TENANTS LAW A TREATISE of great Use, FOR TENANTS and FARMERS Of all Kinds, And all other Persons whatsoever.

WHEREIN The several natures, differences and kinds of Tenures and Tenants are discussed, and several Cases in the Law touching Leases, Rents, Di­stresses, Replevins, and other ac­cidents between Landlord and Te­nant, and Tenant and Tenant be­tween themselves and others; E­specially such who have suffered by the Late Conflagration in the City of London.

Flamma Consumpta, Resurgo.

The second Edition.

By R. T. Gent.

LONDON, Printed by T. M. for S. S. and are to be sold by W. Jacob, by Barnards-Inn in Holborn, and John Am [...]y over-against St. Clements Church in the Strand, 1670.

To the Tenants of England, especially those of the City of London.

I Have often observed many Inconveniences and Damages to happen to Tenants oftentimes by their Ignorance and Timero­sity, not knowing how to de­fend themselves against in­sulting and cruel Land­lords; and oftentimes they commit many delinquencies to the Landlord, and tres­passes [Page] and Nusances against one another unwittingly, not knowing when they offend; and most often they plung themselves into the Mire, and are ins [...]ared in the Net of trouble, like a Bird, by their over-much striving to get themselves free and at liberty from it, and intangle themselves more and more, and work themselves the farther and faster in, till they beat themselves out of breath, and break their Wings, and lose so many Feathers, that they scarce ever get flush again. One cause hereof is; many de­light to delude and flatter [Page] themselves, by setting a fairer gloss upon their cause then it will bear when it comes to the Test, and to give wrong instructions to their Clerk or Attorney, whereby it cannot be rightly Stated to learned Council; and then what the Event of this will be, I leave to your selves to Judge.

I have taken the pains to compose this Treatise, to teach you to undeceive your selves, and not to seek re­fuge from the Law, in such cases when you your selves have done the injury: and likewise to shew you how you may ward your blows, [Page] and defend your selves a­gainst such as are injurious unto you, Malicious and Superbous.

I have methodized the particular Directions enact­ed for ending Controversies, between all Persons concer­ned in the late dreadful Fire of the City of London; whereby they may with more ease, compose their own differences, & inform them­selves of the Rules for New Building▪ I wish you much profit; which is all the de­signe herein intended, by a Lover of his Country,

R. T. Gent.

The Contents.

  • CHAP. I. A Division of the several kinds of Tenants and Te­nures. Pag. 1.
  • CHAP. II. Of Leases, Covenants and Con­ditions; Provisoes and Re­servations, Surrenders and Assignments of Leases. 41.
  • CHAP. III. Of Payment of Rent, Accept­ance and Extinguishment thereof, Demands, Entries, Dates, Continuance, Limi­tations [Page] and Determinations of Leases. 71
  • CHAP. IV. Of Corn sown, who shall have the Crop; of Estovers, and Trees blown [...]: of Di­stresses, what things may be distreyned, and how used; who may take a Distress, for what cause, when and where. 90
  • CHAP. V. Of Rescous, in what cases it may be lawful; Replevins, how to be sued out; and of Avowries to Declarations upon Replevin. 109
  • CHAP. VI. What cases a Tenant or other shall be said to commit waste [Page] in Houses▪ Gardens, Woods, Pastures, Orchards, &c. And what waste shall be punishable, and what not. 120
  • CHAP. VII. The Tenants Law, touching New Buildings within the City of London. 133

Tenants Law.

CHAP. I. A Division of the Several kinds of Tenants and Te­nures.

EVery Subject of this The kinds of Tenants and Te­nures. Kingdom that oc­cupieth any Lands, or inhabiteth in any House or Tene­ment, is said to be a Tenant, Tenens a Tenendo; because he must hold of some Lord or o­ther.

And divers and various are the na­tures and kinds of Tenants and Te­nures in this Land at this time; Al­though [Page 2] they have been more numer­ous, and indeed excessive slavery to the people, so that their exhorbitant Cruelty hath caused their Dissolu­tion.

Those which are ceased to be, are Tenure in Villenage, where the Villen­age. Lord might vassal and enslave his Tenants person at his pleasure, but not kill him.

Pillenage, where the Lord might Pillen­age. pillage his Tenant of all his goods.

Frank-Almoigne, or free Almes, Free-Alms. was a Tenure begun and had its ori­ginal, either at or soon after the foundation of Monasteries and Re­ligious Houses, and extripated with them. The nature of it in old time was, when a man being Seized of Lands or Tenements in his Demeasne as of Fee, of the same Land did en­feoffe some Abbot or Prior and their Covents, or some Dean and Chapter and their Successors, or some Parson of a Church and his Succes­sors, or any other Religious person who was in a Capacity to take such Alms, to hold the same Lands and Tenements to them and their Succes­sors in Liberam Eleemosynam, in [Page 3] Free-Alms, or Frank-Almoigne, of the grantor and his Heires: and such as held in Free-Alms were bound in consideration of such grant or Feoffment, to perform cer­tain Divine and Religious Services and Exercises, for the Souls good, Life and Prosperity of the grantors and all others.

And they confirmed all their grants with grievous Anathema's and Imprecations against all such as should in any wise diminish or take away such their grant, or convert the same unto any other use; (which some justly believe to be none of the least Causes why Purchasers of Church-Lands find such ill success, as seldome to enjoy it to the fourth Generation.)

But, as I said before, this Tenure and the Religious Houses ended to­gether, or immediately one after the other; So that none can grant any Lands or Tenements in Liberam Eleemosynam at this day.

Tenure in Capite and Knights-Ser­vice Knight-Service. is also by Act of Parliament in the twelfth Year of his now Majesties Reign, (together with the Court of [Page 4] Wards which was dependent upo [...] that Service,) taken away, and a [...] those Tenures are now turned into common Soccage.

So that the more usual Tenants a­mongst us at this day are

Tenant in Fee-Simple, in Fee-Taile. Fee-Sim­ple.

Tenant in Tail, after possibility of Fee-Tail. issue extinct.

Tenant in Dower, by the courtesie Dower, Courtesie, Term of life, for years. At Will. of England; Tenant for Term of Life, for years upon Lease, in writ­ing, or Lease parol.

Tenant at will; by the common Law, or by custome.

Tenant by Coppy of Court-Roll. Coppy.

Tenants in Coparcenery, Joynt-Tenants, Coparce­nery. and Tenants in common.

Fee-Simple.

A man that is seized in Lands or Fee-Sim­ple. Tenements, to hold to him and his Heires for ever, is said to be Tenant in Fee-Simple, and such an Estate is called Feodum Simplex. The word Feodum in Latine being taken to sig­nifie Inheritance; and Simplex im­plies pure, plain, or unmixt: and [Page 5] indeed Fee-Simple is the most pure holding that is, being unmixt or en­tangled in it self. But as the whitest Colour will be soonest stained; so is this pure Tenure most subject to be spotted and involved in troubles a­bove any other; Which the Law calls Incombrances.

If a man were to deal as purchaser Incom­brances of Fee-Sim­ple. with a Tenant in Fee-Simple, he hath a happy bargine if he meets with a Simple Tenure and a Simple Tenant; I mean, the one free from Incom­brances, and the other from deceit: which many have found it a difficult thing to obtain.

