to the Lessor and his Heirs to re-enter, the Rent is behind 40 daies, &c. and is demanded by the Lessor, (as it ought by Law) and is not paid, and now the Lessor dieth; in this case his Heir may en­ter, for a Title of Entry de­scends.

But if the Lessor had died af­ter Dr. & Stud. l. 1. c. 20. p. 35. a. Cl. of Assize, p. 57. the Feast-day and before the 40^th day, and the Heir there [Page 67] makes a Demand at the 40^th day; in this case he may not enter for non-payment: ideo nota.

If a Lease be made to A and Tooker's case, 43 El. Co. 2. l. f. 39. B for their Lives, and after the Lessor grants the Reversion to C for his Life, to which Grant A attorns, and after by his Deed surrenders to C all his In­terest and Estate and dies; in this case C may enter and hold in common with B.

If a Lease be made to A for Life, and after the Death of B Vide M. 2 [...] [...] 3. 87. Tr. 1 H. [...]. 31. & Perkins 52. And see [...]9 [...]l. in Boraston's case. Co. 3 lib. f. 19. 32 H. 6. Tit. Feoff­ment & Faits, 99. & Co. on [...]. f. 378. a. See the Clerk of Assize, p. 60. & Herne's Law of Conv. p. 8▪ Kitchin, f. 155. a. the Remainder to another in Fee; in this case if A die living B, the Remainder is void: and so if a Lease be made to R for Life, the Remainder to the right Heirs of IS; this is good if R outlive IS, otherwise it is void.

If a Lease be made to A for 9 El. Dyer 254. & see Pl. Com. 190. Trin. 8 Eliz. Cecil's case. Dy­er 253. 41 years, if he live so long, and if he die within the afore­said [Page 68] Term, that then the Wife of the aforesaid A shall have it for the residue of the said years; this Limitation is void, for if A die the Term ends, and the Wife shall have nothing.

If a man have an House for 40 years, and devise the House Pasch. 14 El. Dyer 307. to IS without limiting any Estate; the Devisee shall then have the intire Term, for he may not have for Life, nor at Will, nor for lesser Term of years.

But if a man have a Term of 30 years, and grants so many of Br. Leases 66. & see the Rector of Cheddington's case, 40 El. Co. 1. l. f. 153. them as shall be behind at his death; this is void for the in­certainty, for he may live till all be out, and then nothing re­mains.

If a man let all his Meadow See Dyer f. 80. in the questions there for the L. Willoughby. in D, containing 10 Acres; in this case, if there be 20 Acres, all pass.

There needs no Livery and Litt. l. 1. c. 7. Vide Herne's Law of Conv. p. 35. [Page 69] Seisin upon a Lease for Years, but the Lessee may enter when he will; and if there be Live­ry and Seisin upon such a Lease, to have according to the effect thereof, this Livery is void, and the Lessee shall but have an E­state for Years.

A man makes a Lease for Years, and after makes a Deed Co. 1 part Inst. f. 48. b. See Bettis­wor [...]h's case, 33 [...]l. in C. B Co. [...] l. f. 31. & see Herne's Law of Conv. ubi suprá, & p. 3 [...]. of Feoffment, and delivers Sei­sin, the Lessee being upon part of the premisses, and not know­ing nor assenting to it, this Li­very is void; for though the Lessor hath the Free-hold 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 nor Servants (though he have Cattel) upon the ground, then the Livery shall be good.

If a man let Lands or Tene­ments Lit. l. 1. c. 7. Vide Philipps [...]r. of Law, p. 94. by Deed or without deed [Page 70] for Term of Years, the Remain­der over to another for Life, in Tail or in Fee; in this case Li­very of Seisin must be given by the Lessor to the Lessee for Years, otherwise nothing pas­seth to them in Remainder: the Reasons you have before in this Chapter.

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 [Page 71] 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 [Page 72] 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 Bap [...]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. 1 [...]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.

[Page 73] 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 Annorū.

[Page 74] 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 B [...]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▪ [...]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. [Page 75] 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 [Page 76] 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. [...]. 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 to year so 14 H. 8.16. Noy's Max. p. 66. Br. Lease 13.22. long as both parties please, is a good Lease after Entry in any year for that year, till war­ning be given to depart.

[Page 77] If a Lease be made to A and his Assigns for his Life and the See Rosse's case, 41, 42 Fl. Co. 5. l. f. 13. Herne's Law of Conv. p. 12. Life of B and C; this is a good Lease for 3 Lives.

But if a Lease be made for an See in Co. said 5. Book, in Brude­nel' [...]c [...]. 34 [...]l. in B. R. & see Brownl. 2 part, p. 292. hundred years, if A and B live so long; in this case, if either of them die, the Lease is ended.

A Lease rendring Rent to See Co. 5. l. f 111. in Mallery's ca. 43 Eliz. Herne's Law of Conv. p. 142. one and his Heirs, or his Heirs alone, but of a Feoffment Te­nendum to one or his Heirs, is but an Estate onely for the Life of the Feoffee.

If a man make a Lease to See 3 Jac. Savin's ca. in C. B. Co. 5. l. f. 123. commence after the end or de­termination of a former Lease in esse, and after the first Lease is out, and the second Lessee en­treth not, but he in the Rever­sion enters, and makes a Feoff­ment, and levieth a Fine with Proclamations, and 5 years pass without Entry or Claim of the second Lessee; in this case the Fine barrs him: for the Stat. [Page 78] 4 H. 7. c. 24. speaks of Inte­rest, and a Lease for years is an Interest within the Statute.

If an Infant, who is seised of Co. 1 part Inst. f. 45. b. Land held in Soccage, make a Lease at his age of 15; this is good, and shall bind him.

If Tenant in Tail make a 10 E. 3.26. 34 Ass. 15.23 E. 3. Dower 130. Co. 1 part Inst. f. 46. a. Lease for Years according to the Statute, rendring Rent, and die without Issue; now as to him in the Reversion the Lease is void; but if he endow the Wife of that Land, it shall be good against her: or if Tenant in Tail die without Issue, his wife enseint with a Son, and he in Reversion enters, and after the Wife is delivered; in this case the Lease is again revived, although it were once void by the Entry of him in Reversion. Nota.

If Tenant in Fee take a Co 1 part Inst. f. 46. a. Wife, and make a Lease for Years, and after die, and the [Page 79] Wife is thereof endowed; here she shall avoid the Lease, but after her Death it shall be in force again against the Heir.

If an Husband have a term of years in Right of his Wife, Idem ibid. b & fo. 35 [...]. [...]. Mich. 26, 27 El. adjudged in bo [...]h Court-in­t [...]r Amnor & Lod­dington. And [...]e 7 Jac. in Man­ning's case. Co. 8. l. f. 94. if she die, it remains to him; but if she survive him, it re­mains to her, and not to his Executors, without he make disposition of it in his life-time, 14 El. Pl. Com. 419.

If a man lease for Life to I. S, and the next day leases to W. B. 37 H. 8 Br. Lea­ses 48. the end. for 20 years; the second Lease is void, if it be not a Grant of a Reversion with Attornment; for in Law the Free-hold is more worthy and perdurable then a Lease for Years: yet if the Lessee for Life die within the Term, the Lease for Years is good for the rest of the years to come.

If a man license another to Brownl. 2 part, p. 250. 10 E. 4. f. 4. 5 H. 7. f. [...]. enter and occupy his Lands, [Page 80] this is a good Lease for Years in Law.

If a man lease for 60 years, and so from 60 years to 60 [...]l. Com. f. 273.29 H. 8. Br. Leases 49. years, until 200 years be ended; this is all the same Lease, and good for the term.

If a man have a Lease for 32 l. Ass. 6. 500 years, it is but a Chattel, notwithstanding the long time.

A Lease for Years, though it be never so long, cannot be H. l. 2 [...] Car. in B. R. S [...]yles Regest. Practicale, p. 197. Intailed, for the nature of a Chattel cannot be turned into an Inheritance.

If a man seised of Land in Co. 1 part Inst. f. 4 [...]. [...]. Vid. [...]h [...]lipps [...]. of Law, p. 88. Fee-simple make a Lease of the same to another, To have and to hold the same for term of Life, and do not mention whose Life; in this case it shall be ta­ken to be for the Lessee's Life; for the Act of every man shall be taken most strongly against himself.

But if Tenant in Tail let Co. ibid. & f. 183. b. Finch, l. 1. c. 4. p. 60. [Page 81] such a Lease without expres­sing whose Life, it shall be ta­ken to be for the Life of the Lessor.

A Lease for a thousand daies 14 H. 8. f. 1. Finch, l. 1. c. 5. p. 67. is a Lease for Years.

A Lease for Years and a Re­lease Finch, cod. loco. Co. Lit. f. 207. a. amounteth to a Feoff­ment.

