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• XVI. And whereas landlords are often great sufferers by tenants run- No. XXIII. • ning away in arrear, and not only suffering the demised premises to lie 11 Geo. II. • uncultivated without any distress thereon, whereby their landlords or
c. 19. • lessors might be satisfied for the rent-arrear, but also refusing to deand that, when a remedy is applied by the Par- a benefit, which, under similar circumstances liament to one or two particular cases, the ju- could not be claimed by an adult, to the prejudicial powers of the country shall consider dice of a third person standing upon his legal themselves privileged to apply a similar re- rights. The counsel for the infant's represent, medy to other cases which are subject to si- ative cited a case of Whitfield v. Pindar, in the milar inconvenience. A more striking instance Common Pleas, Hil. 1781, where the tenant in could not be given of the mischief which re- tail, remainder to others in tail, made a lease, sults from harping upon an ambiguous phrase, and died three weeks after the rent day, and it than the use which is here made of the maxim was ruled that there should be an apportionment that equitas sequitur legem. In the fair expo- (it is added, though the lease was void as against sition of the maxiin, the meaning of it is, that the remainder-man, as if there could be any equity acts by analogy to the common law. In claim of apportionment if it had not been so the extension which is attempted to be given void). This is a decision at law upon the exto it, the position assumed is, that a court of press effect of the statute, and stands upon equity follows the example of the Legislature. much better grounds than the attempt in the The other position, though not calling for any cases before alluded to, to apply the principles animadversion upon the attempt to grasp at of the statute to cases assumed not to be within an excess of jurisdiction, does not by any means the operation of it. Whether the expression, appear to be founded upon accurate reasoning. tenant for life, should be understood strictly If the tenant expressly paid the money with a and literally, or as applicable generally to all view to the apportionment directed, it was per persons whose interest determines with their fectly right that such apportionment should be life, was a fair question of construction; and actually made; but, being continued as te. I think that if it had still remained open to nant on the estate, he pays the rent without discussion, the latter view of it was more corany such apparent view. It was at the option rect, and more conformable to the apparent of the remainder-man whether he should con- intention of the Legislature. tinue or be removed ; and it is quite as natural In Hawkins v. Kelly, 8 Ves. 308., (which to presume that the payment was made in con- arose upon a demurrer on account of the matsideration of his being so permitted to remain, ter being cognizable at law) Lord Eldon, actas with a view to the distribution appointed by ing upon the authority of Paget and Gee, held, the statute. And it should not be forgotten, that upon a lease of the glebe, parsonagethat if the tenant in tail, who happened to make house, tithes, &c. of a rectory, the tenant the demise, had made such a demise as would having paid the entire rent to the successor, have been valid and subsisting against the re- the executors of the deceased rector were enmainder-man, the right of the remainder-man titled to an apportionment. to the whole rent, according to the reservation In Williams v. Powell, 10 East 269., (which from the commencement of his title to the was admitted to be a case not within the stapossession of the estate, would have been as tute) the predecessor of the defendant, as elear and indisputable as any right known to rector, had compounded with the occupiers of the law.
lands for their tithes : the defendant had reIn Vernon v. Vernon, 2 Bro. Ch. 659., the ceived the whole amount of the composition, question arose on a demise from year to year and paid into court sufficient to cover the tithes by the guardians of an infant tenant in tail, which had accrued due in the life-time of the and Lord Thurlow determined in favour of deceased, which the court held sufficient, not the apportionment. He said the case of Paget conceiving him liable in respect of an appore. Gee, seemed rather to be a decision of what tionment of time. The Reporter very reasonthe statute ought to have done than what it ably observes, that it seems that if the tithes had done; but the question here seems to turn in kind for which the composition was made on another ground, that the tenant bolding would, supposing there had been no composifrom year to year, or from period to period tion, have been wholly due before the death from a guardian, without lease or covenant, of the deceased rector, his representatives cannot be allowed to raise an implication in would have been legally and equitably entitled his own favour that he should hold without to the whole, however they might be restrainpaying any rent to any body. This reasoning ed by agreement with the parishioners not to does not seem to be a great deal more satis- demand payment till the day agreed upon, and factory than that which has last been com- the successor could not be entitled to any part mented upon. The tenant held by right or by of such composition. In the subsequent case wrong. It is not pretended that he held by of Ainsley ». Wadsworth, 2 V. & B. 331, the wrong, and holding by right bis tenancy was successor having received the whole year's comaccording to his contract, and subject to all its position, the Vice-Chancellor decreed an aplegal incidents and consequences. The letting portionment with reference to the respective of the land was for the infant's benefit; but periods of enjoyment. although an infant should be guarded from pre- In Salter v: Champlin, 10 Ves. 66, the quesjudice, it is not requisite that he should have tion being whether land-tax, quit-rents, and Vol. IV.