I shall therefore by way of cauti­on set down the several troubles and incombrances this pure and Simple Tenure, called Fee-Simple, is subject unto.

Fee-Simple may be incombred, with several Judgments, Statutes Merchant and of the Staple, Recog­nizances, Mortgages, Wills, Pre­contracts, Bargains and Sailes, Feoffments, Fines, Amerciaments, Joyntures, Dowers, and many o­ther fraudulent Conveyances, if a knave once possesse it; and last of [Page 6] all, may be quite forfeited for Trea­son.

But Fee-Simple being free from a­ny of the aforementioned incom­brances, is the most free, absolute, and ample Estate of Inheritance that that any man can have; And there­fore a Tenant in Fee-Simple, is said to be Seistus in Dominico suo, ut de feodo; that is, seized in his Demeasne as of Fee.

Tenant in Fee-Taile.

All Free-hold inheritances before Fee-Tail. the Statute of Westminster 2. Cap. 1. were Fee-Simple at the common Law; so that Tenant in tayle was instituted by force of that Statute; By which Statute there is a twofold Tenant in Tayle, viz.

General, and special Tayle.

He is said to be Tenant in general General Tail. Tayle, who holdeth Lands or Tene­ments to him and to the Heires of his body begotten.

For if in this case he Marry many Wives, and have issue by them all; [Page 7] every one of them may (the Elder dying) come to inherit this Land, because every one is the issue ingen­dred of his body.

It is the same case if Lands or Te­nements be invested upon a Woman and the Heirs of her body, And she have several Husbands, and Children by them all, every one of them is in a possibility to inherit those Te­nements, being all begotten of her body.

But where Lands or Tenements are setled upon a man and his wife, and the Heirs of their bodies be­tween them two lawfully to be begot­ten; Special Tail. this is Tenant in Special Tayle, because in this case none can inherit, but such Children as are by this man begotten upon the body of this wife named in the Grant: And if that wife dye, and the man taketh ano­ther wife, and hath issue of her bo­dy, the issue by the latter wife can­not inherit by vertue of such a grant; And if the first husband dye, and the wife marry again and have issue by a second husband, that issue cannot inherit.

There be several other Estates [Page 8] in Special Tail, according to the Devises, Limitations, and Conditi­ons Special tail with limitation. invented and setled by the Do­nor; as sometimes to a man and his Wife and the Heirs Males of their bodies between them two to be be­gotten; in this Case the Females cannot inherit.

So that if Lands be invested upon a man and his Heirs Males of his body, and he hath issue two Sons and dyeth, the eldest enters, according to the grant, and hath issue a Daughter and dyeth; this Daughter shall not inherit the Land, but the Brother, be­cause he is the Heir Male.

And if a man hath Lands granted to him, and to his Heirs Males of his body; and he hath no Son, but on­ly a Daughter, and the Daughter hath a Son and dyeth living her Fa­ther, and after that the Donee dyeth; in this case the Donee dying without issue Male in the Law, the Son of his Daughter, which is his Grandchild, shall not inherit, but the entayle is ex­tinct, and the Land shall Revert to the Donor. Tail Te­nures In­cumbran­ces.

These grants in Tail are the causes of much strife, and stir up many [Page 9] chargeable suits, though in my judg­ment they are useless: for the intent of the Donor is seldome observed in them, he intending to preserve the Memory of his own name to per­petuity; which cannot be, since a Fine and Recovery will docke it.

Tenant in Tail after possibility of Issue extinct.

When Lands and Tenements be Possibility of Issue extinct. granted to a Man and his Wife in special Tail, and one of them dye be­fore they have issue, the Survivour is Tenant in Tail after possibility of issue extinct; but if they have issue, during the life of the issue the Sur­vivour cannot be said to be tenant in Tail after possibility of issue extinct. But if the issue dye without issue, and leave none to inherit by vertue of the Entail, then the Surviving Do­nee is tenant in Tail after possibi­lity of issue extinct.

And none can be tenant in Tail af­ter Donee in special Tail. possibility of issue extinct, but one of the Donees in special Tail; which tenant in Tail after possibility of is­sue extinct, is not chargeable with [Page 10] committing of Wast, because the inheritance was once in him; but if he doth Allien in Fee, it is a forfeiture of his Estate, and the Heir in Rever­sion may enter.

Tenant by the Courtesie of Eng­land.

When a Man marries a Wife seiz­ed in Fee-simple, or in general Fee. Tail, or one that is Heiress unto Lands or Tenements in Special, and hath a Child by the same Wife male Tenant by the cour­tesie. or female born alive, and the Wife dye; whither the Child be living or dead, the Husband shall hold the same Lands during his Life, as Te­nant by the Courtesie of England, which is a Tenure used in none other Country but in England: And al­though the Child dye assoon as it is born, if it were but heard cry, the Husband shall hold the Lands after his Wifes decease during his Life as Tenant by the courtesie; the cry­ing of the Child being a suffici­ent Testimony of its being born a­live.

Tenant in Dower.

Tenant in Dower.

This kind of Tenant is always of the Feminine gender; and is when a man is who seized of Lands or Te­nements in Fee-Simple, or in general Tail, or as Heir in Special Tail, mar­ries a Wife and dies; the Wife after the death of her Husband, shall have during Her life the third part of such Lands or Tenements as her Husband had during the Coverture, whether she had any issue by him or not, so she be above nine years of age at her Husbands death.

This is the Dower at the Com­mon-Law; Dower at Common-Law. but by custome in many places it is otherwise: for in some places she shall have the half, and in o­thers the whole; and in all these cases she is Tenant in Dower.

In Kent it is the custome, for the Dower by the Cu­stom. Woman to have half her Husbands Lands durante viduitate, so long as she continues a Widdow; but if she marry again she looses all: so like­wise is the custome there, if a man marry a Wife having an Estate in Lands, &c. and she dye without is­sue, [Page 12] he shall have half while he re­mains sole: but if he marry again he looseth all. And in Kent they say the reason thereof is, because they do not love that their Lands should help to maintain any Children but such as are of their own getting; but how sure they are hereof, Igno­ramus.

Tenant for Life.

He that holdeth Lands or Tene­ments for the term of his own Life, or for term of the Life of any other person; In this case the Lessee ei­ther for term of his own Life, or for anothers, is Tenant for term of Life; And this Tenant for Life hath in him the Freehold, this being the lowest degree of Freehold.

In a grant for term of Life, it is Lessor and Lessee. said to be from Lessor to Lessee. Note, there is Feoffer and Feaffee, Donor and Donee, Lessor and Lessee: so there is likewise Grantor and Grantee, Obligor and Obligee, Mort­gagor and Mortgagee. Feoffer and [...].

He that enfeoffeth another in Lands or Tenements, is called the [Page 13] Feoffer; he to whom the feoffment is made, is the Feoffee.

So when a man giveth Lands or Donor & Donec. Tenements to another in tail, he is called the Donor; and he to whom the gift is made is the Donee.