If Joynt-tenant make a Lease Finch, l. 1. c. 3. p. 97. Mich. 3 Eliz. Dyer, 187. Lit l. 3. c. 3. Co. 1 part Inst. f 185. a. & 186. a. b. But see Dyer f. 178. Har­b [...]n & Ba [...]ton [...]s case. Goldsb. p. 187. pl. 1 [...]0. for years of his part, though the Lessee never had possessi­on, or though it be to begin at a day to come, and the Joynt­tenant which made it die before the day; yet the Survivor shall be bound by the Lease, for the Lessee hath a present In­terest.

But it is otherwise of a Grant Co 1 part Inst. f. 184. b. Finch, ibid. 5 El. Plo. 203. Brown [...]. [...] Com. 263. b. in Dame Hales case. to have a Lease, if the Grantee pay 10 pound before Midsum­mer next, and the Joynt-tenant which made the Grant die be­fore the day; for here is no Interest at all, but a Commu­nication [Page 82] till the mony be paid.

If a man let Land for Life, without saying more, the Re­version Finch, l. 2. c. 3. p. 113. [...]it. of the Fee-simple is in the Lessor.

If Tenants for Life or Years of Land make a Feoffment in Idem ibid. Br. Fo­ [...]is. 96. Fee, and give Livery, they for­feit their terms.

If two take a Lease for their Lives, and make partition; ei­ther See Farrington's case. Dyer 67. & Cowell's Inst. p. 199. of them dying, his part immediately reverts to the Lessor.

If a Lease be made to a Feme sole for 40 years, if she so long See Sayer and Hardye's case. Goldsb. p. 179. pl. 112. live sole and continue unmarri­ed; now if she die, the Lease is determined: or if I make a Lease for 40 years, if the Lessee dwell upon the thing let du­ring the term; here if the Les­see die, the term is deter­mined.

But if it be a Lease for 40 years, if the Lessee dwell upon Idem in Save's & Hardye's c [...]se. [Page 83] the thing let during his Life; in this case if the Lessee dieth, the Lease continueth.

If there be two Joynt-te­nants Harbin & Bar­ton's case, 30 El. Goldsb. Rep. 187. pl. 130. for Life, and the one make a Lease for 80 years, to begin af­ter his death, and after dies; this is a good Lease against the Sur­vivor.

If a Lease be made to the Brownloe's 2 part p. 206. the end. Dr. & Stud. l. 2. c. 33. f. 120. a. b. See Cowel's Inst. p. 193. Husband and Wife, yielding a greater Rent then the Land is worth; in this case if the Hus­band die, the Wife may refuse the occupation of the Land, and so be discharged of the Rent: but if the Husband overlive the Wife, and die, his Executors, if they have Asserts to pay the Rent to the end of the term, may not refuse thé Lease; but if they have not Assetts, they may wave the occupation, and by special pleading discharge Finch, l. 1. c. 3. p. 31. 4 E. 6.68. b. See Co. 5▪ l. in▪ Brudenel's case. themselves.

If a Lease be made to A and [Page 84] B for their Lives, in this case if either die, the other shall have all during his life, for it is an Interest. Philipps Pr. of Law, 131.

If a Woman make a Lease at Henstead's case, 36, 37 El. C. B. Co. 5. l. f. 10. See M. [...]7 El. in C. B. r [...]t. 16 [...]4. Will reserving Rent, and after take Husband, yet the Lease at Will continues still: and if a 3 H. 8. Vid. Keil­waye's Rep. f. 162. & Terms of the Law, verb. Coun­te [...]mand. Feme sole, who is Lessee at Will, take Husband, yet the Lease at Will is still good.

If Husband and Wife make a Lease at Will of the Co. 1 part of Inst. f. 55. b. Wives Lands, reserving Rent, and the Husband dieth, yet the Lease at Will continueth: and so it is if two make a Lease at Will to two others, if either one of the Lessors or Lessees die, yet the Lease is good.

If Tenant at Will lease for Years in his own name, it is a 2 [...] H. 6.3.22 E. 4. 5. Co. 1 par. Inst. l. 57 a. 12 E. 4.12. Disseisin, and the Lessor may have Trespass against the Gran­tee of the Lessee at Will.

[Page 85] If a man lease to one at Will, 21 H. 6. f. 42. Kit­chin, 237. a. and the Lessor dies, the Will is gone.

If I let Lands in which are 9 E. 4. f. 37. per Needham. Mines or Trees, I cannot enter to take the Trees or Mines, but am a Trespasser, unless I reserve such a privilege to my self when I let the Lands.

All Feoffments, Gifts, Grants Perkins 16. Co. on Lit f. 253. b. 14 Ass. pl. 20. Plo. 18. a. Vide Philipps, Principles of Law, p. 4. and Leases made by Duress of Imprisonment are voidable, and that not onely by the parties themselves, but by their Heirs, and by those who have their Estates.

If the Lessor come upon the Finch, l. 1. c. 3. p. 57. Vid. Hunt & Downam's case, Pasc. 16 Jac. B. R. C [...]o. 2 part, 478. ground leased, he is no Tres­passer, for it shall be intended that he came to see if Wast were done.

Although a Lessee for Years Styles Regestum Practicale. p. 198. Pasch. 1650. in B. R. do lose his Indenture of Demise of the Lands let unto him, yet he shall not lose his term in the Lands let by Indenture which [Page 86] is lost, if it can be proved any way that there was such a term let to him by Indenture, and that it is not determined: and so it is of any other Estate in Land, if the Deed that created the Estate be lost, if it can be sufficiently proved that there was such a Deed made, and that such an Estate was conveyed by Deed.

If Tenant for term of years or any other Tenant be outed, or if they die, their Executors, or they if living, shall have rea­sonable time and free liberty to come and fetch away their U­tensils and other goods out of the Lessor's House.

CHAP. V. Of Corn sown where the Te­nant is outed, or the Term determines before it be ripe, who shall have it: and also of Estovers, and Trees blown down, &c.

IF Tenant at Will sow the [...]leta, l. 3. c. 13. Co. 1 part Inst. f. 55. a. 11 [...] 4. f. 90. Vide Philipps Pr. of Law, p. 86. Land, he shall have free li­berty to come and cut and car­ry away his Corn, although the Lessor put him out before it be ripe.

But if Tenant for Years sow Co. on Lit. f. 55. a. b. Lit. [...]h. Tenant at Will. See the Clerk of Assize, p. 60. the Land, and his term end be­fore the Corn be ripe, the Les­sor shall have it, without it be covenanted between them, that he shall have his way-going Crop, as they call it in York­shire: and the reason of this is, because the Tenant did know [Page 88] when his term would end, and it was his folly to sow Corn that would not be ripe till the term were expired.

If Lessee at Will set Roots, or sow Hemp or Flax or any an­nual Co. ubi suprá. 18 E 4.18.10 Ass. pl. 6. profit, if after they be planted the Lessor out him, or if the Lessor die, yet the Lessee or his Executors shall have that year's Crop.

But if he plant young Fruit­trees, Co. ubi suprá. Temps E. 1. Br. 25. or young Oaks, Ashes, Elmes, &c. or sow the ground with Acorns, if he be outed by the Lessor, he shall have none of these, because they yield not present annual profit.

Every Tenant that hath an Estate incertain shall have the Co. ibid. 7 Ass. 19. Corn sown by him, though he be ousted before it be ripe. Co. ubi suprá. 10 E. 3.29. See in Sir Henry Knivett & Pool [...] case, Golds­borough's Rep. p. 143. pl. 60. & Co. 5. l. f. 85. See the Clerk of As­size, p. 60.

If Tenant for Life soweth the ground, and dy before the Corn be ripe, his Executors [Page 89] shall have it, and Grass, if it be cut; but not Meadow unmown, for that is part of the Inheri­tance till it be severed.

The like Law is of the Les­see Co. on Lit. f. 55. b. for Years of Tenant for Life.

If a man be seised of Land in Co. ibid. 7 Ass. pl. 10. Perkins, 518. Swinburn's Wills, 3 part, sect. 6. p. 163. Dyer, 316. 8 Ass. 21. Vide Pa­cis Consultum, p. 83. right of his Wife, and sow the Land and die, his Executors shall have the Corn; but if they be Joynt-tenants of Lands, and the Husband soweth the ground and dieth, the Wife shal then have it.

If A lease Land for the life of B, and sow the Land, and be­fore the Corn be ripe B dies, yet notwithstanding A shall have the Corn, for his Estate was determined by the Act of God.

The same Law is of a Wo­man Cowell's Inst. p. 141. Fulb. par. f. 37. b. Perkins, 513. Swinburn ubi▪ suprá. Tenant for Life or in Dower, who takes Husband, and he sows the Land, and be­fore [Page 90] the Corn 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 [Page 91] 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 [...]u [...]te­rel's case, 43 Fl, in B. R. Co. 4. l. f. 86, 87. Terms of the Law, verb. Haybote, & verb. F [...]bote, and Housebote. Phili [...]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 [Page 92] 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 [Page 93] 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. [Page 95] 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 [Page 96] 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 Fats 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 if they be removed from Finch, ubi suprá. off the Hinges, they may be di­strained.

The Lord cannot distrain 21 H. 7.26. Kit­chin, 63. a. [Page 97] Tables dormant in the House of his Tenant, nor any thing which cannot be attached in an Assize.

