Butler v. Monnings, Noy 5. Deux v. Jefferies, Cro. Eliz. 352. entitled to a rent-charge is disposed to exonerate part of the lands from the payment of it: but, in consequence of the above doctrine, difficulties have arisen in settling the mode of effecting such exoneration, without risking the entire extinguishment of the rent-charge. The common mode has been for the grantee of the rentcharge to join in the conveyance of the lands, which operates as a release of the lands conveyed, from the payment of the rent-charge; and to insert a proviso in the deed, that the other lands shall continue subject to the rent-charge. And it is held, that this proviso operates as a new grant of the rent-charge. To this mode, however, there is a material objection: for such new grant would be subject to any incumbrances created subsequent to the grant of the original rentcharge, but prior to the conveyance of part of the lands. 18. Another mode is sometimes adopted: that is, to obtain a covenant from the grantee of the rent-charge, that he will not distrain or enter on the premises conveyed for the recovery of his rent-charge. But there is a case, in which one of the Judges held that such a covenant would operate as a release of the whole rent charge; though Anderson was of a different opinion. 19. There are many cases in which a rent-charge or a rent-service may be apportioned, as well by the Gilb. Rents163. act of the party, as by the act of the law. Thus, where 18 Vin. Ab.504. the grantee of a rent-charge releases part of the rent to the tenant, such release will not extinguish the whole rent: but the part not released will still continue. Apportionment of rent-charge. Idem. 20. So if the grantee of a rent-charge conveys part of it to a stranger, and the tenant of the land attorns, such grant will not extinguish the residue, because such release or disposition makes no alteration in the original grant; nor does it defeat the intention of it, as the purchase of part of the land does, for the whole rent is still issuable out of the whole land, and charged according to the original intention of the grant. Besides since the law allowed of such grants, and thereby established this kind of property, it would have been unreasonable and severe to hinder the proprietors of rent-charges from dividing them, for the promotion of their children. 21. Lord Ch. B. Gilbert observes, that the objection Rents 164. which, has been made to this kind of apportionment of Cro. Eliz. 742. rent charges is this: that the tenant would be thereby exposed to several suits and distresses for a thing, which, in its original creation, was entire. But the answer is obvious, that it is in the tenant's choice whether he will submit himself to this inconvenience by his attornment to the grant of a part of the rent-charge.. Now the necessity of an attornment is taken away: but still a division or apportionment of a rent-charge, by a conveyance of part of it to a stranger, is held good. Cro. Eliz. 742. 22. A rent-charge may be divided and apportioned by act in law; for a part of a rent may be extended by Wottone.Shirt, a scire facias. And though it was said that the tenant Gilb. Rents 165. was thereby, without his attornment, made liable to se-. veral suits and distresses, yet it was an inconvenience which he might avoid by punctual payment of his rent. 23. If part of the lands subject to a rent-charge de- Lit. § 224. scend to the grantee, it shall be apportioned according to the value of the land; for in this case the grantee is perfectly passive, and does not concur by any act of his to defeat the intention of the grant. Gilb.Rents 156. of rent-service 24. With respect to the apportionment of rent-ser- Apportionment vice it has been stated in sect. 5. that where a person, at law. having a rent-service, purchases part of the land out of which it issues, the rent-service is not extinguished, but shall be apportioned according to the value of the land; so that the purchase shall operate as a discharge to the tenant for so much of the rent as is equal to the value of the land purchased. 25. This rule only applies to such services as are divisible in their nature, such as rent; for with respect to indivisible services, as where the tenant is bound to render a horse, a hawk, or such like, though the lord Lit. § 222. 1 Inst. 149 a. Gilb. 166. 1 Inst. 149 b. Talbot's case, 8 Rep. 104. Tit. 10. c. 4. § 53. Gilb. Rents, 167. Idem, 172. Collins v. purchases part of the tenancy, yet, as there can be no apportionment of these services, they shall become extinct, and the tenant will be discharged from them: for the whole tenancy being equally chargeable, the lord by his own act shall not discharge part, and throw the whole burthen upon the residue, for his own private benefit and advantage. 26. Where such entire service is for the benefit of the public, as castle guard, cornage, &c., or to repair a bridge or way, or to keep a beacon, or for the advancement of justice; or if it be a work of piety; in all such cases the tenant is still chargeable for the whole services for the thing is in its nature indivisible; and the whole shall not be extinguished, because the public has an interest in such services; and shall not be prejudiced by the private transactions of the parties. 