No. XXIII. tels may be seized, distrained and disposed of; and the appraisement 11 Geo. II. thereof to be taken when cut, gathered, cured and made, and not before. c. 19.

Tenants to

have notice of the place where the distress is lodged. Distress of

corn, &c. to

cease, if rent be paid before

it be cut.

Distresses may be secured, and sold on the pre

misses.

IX. Provided always, That notice of the place where the goods and chattels so distrained shall be lodged or deposited, shall, within_the space of one week after the lodging or depositing thereof in such place, be given to such lessee or tenant, or left at the last place of his or her abode; and that if after any distress for arrears of rent so taken, of corn, grass, hops, roots, fruits, pulse, or other product, which shall be growing as aforesaid, and at any time before the same shall be ripe and cut, cured or gathered, the tenant or lessee, his or her executors, administrators, or assigns, shall pay, or cause to be paid to the lessor or landlord, lessors or landlords, for whom such distress shall be taken, or to the steward or other person usually employed to receive the rent of such lessor or lessors, landlord or landlords, the whole rent which shall be then in arrear, together with the full costs and charges of making such distress, and which shall have been occasioned thereby that then, and upon such payment or lawful tender thereof actually made, whereby the end of such distress will be fully answered, the same and every part thereof shall cease; and the corn, grass, hops, roots, fruits, pulse, or other product so distrained, shall be delivered up to the lessee or tenant, his or her executors, administrators or assigns; any thing hereinbefore contained to the contrary notwithstanding.

:

X. And whereas great difficulties and inconveniences frequently ' arise to landlords and lessors and other persons taking distresses for ' rent, in removing the goods and chattels or stock distrained off the 'premisses, in cases where by law they may not be impounded and secured thereupon; and also to the tenants themselves many times, by 'the damage unavoidably done to such goods and chattels, or stock, in the removal thereof;' Be it enacted by the authority aforesaid, That from and after the said twenty-fourth day of June one thousand seven hundred and thirty-eight, it shall and may be lawful to and for any person or persons lawfully taking any distress for any kind of rent, to impound, or otherwise secure the distress so made, of what nature or kind soever it may be, in such place, or on such part(1) of the premisses chargeable with the rent, as shall be most fit and convenient for the impounding and securing such distress and to appraise, sell and dispose of the same upon the premisses, in like manner, and under the like directions and restraints to all intents and purposes, as any person taking a distress for rent may now do off the premisses, by virtue of an 2 W. & M. c. 5. Act made in the second year of the reign of King William and Queen Mary, intituled, " An Act for enabling the sale of goods distrained for rent, in case the rent be not paid in a reasonable time;" or of one other Act made in the fourth year of his present Majesty, intituled, "An Act for the more effectual preventing frauds committed by tenants, and for the more easy recovery of rents, and renewal of leases;" and that it shall and may be lawful to and for any person or persons whatsoever, to come and go to and from such place or part of the said premisses, where any distress for rent shall be impounded and secured as aforesaid, in order to view, appraise and buy, and also in order to carry off or remove the same, on account of the purchaser thereof; and that if any pound-breach or rescous shall be made of any goods or chattels, or stock distrained for rent, and impounded or otherwise secured by virtue of this Act, the person or persons aggrieved thereby shall have the like remedy, as in cases of pound-breach or rescous is given and provided by the said statute.(2)

4 Geo. 2. c. 28.

(1) See Washborn v. Black, 11 E. 405, n. in which the law was admitted to be, that without consent the distrainer ought either to have put the goods all into one room, and kept possession of that only, or to have removed the goods out of the house:

but very slight evidence was admitted of consent.

(2) The right of replevin is not taken away by appraisement or removal after the five days allowed, until actual sale; Jacobs v. King, 5 Taunt. 451.

c. 19.