A man may distrain the Co. 1 par. Inst. f. 47. b. 7 H. 7.1 b. 10 H. 7.21. Beasts of a Stranger that come by Escape for Rent, though they have not been Levant and Couchant on the ground, saith my Lord Cook.

The Lord may sell a Distress 3 H. 7. f. 4. Kit­chin, f. 61 b. Vide Gomorsall and Wayt's case, M. 8 Jac in B. R. Cro. 2 part, 255. taken for an Amercement in a Court-Leet, as the King may sell the Distress, because it is a Court of the King's.

The Lord cannot distrain 10 H. 7. f. 21. Kit­chin, f. 62. a. another man's Horse in the house of one amerced, nor the Robe of another in a Taylor's Shop, where the▪ Taylor is amerced.

If a man distrain goods or Finch, l. 2. c. 6. p. 137. 9 E. 4. f. 2. [...]. Kitchin, f. 207. b. Chattells, he may put them where he will, either in Pound covert or overt: but if they take any harm, he [Page 98] must answer for them.

But if they be living Cat­tell Co. 1 part Inst. f. 47. b. Dr. & Stud. l. 2. c. 27. Compl. Attorney, p. 125. Fleta, l. 2. c. 20. F. N. B. 89. Terms of the Law, verb. Distress. they ought to be put in a common Pound, or else in some open place, as in his own Close, or anothers by his consent, so that the Owner may come law­fully to feed them; and notice must be given to the Owner where they are, if they be not in a common Pound; and then if they die, it is in the Owner's Defalt: but if they be in a Pound covert, or out of the County, and die for want of meat, then he that distrained shall answer for them.

Cattel taken Dammage-fea­sant [...]0 H. 7. f. 39. Kit­chin, f. 207. a. may be impounded in the same ground where they are Dammage-feasant; but goods or Cattel taken for other things may not.

No man may drive a Distress Co. 1 par. Inst. f. 47. b. Marlbridg, c. 4. West. 1. c. 16. 2, 3 P. & M. c. 12. Vide Berdsley & Pilkinton's ca. Goldsb. Rep. p. 100. pl. 5. & p. 145. pl. 62. Partridge & Naylor's ca. See Mich. 24 El. in C. B. Godbolt's Rep. 11. Rastall Tit Distresses 11. Wingate's Abr. p. 133. [Page 99] out of the County where it is taken, nor out of the Hundred, but to a Pound overt within 3▪ miles; neither may a Distress be impounded in several places, nor above 4 pence taken for the Fees of impounding one whole Distress, on pain of 5 pound.

If a man distrain Beasts Dam­mage-feasant, and put them in Dr. & Stud. l. 2. c. 27. the Pound overt within the same County not above 3 miles out of the Hundred, and the Ow­ner suffers the Beasts to die for lack of meat; then he that di­strained them is at his liberty to take his Action of Tres­pass.

If the Owner of the Cattel Idem ibid. & Kit­chin, f. 207. b. tender amends to him that di­strained, and he refuse it, yet the Owner may not take his Cattel out of the Pound; for if he do, a Parco fracto lieth against him.

But after such tender he may Idem ibid. [Page 98] [...] [Page 99] [...] [Page 100] sue out a Replevin, to have them out; and if it appear, when they come to a Trial, to the Jury that the Tender was suffi­cient, then the Owner shall re­cover Dammages in the Reple­vin against him that distrained, for detaining the goods; and if on the contrary it appear that the Tender was not sufficient, then the Avowant, that is he that distrained, shall have such Amends as the Jury shall as­sess.

If after such Amends tende­red Dr. & Stud. l. 2. c. 2 [...]. Ki [...]chin▪ f. 207. b. the Cattel die in such Pound overt, the Owner shall be at the loss, by reason of the wrong done at the beginning, to see that they shall have meat so long as they be in Pound.

But if the Owner of the Cattel procure a Replevin to Idem ibid. deliver them, and he that di­strained resists it, and will not [Page 101] deliver them; in this case, if they die after for want of meat, it is at the peril of him that di­strained, and the owner shall recover Dammages against him in an action upon the Statute, for disobeying of the King's Writ.

If I send my Servant to take Compleat Attor­ny, p. 193. 21 F. 4. f. 19. Kitchin, f. 208. b. 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 a Parco fracto; for it is my Pound, and not my Ser­vant's.

If I impound Cattel taken Idem ibidem. F. N. B. 100. Finch, l. 4. c. 16. p. 310. upon a Distress in a friend's Close with his licence, and the Owner of the Cattel take them out; in this case I shall have a Parco fracto, and my friend an Action of Trespass for breaking his Close.

CHAP. VII. Who may take a Distress, and for what cause, and when, and where.

A Man may distrain of com­mon right for Rent-ser­vice, Co. 1 part [...]n [...]t. 204. b. 205. a. 30 Ass. pl. 8 17 E. 3. 7 Co. lib. 4. f. 73. Philipps pr. of Law, p. 26. Dr. & Stud. l. 2. c. 9. Homage, Fealty, Escuage, Suit of Court, &c. or for a Rent reserved upon a Gift in Tail, Lease for Life, Years, or at Will, though there be no clause of Distress in the Lease.

But for Debt, Accompt, Dr. & Stud. ib. Trespass, Reparations, &c. a man may not distrain.

It is a Maxime in Law, that 20 E. 3. Avowry 1 [...]1. 25 H. 6.37. Br [...]ct. fo. 230, & 238. Co. 1 part Inst. f. 96. a Brit. f. 100. no Distress can be taken for any Services that are not put in­to certainty, nor can be reduced to any certainty; for id certum est quod certum reddi potest, for oportet quòd certa res deduca­tur in Judicium: and upon [Page 103] the Avowry Dammages cannot be recovered for that which nei­ther hath certainty nor can be reduced to certainty.

And yet in some cases there may be a certainty in an incer­tainty: 7 F. 3.38. & Co. ubi suprá. as a man may hold of his Lord to shear all his Sheep depasturing within the Lord's Mannor; and this is certain enough, although the Lord hath sometimes a greater number and sometimes a lesser number there; for this incertainty be­ing reduced to the Mannor, which is certain, the Lord may distrain for this incertainty: & sic de similibus.

A Distress is inseparably in­cident Co. 1 part Inst. f. 150. b. 151. b. to every Service that may be reduced to certainty, as aforesaid.

A man may not distrain for 10 E. 3 Avowry 137. 11 H. 7.5. Co. on Lit. f. 47. b. & 142. a. Rent after the Lease is ended, nor out of his Fee, except in some special cases, nor in the [Page 104] Night, unless it be Dammage-feasant.

The Executors or Admini­strators of him which had Fee­farm Noye's Max. p. 45. Vide Rastal T [...]. Ren [...]s. 32 H. 8.37. c. Wing [...]te's Abridgment of the Stat. p. 407, & 408. Co. [...]n Lit f. 162. a. & Co. 4 l. f. 4 [...]. in Ognell's case, [...]9 [...]l. in Fee, in Fee-Tail, or for Life, may either have an Acti­on of Debt against the Tenant that should pay it, or distrain for it: and so may the Husband after the death of his Wife, his Executors or Administrators, and he which hath Rent for an­other's Life for the Arrearages after his Death.

If a man put Cattel into my Noye's Maximes, p. 4 [...]. Pasture for a week, and after­wards I give him notice that I will keep them no longer, and he will not fetch them away; I then may distrain them Dam­mage-feasant.

If a man take Cattel Dam­mage-feasant, 2 E. 3. Rescous 12. Co. 1 part of Inst. f. 161. a. Compl. Att. p. 196. and as he is dri­ving them to the Pound, they run into the Owner's house, who refuses to let them out [Page 105] again; here he that distrains may have a Writ of Rescous against the Owner for so doing.

If the Lord come to distrain, Noye's Max. p. 46. Co. 1 par. Inst. f. 161. a. 6 R. 2. R [...]s. 11. 11 H. 7.4. 21 H. 7.40. Co. 9. l. f. 22 in case de A­vowry, & Terms of the Law, [...]e [...]b. Distress. 44 F. 3. f. 20. & F. N. B. 102. and see the Cattel, and the Les­see or his Servants drive the Beasts out of his Fee; here the Lord cannot have Rescous, be­cause he had not the possession, but he may follow and distrain them in another's ground, but not for Dammage-feasant, for they must be Dammage-feasant at the time of the taking.

If a man take a Distress of Clayton's Rep. p. [...]4. pl. 111. goods, and shews no cause for what, if they be put in an house, the Owner may break the house and take them out.

If a Distress be taken of 4 E. 6. Tit. Dist [...]es­ses 74. F. N. B. 100. E. Co on Lit. f. 47. b. 9 E. [...]. f. 35. 5 F. 4. f. 7. per Danby. 40 F. 3. f. 33. goods without cause, the Ow­ner may Rescue; but if they be impounded, he cannot break▪ the Pound and take them out, because they are then in the Custody of the Law.