27. If there be lord and tenant by fealty and heriot service, and the lord purchases part of the land, the heriot service is extinct, because it is entire and valuable. It is otherwise in the case of heriot custom, as has been already shewn. But where part of the tenancy comes to the lord by descent, the services are not extinct, though indivisible. 28. It was formerly doubted whether a rent-service incident to a reversion might be apportioned by a grant of part of the reversion; or whether the whole rent should not be extinct and lost. For since the reversion and rent incident thereto were entire in their creation, it was thought hard that they should be divided by the act of the lessor, and the tenant thereby made liable to several actions and distresses. 29. It has, however, been long settled, that where part of the reversion is granted away, the rent shall be apportioned; for the rent is incident to the reversion. Therefore if a person makes a lease for three years of land, reserving three shillings' rent; as he may dispose of the whole reversion; so may he also dispose of any part of it, since it is a thing in its nature severable : and the rent, as incident to the reversion, may be also divided, because that being a retribution for the land, ought to be paid to those who are to have the land upon the expiration of the lease. Hence it is that the rent, or a proportionable part thereof, passes immediately with the reversion, without any express mention being made of it in the grant. Ardo v. Watkins, Cro. 30. A rent-service may also be apportioned by a devise of it to several persons. As where A. leased to B. rendering 101. rent; and then devised 6l., part thereof Eliz. 637, 651. to C., D., and E., severally, to each of them a third part; it was resolved, that an action of debt was maintainable by one of the devisees For though the lessee by this means became subject to several distresses and actions, without attornment, yet these were mischiefs which he might prevent, by a punctual payment of his rent. 31. It has been stated that a rent-service is dis- Ante, § 2. charged by the eviction of the tenant out of the whole land, from which the rent issues: but where only part of the land is evicted, the rent will be apportioned. 32. Where a right of common is established on land demised, the rent cannot be apportioned at law, as there is no eviction. And in a case of this kind, the Court of Chancery refused to apportion the rent, because the lands were worth more than what was reserved. 33. The plaintiff was lessee of divers lands, whereupon an entire rent was reserved: afterwards the inhabitants of the town where part of the land lay claimed a right of common there, and upon a trial established it. This not being an eviction of the land at law, because the soil was not recovered, there could be no apportionment of the land at law; therefore, a bill was brought to have the rent apportioned in equity. Serjeant Maynard insisted that such an apportionment had frequently been decreed in equity: but it appearing that the lands were worth the rent reserved, and more, the Court would not decree an apportionment. 1 Inst. 148 b. Jew v. Thirkwell, 1 Cha. Ca. 31. Vol. I. 236. Idem. Campbell's Idem. Apportionment by statute 11 Geo. 2. Jenner v. 34. With respect to those cases where a rent-service shall be apportioned by the act of God, it is said in Roll's Abridgment, that if a man leases land for life or years, rendering rent, and after part of the land is surrounded by water, this will not make any apportionment of the rent, because the soil remains, and may be regained again but if part of the land be surrounded or covered with the sea, this will make an apportionment of the rent; for though the soil remains to the lessee, yet, by ordinary intendment, there is no probability of regaining it. 35. If land demised be burnt by wild fire, yet the rent shall not be apportioned, for the land remains notwithstanding; and cannot be so consumed but that some benefit may be made of it. 36. A rent-service may also be apportioned by act of law as where a moiety of a reversion is extended upon a writ of elegit, the rent shall be apportioned, and the lessor shall have half of it, as incident to the reversion that remains in him. 37. So where a husband leases for years, reserving rent, and dies, and his widow recovers a third part of the reversion for her dower, she shall have the same proportion of the rent: for in all these cases the law apportions the rent, in the same manner as it disposes of the reversion. 38. At common law, if a tenant for life died before the day on which the rent became due, where the lease determined by the death of the tenant for life, his executors could not claim an apportionment of the rent; nor could the remainderman or reversioner claim that part of it which accrued during the life of the tenant for life so that the tenant paid nothing. 39. This defect in the law produced the statute 11 Geo. 2. c. 19. s. 15., by which it is enacted, “That where any tenant for life shall die before or on the day on which any rent was reserved or made payable, upon any demise or lease of lands, tenements, or heredita |