XI. And whereas the possession of estates in lands, tenements and No. XXIII. ' hereditaments is rendered very precarious by the frequent and fraudu- 11 Geo. II. lent practice of tenants, in attorning to strangers, who claim title to the estates of their respective landlord or landlords, lessor or lessors, who by that means are turned out of possession of their respective 'estates, and put to the difficulty and expense of recovering the pos'session thereof by actions or suits at law;' For remedy thereof be it enacted by the authority aforesaid, That from and after the said Attornment of twenty-fourth day of June in the year of our Lord, One thousand tenants, void. seven hundred and thirty-eight, all and every such attornment and attornments of any tenant or tehants of any messuages, lands, tenements or hereditaments, within that part of Great Britain called England. dominion of Wales, or town of Berwick-upon-Tweed, shall be absolutely null and void to all intents and purposes whatsoever; and the possession of their respective landlord or landlords, lessor or lessors, shall not be deemed or construed to be any wise changed, altered or affected by any such attornment or attornments: Provided always, Exception. That nothing herein contained shall extend to vacate or affect any attornment made pursuant to and in consequence of some judgment at law, or decree or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee after the mortgage is become forfeited.

XII. And whereas great inconveniences have frequently happened 'to landlords by their tenants secreting declarations in ejectment, which have been delivered to them, or by refusing to appear to such ejectments, or to suffer their landlords to take upon them the defence 'thereof,' Be it further enacted by the authority aforesaid, That from Against tenants and after the said twenty-fourth day of June, one thousand seven hun- secreting ejectdred and thirty-eight, every tenant, to whom any declaration in eject- ments. ment shall be delivered for any lands, tenements or hereditaments, in that part of Great Britain called England, dominion of Wales, or town of Berwick-upon-Tweed, shall forthwith give notice thereof to his or her landlord or landlords, or his, her or their bailiff or receiver, under penalty of forfeiting the value of three years (1) improved or rack rent (2) of the premisses so demised or holden in the possession of such tenant, to the person of whom he or she holds: to be recovered by action of debt to be brought in any of his Majesty's Courts of Record at Westminster, or in the counties palatine of Chester, Lancaster, and Durham respectively, or in the courts of Grand Sessions in Wales; wherein no essoin, protection or wager of law shall be allowed, nor any more than one imparlance. (3)

(1) Where the master having taxed single costs, a motion was made on stat. 11 Geo. II. c. 19, s. 12, that treble costs might be allowed, the statute having given treble the rent as damages, the Court observed that the statute had not given treble damages, but only directed how single damages should be ascertained, refused the rule; Croker v. Fothergill, 2 B. & A. 662, n.

(2) Demise of certain lands together with the mines under them, with liberty to dig for ore in other mines under the surface of other lands not demised. The tenant fraudulently concealed a declaration in ejectment delivered to him, and suffered judgment to go by default. The declaration in ejectment did not mention mines at all; but the sheriff, by the concurrence of the tenant, delivered possession of the premises demised to the tenant, and also of those mines in which he had only liberty to dig; Held, that although the latter could not be recovered under the declaration in ejectment, still that the tenant by his own act had

estopped himself from taking that objection, and that in an action for the value of three years' improved rent, under the Statute of 11 Geo. II. c. 19, the landlord might recover the treble rent in respect not only of the demised premises, but of the mines in which the tenant had only a liberty to dig. The improved or rack-rent, mentioned in the 11 Geo. II. c. 19, s. 12, is not the rent reserved, but such a rent as the landlord and tenant might fairly agree on at the time of delivering the declaration in ejectment, in case the premises were then to be let; Croker v. Fothergill, 2 B. & A. 652.

(3) In Buckley v. Buckley, 1 T. R. 147, it was held that this clause did not apply to the case of a tenant to whom an ejectment had been delivered at the suit of the mortgagee of the landlord. The Court said that the statute only extended to cases where ejectments were brought, which were inconsistent with the landlord's title. They observed likewise that the ejectment was brought for the purpose of compelling the tenant to attorn to the mort

No. XXIII. 11 George II.

c. 19.

Landlord cmpowered to make himself

defendant by joining with the tenants, &c.