[Page 106] If a man distrain Cattel for Co. ubi suprá. 3 E. 3 Tit. Trans. 11. & 34 H. 6.18. Dammage-feasant, and put them in the Pound, and the Owner that had Common there maketh fresh Suit, and finds the Door unlocked; he may then take them out: but if it be locked, he cannot justifie to take them out.

If Beasts driven by the High­way escape into another man's Dr. & Stud. l 1. c. 16 Cowell's Inst. p. 231. Corn, he that driveth them is no Trespasser by his Entry to fetch them out again.

If a man make a Feoffment reserving a Rent, he cannot di­strain Dr. & Stud. l. 2. c. 9. without a Clause of Di­stress; and if the Feoffment be not by Indenture, the Reserva­tion is void in Law: like Law where a particular Estate is made reserving a Rent, the Remain­der over in Fee.

If Tenant for Life grant his Dr. & Stud. ibid. whole Estate reserving a Rent, the Reservation is void, if it be [Page 107] not by Deed Indented, and without a Clause of Distress it is a Rent­seck, and he cannot distrain.

For an Amercement in a Dr. & Stud. ibid. 10 H. 7. f. 15. [...]4 E. 2. and 19 [...]. 2. Avowry 221. Leet the Lord may distrain; and though the Distress be ta­ken in the High-way, yet in this case it is lawful.

A man cannot distrain for an Amercement in a Court Baron, Dr. & Stud. ibid. 47 E. 3. f. 12. Vide Kitchin, f. 61. b. Hughes's gr. Abr. 1 par [...], p. 721. Co. 10. nor for an Amercement in the Leet in a place seised into the King's hands for the King's Debt, for it is for that time pri­vileged.

If a Lease be made at Micha­elmas Dr. & Stud. ibid. & Vide Co. on▪ Lit. fo. 47. b. for a year, rendring Rent at the Annunciation and Mi­chaelmas, the Lessor may di­strain at the Annunciation, but not at Michaelmas, because the term is expired.

If Tenant for another's Life make a Lease for Years reser­ving Dr. & Stud. ibid. Vide Perkins, 691, 692. Rent, and Cestui que vie [Page 108] dieth; in this case Tenant per­autre vie cannot distrain, be­cause his Reversion is determi­ned.

If a Town be Amerced, and the Neighbours by assent assess a Dr. & Stud. l. 2. [...] 9. certain Summ upon every Inha­bitant, and it is agreed, that if it be not pay'd by such a day, cer­tain persons thereto appointed shall distrain; such Distress is lawful.

Lord and Tenant by Fealty Dr & Stud. ibid. 12 [...]. 4.11. 9 E. 3. 1 Vide l. [...]. [...]h [...]. of Ren [...]s▪ & [...] 44 [...]. 3. [...]o [...]de [...]on [...]e 20 [...]d Pe [...]kins, 113. and Rent, the Lord grants the Fealty reserving the Rent, and the Tenant attorns; the Lord cannot now distrain for the Rent, for it is now made Seck.

But if a man make a Gift in Tail reserving Fealty and Rent, Dr. & Stud. ibid. and after grants the Fealty re­serving the Rent and Reversi­on; here he may distrain for the Rent, for the Fealty is in­cident to the Reversion, and can­not be granted without it.

[Page 109] For Herriot-Service the Lord may distrain, but for Herriot-Custome he must seise, and not distrain.

For Rent granted upon Egal­ty of partition or of Dower, the 21 H. 6.7. & Dr. & Stud. ibid. party may distrain.

If a man break the Pound, and take out his goods, he that 34 H. 6.18. Co. 1 part Inst. f. 47. b. Vid. Comp. A [...]t. p. 192. distrained may have a Parco fra­cto against him, and may also take the goods again whereso­ever he finds them, and put them in the Pound again.

If the Tenant forestall the Co. on Lit. f. 153. b. & f. 161. b. Fleta, l. 1. c. 42. Vide 29. Ass. 49. Noye's Max. p [...] 46. way with force and armes, and threaten in such manner that the Lord dares not come to distrain or demand the Rent, or if there be no Distress on the ground, nor none ready to pay the Rent; then in this case the Lord may have a W [...]it of Novel Disseisin against the Tenant, and recover his Rent and Arrearages: and if the Rent be behind another [Page 110] time, he may have a Redisseisin, and recover double Dam­mages.

If a man take a Distress he M. 7 Jac. in C. B. More and Con­ham's case. Owen's Rep. f. 123. Vide in Bag­shaw and Gow­ard's case, Hil. 3 Jac. in B. R. Rot. 1070. Cro. Rep. 1 part, fo. 147. may not work it, for he hath neither property nor possession in Jure.

CHAP. VIII. Of Rescous, where it shall be lawful.

REscous is an old French Co. 1 part Inst. f. 160. b. word coming from Re­scourrer (id est) Recuperare, that is, to take from, or rescue, or recover; and is a taking away or setting at liberty against Law a Distress taken, or a person ar­rested by the Process or Course of Law.

And all is one as to the point Co. ibid. F. N. B. 101. c. & 102. f. [Page 111] of the Disseisin, to rescue the Keilway 20. 6 H. 6. Disseiss. 9. 21 H. 7. 40. a. Finch, l. 4. c. 16. & p. 310. Distress after it is taken, or be­fore-hand to resist and withstand the taking of it; but yet it is no Rescous until it be distrai­ned.

If the Lord distrain when See in Bevil's ca. Co. 4. l. f. 11. 61 R. 2. Rescous 10. there is no Rent arrear, the Te­nant may make Rescous and hinder.

Or if the Lord come to di­strain, and the Tenant tender 7 E. 4.24. & Co. 1 part Inst. f. 160. b. the Rent to him, and yet not­withstanding the Lord will di­strain, then the Tenant may make Rescous.

If the Rent be behind, and the Lord distrain the Cattel of Co. ibid. 17 E. 3. 43. Vide Marlbr. ca. 15. 52 H. 3. Wingate's Abr. Stat. p. 132. See Rastall Tit. Di­stresses 5. Ferrer's Magn. Charta, f. 25. b. the Tenant in the High-way within his Fee, the Tenant may make Rescous; for no man may distrain in the High-way, except the King and his Officers having special Authority.

If the Lord will distrain Ave­ria Carucae, goods of the Co. on Lit. f. 161.2. [Page 112] Plough, where there is a suffi­cient Distress to be taken be­sides, Rastall Tit. Di­stresses 10. & see Wingate's Abr. Sta. p. 132. Fer­rer's Mag. Char­ta, f. 122. b. or if the Lord distrain any thing that is not distrainable ei­ther by the Common Law or by any Statute, the Tenant may make Rescous.

If the Lord distrain out of his Fee in Lands not holden of Co. 1 part Inst. f. 161. a. him, the Tenant may make Rescous, unless it be in some special cases. See after in Ch. 10.

If the Lord come to distrain Co. ibid. Comp. Att. p. 196. Co. 9. l. f. 22. in the case of Avowry. 6 R. 2. Resc. 11.44 E. 3.20. Hughes's gr. Ab. 1 part, p. 717. c. 21. F. N. B. 102. g. 21 H. 7. f. 40. Kitchin, f. 52. b. Cattel which he seeth then within his Fee, and the Tenant, or any other, to prevent the Lord to distrain, drive the Cat­tel out of the Fee of the Lord into some other place, yet may the Lord freshly follow, and di­strain the Cattel, and the Te­nant cannot make Rescous; for in judgment of Law the Distress is taken within his Fee, and so shall the Writ of Re­scous suppose.

[Page 113] But if the Lord coming to distrain had no view of the Cat­tel Co. 1 part Inst. f. 161. a. & Compl. Att. p. 196. Vide. Hughes's gr. Ab. 1 part, p. 717. c. 21. within his Fee, though the Tenant drive them off purpose­ly, or if the Cattel of themselves after the view go out of the Fee, or if the Tenant after the view removeth them for any other cause then to prevent the Lord of his Distress; then can­not the Lord distrain them out of his Fee, for if he do, the Te­nant may Rescue.

If a man come to distrain for Dammage-feasant, and see▪ the Co. 1 part Inst. f. 161. a. 161.4. 10.2 E 2. Avow­ry 182. Co. 9. l. f. 22. in Case de Avowry. Noye's Ma [...] p. 46. Beasts in his Soil, and the Owner chases them out of purpose be­fore the Distress taken, the Owner of the Soil cannot fol­low and take them; for if he do, the Owner of the Cattel may rescue them: for they must be Dammage-feasant at the time of the Distress taken, and the Owner of the Soil is left to his Action of Trespass.

[Page 114] If the Tenant lock up his Co. ubi suprá. 10 E. 3.9.49 E. 3.14.7 E. 3.3.11 H. 7. 28. 8 Ass. 18. 10 E. 4.2. Gates, and inclose his grounds, so that the Lord cannot come to distrain, this is a Disseisin, if the Lord have had actual posses­sion and the Rent is behind; for the Lord cannot break open the Inclosures to take a Distress.

CHAP. IX. Of Replevins, when and where to be sued out.