And likewise he that letteth to a­nother Grantor and Gran­tee. any Lands or Tenements to hold for term of Life, for Years, or at Will, is called the Lessor; and he to whom the Lease is made, is cal­led Lessee: which Lessee for Life (as I said before) is tenant of Freehold. So also he that pawneth Lands to a­nother Mortga­gor and Mortga­gee. is called Mortgagor, and he to whom it is pawned is called the Mortgagee.

Tenant for Years.

Tenant for term of Years is, when Tenant for years. a man demiseth, and letteth any lands or tenements to another to hold for a certain number of years agreed upon between the Lessor and the Les­see; by force and vertue of which Lease, the Lessee entreth into the said tenements.

This Lease for term of years may be granted by word of mouth, and [Page 14] this is called a Lease parol: which shall bind the Lessor so long as the term is accorded for, if the Wit­nesses live to prove the Lease Pa­rol.

But the more safe and usual way, is to take a Lease by Deed indented, which needs no other Execution but only sealing and delivered. For by vertue of that Lease, the tenant may enter whensoever he will.

But a Lease for term of Life must Livery & Seizin in Lease for Life. be executed by Livery and Seisin; because the freehold passeth with that Lease; which it cannot do without Livery and Seizin.

This was the Case of Allen and Waller at the Lent-Assizes at Maid­stone 1654. Waller brought an E­jectione firme against Allen; the De­fendant proved a Lease Parol at a certain rent during his Life: which last word of the Defendants witness gave the verdict against him, because none can be tenant for Life, without Livery and Seizin.

Also if a man make a Lease to one for Years, the remainder to ano­ther for Life, or in tail, or in Fee, here the Lessor ought to make Live­ry [Page 15] and Seizin to the Lessee for Years; or else nothing shall pass to him in remainder, though the Lessee enter and enjoy his term of Years; but the Free-hold and the Reversion remaines in the Lessor. But if the Lessor makes Livery and Seizin to the Lessee, then the Freehold passes over to them in the Reversion, ac­cording to the grant.

Likewise if a man make a Lease of Lease for Years takes right af­ter the delivery. Lands or tenements to another for term of Years, and the Lessor dye before the Lessee enter into the tene­ments; nevertheless he may enter, notwithstanding the death of the Les­sor, because the Lessee hath right to the tenements by vertue of his Lease, immediately after the sealing and de­livery of it.

Tenant at Will.

When a man demises Lands to ano­ther Tenant at Will. to hold to the Lessee at the will of the Lessor, and by vertue of this Lease the Lessee is in possession; here the Lessee is tenant at Will, and hath no certain Estate in the tenements he holdeth, but the Lessor may eject him when he pleases.

[Page 16]But if the Lessee sow the Land, and the Lessor eject him out afterwards He that sows shall Reap if Tenant at Will. before the Corn be ripe, the Lesse [...] shall nevertheless have his Crop, and shall have free Egress and Regress to cut and carry it away, because he knew not when the Lessor would en­ter upon him.

But if a tenant for years sow his Land so near the end of his term, that his Lease expire before the Corn be ripe, he shall not come to reap it; but the Lessor or other who hath the Reversion shall have the Crop, because the Lessee knew certainly the end and determination of his term and Lease.

In like manner if a house be let to Not so in Tenants for years. a man to hold at Will, and the Lessee enters the House, and bringeth in thither his Goods and Houshold­stuff, and afterwards the Lessor e­jects him out; here he shall have li­berty of egress and regress, to fetch away his Houshould-stuff.

Also if one seized in Fee-Simple, Fee-tail, or for term of Life, in an House, and hath Goods in that House, and makes his Will, appoint­ing his Executors, and dies; now to [Page 17] whosoever the house descends, the Executors shall have liberty in some reasonable time to enter and carry away the goods.

And if a man by Deed of Feoff­ment grants certain Lands to ano­ther, and delivers him the Deed, but executes it not by Livery and Seizin; the Feoffee in this case may enter that Land, and hold it at the will of the Feoffer; but the Feoffer may eject him out again when he will.

If a man dwell in a House as te­nant Tenant at W [...]ll not bound to repai [...]s. at will, he is not bound to re­pair the said house, as a tenant for term of years is bound to do.

But if a tenant at will shall commit voluntary wast, as to pull down Houses, and Cut, Grub, Fell, or de­stroy Trees, the Lessor may bring his Action of trespass against him for so doing; and the Lessor upon a Lease at Will, if he hath reserved a yearly rent, may either distreyne, or bring an Action of debt for the same, if it be in Arreare, which he pleases.

Tenant by Coppy of Court-Roll.

Tenant by Coppy of Court-Roll.

This is a very ancient tenure, and depends only upon custome; and there are so many and various kinds of customes in Coppy-holds in seve­ral Mannors and Countries, that it would take up a large Volumn to discourse of them all; which is not now our present Intention; but we shall refer that Subject to a further opportunity, and here shortly in ge­neral terms set forth the nature of a tenant by Coppy of Court-Roll. In a Mannor wherein there is a Cu­stome, and hath been so used time out of mind (for nothing can be a Custome, unless it be Tempore quo non extat Memoria, time out of mind,) that certain tenants within the said Mannor, have used to have Lands or tenements, to hold to them and their Heirs in Fee-Simple or Fee­tail, or for term of life, or upon any other condition, at the Will of the Lord after the custome of the same Mannor; such tenants are cal­led Coppy-holders; that is, tenants by Coppy of Court-Roll: for a [Page 19] Coppy of the Court-Roll is all the evidence they have for their estates in the said Lands.

Now a tenant by Coppy of Court-Roll, Coppy hol­der can­not alien by Deed. may not alien his estate by Deed; for if he do, it is a forfeiture to the Lord, and the Lord may en­ter, and take the forfeit.

But if any tenant by Coppy of Court-Roll, will alien his Lands, he may do it by a surrender into the hands of the Lord, to the use of him that shall have it; and any kind of estate that a Free-holder can make of his Land by Deed, a Coppy­holder may do the same by surren­der.

The tenant by Coppy of Court-Roll is also bound by the custome to repair his houses; and if he suffer any tenement or house to fall down for want of repair, or if he pull it down, he forfeits his Coppyhold to the Lord of the Manner.

There are seven Properties incide [...] for the Maintenance of a good Cu­stome.

First, It must be reasonable. 2 Ed 4. 24. 13 Ed. 3. 4. 42 Ed. 3. 4.

Secondly, It must be certain.

Thirdly, It must be according t [...] Common Right.

Fourthly, It must be on good con­sideration.

Fifthly, It must be Compulso­ry. 5 H. 7. 9. 42 Ed 3. 3 H. 6 13 31 Ed 3. Prescript 1. 22.

Sixthly, It must be without pre­judice to the King.

Seventhly, It must be to his profit that claimeth the same.

In Customes there is User, Non user, Abuser, and Interuser.

Ʋser, Is when according to time and occasion a Custome is used.

Non user, Is when, for want of time and occasion, or through neg­ligence, or forgetfulness, a custom is not used.

Abuser, Is when Custom is ill u­sed; for as User doth nourish Cu­stom, so doth Abuser destroy a Cu­stom.

[Page 21] Interuser is in some cases, where a Custom may be used in one sort, and [...]ometimes in another, and yet a good Custom, if there be good Consider­ [...]tions for the Exchanging thereof at [...]imes.