XIII. And be it further enacted by the authority aforesaid, That it shall and may be lawful for the court where such ejectment shall be brought, to suffer the landlord or landlords to make him, her or themselves defendant or defendants, by joining with the tenant or tenants, to whom such declaration in ejectment shall be delivered, in case he or they shall appear: but in case such tenant or tenants shall refuse or neglect to appear, judgment shall be signed against the casual ejector for want of such appearance; but if the landlord or landlords of any part of the lands, tenements or hereditaments, for which such ejectment was brought, shall desire to appear by himself or themselves, and consent to enter into the like rule that by the course of the court the tenant in possession in case he or she had appeared ought to have done; then the court where such ejectment shall be brought shall and may permit such landlord or landlords so to do, and order a stay of execution upon such judgment against the casual ejector, until they shall make further order therein. (1)

gagee, which the Act expressly permitted him to do. The notion of ejectments for the purpose of compelling tenants to attorn is materially altered since this decision.

any heir whatsoever, the lord's claim was at an end. The Court would have obliged him to come into some method of trying the right in a proper issue; and that method into which it was now put (his bringing an ejectment) was the most proper issue for the purpose. If the heir had refused, the Court would have permitted the lord to defend, which would have given him the benefit of possession. If the lord had refused to consent, the Court would have discharged the rule. For certainly, when the sole question turns upon who ought to be the landlord to the tenant in possession, he should stand neuter, and his possession avail neither the question ought to be tried between the claimants. The plaintiff must consent, else the other is admitted to defend: the other must consent, because to say that he is landlord begs the question intended to be tried."

(1) It appears by the case of Fairclaim ex dem. Fowler v. Shamtitle, 3 Burr. 1290, that a practice had prevailed of admitting landlords to defend previous to this statute, and several cases of the kind are referred to in Adams's Treatise on Ejectments, Chap. 8, the questions in which related to the particular character of the parties applying to be admitted. In the first case on the subject, Roe d. Lock v. Doe, Barnes 193, the question was between different devisees claiming under conflicting wills of the lessor, and it was held that the Court had no jurisdiction to admit any person to defend an ejectment instead of the defendant, except the landlord only; and who, it is said, is a landlord within the Act; not every person claim--For a reason already stated, it seems clear ing title, but one who is in some degree of possession, one receiving rent, &c.: the clause of forfeiture by a tenant, if he does not give notice of declaration to his landlord, proves this.

In Adams on Ejectment this doctrine is said to have been reprobated by Lord Mansfield, in the case of Fairclaim and Shamtitle above alluded to; but I do not see that there any such disapprobation is particularly expressed; and I apprehend that the principle of the decision in Roe v. Doe is that which now prevails in practice, although some of the expressions are not literally correct; and that where there is a valid and undisputed demise, the question as to which of two adverse claimants is entitled to stand in the character of landlord, and to receive the rents, cannot in any case be tried in ejectment. In Fairclaim v. Shamtitle, the ejectment was brought by a person claiming as heir; and the lords of the manor, claiming by escheat pro defectu hæredis, applied to be admitted as landlords. After much discussion, it was entered by consent, that the lord of the manor should bring an ejectment, which the person claiming as heir should defend. Lord Mansfield, after the rule had been drawn up, declared that he was clear that "that method was the proper way of trying the right upon the merits: if there was really no heir, then the lord stood in the place of the deceased; but f there was

that this view of the subject cannot now prevail, whatever other course may be taken in order to decide the question of title.

In Lovelock d. Norris v. Doncaster, 3 T. R. 783, an application to defend as landlord being made on behalf of devisees, which was opposed on the ground of their having never been in possession, Lord Kenyon said-" If the person requiring to be made defendant under the Act had stood in the situation of immediate heir to the person last seized, or had been in the relation of remainder-man under the same title as the original landlord, I am of opinion that he might have been permitted to defend as landlord by virtue of the directions of the statute; but here the very question in dispute between the adverse party and himself is, whether he is entitled to be landlord or not? and therefore we are not authorized to extend the provisions of the statute to such a case as this."

In Doe on the demise of Hebblethwaite and others v. Roe, cited in a note to the preceding case, the court permitted an heir who had never been in possession to come, in and defend an ejectment. The father under whom he claimed died just before, having first obtained a similar rule. But in this case the ejectment seems to have been brought by a person claiming by title paramount to that of the person who made the lease, and not to involve any

XIV. And to obviate some difficulties that many times occur in the No. XXIII. recovery of rents, where the demises are not by deed, Be it further enacted by the authority aforesaid, That from and after the said twenty-fourth day of June, it shall and may be lawful to and for the landlord or landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements or hereditaments, held or occupied by the defendant or defendants, in an action on the case, (1) for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action any parol demise or any agreement by deed, (not being by deed) (2) whereon a certain rent was reserved shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered. (3)

No. XXIII. 11 Geo. II. c. 19.