REplegiare is compounded of Re and Plegiare, as much Co 1 part Inst. f. 145. b. as to say to deliver upon Pledges or Sureties.

Where goods are distrained and impounded, the Owner of Co. ibid Vide Fle­ta, l. 2. c. 40. & Glanvill, l. 12. c. 12. the goods may have a Writ De Replegiari facias, whereby the Sheriff is commanded, ta­king Pledges of prosecuting, to [Page 115] re▪ deliver the goods distrain'd to the Owner; and this is by the Common Law.

But the quickest way is to Co. ubi suprá. Westmin. 2. c. 2. Vide Ferrer's Mag. Charta, f. 60. Rastal Tit. Replevin 2. & Wingate's Abr. Stat. p. 409. Compl. Att. p. 127. complain to some of the Sheriffs Deputies in the Country, who keep a Seal for that purpose, and they will grant a Replevin, and must take Plegii de Retorno ha­bendo, that is to deliver the goods again to the party that di­strained, if the action be found against him that Replevieth; and this is by the Statute.

By the Stat. 1, 2 P. M. C. 12. Wingate's Abr. p. 133. Rast. Tit. Di­stresses 11. Vide Sheppard's Sur­vey of County Judicatures, p. 47. every Sheriff is at his first Coun­ty-day, or within two Months after he receives his Patent, to depute and proclaim in his Shire-Town 4 Deputies to make Re­plevins, not dwelling above 12 Miles distant one from another; if he fails herein, he forfeits 5 pound every Moneth they are wanting, to be divided between the King and the Prosecutor.

[Page 116] If the Lord carry the Di­stress Compl. Att. p. 125, 126. Ferrer's Ma. Charta, f. 37. Westm. 1. c. 17. Vide Rastall Tit. Distresses 7. & Wingate's Abr. p. 133. Terms of the Law, verb. Distress. Vide Sheppard's Sur. of County Judi­catures, p. 49. to a Hold or out of the County, so that the Sheriff cannot make Deliverance upon the Replevin, then the party upon the Sheriff's return of the Replevin may have a Writ of Withernam directed to the She­riff, to take as many of the Lord's Beasts or as much goods in his keeping till he have made deliverance of the first Distress; and if the Beasts or goods be conveyed to a Fort or Castle, the Sheriff may take with him the Power of the County, and beat down the Castle.

If it be in a Franchise or Bai­liwick, Comp. Att. p. 127. Vide Marlb. c. 21. Ferrer's Magna Charta, f 27. & Rastall Repl. 1. the party shall have a Replevin of the Sheriff, directed to the Bailiff, to deliver them upon Pledges as before.

It is a general Rule, that the Plaintiff in the Replevin must 3 E. 3.74.6 H. 4.2. & 39.9 H. 6. 39. 20 H. 6. 19. 30 E. 3.22. 31 E. 3. Repl. 35. Co 1 part Inst. f. 145. b. have the property of the goods in him at the time of the taking; [Page 117] 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 [Page 118] 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 [Page 119] 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 [Page 120] 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 [Page 122] 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 [Page 123] 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 [Page 124] 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 [Page 125] 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 [...]. 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. [...]. 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. A [...]. 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.

[Page 127] 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 su­pr [...]. 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 2 [...]2. 42 E. 3. f. 6. Noye's Maximes, p. 3 [...]. 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 [...]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. [...] ▪ W [...]st [...]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 [Page 128] 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. [...]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 [Page 129] 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 Dove­house, 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 [...]. [...]. Co. 1 part Inst. f. 53. b. Houses to be wasted, and then fell Timber to repair them, [Page 130] 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.

If the Tenant take away a Lead or Fatts fixed to the House, it is Waste.

If a Stable be ruinous at the 11 H. 4. f. 32. Kit­chin, f 242. b. time of the Lease made and fall, the Tenant may cut down Trees to make a new one; but if there were none there before, it is Waste if he cut Trees to build one.

[Page 131] The Tenant may cut Trees Kitchin ubi su­prá. Fitz. 59. k. to amend the House and make Reparations; but where it is in decay through his own Default, there if he cut Trees to repair it, it is Waste.

It is to be observed, that there Co. 1 part Inst. f. 53. a. Vid. Herne's Law of Convey. p. 52. is Waste, Destruction and Ex­ile. Waste properly is in Houses, Gardens and Timber-Trees, (viz. Oak, Ash and Elm, and these are Timber in all places) either by cutting of them down, or lopping and top­ping them, or doing any act whereby the Timber may de­cay.

Also in Countries where Co. ubi suprá. Herne ubi suprá. Timber is scant, and Beeches or the like are converted to building for the habitation of man, or the like, they then are also accounted Timber, and cut­ting of them by the Tenant is Waste.

If the Tenant cut down 22 H. 6.12. a. [...] N. B. 59. m. C [...] ubi suprá. [Page 132] Timber-Trees as is afore said, or such as are accounted Tim­ber, it is Waste; and if he suf­fer the young germens to be de­stroyed, this is Destruction, and punishable in Waste also.

If the Tenant cut down Un­der-wood, (as he may by Law) 20 E. 3. Wast 32. 10 H. 7.2.42. E. 3. [...]. b. 5 E 4. 100. 41 E. 3. Wast 82. 12 E. 4. 1. & Co. 1 part Inst. f. 53. a. yet if he suffer the young ger­mens to be destroyed, or stub up the same by the Roots, so that it can grow no more, this is Waste.

Cutting down of Willows, 40 E. 3. f. 15. b. 4 E. 6. Waste, Br. 136. Kitchin f. 243. a. Co. ubi su­prá. Comp Att. p. 165. Herne's Law of Conv. p. 52. Beech, Birch, Aspe, Maple or the like, standing and grow­ing in the Defence and within the view of the House, is Waste.

Beech of the age of 20 years, nor under 20 years, may Temps H. 8. Br Waste 184. not be cut by Tenant for Life or Years, for it is Waste, un­less it be in some Countries where there is plenty of Tim­ber▪

[Page 133] A man cannot assign Waste 13 H. 7. f. 21. in the cutting of Beeches of the age of 7 or 8 years.

Cutting of Hasels which grow not under the great Trees, 40 E. 3 f. 25. b. 10 H. 7. f. 2. F. N. B. 60. c. Kitchin, f. 243. a. but in a quarter of the Wood by themselves, is Waste.

If there be a Quick-set-Eence of White-thorn, and Co. 1 part Instit. f. 53. a. 46 E. 3. f. 17. 9 H. 6. f. 10.12 H. 8.1. Kitchin, f. 244▪ a. the Tenant stubs it up, or suf­fers it to be destroyed, it is Waste.

The Cutting of dead Wood Co. ubi suprá, & Kitchin ubi suprá. F. N. B. 59. m. 16 El. Dyer 332. which is dry and hollow, and neither bears Fruit nor Leaves in Summer, is no Waste.

The Tenant may take suffi­cient Co. 1 part Inst. f. 53. b. Wood to repair the Walls, Pales, Fences, Hedges and Dit­ches, as he found them; but he can make no new ones but it will be Waste.

He may also take sufficient Plough-bote, House-bote, and Fire-bote, as is shewed before in Chap. 5. p. 91.

[Page 134] If the Tenant cut down Trees Co. 1 par. Inst. f. 53. b. Compl. Att. p. 167. Herne's Law of Conv. p. 58. for Reparations and sell them, and after buieth them again and imploies them about necessary Reparations, yet it is Waste by the Vendition, for he cannot sell Trees, and with the mony cover the House.

Burning of the House by ne­gligence Co. ibid▪ & Herne ubi suprá. or mischance is Waste.

A Termor may take Beech, 4 E. 6. Bro. Waste 136. Ashes, and the like, which are well seasonable, and have been used to be felled every 20, 16, 14, or 12 years, and it is no Waste, for it is called Sylva caedua.

Cutting of Beeches and sel­ling 7 H. 6. f. 40. Kit­chin, f. 243. b. them is Waste; but the Termor may cut them to repair upon the same Land, but not to make Reparations upon other Lands.

Cutting Beeches of 10 years old seasonable for House-bote, 11 H. 6 f. 1. Sed [...]ide 4 E. 6. f. 136 Kitchin, f. 243. a. is no Waste; but where they [Page 135] are of the age of 20 years, and fit for main Timber, that is Waste.

Where Oaks are cut, and Kitchin, f. 243. b. 11 H. 6. f. 1. Com. Att. p. 167. the young germens suffered to be eaten with Cattel, so that they will be but Shrubs, this is Waste.

One may assign Waste in 22 H. 6. f. 14. Kit­chin, f. 243. b. the cutting of 20 Oaks, and also in their Stocks, to wit in not springing them again; for if they were saved, they would be Timber, and for that they are not saved, it is Waste.

A Termor may cut season­able wood, which is wont to be F. N. B. fo. 59. m. cut every 20 years, or within such time.

Cutting of White-thorn is 46 E. 3. f. 17. Kit­chin, f. 244. a. Waste, but not the cutting of Black-thorn.