If the Lord have used at the Ad­ [...]ission Fine at the Lords will. of his Coppy-hold tenants [...]ometimes to take for a Fine two [...]ence, or sometimes four pence for [...]n Acre, sometimes twelve pence an Acre; this User is so uncertain; that [...] makes the Fines Arbitrable at the Lords will.

If the Lord of a Mannor have used Admission without Fine. [...]ime out of mind to admit his Cop­py-hold tenants without Fine, this Usage shall bind the Lord as well as a Fine certain.

If the Lord have used to have cer­tain Work of Tenants. Work-dayes of his tenants; And that hath not been used by the space of twenty years last past: yet [...]hat Non User is no discharge to the [...]enants, so that there be any alive that can remember the same.

If the tenants have used when they Interuser for Rent. Sow their Lands to pay the Lord Rent-Corn, and when it lyeth in Pa­sture to pay their Rents in money, this is a good Interuser.

[Page 22]If the tenants have used to pay [...] Idem. their Lord every fourth year a dou­ble Rent, and every sixth year an half Rent, this is a good Interu­ser.

If the tenants have used to have Aluser by Cattle. Common of Pasture in their Lords Woods for their Horse-Cattel, and they put in their Neate-Cattel and destroy the Woods, this is an abuser; But it is but fineable and no forfei­ture of the Common, no more than if they have Common for a certain number of Beasts in the Lords Soyl, and they exceed the number; this a­buse by the Surchargeing, is only fineable and no forfeiture.

If a man have a Faire to be used Forfei­ture. two dayes, and he keeps it three dayes, this abuse is a forfeiture.

Every good Custom is grounded Customs must be reasona­ble. upon good Reason, and that shall be said in reason a good Custom, that in reason is a good Law; for Law and Custom be of that affinity, as both do allow like Reason, and both do forbid like Inconveniencies; And the final effect of both is to discusse and to discern every mans true right, and to give to every man that which [Page 23] is his own; for although Custom in [...]ome cases differ from Law, and [...]oth admit Execution of some Acts without some Ceremonies required [...]y the Law; yet the end and effect [...]f Custom is to maintain the like [...]eason, and avoid the like incoveni­ [...]ncies as the Laws doth.

If the tenants of a Manner will [...]rescribe to hold without paying any [...]ents, or Services for their Coppy­ [...]olds, this is no good Custom. But [...]o prescribe to hold by Fealty for all [...]anner of Services is good and rea­ [...]nable.

If a Lord will prescribe never to [...]old a Court but when it pleaseth [...]imself, this is not good; But to [...]rescribe never to hold a Court for [...]e special good of any one tenant, [...]cept the same tenant will pay him a [...]ine for the same; that is good and [...]easonable.

If a Coppy-holder surrender his and to the use of a Stranger, in con­ [...]deration that the same Stranger [...]all Marry his Daughter before [...]ch a day; if the Marriage succeeds [...]ot, the Stranger takes no benefit by [...]e surrender. But if the surrender [Page 24] be in consideration, that the Strange [...] shall pay such a Sum of money a [...] such a day; though the money b [...] not paid, yet the surrender standet [...] good. Many Customs there are which at the beginning were volun­tary; and now by continuance ar [...] grown Compulsary: Quae initi [...] fuerunt voluntatis ex post facto fue­runt necessitatis; Sayeth the Civ [...] Law; which also in many Cas [...] doth agree with the Common Law.

Tenant in Coparcenery.

There are two kinds of tenants i [...] Tenants in Coper­cenery. Coparcenery; that is, Parceners a [...] the Common Law, and Parceners b [...] custome.

After the course of the Commo [...] Law, when a Man or Woman seized in Lands or tenements in Fe [...] Simple, or Fee-tail, and hath no o­ther issue but Daughters, and dyeth the tenements descend to the Daugh­ters equally as Co-heirs; and the [...] shall enjoy every one an equal par [...] thereof, as tenents in Parcenery, o [...] Copartnership, and are all as it wer [...] [Page 25] [...]ne Heir to their Ancestor; And [...]ese Coheirs or parceners may have Writ called Breve de participati­ [...]e facienda, to have the Lands e­ [...]ually divided and shared amongst [...]hem.

If a man seized of Lands dye with­ [...]ut issue, and the tenements descend [...] his Sisters; or if he hath no Si­ [...]ers, and it descends to his Aunts: [...]ey be Coheirs or parceners as a­ [...]resaid.

If there be two parceners, one [...]arries and hath issue and dyeth, and [...]fterwards her Husband holdeth one [...]alf, as tenant by the Courtesie; [...]he Coheir or parcener that survi­ [...]eth, and the tenant by the Courte­ [...]e, may make partition between [...]em; And if the tenant by the [...]ourtesie will not consent there un­ [...], the Surviving parcener may com­ [...]el him by a writ de Participatione [...]cienda.

But if the tenant by the Courtesie [...]sires to have partition, and the [...]rceners surviving will not agree to [...]; the tenant by the Courtesie can [...]ave no remedy: for he cannot [...]ave a writ de Participatione facienda [Page 26] against the surviving parcener, al­though the parcener may have it a­gainst him.

Parceners by Custom.

This Tenure is Gavel-kind, and i [...] Partners by Custom. used only in Kent, except in some certain places in England besides and in North Wales. But the me [...] of Kent only claim this as a right re­maining unto them unconquered and it is thus: If a man be seized in Fee-Simple or Fee-Tail in Lands o [...] tenements of the Custom and Tenur [...] of Gavel-kind, and hath issue diver [...] Sons and dyeth; All the Sons shall be Coheirs, and equally inherit those Lands and tenements as Females do and may make partition by writ d [...] Participatione facienda, and divide as in the case of Daughters at the common Law.

Joynt-Tenants.

When a man being seized of cer­tain Joynt-Te­nants. Lands and Tenements, doth thereof enffeoff three or four, o [...] more, to have and to hold to them [Page 27] and their Heirs; or to hold to them­selves, for the term of their lives, or for anothers life, and they become seized by vertue of that Feoff­ment; these are said to be Joynt-Te­nants.

Likewise if two or more disseize Disseizor [...] another of any Lands or Tenements, to their own use, the disseizors be Joynts-tenants; but if it be but to the use of one of them, they be not Joynt-tenants.

Now the nature of Joynt tenants is, that the whole estate shall go to the Survivour.

As, if there be Joynt-tenants in Fee-Simple, and the one of them hath issue and dyeth, the two that survive shall have the whole Tenements, and nothing thereof shall go to the issue of him that is dead: And if the se­cond tenant have issue and dye, the third who is the Survivour shall en­joy Survi­vour. the whole, and shall have it in Fee-Simple to him and his Heirs.

But now there is a difference in tenants in Parcenery: for if there be three Copartners, and one hath issue and dyeth before there be any parti­tion made, that part which belonged [Page 28] to her that is deceased, shall descend to her issue. And if such a Parcener dye without issue, her part shall de­scend to her Coheirs: so that this they have by discent, and not by Survivourship as Joynt-Tenants have.

And as the Survivourship taketh Survi­vourship. place amongst Joynt-tenants, so it doth amongst all persons who have Joynt Estate, or possession with others in Chattels Real or Perso­nal.

