'XVI. And whereas landlords are often great sufferers by tenants running away in arrear, and not only suffering the demised premises to lie 'uncultivated without any distress thereon, whereby their landlords or lessors might be satisfied for the rent-arrear, but also refusing to de

and that, when a remedy is applied by the Parliament to one or two particular cases, the judicial powers of the country shall consider themselves privileged to apply a similar remedy to other cases which are subject to similar inconvenience. A more striking instance could not be given of the mischief which results from harping upon an ambiguous phrase, than the use which is here made of the maxim that equitas sequitur legem. In the fair exposition of the maxim, the meaning of it is, that equity acts by analogy to the common law. In the extension which is attempted to be given to it, the position assumed is, that a court of equity follows the example of the Legislature. The other position, though not calling for any animadversion upon the attempt to grasp at an excess of jurisdiction, does not by any means appear to be founded upon accurate reasoning. If the tenant expressly paid the money with a view to the apportionment directed, it was perfectly right that such apportionment should be actually made; but, being continued as tenant on the estate, he pays the rent without any such apparent view. It was at the option of the remainder-man whether he should continue or be removed; and it is quite as natural to presume that the payment was made in consideration of his being so permitted to remain, as with a view to the distribution appointed by the statute. And it should not be forgotten, that if the tenant in tail, who happened to make the demise, had made such a demise as would have been valid and subsisting against the remainder-man, the right of the remainder-man to the whole rent, according to the reservation from the commencement of his title to the possession of the estate, would have been as clear and indisputable as any right known to the law.

In Vernon v. Vernon, 2 Bro. Ch. 659., the question arose on a demise from year to year by the guardians of an infant tenant in tail, and Lord Thurlow determined in favour of the apportionment. He said the case of Paget . Gee, seemed rather to be a decision of what the statute ought to have done than what it had done; but the question here seems to turn on another ground, that the tenant holding from year to year, or from period to period from a guardian, without lease or covenant, cannot be allowed to raise an implication in his own favour that he should hold without paying any rent to any body. This reasoning does not seem to be a great deal more satisfactory than that which has last been commented upon. The tenant held by right or by wrong. It is not pretended that he held by wrong, and holding by right his tenancy was according to his contract, and subject to all its legal incidents and consequences. The letting of the land was for the infant's benefit; but although an infant should be guarded from prejudice, it is not requisite that he should have VOL. IV.

No. XXIII.

11 Geo. II.

c. 19.

a benefit, which, under similar circumstances could not be claimed by an adult, to the prejudice of a third person standing upon his legal rights. The counsel for the infant's represent ative cited a case of Whitfield v. Pindar, in the Common Pleas, Hil. 1781, where the tenant in tail, remainder to others in tail, made a lease, and died three weeks after the rent day, and it was ruled that there should be an apportionment (it is added, though the lease was void as against the remainder-man, as if there could be any claim of apportionment if it had not been so void). This is a decision at law upon the express effect of the statute, and stands upon much better grounds than the attempt in the cases before alluded to, to apply the principles of the statute to cases assumed not to be within the operation of it. Whether the expression, tenant for life, should be understood strictly and literally, or as applicable generally to all persons whose interest determines with their life, was a fair question of construction; and I think that if it had still remained open to discussion, the latter view of it was more correct, and more conformable to the apparent intention of the Legislature.

In Hawkins v. Kelly, 8 Ves. 308., (which arose upon a demurrer on account of the matter being cognizable at law) Lord Eldon, acting upon the authority of Paget and Gee, held, that upon a lease of the glebe, parsonagehouse, tithes, &c. of a rectory, the tenant having paid the entire rent to the successor, the executors of the deceased rector were entitled to an apportionment.

In Williams v. Powell, 10 East 269., (which was admitted to be a case not within the statute) the predecessor of the defendant, as rector, had compounded with the occupiers of lands for their tithes: the defendant had received the whole amount of the composition, and paid into court sufficient to cover the tithes which had accrued due in the life-time of the deceased, which the court held sufficient, not conceiving him liable in respect of an apportionment of time. The Reporter very reasonably observes, that it seems that if the tithes in kind for which the composition was made would, supposing there had been no composition, have been wholly due before the death of the deceased rector, his representatives would have been legally and equitably entitled to the whole, however they might be restrained by agreement with the parishioners not to demand payment till the day agreed upon, and the successor could not be entitled to any part of such composition. In the subsequent case of Ainsley v. Wadsworth, 2 V. & B. 331, the successor having received the whole year's composition, the Vice-Chancellor decreed an apportionment with reference to the respective periods of enjoyment.