Where there is a Wood in 4 E. 6. Bro. Wast 136. which groweth nothing but Under-wood, the Termor can­not cut all; contrà of Under­wood [Page 136] where Ash, Beech, and other principal Trees grow amongst them, for there he may cut all the Under-wood.

Where Apple-trees are 7 H. 6. f. 40. Kit­chin, f. 244. a. blown down, and after become dead, the Tenant may cut them for Fewel.

Cutting of Apple-trees, Kitchin, ibid. 44 E. 3. f. 44. Compl. Att. p. 168. though they ly all along on the ground, yet if they bear fruit, it is Waste.

Cutting of Damsin-trees is Waste. 10 H. 7. f. 2.

If the Tenant cut down any of the Fruit-trees growing in 7 H. 6.38.44 E. 3. 44. Co. 1 part Inst. f. 53. a. the Garden or Orchard, it is Waste.

But if such Trees grow in Co. 1 part Inst. f. 53. a. Vide Hern's Law of Conv. p. 52. any place of the ground out of the Garden or Orchard, it is no Waste if he cut them.

Digging for Gravel, Lime, Co. ibid. f. b. F. N. B. 59. n. Herne's Law of Conv. p. 53. Clay, Brick-earth, Stones, or the like, is Waste.

And so it is if the Tenant dig [Page 137] for Mines of Metall, Coals, &c. Idem ibid. 41 E. 3. Wast 8. Ho­bart's Rep. f. 234. Herne ubi suprá. in the Earth, and not open at the time of the Lease made.

But he may dig for Gravel or Co. ubi suprá. Com. Att. p. 168. Herne ubi suprá. Clay for Reparations of the House, and it is no Waste.

It is Waste to suffer a Wall Idem ibid. & Brit. f. 168. b. 6. El. in Griffins' case. of the Sea to be in decay, so as by the flowing and reflowing of the Sea the Meadow or Marsh is surrounded, whereby the same becomes unprofita­ble; but if it be suddenly by 6 El. ubi suprá. [...]. N. B. 59. n. the rage and violence of the Sea occasioned by some Tempest or the like, without any default of the Tenant, this is no Waste pu­nishable.

If the Tenant repair not the Co. ubi suprá. 29 H. 8. Dyer 33. 22 H. 6.4.10 H. 7. 5. a. Kitchin, f. 241. b Banks or Walls of Rivers or other Waters, whereby his Ground is surrounded, and be­comes rushy and unprofitable, this is Waste.

To suffer Pasture-ground to Kitchin ibid. 20 H. 6. f. 1. be surrounded with water, so [Page 138] that it becomes rushy and no­thing worth, or Arable-Land to be surrounded, so that no­thing remains but tough Clay, this is Waste.

If the Tenant convert Ara­ble-Land Co 1 part Inst. f. 53. b. 29 H. 8. Dyer 37. Hobart. Rep. f. 234. Vide Kitchin, f. 241. b. 10 H. 7.5. a. 44 E. 3.44. & Com. Att. p. 168. into Wood, or è con­verso, or Meadow into Arable, it is Waste; for it doth not onely change the course of his Husbandry, but the proof of his Evidence.

To suffer Arable-Land to lie 2 H. 6. f. 11. F. N. B. 59. n. fresh, so that it is full of Thorns, is no Waste.

If a man lease his Lands in Co. 1 par. Inst. f. 54. b. 17 E. 3.7. 9 H. 6.66, F. N. B. 149. c. & 59. n. Vide Hil, 15 Jac. in the Lord Dar­cy & Askwith's case. Hobart's Rep. f. 234. Herne's Law of Conv. p. 54, & 55. which are Mines of Coals or the like, without mentioning the Mines in the Lease, the Lessee for such Mines as are open at the time of the Lease made may dig lawfully, and take the pro­fits thereof; but he may not dig for any new ones, it is Waste.

If there be open Mines, and Co. ubi suprá. [Page 139] the Owner make a Lease of the Vide Saunders's case, 41 El. in Co. B. Co. 5. l. f. 12. Herne's Law of Conv. p. 54, & 55. Land with the Mines therein, this shall extend to the open Mines onely, and not to any hid­den Mines: but if there be no open Mines, and the Lease is made of the Land together with all Mines therein, in this case the Tenant may dig for them, and enjoy the benefit thereof, otherwise the words should be void.

If a Lease be made to one of 17 E. 3. Tit. 101. Kitchin, f. 248. a. Lands, to occupy the same af­ter the best way he can, or to make his best profit of them, yet this shall be intended onely to be after such manner as is ac­cording to Right and Law; for in this case the Lessee may not plow up Meadow, or pull down Houses, &c. for if he do, he shall be punished in Waste.

If the Lessee make the Vil­lanes Co. 1 part Inst. f. 53. b. or Tenants at VVill poor, [Page 140] where they were rich when he came in, whereby they depart from their Farms, this is Exile and punishable.

CHAP. XII. Who are punishable in Waste, and for what Waste, &c.

WAste in Latine is called Co. 1 part Inst. f. 52. b. Vastum, à Vastando, from wasting and depopula­ting.

There are two kinds of Idem, f. 53. a. Waste; that is to say, Volun­tary or Actual Waste, and Per­missive Waste.

An Action of Waste lieth Noye's Max. p. 33. Co. 1 part Inst. f. 53. a. & 2 part Inst. f. 302. Pl. Com. f. 467. b. 68. a. Philipps Pr. of Law, p. 32. Vid. Mag. Charta, ch. 4. & Stat. Glouc. against Tenant by the Courte­sie, Tenant for Life, for Years, or half a year, Tenant in Dow­er, or Guardian in Chivalry, by [Page 141] him that hath the Estate imme­diate ch. 5. Rastal Wast 1.4.5. & Win­gate's Abr. Stat. p. 551, & 552. 4 H. 6. f. 11. Kitchin, f. 338. a. of Inheritance, for Waste or Destruction in Houses, Gardens, VVoods, Trees, Lands, Meadows, &c. or in Exile of men, to the disherison of him in the Reversion or Re­mainder, and they shall lose the place wasted, and treble Dam­mages.

It doth not lie against Guar­dian in Soccage, but an Acti­on Co. 1 part Inst. f. 54. a. Ferrer's Mag. Charta, f. 26. b. of Account or Trespass.

Waste lieth not against Te­nant Noye's Max. p. 33. F. N. B. 59. c. 16 E. 3. Tit. Wast 100.2 E. 2. Wast 1. by Elegit, Statute-Mer­chant or the Staple, but an A­ction of Account after the Debt and Dammages levied.

Neither doth it lie against Tenant at Will; but if such Co. 1 par. Inst. f. 57. a. 21 H. 6.38. 48 E. 3. f. 25. 11 H. 6. f. 38. 12 E. 4. f. 8.22 E. 4.5.21 H. 6. f. 43. Kitchin, f. 237. a. b. Wal­grave & Somer­set's ca. Mich. 29 & 30 El. Goldsb. Rep. p. 72. pl. 17. Tenant voluntarily pull down the Houses or cut down Tim­ber-trees, &c. in this case the Lord may have an Action of Trespass against him, Quare vi & armis, &c. but for permis­sive [Page 142] Waste the Lord hath no Remedie against him.

Either Waste or Account will lie against Tenant in Mort­gage, Noye's Max. ubi suprá. for he hath Fee Condi­tional.

There are 5 several Writs of Waste; 2 at the Common Co. 1 part Inst. f. 54. a. Law, for Waste done by Te­nant in Dower or the Guardian; and 3 by the Statute-Law, for Waste done by Tenant for Life, for Years, and Tenant by the Courtesie.

If two or more Joint-tenants Co. 1 part Inst. f. 200. b. Reg. 163. f. N. B. 127. & 1 part Inst. f. 54. b. or Tenants in common be of a House of Habitation, and the one of them will not repair the House, the other in that case may have a Writ De reparatio­ne facienda.

If the Lessor covenant to re­pair 12 H. 8. f. 1. Co. 1 par. Inst. f. 54. b. Vid. Herne's Law of Conv. p. 54. the House, and doth not, in this case the Lessee may cut Timber growing upon the ground and repair it, though [Page 143] he be not compellable thereun­to, and shall not be punished in Waste for cutting the Wood.

If a man make a Lease of an Co. ubi suprá. House and Lands, without im­peachment of Waste for the House, yet may the Lessee not­withstanding repair the House with the Timber growing upon the ground, though he may ut­terly waste the House if he will.

No person shall have an A­ction Co. 1 part Inst. f. 53. b. F. N. B. 59. f. 8 R. 2. Wast 47.27 H. 8.13. of Waste, unless he hath the immediate state of Inheri­tance; but sometime another shall joyn with him for Con­formity; as if a Reversion be granted to two and the Heirs of the one, they two shall joyn in an Action of Waste.

And in like sort the survi­ving Idem ibid. Coparcener and the Te­nant by the Courtesie shall joyn in an Action of Waste.

If the Estate-Tail deter­mine, Co. ubi suprá. 2 H. 4.22. [Page 144] hanging the Action of Waste, and the Plaintiff become Tenant in Tail after possibility of Issue extinct, the Action of Waste is gone.