No. XXIII. liver up the possession of the demised premises, whereby the landlords, 11 George II. are put to the expense and delay of recovering in ejectment;' Be it
further enacted by the authority aforesaid, That from and after the said c. 19.
twenty-fourth day of June One thousand seven hundred and thirty-eight,
if any tenant holding any lands, tenements, or hereditaments, at a Provision for
rack-rent, or where the rent reserved shall be full three fourths of the landlords,
yearly value of the demised premises, who shall be in arrear for one where tenants
year's rent, shall desert the demised premises, and leave the same undesert the premises.
cultivated or unoccupied, (1) so as no sufficient distress can be had to countervail the arrears of rent; it shall and may be lawful to and for two or more justices of the peace of the county, riding, division, or place (having no interest in the demised premises) at the request of the lessor or landlord, lessors or landlords, or his, her, or their bailiff or receiver, to go upon and view the same, and to affix, or cause to be affixed, on the most polorious part of the premises, notice in writing, what day (at the distance of fourteen days at least) they will return to take a second view thereof: and if upon such second view the tenant, or some person on his or her bebalf, shall not appear, and pay
the rent in arrear, or there shall not be sufficient distress upon the other charges which became due after the o'clock at noon; and Lord Macclesfield held, death of tenant for life, should be sustained that the latter belonged to his executors, beby the remainder-man, or be apportioned ? The cause, although for the benefit of the tenants, Master of the Rolls said, the statute 11 Geo. they had, to the last instant of the day, to pay II. has no application to this case. It might the rents; yet as soon as the day began, they be very reasonable to make such a statute, as were at their peril to take care that they were to the apportionment of taxes between the paid accordingly ; but as to the lease made by tenant for life and the remainder-man, giving virtue of the power, they had existence and the tenant for life the benefit only as against continuance after the death of the lessor, and the tenant under the lease.—In a view of the thus the rent went along with the reversion, to law of apportionment, introduced into the Ap- those who were entitled to it. In Lord Rockpendix to the Translation of Pothier, (p. 47.) ingham v. Penrice, 1 P. Wms. 177, the tenant it occurred to me to observe that this Act for life died before sun-set, and it was held stops short of its probable object, in not in- that the person in remainder was entitled to cluding the case of a tenant for the life of the rents that became due that day. One teanother person, whose estate determines by nant had paid his rent to the tenant for life in the death of such other person; and that if an the morning, and it was held, that though this ecclesiastical person makes a lease, and vacates was a good payment to discharge the tenant, his preferment by the acceptance of another, I the executors should account for it to the conceived that there could be no apportion- party in remainder. Upon this point the rement. The case of tenant pur autre vie has porter makes a query; for if the payment was been since incidentally noticed in the case of a good payment at law, as it certainly was, why Wykham v. Wykham, 3 Taunt. 331, in which, must it not be so in equity? A case was cited with reference to some observations of counsel, before Tracey J. at Durham, where the execuMansfield C. J. said—“Has it ever been de- tor of a grantee for life of a rent-charge, who termined that the executor of a tenant pur au- died after sun-set on the day was held entitled. tre vie is entitled to recover a portion of the See Duppa v. Mayo, 1 Saund. 287., in which rent from the last quarter-day under the sta- it was held, as between heirs and executors of tute? He is certainly within the mischief, for tenant in fee, that where the lessor died after otherwise the tenant of the land may keep the sun-set, and before midnight, (the rent not rent for his own benefit.” To use the language being previously paid) the heir was entitled. of the Master of the Rolls, it might be very (1)
Where a tenant ceased to reside on the prereasonable to make a statute for the purpose : mises for several months, and left them withbut certainly the language of the present sta- out nay furniture, or sufficient other property tute will not admit of such an interpretation; to answer the year's rent; held that the land and it would be much better, until there is might be properly proved under s. 16. to recover another, to let the inconvenience remain as it the possession, although he knew where the is, than to allow the assumption of that ju- tenant then was, and although the justices dicial legislation, of which it is more easy found a servant of the tenant on the premises, to check the beginning, than to calculate the when they first went to view the same : held end.