As, if a Lease be made to several persons for term of years, the Survi­vour of the Lessees shall enjoy all the Tenements during the term by ver­tue of the Lease.

And in like manner Goods and Chattels personal, whereof there be partners, shall go to the Survivour. And if a Bond be made to many per­sons for one Debt, and some of the Obligees dye, the Survivour shall have all the Debt: And so it is in all Covenants and Contracts amongst Partners.

There may also be Joynt-tenants for term of life, and yet they have se­veral Inheritances.

[Page 29]If Lands be given to two men to Several Inherit­ances. hold to them for term of their lives, and to the Heirs of their two bodies, here these Donees are Joynt-tenants for term of their lives, and have se­veral Inheritances: For if one of them have issue and dye, the Survi­vour shall enjoy the whole during his life by Survivourship. And if the Survivour have also issue and dye, then the issue of them both shall en­joy the estate equally between them, as tenants in common, and not Joynt­tenants.

Now the reason why these are said to have several Inheritances, is because it is impossible for them to have an Heir between them, as a Man and a Woman may have.

Therefore the Law maketh this distinction according to reason and the form of the gift; that is, to the Heirs that one getteth on the body of his Wife; and so likewise of the o­ther: so that by this reason it must of necessity be, that they have several inheritances.

And if after the death of the Do­nees, the issue of one of the Donees [Page 30] dye also, leaving no issue of his body Surviving, in this case the Donor or his Heirs may enter into the moyety of the Lands, as in his reversion, though the other of the Donees hath issue living.

In like manner if Lands be given to two Females and to the Heirs of one of them; in this case, the one of them; that is, she that hath it but for life, hath a freehold, and the other hath a Fee-Simple: and if she that hath the Fee dye, the other who hath the Free-hold shall enjoy the whole dur­ing her life by vertue of her Survi­vourship.

And if Tenements be given to two, and to the Heirs to be ingendred of the body of one of them; here the one hath Free-hold, and the other Fee-Tail.

If there be two Joynt-tenants, and they are seized of an Estate in Fee-Simple, and the one by Deed grants a Rent-charge to another out of that part which appertaines to him; now during the life of the grantor, this Rent-charge is good and effectu­al, but it becomes void after the death of the Grantor. For the [Page 31] Tenant that Surviveth shall hold all the Land by Survivourship, dis­charged from the Rent-charge of the other.

But amongst Coheirs or Parceners Differ­ence be­tween Co­heirs and Copart­ners. it is otherwise: for if there be two Parceners in Tenements in Fee-Sim­ple, and before partition one charg­eth his part by his deed with a Rent­charge, and dyeth leaving no issue, whereby his moyety descends to the other Partners; here that part shall not be freed of the Rent-charge, be­cause he cometh to this moyety by discent as Heir at Law.

If Joynt-tenants be desirous to make partition between them, they may do it by consent and agreement amongst themselves; and such par­tition is good and binding against each other: but unless it be done by mutual consent amongst themselves, the Law cannot enforce or com­pel them, or either of them to do it; because Joynt-Tenants cannot have a writ de Participatione facien­da, as tenants in Copartnership may have.

If there be a joynt Estate of Lands and Tenements made to a man and [Page 32] his wife, and to a third Person, her the third Person shall have as much as the man and his wise; that is, one mo [...] ­ety: for the man and wife can have but half the estate, because they ar [...] but one person in Law.

In like manner it is if Land were made to a man and his wife and to two others; here the man and wife can have but a third part and the two others the other two parts.

Tenants in Common.

Such as have Lands and Tenements Ten [...]nts in Common. by several title, and not joynt title, and none of them knoweth what is several to him, whether it be in Fee-Simple, Fee-Tail, or for term of life; these are said to be tenants in Common, because they ought by the Law to hold, enjoy and occupy such Lands and Tenements in common and undivided, and to take the pro­fits in common; and do come to the same Lands and Tenements by se­veral titles, and not by one joynt title.

If a man enfeoff two Joynt-te­nants [Page 33] in Fee, and one of them Aliens his part to another in Fee; this Alienee and the other Joynt-tenant be Tenants in common, because they now stand seized by several titles; the one Joynt-tenant by vertue of the first Feoffment made to him; and the other Joynt-tenant, and the Alien be comes seized in his moyety by vertue of the Feoffment of the other Joynt­tenant; so that the several Feoffments make their titles several, whereby they become Tenants in common.

If there be three Joynt-tenants, and one of them aliens his part to ano­ther person in Fee, here the Alience is Tenant in Common with the other two Joynt-tenants, and of the o­ther two parts, the two Joynt-te­nants be seized joyntly, and the Sur­vivour of them shall have the whole of those two parts by vertue of Sur­vivourship.

If there be two Joynt-tenants in Fee, and one of them gives his part to another in tail, here the Donce, and the other Joynt-tenant become te­nants in Common.

Also if Lands be given to two men, and to the Heirs of their two [Page 34] bodies, in this case these Donee [...] have a Joynt-Estate during their lives; and if both of them hav [...] issue and dye, both their issue shall hold the Land as Tenants in Com­mon.

If Lands be given to two men and their Heirs to hold to eac [...] a moyety, these are Tenants in Com­mon.

If a man being seized in certain Lands doth enfe off another in th [...] half of it without limiting of the sam [...] half in severalty at the time of the Feoffment made; that is, do not di­stinguish that half from the other by particular bounds and limits; In thi [...] case the Feoffer and the Feoffee shal [...] hold their parts of those Lands in Common.

And as it is amongst Tenants in Differ­ence be­tween Te­nants for Life and in Com­mon. Common in Lands or Tnements in Fee-Simple or Fee-Tail, in the same nature it is also between tenants for term of life: as, if there be two Joynt-tenants seiz'd in Fee, and one of them lets to a man his part for term of his life, and the other Joynt­tenant lets to another man his part for term of life; these two Lessees be [Page 35] tenants in Common for the term of their lives.

Likewise if a man lets Lands unto two persons for the term of their [...]ives, and the one of them grants all [...]is Estate of the part belonging unto him unto a third person; then this third person to whom this grant is made, and the other Tenant for term of life, be both tenants in Com­mon, during the lives of both the Les­sees.

If there be three Joynt-tenants, and one of them releaseth all his right which he hath in the Land by his Deed to one of his fellows, then he to whom the release is made, hath the third part of the Lands by ver­tue of that release, and shall hold that third part with himself and his fellow in Common, and they two shall hold the other two parts joyntly.

Also if a joynt-estate be made un­to a man and his wife, and to a third person, and that third person, re­leaseth his right which he hath in that estate to the Husband; then the Hus­band hath the third persons moyety, and the wife hath nothing therein at all.

[Page 36]And if such third person relea [...] his right in his moyety to the wise not naming her Husband in the re­lease; then the Wife hath the thir [...] persons moyety, and the Husband hath nothing at all in it, but only Jure uxoris, in the right of hi [...] Wife: because the release shall wor [...] to invest the Estate in the person to whom the release is made, of all that appertained to him that made such release.