If the Tenant do Waste, and 2 H. 4. Co. ubi su­prá. Noye's Max. p. 33. he in the Reversion dieth, the Heir shall not have an Action of Waste for the Waste done in the life of the Ancestor.

Nor a Bishop, Master of an Co. ubi suprá. Hospital, Parson, &c. in the time of the Predecessor.

If Lessee for Years commit Waste and die, no Action of Idem ibidem. 10 E. 4.1.49 E. 3. 25. 11 E. 2. Wa. 115. 2 Mar. 117. 8 E. 2. Waste 110. Waste lieth against his Execu­tors or Administrators for Waste done before their time.

If two Coparceners be of a Idem ibid. Reversion, and the one of them dies, the Aunt and Niece shall join in an Action of Waste.

If Lands be given two, and C. 1 par. Inst f. 53. b. & 200. b. 24 E. 3. 27. 50 E. 3.3.8 H. 6. 13. Co. 2 part Inst. on Stat. Glou. ch. 5. the heirs of one of them, he that hath the Fee shall not have an Action of Waste upon the [Page 145] Statute of Glouc. for that they are Joynt-tenants; but his Heir shall have an Action of Waste against Tenant for Life.

If Lessee for Life commit F. N. B. 36. b. 14 H 8. f. 11. Kitchin, f. 244. a. b. Waste, and after surrender his Estate, and the Lessor accepts it; now the Lessee is dischar­ged of the Waste.

If a Stranger make Waste Kitchin, ibid. 5 [...]. 4. f. 3. 3 H. 6. f. 1 [...]. b. upon the Lands which one holdeth for Life or Years, the Termor shall be punished for it, and is left to take his Remedy over.

But if the Lessor himself Kitchin, ubi su­prá. 5 H. 4. f. 3. make Waste, the Tenant shall not suffer for that Waste.

If the Tenant make Waste Idem ibid. 48 E. 3. f. 15. 34 H. 6. f. 7. [...] before his Attornment, he shall not be liable to an Action for it.

If the Lessor covenant to deliver Timber out of the same 44 E. 3. f. 21. Kit­chin, ubi suprá. Land to repair the House let, [Page 146] and will not, and for lack there­of the Lessee will not repair it, but suffers the House to fall; in this case he is punishable for such Waste: But if the Tim­ber Idem ibid. be to be taken out of other Lands, and is not delivered, then the Tenant is excusable if he suffer the House to fall, and no Action of Waste lies against him.

Note, After the Waste Co. 1 par. Inst. f. 53. b. done, there is a special regard to be had to the continuance of the Reversion in the same estate that it was at the time of the Waste done; for if af­ter the Waste he grant it over, though he take back the whole Estate again, yet is the Waste dispunishable: and so it is if he grant the Reversion to the use of himself and his Wife, and of his Heirs, yet the Waste is dispunishable, and so of the like; because the Estate of [Page 147] the Reversion continues not, but is altered, and consequent­ly the Action of Waste for Waste done before (which consisteth in privity) is gone.

A Prohibition of Waste did lie against Tenant by the Cour­tesie, Bract. l. 4. f. 315, 316. Brit. f. 168. Dr. & Stud. l. 2. ch. 1. 12 H. 4.3. 10 H. 3. Wast 142. 4 H. 3. Wast 140. Co. ubi suprá. Tenant in Dower, and Guardian in Chivalry by the Common Law, but not a­gainst Tenant for Life or Years, because they came in by the Lessor's own Act, and he might have provided that no Waste should be done.

Tenant by the Courtesie or Noye's Max. p. 33. Co. ubi suprá. F. N. B. 56. e. f. and see Co. 3. l. in Walker's ca. & [...]. l. in Beaumont's ca. Regest. 72. in Dower can hold of none but the Heir and his Heir by descent; and therefore if they grant over their Estate, and the Grantee doth Waste, yet the Action must be brought against themselves for the Waste done, and not against the Assigns or Grantees.

But if the Heir either be­fore Co. ubi suprá. [Page 148] the Assignment had grant­ed, or after the Assignment doth grant the Reversion over; in both these cases the Grantee must bring the Action of Waste against the Assignee, for now the privity is destroyed.

In all other Cases the Acti­on of Waste must be brought Co. 1 par. Inst. f. 54. a. 27 E. 4.81. 26 E. 5. Waste 10. against the parties that commit the Waste, (for it is in nature of a Trespass) unless it be in case of a Ward; for there if the Guardian doth Waste and assign over, the Action lieth against the Assignee.

A Guardian shall not be pu­nished Co. ubi suprá. 12 H. 4.3. 3 E. 3. Wast 146. Fleta, l. 1. ch. 11. for Waste done by a Stranger.

But Tenant by the Courte­sie, Idem ibid. F. N. B▪ 59. a. & 60. g. & [...]. in Dower, for Life, Years, &c. shall be punished for VVaste done by a Stranger, and are left to take their Remedy over against the Stranger as aforesaid.

[Page 149] If VVaste be made by F. N. B. 59. l. Kitchin, f. 244. b. strange Enemies or sudden Tempest, the Termor is dispu­nishable for such VVaste. See before ch. 11. p. 127.

If Land be let to a Feme F. N. B. 36. b. 3 E. 3. T [...]. 20. Kitchin ubi suprá. Co. ubi suprá. sole, and she take Husband, who commits VVaste and dies; she shall be punished for this VVaste.

But if the Lease were made Kitchin, ibid. Finch, l. 1. ch. 3. p. 26. to the Husband and Wife, and he commits VVaste and dies; in this case she shall not be pu­nished for such VVaste, unless she agree to the Estate.

If there be two Joynt-te­nants of a VVard, and one of Co. 1 part Inst. f. 54. a. 33 E. 3. Wast 6. them commit VVaste, both shall answer for it.

An Infant and Baron and Feme shall be punished for Co. ibid. Vide 15 H. 3. Waste 1 [...]. VVaste done by a Stran­ger.

If a Feme Tenant for Life Co. ibid. Vide [...]lif [...]on's case, 35 El. Co. 5. l. f. 73. 49 [...]. 3.25.46 [...]. 3. Waste Statham. 10 H. 6.11, 12. [Page 150] take Husband, and the Hus­band doth VVaste, and the VVife dieth; in this case he is not punishable for such VVaste: but if a Feme be possessed of a Term of years, and take Hus­band who commits VVaste, and the VVife dies; here he shall be liable to an Action of VVaste for the VVaste by him commit­ted, because the Law giveth the Term to him.

If Tenant for Life grant over Co. ubi suprá. 30 E. 3.10. his Estate upon Condition, and the Grantee doth VVaste, and the Grantor re-entereth for the Condition broken; the Action of VVaste shall be brought against the Grantee, and the place wasted recovered.

If a Lease be made to a Vi­lain, Co. Ibid. 48 E. 3. 19. and VVaste is done, and the Lord entereth; in this case the Lord shall not be punished for VVaste done before En­try, but for VVaste after he shall.

[Page 151] An Occupant shall be puni­shed Co. ibid. & vide Co. 6. l. f. 37. [...]e Dean and Chap. de Worc. case; & l. 1 [...]. f 9. b. Herne's Law of Conv. p. 53. for Waste; and so if an Estate be made to A and his Heirs during the Life of B, and A dies, his Heir shall be puni­shed in Waste.

If a Lease be made to A for Co. 1 part Inst. f. 54. a. 50 E. 3. 3. 4 E. 3. 18. Perkins, 619. F. N. B. 58. c. & 59. h. 33 E. 3. Wast 144. 11 E. 3. Receit 118. 10 [...]. 4. 9 Regest. 74. Paget & Carie's case vouched in Co. 2. lib. in Bingham's ca. f. 92. & Co. 5. l. f. 76. Page [...]' [...] case there, 35 El. in C. B. Life, the Remain­der to B for Life, the Remainder to C in F [...]e; in this case if A make Waste, no Action lieth against him du­ring the Life of B; but if B die, then an Action of VVaste lies against A for the VVaste done in the Life of B; because it was ad exhaereditationem of him in Remainder in Fee, and now the impediment (which was the mean Estate for Life) is taken away.

And where it is said in some Vide Paget's ca. ubi suprá, in Co. 5. l. Herne's Law of Conv. p. 53. Books, that he in Remainder or Reversion in Fee shall not have an Action of VVaste, it [Page 152] is to be intended during the continuance of the mean Re­mainder for Life: again, where it is said in some other Books, that an Action of Waste doth lie, it is meant after the death of him in Remainder for Life, & not otherwise, therefore nota.

If a Lease for Life be made, [...]inch, l. 1. [...]h. 3. p [...]0▪ Co. 1 part I [...]st. f. 5 [...]. [...]. Vide Herne's Law of Conv. p. 50, & 53. the Remainder for Years, the Remainder in Fee; here an Action of VVaste lies pre­sently against the Tenant for Life, during the term in Re­mainder, for this mean term for years is no impediment.