In Salter v. Champlin, 10 Ves. 66, the question being whether land-tax, quit-rents, and N

No. XXIII. 11 George II.

c. 19.

Provision for landlords, where tenants desert the premises.

liver up the possession of the demised premises, whereby the landlords, 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 twenty-fourth day of June One thousand seven hundred and thirty-eight, if any tenant holding any lands, tenements, or hereditaments, at a rack-rent, or where the rent reserved shall be full three fourths of the yearly value of the demised premises, who shall be in arrear for one year's rent, shall desert the demised premises, and leave the same uncultivated 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 notorious 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 behalf, 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 death of tenant for life, should be sustained by the remainder-man, or be apportioned? The Master of the Rolls said, the statute 11 Geo. II. has no application to this case. It might be very reasonable to make such a statute, as to the apportionment of taxes between the tenant for life and the remainder-man, giving the tenant for life the benefit only as against the tenant under the lease.-In a view of the law of apportionment, introduced into the Appendix to the Translation of Pothier, (p. 47.) it occurred to me to observe that this Act stops short of its probable object, in not including the case of a tenant for the life of another person, whose estate determines by the death of such other person; and that if an ecclesiastical person makes a lease, and vacates his preferment by the acceptance of another, I conceived that there could be no apportionment. The case of tenant pur autre vie has been since incidentally noticed in the case of Wykham v. Wykham, 3 Taunt. 331, in which, with reference to some observations of counsel, Mansfield C. J. said-" Has it ever been determined that the executor of a tenant pur autre vie is entitled to recover a portion of the rent from the last quarter-day under the statute? He is certainly within the mischief, for otherwise the tenant of the land may keep the rent for his own benefit." To use the language of the Master of the Rolls, it might be very reasonable to make a statute for the purpose : but certainly the language of the present statute will not admit of such an interpretation; and it would be much better, until there is another, to let the inconvenience remain as it is, than to allow the assumption of that judicial legislation, of which it is more easy to check the beginning, than to calculate the

end.

In the case of Earl Strafford v. Wentworth, Prec. Ch. 555, a tenant for life had made leases, some of which, being under a power, had continuance after his death; and others not being according to his power, determined with his life, and died on the rent day, about 12

o'clock at noon; and Lord Macclesfield held,
that the latter belonged to his executors, be-
cause, although for the benefit of the tenants,
they had, to the last instant of the day, to pay
the rents; yet as soon as the day began, they
were at their peril to take care that they were
paid accordingly; but as to the lease made by
virtue of the power, they had existence and
continuance after the death of the lessor, and
thus the rent went along with the reversion, to
those who were entitled to it. In Lord Rock-
ingham v. Penrice, 1 P. Wms. 177, the tenant
for life died before sun-set, and it was held
that the person in remainder was entitled to
the rents that became due that day. One te-
nant had paid his rent to the tenant for life in
the morning, and it was held, that though this
was a good payment to discharge the tenant,
the executors should account for it to the
party in remainder. Upon this point the re-
porter makes a query; for if the payment was
a good payment at law, as it certainly was, why
must it not be so in equity?
A case was cited
before Tracey J. at Durham, where the execu-
tor of a grantee for life of a rent-charge, who
died after sun-set on the day was held entitled.
See Duppa v. Mayo, 1 Saund. 287., in which
it was held, as between heirs and executors of
tenant in fee, that where the lessor died after
sun-set, and before midnight, (the rent not
being previously paid) the heir was entitled.

(1) Where a tenant ceased to reside on the premises for several months, and left them without nay furniture, or sufficient other property to answer the year's rent; held that the land might be properly proved under s. 16. to recover the possession, although he knew where the tenant then was, and although the justices found a servant of the tenant on the premises, when they first went to view the same held also that it is not necessary, to state, in the record of the magistrates' proceedings, that the landlord had a right of re-entry; although such a right must exist in order to entitle the party to proceed under that statute; Ex parte Pilton, I B. & A. 369.

premises; then the said justices may put the landlord or landlords, No. XXIII. lessor or lessors, into the possession of the said demised premises; and the lease thereof to such tenant, as to any demise therein contained 11George II. only, shall from thenceforth become void.

XVII. Provided always, That such proceedings of the said justices

c. 19.

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 happen to landlords, whose tenants have power to determine their leases, by giving notice to quit the premises by them holden, and yet refusing to deliver up the possession, when the landlord hath agreed with another tenant for the same;' Be it further enacted by the authority aforesaid, That from and after the said twenty-fourth day of June 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.