also that it is not necessary, to state, in the In the case of Earl Strafford v. Wentworth, record of the magistrates' proceedings, that Prec. Ch. 555, a tenant for life had made leases, the landlord had a right of re-entry; although some of which, being under a power, had such a right must exist in order to entitle the continuance after his death ; and others not party to proceed under that statute ; Ex parte being according to his power, determined with Pilton, i B. & A. 369. his life, and died on the rent day, about 12
premises ; then the said justices may put the landlord or landlords, No. XXIII. the lease thereof to such tenant, as to any demise therein contained 11George II. only, shall from thenceforth become void.
c. 19. XVII. Provided always, That such proceedings of the said justices shall be examinable in a summary way by the next justice or justices of Tenants may assize of the respective counties in which such lands or premises lie; appeal from the and if they lie in the city of London or county of Middlesex, by the justices, judges of the courts of King's Bench or Common Pleas; and if in the counties palatine of Chester, Lancaster, or Durham, then before the judges thereof; and if in Wales, then before the courts of grand sessions respectively; who are hereby respectively empowered to order restitution to be made to such tenant, together with his or her expenses and costs, to be paid by the lessor or landlord, lessors or landlords, if they shall see cause for the same; and in case they shall affirm the Act of the said justices, to award costs not exceeding five pounds for the frivolous appeal.
• XVIII. And whereas great inconveniences have happened and may Tenants hold• happen to landlords, whose tenants have power to determine their ing premises
leases, by giving notice to quit the premises by them holden, and yet after the time • refusing to deliver up the possession, when the landlord hath agreed they notify for * with another tenant for the same ;' Be it further enacted by the autho. quitting them, rity aforesaid, That from and after the said twenty-fourth day of June
pay double One thousand seven hundred and thirty-eight, in case any tenant or tenants shall give notice (1) of his, her, or their intention to quit (2) the premises by him, her, or them holden, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained; that then the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforward pay to the landlord or landlords, lessor or lessors, double the rent (3) or sum which he, she, or they should otherwise have paid ; to be levied, (4) sued for, and recovered at the same time, and in the same manner, as the single rent or sum before the giving such notice could be levied, sued for, or recovered ; and such double rent or sum shall continue to be paid, during all the time such tenant or tenants shall continue in possession as aforesaid,
• XIX. And whereas it hath sometimes happened, that upon a distress * made for rent justly due, the directions of the statute 'made in the
second year of the reign of King William and Queen Mary, intituled, 2 W. & M. c.5. •“ An Act for enabling the Sale of Goods distrained for Rent in case the • Rent be not paid withio a reasonable Time," have not been strictly . pursued, but through mistake or inadvertency of the landlord or other
person entitled to such rent and distraining for the same, or of the • bailiff or agent of such landlord or other person, some irregularity or
tortious Act hath been afterwards done in the disposition of the dis* tress so seized or taken, as aforesaid ; for which irregularity or tortious • Act the party distraining hath been deemed a trespasser ab initio, and . in an action brought against him as such the plaintiff hath been enti*tled to recover, and has actually recovered, the full value of the rent, • for which such distress was taken: And whereas it is a very great hard• ship upon landlords and other persons entitled to rents, that a distress • duly made should be thus iu effect avoided for any subsequent irregu- Distresses for * larity ;' Be it enacted by the authority aforesaid, 'That from and after the said twenty-fourth day of June in the year of our Lord One thousand lawful, &c. for seven hundred and thirty-eight, where any distress shall be made for any anyirregularity kind of rent justly due, and any irregularity or unlawful Act shall be in the disposiafterwards done by the party or parties distraining, or by his, her, or tion of them ;
(1) The notice need not be in writing; Tim- (3) This differs from 4 George II. which submins v. Rowlinson, 3 Bur. 1603.
jects the tenant to double the yearly value, in (2) A notice that the tenant will quit as soon case the notice is given by the landlord. as lie can get another situation does not bring (4) By distress; Timmins v. Rowlinson, 3 a case within the statute; Farrance v, Elking- Bur. 1603, ton, 2 Camp. 591.
rent not un
nor tenants to
No. XXIIJ. their agents; the distress itself shall not be deemed to be unlawful, nor 11George II.
the party or parties making it be therefore deemed a trespasser or tresC. 19.
passers ab initio ; (1) but the party or parties aggrieved by such unlawful Act or irregularity shall or may recover full satisfaction for the special damage, he, she, or they shall have sustained thereby, and no more, in any action or trespass, or (2) on the case at the election of the plaintiff or plaintiffs : Provided always. That where the plaintiff or plaintiffs shall recover in such action, he, she, or they shall be paid his, her, or their full costs of suit, and have all the like remedies for the same as in other cases of costs.