But if a man maketh a Lease for Life or Years, and after Co. ubi suprá; & Vide 4 F. 3. 18. granteth 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 main­tain his Action: but it is other­wise if he had made a Lease in [Page 153] Reversion, which had been but a future Interest, for there an Action of VVaste lieth during the term, and the term shall be saved in that case.

If an Action of VVaste be brought, and pending the VVrit 11 H. 6. f. 8. F. N B. fo. 60.14 H. 8. f. 12. Kitchin, f. 246. b. the term end, yet the VVrit shall not abate; for although the Plaintiff cannot recover the place wasted, yet he shall re­cover the treble Dammages.

And so where one that holds Co. 1 part Inst. f. 285 a. 11 H. 6.43. 9 E. 4.50. for term of another's Life makes VVaste, and afterwards Cestui que vie dies; here the Lessor shall recover Dammages, although he cannot recover the place wasted.

If Tenant for Life or Years or their Assignes make a Grant F. N. B. f. [...]0. Kit­chin, ubi suprá. 36 [...]l. in C. B. [...]oo [...]he's case. Co. 5. l. [...]. 77. over, and yet take the pro­fits; then an Action of VVaste lieth against him by him in Reversion or Remainder, by the Statute of 11. H. 6. c. 5.

[Page 154] If Waste be done in one Co. 1 part Inst. f. 54. a. & 2 part In­stit. fo. 304. 4 E. 6. Waste 136. 18 H. 8. 1. 15 H. 7. 11. 8 E. 3. Waste 112. 4 E. 2. 32. 15 E. 3. Waste 108. See Temps E. 1. Wast 122, and 134. Kitchin, f. 246. b. Rege­stum Practicale, p. 343. Herne's Law of Conveyances, p. 54. Corner of a Wood, that onely shall be recovered; but if it be sparsim, that is here and there in the Wood, then the whole Wood shall be recovered, or as much wherein the Waste spar­sim is done.

And so in Houses, so many Co. 1 part Inst. f. 54. a. 8 E. 2. Wast 112. Rooms shall be recovered wherein there is Waste done; but if the Waste be done spar­sim, through all, then all shall be recovered.

If a man make a Lease for Life, and by Deed grant that if any Waste be done, that it shall be redressed by Neigh­bours, and not by Suit or Plea; yet notwithstanding an Action of Waste doth lie, for the place wasted cannot be recovered without Plea.

If a man make Waste in 4 E 6. Wast 136. per Bro [...]ley. & Pasch. 1650. in B. R. per Just. Jermy n. Vid. Regest pract. p. 343. [Page 155] cutting Trees which grow in Hedg-rows which inclose Pa­sture, nothing shall be recove­red but Locus vastatus, that is the Circuit of the Roots, and not the whole Pasture: But if the Trees grew spar­sim, Reg. pract. ubi suprá. scatteringly about the Pa­sture, then the whole Pasture is forfeited if they be cut.

It is a good Plea in Bar to a Writ of Waste, to say that the 43 E. 6. f. 6. Wast Kitchin, f. 247. a. House fell by sudden Tempest, although the Termor did co­venant to repair it; but it is no Plea in a Writ of Cove­nant.

It is a good Plea in Waste to say, that at the time of the Kitchin, ubi suprá. 49 E. 3. [...]. 7. Wast. Lease made the House was ru­inous, and the Timber putre­fied and rotten, so that it fell; for if any of the principal Tim­ber were rotten, it is no Waste, though he did covenant to re­pair it. See before, ch. 2. p. 14.

[Page 156] It is also a good Plea to say, 8 H. 6. f. 27. Wast. 8 H. 5. f. 8. Wast, mes veies Co. 1 part Inst. f. 285. a. that the Plaintiff 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.

It is no Plea to say, that at 19 H. 6. f. 66. Vide Co. 1 part Inst. f. 283. a. & Kitchin, f. 247. b. the day of the Writ purchased the House was sufficiently re­paired; but he must say after the Waste committed, and before the Writ purchased, it was suf­ficiently repaired; and this is a good Plea.

If the Lessee doth Waste, 19 H. 6. 66. 14 H. 6. 14. 11 R. 2. Waste 99. Co. 1 part Inst. f. 285. a. and after surrenders, and the Lessor agrees; yet notwithstan­ding the Lessor may have an Action of Waste, and recover the treble Dammages.

If an Action of Waste be brought by Baron and Feme in Co. ubi suprá. 2 H. 4.22.6 F. 2. Brief. 807. Remainder in special Tail, and pending the Writ the Wife di­eth [Page 157] without Issue; now the Writ in 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. [...] 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. [Page 158] 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 Dove­house 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 th [...] case if the Lessee cut dow [...] Trees, the Lessor shall hav [...] them, for the discharge ex­tends [Page 159] 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. [...] 23 F. N. B. 60. [...]. 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.

[Page 160] 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,

[Page 161] 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 [...]. 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 12^d or such a petty Summe; for De minimis non curat Lex.

If Waste be done upon Co. 2 part Inst. [...]. 303. Reges. Prac. p. 343. Lands let for term of Years or Life, by one against whom the [Page 162] 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 [Page 163] 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 [Page 165] 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 grieved so much as the Justice or Head-Officer shall set down: and in case the par­ty offending be not able to pay it, or do it not according to Order, then the Offender is by them or either of them (re­spectively) to be committed to the Constable, or other Offi­cer of the Place where the Of­fence was committed, or the party apprehended to be whip­ped; and so for every Offence afterwards, and proved as afore­said, the Offender is to have the like punishment of Whip­ping.

If the Constable refuse or neglect to whip the Offender, any such Justice of Peace or Head-Officer may commit him [Page 166] to Prison without Bail, till he whip or cause to be whipped the party offending, as is above declared.

No Justice may execute this Statute for Offences done to himself, unless he be associa­ted with one or more Justices of Peace whom the Offence doth not concern. Stat. 43. El. ch. 7.

Now the Statute of the 15. Car. 2. is an Additional Act to this, as follows.

That every Constable, Head-borough, or other person in every County, City, Town Corporate, or other place where they shall be Officers or Inhabitants, shall have power to apprehend or cause to be apprehended such as they sus­pect for having, or carrying, or any waies conveying any Burthen or Bundles of any [Page 167] kinde of Wood, Under-wood, Poles, or young Trees, Bark or Bast of Trees, or any Gates, Styles, Posts, Pales, Rails, or Hedg-wood, Broom, or Furze.

If any person be suspected to have any such Woods, Un­der-woods, &c. any Officer, by Warrant under the hand and Seal of one Justice, may enter by virtue thereof in­to the Houses, Out-houses, Yards, Gardens, or other pla­ces belonging to such persons, and wheresoever they finde any such, they may apprehend those persons, and also those who are suspected to have cut and taken the same, and carry them before a Justice of the Peace of the County, City, &c. and if he in whose cu­stody such Wood, &c. is found, cannot give a good Account, which may be sa­tisfactory [Page 168] to the Justice, how he came by the same with the consent of the Owner, or do not within a convenient time, set down by the Justice, pro­duce the party of whom he bought the same Wood, Un­der-wood, &c. or some other credible Witness to depose upon Oath such Sale of the said Wood, Under-wood, &c. (which the Justice may admi­nister:) that then the said per­son shall be deemed convict of the said offence of cutting and spoiling of the same Woods, Under-woods, &c. within the meaning of the before-recited Statute of the 43. of Eliz. and be liable to the punish­ment therein contained; and to pay over and above down presently, to the use of the Overseers of the Poor of the place where the Offence is committed, for the First Of­fence, [Page 169] such a summe, not ex­ceeding 10^s, as the Justice shall appoint. And if the Offender shall not perform the Justice's Order herein to the Owner, and also to the Overseers of the Poor, then the Justice is to com­mit him to the House of Cor­rection, for so long (not ex­ceeding one Moneth) as he shall think meet, or to be whipt by the Constable or other Officer, as the Justice shall judge most expedient. And if such person shall again offend in the like kinde, and be convicted as before, then he must be sent to the House of Correction for one Moneth, and be there held to hard Labour. And if he do offend the third time, and be convicted as be­fore, then he shall be taken, adjudged, and deemed as an In­corrigible Rogue.

If any buy any Burthens of [Page 170] Wood, &c. (as before named) which may be justly suspected to have been stoln or unlawful­ly come by; any Justice, Mayor, Bailiff, or Head-Officer within his Jurisdiction, may, upon com­plaint to him made, examine the matter upon Oath, which they may administer: and if he find that the same was bought of one that may be justly suspected to have stoln or unlawfully come by the same, he may then or­der the party that bought the same, to pay Treble the value to the party from whom they were stoln or unlawfully come by, and in default of present payment thereof, issue out his Warrant to levy the same by Distress and Sale of the Offen­der's goods, rendring the over­plus to the owner of such goods; and for lack of such distress, to commit the party to the Gaol, there to remain [Page 171] without Bail for the space of one Moneth at his own charges.

Note, that no man is to be punished by this Law, that hath been punished by a former Law for the same Offence: nor is any man to be questioned for any offence in this Statute, unless he be questioned for the same within six weeks after the Offence is committed.