Ante, f. 6.

Gilb. 152, 153.165.

Gilb. 165. Lit. f. 222.

I Intl. 149 a.

1 Inft. 149 a. Gilb. 166.

ing a rent-service purchases part of the land, out of which it iffues, the rent-fervice is not extinguished. But, in fuch a cafe, the rent-fervice fhall be apportioned according to the value of the land; fo that the purchase shall operate as a discharge to the tenant, for fo much of the rent, as is equal to the value of the land purchased.

§ 28. This rule, however, applies only to fuch fervices as are divifible in their nature, fuch as rent: for, with refpect to indivifible fervices, as where the tenant is bound to render a horfe, a hawk, or fuch like, although the lord purchases part of the tenancy; yet, as there can be no apportionment of these services, they fhall become extinct, and the tenant will be difcharged from them: for, the whole tenancy being equally chargeable with them, the lord by his own. act fhall not discharge part, and throw the whole burthen upon the refidue, for his own private benefit and advantage.

§ 29. Where fuch entire fervice is for the benefit of the public, as caftle-guard, cornage, &c. or to repair a bridge or way, or to keep a beacon, or for the advancement of juftice, or if it be a work of piety; in all fuch cafes, the tenant is ftill chargeable for the whole fervice, because the thing is, in its nature, indivifible; and the whole fhall not be extinguished, because the public has an intereft in fuch fervices, and fhall not be prejudiced by the private transactions of the parties.

$30. Lord

I Inft. 149 b.

Talbot's cafe,

$30. Lord Coke fays, if there be lord and tenant by fealty and heriot-service, and the lord purchase 8 Rep. 104. part of the land, the heriot-service is extinct; because it is entire and valuable. But it is otherwife in the cafe of heriot-cuftom.

Tit. 10. c. 4.

£. 50.

§ 31. Where part of the tenancy comes to the lord Gilb. 167. by defcent, the fervices are not extinct, though indi

vifible.

$ 32. It was formerly doubted, whether a rent- Gilb. 172. fervice, incident to a reverfion, might be apportioned by a grant of part of the reverfion; or, whether the whole rent fhould not be extinct and loft: for, fince the reverfion and rent incident thereto were entire in their creation, it was thought hard that they should be divided by the act of the leffor, and the tenant thereby made liable to feveral actions and diftreffes.

§ 33. It has, however, been long fettled, that where part of the reverfion is granted away, the rent incident to fuch reverfion fhall be apportioned: for the rent is incident to the reverfion. And, therefore, Gilb. 173. if a perfon make a leafe for three years of land, referving three fhillings rent, as he may difpofe of the whole reverfion, fo he may also of any part of it, fince it is a thing in its nature feverable; and the rent, as incident to the reverfion, may be alfo divided; becaufe that, being a retribution for the land, ought to be paid to thofe who are to have the land upon the expiration of the leafe: and hence it is, that the rent or a proportionable part thereof, paffes immediately

Ardo v.
Watkins,
Cro. Eliz.

637, 651.

Ante, f.

Lit. f. 222.

with the reverfion, without any exprefs mention being made of it in the grant.

$ 34. A rent-fervice may be apportioned by a devise of it to several perfons; as, where A. leafed land to B. rendering 15. rent, and then devised 61. part of the 10l. to C. D. and E. feverally, to each of them a third part; and died. It was resolved, that an action of debt was maintainable by one of the devisees: and it was said, that, although the leffee by this means becomes fubject to feveral diftreffes and actions, without attornment; yet thefe are mischiefs, which he brings upon himself, and which he may prevent by a punctual payment of his rent.

$ 35. It has been ftated, that a rent-charge is dif I luft. 148 b. charged by the eviction of the tenant out of the whole land, from which the rent iffues; but, where only part of the land is evicted, the rent fhall be apportioned.

Jew v.
Thirkwell,

I Cha, Ca. 31.

$ 36. The plaintiff was leffee of divers lands, whereupon an entire rent was referved: afterwards, the inhabitants of the town, where part of the land lay, claimed a right of common in part of the lands fo let; and, upon a trial, were found to have right of common there. And, as this was not an eviction of the land at law, beaufe the foil was not recovered, there could be no apportionment of the land, at law; and therefore the bill was, to have the rent apportioned in equity. Mr. Serjeant Maynard infifted, that fuch apportionment had frequently been decreed in

equity;

equity; but, it appearing that the lands were worth the rent reserved, and more; the court of chancery would not decree an apportionment.

S370 With refpect to those cafes, where a rentservice shall be apportioned by the act of God; it is faid in Roll's Abridgment that if a man leafes land for life or years rendering rent, and after part of the land is furrounded by fresh water, this will not make any apportionment of the rent, because the foil remains, and it may be regained again. But if part of the land demised be furrounded or covered by the fea, this will make an apportionment of the rent; for, though the foil remains to the leffee, yet by ordinary intendment there is not any probability of regaining it.

§ 38. If land demised be burnt by wild-fire, yet the rent shall not be apportioned; for the land remains notwithstanding, and cannot be fo confumed, but that fome benefit may be made thereof.

cafe,
I Roll. Ab.
237.

§ 39. A rent-service may also be apportioned by Campbell's act of law; as where a moiety of a reverfion is extended upon a writ of elegit, the rent shall be apportioned, and the leffor fhall ftill enjoy half of it, as incident to the reverfion, that remains in him.

$ 40. So, where a husband leases for years referv. Idem. ing rent, and dies; and his widow recovers a third. part of the reverfion for her dower, fhe fhall have the fane proportion of the rent: for, in all thefe cafes,

the

Stat. 11 Geo.

2. for appor-
tioning of
Rent.
Jenner v.
Morgan,
IP. Wms.
392.

the law apportions the rent in the fame manner as it disposes of the reversion.

S41. 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 remainder-man or reverfioner claim any part of the rent, which accrued during the life of the tenant for life; fo that the tenant paid nothing.

S 42. This defect in the law produced the statute 11 Geo. 2. c. 19. § 15. by which it is enacted, "That, "where any tenant for life shall die before or on the "day on which any rent was referved or made pay“able upon any demise or lease of lands, tenements, "or hereditaments, which determined on the death "of fuch tenant for life, that the executors or admi"niftrators of fuch tenant for life fhall and may, in "an action on the cafe, recover of and from fuch "under-tenant or under-tenants of fuch lands, tenements, or hereditaments, if fuch tenant for life die on the day on which the fame was made payable, "the whole, or if before fuch day then a proportion, "of fuch rent according to the time fuch tenant for "life lived, of the last year or quarter of a year, or "other time in which the said rent was growing due "as aforefaid; making all just allowances, or a pro"portionable part thereof accordingly."

$ 43. This