Tenants hold

ing premises after the time they notify for quitting them,

to pay double rent.

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 within 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 hardship upon landlords and other persons entitled to rents, that a distress ⚫ duly made should be thus in effect avoided for any subsequent irregularity;' 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 disposi afterwards done by the party or parties distraining, or by his, her, or tion of them;

(1) The notice need not be in writing; Timmins v. Rowlinson, 3 Bur. 1603.

(2) A notice that the tenant will quit as soon as he can get another situation does not bring a case within the statute; Farrance v, Elkington, 2 Camp. 591.

Distresses for

rent not un

(3) This differs from 4 George II. which subjects the tenant to double the yearly value, in case the notice is given by the landlord.

(4) By distress; Timmins v. Rowlinson, 3 Bur. 1603,

No. XXIII. 11 George II.

c. 19.

nor tenants to recover by action, on tender

of amends.

In actions against persons entitled to

rents, and defendants may plead the gencral issue.

Defendants in replevin to avow, &c. that the plaintiff held the premises at a certain rent, &c.

their agents; the distress itself shall not be deemed to be unlawful, nor the party or parties making it be therefore deemed a trespasser or trespassers 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, shall recover in any action for any such unlawful Act or irregularity as aforesaid, if tender of amends hath been made by the party or parties distraining, his, her, or their agent or agents, before such action brought.

XXI. And be it further enacted by the authority aforesaid, That from and after the said twenty-fourth day of June One thousand seven hundred and thirty-eight, in all actions of trespass or upon the case to be brought against any person or persons entitled to rents or services of any kind, his, her, or their bailiff or receiver, or other person or persons, 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.

'XXII. And whereas great difficulties often arise in making avowries or conuzance upon distresses for rent, quit-rents, reliefs, heriots, and other services;' Be it further 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 all defendants in replevin to avow or make conuzance 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 statute, as it tends to place the landlord in the same situation as before, by considering him a trespasser ab initio; Wallace v. King, 1 H. B. 13.

(1) Trespass may be maintained where the defendant expels the plaintiff from the premises and keeps possession after the rent paid; Etherton v. Popplewell, 1 East, 139. So where the defendants continued in possession eleven days before they began to remove the goods, and were then employed four days in removing them; but whether the action was sustainable for the mere continuance, or on account of the taking and removing of the goods from the premises, and disturbing the plaintiff's possession after the time when they ought to be removed, was not agreed. Lord Ellenborough and Grose J. ruled the case on this latter ground, as distinguished from the former. Le Blanc J., assented to the action being maintainable on that ground, but said he did not wish to be precluded from saying in a subsequent case, that a party might be a trespasser by continuing on the premises wrongfully. Bayley J. held, that trespass for the wrongful continuance was the proper remedy, and that the other ground could not be supported. Winterbourne v. Morgan, 11 East, 395.

For an irregularity in the subsequent disposition (as in selling without proper appraisement) trover cannot be maintained since the

(2) Lord Ellenborough did not consider this as giving the plaintiff an option which remedy to pursue, in every case of an unlawful Act or irregularity, but merely an option according to the subject matter of the grievance; Winterbourne v. Morgan, ub. supra.

(3) It is not necessary that there should be either a certificate from a judge, or a suggestion on the roll, in order to entitle a defendant to double costs on this Act; Finlay v. Seaton, -1 Taunt. 210.

(4) The defendant cannot plead generally de injuria propria in bar of such avowry; Jones v. Kitchen, 1 B. and P. 76.

(5) The Act does not extend to an avowry for a rent charge; Bulpit v. Clarke, 1 N. R. 56; or to a rent under a Canal Act, in satisfaction for damages, and charged on the rates; but only to the rent directly reserved by a landlord on his grant, on demise of land theretofore made; Leominster Canal v. Cowell, 1 B. and P.. 213.

(6) An avowry for rent of -7., and an in

incurred, which rent was then and still remains due; or that the place where the distress was taken was parcel of such certain tenements, held of such honour, lordship, or manor, for which tenements the rent, relief, heriot, or other service distrained for, (1) was at the time of such distress and still remains due, without further setting 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 his, 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 rent, Be it enacted by the authority aforesaid, That from and after the said twenty-fourth day of June One thousand seven hundred and thirtyeight, all sheriffs, and other officers having authority to grant replevins, may and shall in every replevin 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, ed.