There may be also Tenants in Com­mon [...] in C [...]m­m [...]nly P [...]scrip­tion. by title of Prescription; that is, when two have holden Lands in Common undivided; the one, one half from his Ancestors; and the o­ther, the other, the other half from his An­cestors, or from whom the Estate is derived unto them undivided, time whereof the memory of man hath not known the contrary; these are Tenants in Common, by title of pre­scription.

Now these Tenants in Common ought in some cases to have for the maintenance of their possession seve­ral Acti [...]s; And in some cases they [...]all all joyn in one Action: for if their be two Tenants in Com­mon, [Page 37] and they be disseized, they two cannot bring against the disseizor one Assize in both their names, but they must have against him two As­sizes: for every of them ought to have an Assize of his half, because the Tenants in Common are seized by several titles.

But amongst Joynt-tenants it is o­therwise, for if their be never so ma­ny of them, and they be disseized, they shall have but one Assize in all their names, because they have all but one joynt-title.

There is likewise a difference in Tenants by divers Descents. suing real Actions between Partners that be in divers descents, and Te­nants in Common. For if a man who is seized in Lands in Fee dieth, leav­ing only two Daughters his Coheirs, and these two Daughters enter, and have each of them a Son, and dye without making any partition be­tween them, so that the Lands de­scend equally to their two Sons, the one moyety to one of them, and the other unto the other, and they enter and enjoy the same in Common, and be disseized; they shall not in this case bring two Assizes, but one As­size [Page 38] in both their names: for though they came in by divers discents, yet they be Parceners, and a writ de Participatione facienda lyeth between them. Nevertheless, they be not Parceners by reason of the seizin and possession which they have from their Mothers, but in respect to their Estate which descended to their Mothers from their Grand-fa­ther.

And so in respect and considerati­on of their first descent that was to their Mothers, they have a title in Parcenery which maketh them Par­ceners; and they be but as one Heir to their common Ancestor their Grand­father, from whom the Land descen­ded to their Mothers. And therefore before partition made between them, they should have but one Assize, though they came in by several dis­cents.

And likewise in personal Actions, in Trespass, and such like cases which concern their Tenements in Com­mon, the Tenants in Common ought to bring such personal Actions joyntly in all their names; as for breaking their Houses, Closes, or [Page 39] Pastures; wasting, treading down, or otherwise spoiling their Grass; cutting or felling of their Woods, spoiling their Fruit-trees, fishing in their Ponds, and such like. In these and all such kind of actions wherein they are joyntly concerned, the Te­nants in Common shall have one joynt Action, and recover damages joyntly.

Likewise if two Tenants in Com­mon make a Lease of their two Te­nements to another for term of years, reserving unto themselves a certain yearly Rent; if the Rent be in Arrear, they shall have one Acti­on of Debt for the Rent against the Lessee in both their names, and not divers Actions.

If two persons or more, have Tenants in Com­mon by di­vers Ti­tles. Chattels real or personal in Com­mon and by divers titles, if one of them dye, the other who Survive, shall not have his part that is dead in those Chattels by Survivourship, but the Executors of him that dyeth shall hold and enjoy his part with them that Survive, as the Testator did or ought to have done in his life-time.

If two persons have an estate in [Page 40] common for term of years, and on of them puts the other out of hi [...] possession, and enjoyes all himself then he that is so put out of possessi­on, may bring his Ejectment against the other for his moyety.

But if two persons be possessed of Chattels personal in Common by di­vers titles, as of an Horse, or an Ox, or a Cow, or the like, and one of them takes it into his own possession, from the other; now the other hath no remedy, but to take this from him that hath done him the injury again, to occupy in Common, when he hath an opportunity; that is, in plain terms, he may come by it as well as he can.

CHAP. II. Of Leases, Covenants and Con­ditions, Proviso's and Re­servations, Surrenders and Assignments of Leases.

IN all Leases, as we have said be­fore Leases and Cove­nants. in the title of Tenant for term of Years, there must be Lessor and Lessee: He which demises or lets Land to Farm, is the Lessor; and he who takes the Land; that is, unto whom it is so let or de­mised, is called the Lessee; in more vulgar terms understood by the Country Farmer by the title of Land-lord and Tenant.

According to our general and Firmor or Farmor, who it is. common acceptation now adays, e­very Lessee for Life, Years, or at Will, though it be but of a Cottage, or never so small a Tenement or House, is called a Firmor or Far­mer, and the premises a Firm or Farm; and so we say in the Writ, A firma sua Ejecit; which may be the reason they are called Farms.

[Page 42]But anciently the chief Messuage a Parish or Country Town, was [...] led by way of pre-eminency by t [...] name of a Farm; and unto t [...] Farm belonged great Demeas [...] of all sorts, as Gardens, Meadow [...] Pastures, Rivers, Woods, Moo [...] Waters, Marishes, Furzes, Heat [...] and also Messuages, Houses Tosts, Mills, and the like: A [...] all these are comprehended u [...] ­der the title of Lands. These D [...] ­measnes were used to be let out to o­thers Demeas­nes. for term of life, years, or [...] will.

These ancient Farms, (or Ferm [...] which you will call them; which ap­pellation or dialect differs according to the Country; In Essex, Norfolk [...] and Suffulke, they call them Ferm [...] and Fermors; but the West and be [...] are called Farms and Farmors) thes [...] Farmes, I say, attained to this titl [...] from the old Saxon word Fermion [...] which signifies to feed, provide or yeeld Victuals; so that a Farmo [...] The name & natu [...]e is now al­tered. signifies a Victualler; for anciently the Landlords did not receive money upon their Leases for their Rent, but Corn and Victuals, being such [Page 43] the Farm yeelded of its growth; till it came by degrees into part [...]oney and part Victuals; and at [...], about the time of King Henry [...]e first, the Rent reserved was [...]rned into Money, and so hath [...]therto continued amongst most [...]en.

Yet amongst some, where the an­ [...]ent Ancient Rents. Rents or Reservations are not [...]tered, the Rent is in Corn or Vi­ [...]tuals to this day, especially in Col­ [...]edg and Church-leases; and doubt­ [...]ess many of those ancient reservati­ [...]ns received their utmost period [...]n the general dissolution of the Religious Houses; to the no small detriment of the Industrious Far­mer.

All Leases for years reserving Co. 7. par. s. 23. Rent, must be made of Lands and Tenements, whereunto the Lessor may come to distreyne; so that a Rent cannot be reserved by a Com­mon person out of any incorporeal inheritance, as Advousons, Commons, Co. 1. par. Inst. p. 47. Offices, Tythes, Fairs, Markets, Li­berties, Franchizes, and the like: but if a Lease be made by Deed in wri­ting of one of them, one may have [Page 44] an Action of Debt by way of [...] tract, but one cannot distreyne: if any Rent be reserved in such [...] upon a Lease for life, it is utte [...] void.

Leases for term of years 23 Lib. Ass. 6. Chattels; so that if a man have Lease of Lands for five hundr [...] years, it is a Chattel, and goes to Executor or Administrator, if dispose not otherwise of it before death.

Every man who is seized of Lan [...] in Fee-Simple, may Lease out [...] Lands for what time or term [...] pleaseth himself; And so likewi [...] 32 H. 1. C. 28. 13 El. C. 10. 18 El. C 6. 1 Jac. C. 3. Hern. law of Convei. pag 662. 67. 68. might Bishops have done forme­ly, before the Statutes restraine them.