XX. Provided nevertheless, That no tenant or tenants, lessee or lessees, recover by ac. shall recover in any action for any such unlawful Act or irregularity as tion, on tender aforesaid, if tender of amends hath been made by the party or parties of amends.
distraining, his, her, or their agent or agents, before such action
brought. In actions a
XXI. And be it further enacted by the authority aforesaid, That from gainst persons
and after the said twenty-fourth day of June One thousand seven hunentitled to rents, and de
dred and thirty-eight, in all actions of trespass or upon the case to be fendants may brought against any person or
persons entitled to rents or services of any plead the gene
kind, his, her, or their bailiff or receiver, or other person or persons, ral issue.
relating to any entry by virtue of this Act, or otherwise, upon the premises chargeable with such rents or services, or to any distress or seizure, sale or disposal of any goods or chattels thereupon; it shall and may be lawful to and for the defendant or defendants in such actions to plead the general issue, and give the special matter in evidence; any law or usage to the contrary notwithstanding: And in case the plaintiff or plaintiffs in such action shall become nonsuit, discontinue his, her, or their action, or have judgment against him, her, or them, the defendant
or defendants shall recover double costs (3) of suit. Defendants in • XXII. And whereas great difficulties often arise in making avowries replevin to a- or conuzance upon distresses for rent, quit-rents, reliefs, heriots, and vow, &c. that
• other services;' Be it further enacted by the authority aforesaid, That the plaintiff
from and after the said twenty-fourth day of June One thousand seven mises at a cer
hundred and thirty-eight, it shall and may be lawful to and for all detain rent, &c.
fendants in replevin to avow or make cunuzance generally, (4) that the plaintiff in replevin, or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant or demise (5) at
such a certain rent (6) during the time wherein the rent distrained for (1) Trespass may be maintained where the statute, as it tends to place the landlord in the defendant expels the plaintiff from the pre- same situation as before, by considering him a mises and keeps possession after the rent paid; trespasser ab initio; Wallace v. King, i H. B. Etherton v. Popplewell, 1 East, 139. So where 13. the defendants continued in possession eleven (2) Lord Ellenborough did not consider this days before they began to remove the goods, as giving the plaintiff an option which remedy and were then employed four days in removing to pursue, in every case of an unlawful Act or them; but whether the action was sustainable irregularity, but merely an option according to for the mere continuance, or on account of the the subject matter of the grievance; Wintertaking and removing of the goods from the pre- bourne v. Morgan, ub. supra. mises, and disturbing the plaintiff's possession (3) It is not necessary that there should be after the time when they ought to be removed, either a certificate from a judge, or a suggeswas not agreed. Lord Ellenborough and Grose tion on the roll, in order to entitle a defendant J. ruled the case on this latter ground, as dis-' to double costs on this Act; Finlay v. Seaton, tinguished from the former. Le Blanc J., as- 1 Taunt. 210. sented to the action being maintainable on that (4) The defendant cannot plead generally de ground, but said he did not wish to be precluded injuria propria in bar of such avowry; Jones e. from saying in a subsequent case, that a party Kitchen, 1 B. and P. 76. might be a trespasser by continuing on the pre- (5) Thc Act does not extend to an avowry mises wrongfully. Bayley J. held, that trespass for a rent charge ; Bulpit v. Clarke, 1 N. R. 56; for the wrongful continuance was the proper . or to a rent under a Canal Act, in satisfaction remedy, and that the other ground could not for damages, and charged on the rates; but be supported. Winterbourne v. Morgan, 11 only to the rent directly reserved by a landlord East, 395.