Rents recover

XV. And whereas where any lessor or landlord, having only an 'estate for life in the lands, tenements or hereditaments demised, happens to die before or on the day, on which any rent is reserved, or 'made payable, such rent, or any part thereof, is not by law recoverable by the executors or administrators of such lessor or landlord; nor is the person in reversion entitled thereto, any other than for the use and occupation of such lands, tenements or hereditaments, from the ' death of the tenant for life; of which advantage hath been often taken by the under-tenants, who thereby avoid paying any thing for the 'same; For remedy whereof be it enacted by the authority aforeable from un- said, That from and after the twenty-fourth day of June, One thouseven hundred and thirty-eight, where any tenant for life shall happen to die before or on the day, on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, that the executors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such under-tenant or under-tenants of such lands, tenements, or hereditaments, if such tenant for life die on the day on which the same was made payable the whole, or if before such day then a proportion, of such rent according to the time such 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 aforesaid, making all just allowances or a proportionable part thereof respectively. (1)

der-tenant, where tenants

for life die before the rent is payable.

of particulars: but if the doctrine was founded on no better reason than that, it would be very unsatisfactory, as it can never be admitted that the rules of pleading, which are part of the law of the land, can be varied by a modern practice, introduced upon the mere authority of the Courts.]

That debt for use and occupation is not local, was also decided in Egler v. Marsden, 5 Taunt. 25.

Where the premises were stated to be situate in a parish which did not exist, Lord Kenyon held it a fatal variance; Wilson v. Clark, 1 Esp. R. 273; but in Kirtland v. Pounsett, 1 Taunt. 570, the declaration being for use and occupation of premises in the parish of Lambeth, the real name of the parish being St. Mary Lambeth, although the parish was well known by the name of Lambeth, the variance was held immaterial. The question of variance, where the declaration it tied up to a particular description of locality, does not seem to be at all affected by the decision, that no allegation of locality is necessary; although the contrary may perhaps be inferred from the observations of Lawrence J. in the case last referred to. (1)There is no rule of the law more certain and notorious, than that an entire contract cannot be apportioned; and the doctrine which exist ed upon the subject previous to the passing of the Act was no more than the application of that general rule which still subsists, notwithstanding many efforts to controul it by mere judicial authority. The hardship upon landlords in cases previous to the statute, or to which the statute does not extend, has been often expatiated upon; but the inconvenience sustained by a tenant, by the sudden determination of his interest, seems to have been altogether overlooked; and I am not aware that there was any great reason for complaining of a rule, the effect of which could always be ob

viated by express stipulations. Upon this ground I feel by no means disposed to regard with particular estimation the cases in which an effort has been made to carry the provisions of the statute, by analogical reasoning, beyond their fair and natural import and con

struction.

In Paget v. Gee, Burn, tit. Distress, Ambler, 198, the lessee of tenant in tail, whose estate determined in the middle of a half-year, paid the entire rent to the remainder-man in fee; and Lord Hardwicke decided that the executors of the tenant in tail were entitled to an apportionment. His lordship expressed an opinion that tenant in tail, after possibility of issue extinct, or tenant for years, determinable upon lives, was within the Act; gave no absolute opinion as to the case of tenant in tail, but said, "As to the equity arising from the statute, I know no better rule than this, that equitas sequitur legem. Where equity finds a rule of law agreeable to conscience, it pursnes the sense of it to analogous cases. If it does so as to the maxims of the common law, why not as to the reasons of Acts of Parliament? But I ground my opinion in this case upon the tenant having submitted to pay the rent. He has held himself bound in conscience to pay for the use and occupation of the land the last half-year. He paid it to the defendant, which he was not bound in law to do; and in such case the person he pays it to shall be accountable, and considered as receiving it for those who are in equity entitled."-I am not aware of any passages in our judicial annals which appear to me more exceptionable than the first of those that have been just extracted. The argument is, that because courts of equity, in their general reasonings, are guided by the analogy of the common law, they shall be admitted to assume an authority to outrun the legislature in the positive alteration of the law ;