A Tenant in tail being at age may by Deed in writing Lease ou [...] such Lands as have been let to Farm [...] twenty years next before the Leas [...] made, reserving the old Rent o [...] more, the Words Without Impeach­ment of Waste must be omitted in it, and it must commence from the day of the making, or date. And if there be an old Lease in being, it must be surrendred, expired or end­ed [Page 45] within one year after the making the new one, or else it is void. a Lease thus made, binds the of the Tenant in tail, i [...] he dye [...]re the term be out but if the [...] in tail dye without [...] the [...]or may avoid the Lea [...] by his [...], and so may [...]e in [...]; though he accept the Rent, [...]he doth not thereby confirm the [...]e.

[...] man that is seized in Lands in Simple or Fee-tail, in the right is Wife, may make a Lease by [...] in writing of his Wifes [...], in the name of himself and Wife, and she to seal thereunto, [...] the Rent to himself and his [...], and to the Heirs of his Wife; Lease shall be good against the man and her Heirs after her [...].

[...], Deans and Chapters [...] the Rules aforesaid, may [...]e Leases of such Estates as they seized of in Fee in Right of Churches: and so may [...], Provosts, and Fellows of [...]edges, and Wardens of [...], if they be not prohibited by [Page 46] the private Statutes of their Found [...] ­tions.

But neither Tenant in tail nor a [...] of the Persons before named, can [...] for any longer term than [...] lives, or one and twenty years; [...] for what term under they pleas [...] But if they do not observe the Rules in their demises, yet their Le [...] ­ses shall be good against them [...] their lives.

If a Lessee for years grant a Ren [...] Cook. 8. Jac. 144. charge, and after surrender, yet [...] the benefit of the Grantee, the [...] hath continuance; although in [...] veritate, it is determined, and [...] Grantor himself shall not deroga [...] from his own grant, to make it [...] at his pleasure.

Tenant for years of an Advows [...] granteth the next Avoidance [...] Donation, if the same Church shou [...] become void during the term, & [...] ▪ And afterwards surrenders his ter [...] yet if the next Avoidance be wi [...] in the term, the grant is good, [...] the years cannot determine, but [...] effluxion of time, and the Law i [...] ­plies a limitation, if the Church [...] become void during the term; [...] [Page 47] expressio eorum quae lacite ni sunt, nihil [...].

A Lessee covenanteth for himself Idem 25 Eliz. Fol. 16. [...] Executors and Administrators, [...]ith the Lessor; That he his Execu­ [...]rs or Assigns shall build a Brick­all upon part of the demised pre­ [...]ises, And afterwards the Lessee [...]akes an assignment of his Lease to [...]. D. for his term; in this Case [...] Assignee is not bound to build the [...]all.

When a Covenant extends to a [...] in being, parcel of the demise, [...]hen the thing to be done by force of [...] Covenant is annexed, and appur­ [...]nant to the thing demised, And [...]all bind the Assignee, although by [...]press words in the Covenant he be [...]ot bound.

But if the Covenant extends to a [...] which had no being, at the time [...] the demise made, that cannot be [...]nnexed or appurtenant to a thing [...]hich had no being.

If a Lessee Covenant to repair the [...]ouses demised to him, during his [...]ease, This is part of the Contract, [...] shall bind the Assignee although [...] the Covenant, he be not expresly [...]ound.

[Page 48]But where the Covenant concer [...] a thing not it being, at the time the demise [...] to be made afre [...] this shall bind the Covenantor, [...] Executors a [...]d Administrators, [...] not the Assignee.

If a Lessee Covenant for him [...] his Assigns to build a House up [...] the Land of the Lessor, which is [...] parcel of the demise; or to pay [...] collateral sum of Money to [...] Lessor, or to a Stranger, this shall [...] bind the Assignee.

If a man demise Lands for year [...] with a stock of Cattel or sum of M [...] ­ney rendring Rent, And the Less [...] Covenants for him, his Executor [...] Administrators and Assigns, to d [...] ­liver the stock of Cattel, or the [...] of Money at the end of the ter [...] This Covenant shall not charge [...] Assignee.

If an Assignee of a Lessee be [...] victed he may have a writ of Cov [...] ­nant, so shall a Tenant by Statu [...] or by Elegit, or he to whom Lease is sold by vertue of an Exec [...] ­tion.

If a man grant to a Lessee for ter [...] of years, that he shall have so ma [...] [Page 49] Estovers as shall serve to repair his [...]ouse, or that he shall burn in his [...]ouse or the like, during the term; [...]hat is, appurtenant to the Land, and [...]all run with the same as a thing ap­ [...]urtenant, in whose Hands soever [...] same cometh.

The Statute extendeth only to Co­ [...]nants 32 H. 8. C. 24. which touch the thing de­ [...]ised, and not to collateral Cove­ [...]ants.

An Assignee of an Assignee, Exe­ [...]tors of an Assignee, Assignes of [...]xecutors or Administrators of e­ [...]ery Assignee, may have an Action [...] Covenant, for all are comprised Cooke. lib. 5. [...]thin this word (Assignees) and [...] same Right that was in the Testa­ [...]r or Intestate, descends to the Ex­ [...]utors or Administrators.

A Lease is made for life, the re­ [...]ainder Cromp­ton 49 6 over for life, the remainder [...] in Fee; the first Lessee maketh [...]aste: And because he in the Fee [...] no remedy by the Common­ [...]w, and Waste is a wrong pro­ [...]bited, he shall have releife in Chan­ [...]ry.

A Woman sole, takes considera­ [...]on 4 Eliz. for making a Lease for one and [Page 50] twenty years, and then Marries; and she and her Husband made the pro­mised Lease at the one and twent [...] years end; The Lessee surrenders and takes a new Lease for one an [...] twenty years more, the Husban [...] dyes, the Wife oustes the Lessee who sues in Chancery to have th [...] first Lease continued rest for th [...] first one and twenty years, and coul [...] not have remedy, because the sur­render was voluntary, and the Cou [...] gives no relief against a voluntar [...] Act.

A Lease is made of House a [...] Woods, wherein it is Covenanted▪ That the Lessee shall have Hous [...] boote and fireboote; by this it [...] implied and meant, that he shall no [...] have any of the Woods to use o [...] convert to any other purpose; [...] that the doe belonging to the Lessor▪ And the Lessor shall have help i [...] Chancery, leaving to the Lesse sufficient for House-boote and Fire boote.

If a man demise any Lands or Te­nements Lit. Ten. l. 1. to another by Lease parol the Lessor ought to be seized of th [...] Lands or Tenements which he so lets [Page 51] at the time of the Lease parol made; or else he cannot maintain an Action for his Rent; for the Lessee may plead that the Lessor had nothing in the premises at the time of the Lease made, and then he is barred of his Action: but if the Lease be made by Deed Indented, then the Les­see cannot plead this plea thereun­to.

If a man lets Land to another by Cook. 1. par. Inst. 55. Lease, to hold the same at the will of the Lessee; the Law intends it to be at the will of the Lessor also, and he may put the Lessee out when he plea­ses; likewise if it be let at the will of the Lessor, it is intended at the Les­sees will also; for the Lessor cannot force him to stay longer then he pleases.