on his grant, on demise of land theretofore For an irregularity in the subsequent dispo- made; Leominster Canal v. Cowell, 1 B. and P., sition (as in selling without proper appraise- 213. ment) trover cannot be maintained since the (6) An avowry for rent of
-1., and an in
held the pre
incurred, wbich rent was then and still remains due; or that the place No. XXIII. where the distress was taken was parcel of such cerlain tenenients, held of such honour, lordship, or manor, for which tenements the rent,
11 George II. relief, heriot, or other service distrained for, (1) was at the time of such
c. 19. distress and still remains due, without further settiog forth the grant, tenure, demise, or title, of such landlord or landlords, lessor or lessors, owner or owners of such manor; any law or usage to the contrary notwithstanding : And if the plaintiff or plaintiffs in such action shall become nonsuit, discontinue bis, her, or their action, or have judgment given against him, her or them, the defendant or defendants in such replevin (2) shall recover double costs of suit. (3)
XXIII. And to prevent vexatious replevins of distresses taken for Topreventvexrent, Be it enacted by the authority aforesaid, That from and after the atious reple said twenty-fourth day of June One thousand seven hundred and thirty- vins. eight, all sheriffs, and other officers having authority to grant replevins, may and shall in every replevio of a distress for rent, take in their own names, from the plaintiff, and two responsible (4) persons as sureties, a bond in double the value of the goods distrained (5) (such value to be ascertained by the oath of one or more credible witness or witnesses not interested in the goods or distress, which oath the
person granting such replevin is hereby authorized and required to administer), and conditioned for prosecuting the suit (6) with effect and without delay, and for duly returning the goods and chattels distrained in case a return Replevin bonds shall be awarded, before any deliverance be made of the distress; and may be assignthat such sheriff, or other officer as aforesaid, taking any such bond, cd. creased rent of -l for every acre converted an innovation. The judgment of the case was into tillage is supported by a demise for 21 evidently correct and conformable to the estayears, with a reservation of the advanced rent blished rules of pleading; but I am far from during the last three years; and for which ad- joining the learned Serjeant in his hopes, if vanced rent during those three years the dis- intended to apply to a legislative provision tress was made. It was objected that the avowry upon the subject, for it certainly is no fancied ought either to have been general under the inconvenience that a person in the peaceable statute, or special as at common law, whereby possession of land, and having in respect of the avowant was bound to an exact statement such possession an undisputed right of mainof his title in omnibus; and that in the present taining an action of trespass, should be subcase it was neither; Roulston v. Clarke, 2 H. jected to the inconvenience of a precise stateB.593.
ment of his title, in order to avail himself of (1) If a less rent was due than is avowed for, his legal remedy against an acknowledged the avowant may recover for so much as is due; wrong-doer. Harrison v. Barnby, 5 T. R. 248; Forty v. Im- (4) The sheriff is accountable for the suffiber, 6 East, 434.
ciency of the sureties in such bond, as also for (2) The statute 11 Geo. 2. c. 19. s. 22. gives the sufficiency of the pledges under stat. West. double costs against a plaintiff in replevin only 2. c. 2. ante, No. 6. And an action on the case in three cases, viz. where he is nonsuit; dis- may be maintained for the insufficiency of such continues his action; or has judgment given sureties or pledges; B. N. P. 60. In such action against him. And, therefore, where in re- the sheriff is only liable to the amount for which plevin, the cause then not being at issue, the the sureties would have been liable if sufficient; parties agreed by bond to submit the question Yca v. Lethbridge, 4 T. R. 433; Evans r. to arbitration, the costs to abide the event, and Brander, 2 H. B. 547; which latter case overthe arbitrator afterwards awarded in favor of rules Concannen v. Lethbridge, id, 36; whereby defendant, it was held that he is not entitled to it was held that the damages might exceed the double costs under the statute; Gurney v. Bul- penalty of the bond and cover the rent and exler, I B. and A. 670.
penses. The action ought to be brought by the (3) In an avowry for distress, damage fea- person making cognizance if there is no avowsant, it is still necessary to set out the person's ant on the record, Page v. Eamer, 1 B. and P. title in pleading. In Ścilly v. Dally, 2 Salk. 378. The court will not, on motion, order the 562, Holt, C. J. called this an established rule officer to pay the costs of the replevin; Tesseyin pleading, which was not to be broken upon man v. Gildart, I N. R. 292. fancied inconveniences. A practice had begun (5) The two sureties are only liable to the to prevail of avowing generally that the de- amount of the penalty in the bond and costs of fendant was lawfully possessed of the locus in suit against themselves; Hefford v. Alger, I quo. Such pleas have been ruled to be bad in Taunt. 218. Hawkins v. Eckles, 2 B. and P. 359, of which (6) If the plaint be removed by re: fa: lo: the Serjeant Williams observes, in note to 2 Saund. condition extends to prosecuting the suit with 284, that the Court of Common Pleas it was cffect in the superior court. hoped had thereby put an effectual stop to such