A Covenant made between Land­lord Covenants and Tenant that the Tenant shall have a new Lease upon the sur­render up of his old Lease; And af­terwards Noys Maxims, p. 13. the Lessor makes a Lease by Fine for more years to a third per­son; in this case the Lessor hath broke his Covenant, although the Lessee did not surrender: which by the words of the Covenant ought to have [...] [Page 54] Covenants in his Lease, for such breach the Landlord may bring hi [...] Action of Covenant before the en [...] of the term.

A man takes a Lease for years, and Hughs Grand Abridg­ments. 1. par. P. 492. C. 19. covenants and grants to and with th [...] Lessor, for him and his Executors to repair the Houses as often as nee [...] requires: and afterwards the Lesse assigns over his Lease to another and the Assignee suffers the House to decay for want of repairs; in th [...] case the Lessor may bring an Actio [...] of Covenant against the Assignee, a [...] though he be not named in the Co­venant.

A Landlord lets a Lease, and cov [...] ­nants Co. 1. par. Inst. sol 41. with his Tenant that he sh [...] have sufficient hedge-boote, to assigned him by the Landlord or [...] Bailiffe: In this case the Tenant [...] not take hedg-boote without assign­ment.

If a man by Indenture take a [...] Perkids Tit. con­ditions. 738. of a House that is old, ruinous, wanteth repairs, and covenants [...] the Lessor to leave this House at [...] end or expiration of the Lease good repair: In this case he is [...] to leave this House in good repai [...] [Page 55] [...]ut if he do not covenant to do it, he Law then will not oblige him to [...]o it.

A man by Indenture takes a Lease Hughs grand A­bridg. p. 4 [...]9. [...]or years of a Wood, and covenants [...]ith the Lessor, to leave his Wood [...] as good a condition as it was [...] the time of the Lease made; And during the term the Wood is estroyed, and blown down by vi­ [...]lent Winds, and Tempests: in this [...]ase the Landlord can have no Acti­ [...]n against the Tenant for the not [...]erforming of this Covenant, be­ [...]ause it is impossible for him to performe it; and the Law enforceth [...]o impossibilities: otherwise it is if [...]e take a House, and that be blown own.

Touching bonds for performance Gold [...] borow. p. 16. [...]f Covenants, if a man take a Lease or years rendring Rent, and enter [...]to bond to the Lessor to perform [...]ll Covenants and Agreements con­ained and comprized in the Lease; [...] he fail in payment of his Rent, the [...] is forfeited; for the payment [...]f Rent is an agreement. Dr. & St. lib. 2. cap. 47.

If a man be bound in a bond, to [...]epair the House of the Obligee as [Page 56] often as need shall require during certain time, and afterwards th [...] Houses want reparations; In th [...] case, although the Obligor do [...] not know that they want Repar [...] ­tions, yet he is bound to take n [...] ­tice of it at his peril, for igno­rance will be no excuse in this cas [...] because he hath bound himself [...] it.

But if the Condition had bee [...] that he should repair such Houses, [...] he to whom he was bound should a [...] ­signe, and after he assigneth certa [...] Houses to be repaired, but he [...] is bound hath no knowledge of th [...] assignment; this ignorance shall ex­cuse him in the Law, because he hat [...] not bound himself to any reparatio [...] in certain, but to such as the Oblig [...] will assigne; and if he assigne non [...] the Oblig [...]r is bound to none; An [...] therefore because he that shou [...] make the Assignment is privy to th [...] Deed, he is bound to give notice [...] his own Assignment; but if the A [...] ­sinment had been appointed to hav [...] been made to a stranger, then th [...] Obligor had been bound to have t [...] ­ken notice thereof at his peril.

[Page 57]If a man makes a Lease for years [...] warranty, yet this is not a war­ [...]nty in the Law, but a Covenant, be­ [...]use the Lease is but a Chattel; and the Lessee be ousted, he may bring [...] Action of Covenant against the [...].

If A. be seized of twenty acres of [...]nd, and let the same to B. by▪ [...] for life or years, and A. re­ [...]rves to himself five shillings Rent▪ [...]yable at Christmas, and B. binds [...]mself to A. in a bound of one hun­ [...]red pound to pay the Rent reser­ [...]d upon the Lease justly according [...] the Law, if before any day of [...]yment A. puts B. out of any part [...] the Land, and he doth occupy the [...]sidue for the whole term, and will [...] pay any Rent, yet the bond is [...]ot forfeited; for by putting the te­ [...]nt out of parcel of the Land, the [...]hole Rent is in suspence: but if [...] day of payment be past before [...] Ouster, then the Tenant must [...] the Rent, or else he forfeits his [...].

But if a stranger who hath no [...]ight in the Lands do put out the [...]essee for years out of the same Land [Page 58] before any day of payment, and kep [...] possession thereof untill the day [...] payment be past; In this case the▪ Te­nant ought to pay his Rent at the da [...] whereon it is appointed to be pai [...] or else he forfeits his bond. If thr [...] Perkins, 828. Co­partners. Copartners be seized of a Mannor and one of them without the consen [...] of the other two lets a Lease of th [...] whole Mannor in her own name un­to I. D. for five years, paying [...] pound yearly at Christmas unto th [...] Lessor and her Heirs, and I. D. en­ters into bond in five pound to [...] the Rent accordingly; and befor [...] any day of payment is come, the o­ther two Copartners who agreed n [...] to the letting of the Lease, do put th [...] Lessee out of the whole Manner, an [...] keep the possession till a day of pay­ment be come: here the Lessee ough [...] to pay a third part of the Rent re­served to his Lessor, or otherwis [...] he forfeits his bond; because the o­ther two Copartners who ejecte [...] him out, have right but in two part [...] of the mannor.

A man makes a Lease to thre [...] Hughs g [...] Abr. 1. par. p. 428. persons upon this condition, that nei­ther they nor any one of them sha [...] [Page 59] alien, set, or let that Lease to any o­er, without license first obtained [...]rom the Landlord. Now if the [...]andlord do give license to any one [...]f them to let or aliene, then the [...]ther two may alien without li­ [...]ense; for the condition being de­ [...]ermined to one, is determined to [...].

In the same nature is a release where many persons commit a tres­ [...]ass, if he against whom the trespass [...] committed do release one of the [...]respassers, that release is as ef­fectual to all the rest, as if they [...]ad been particularly named there­in.

If a Landlord do enter for a con­dition Noys Maxims, pag. 72. broken, or the Tenant surren­der up his Lease, or his term be expi­red; yet the Landlord may have an Action of Debt for the Arrears of Rent if any be.

If a man lets a Lease of Lands up­on Dr. & St. lib. 2. C. 35. a special condition; that is, that the Lessee shall not alien the same to such a man or such a man; then the condition shall be taken according to the words; And notwithstanding that condition, they may be aliened [Page 60] to any other, but to them to whom [...] is expresly prohibited that the Land [...] should not be aliened unto: An [...] if the Lands in that case be aliened to one that is not excepted in the con­dition, then he may alien the Land to him that is first excepted, withou [...] breaking of the condition: for con­ditions be taken strickly in the Law, and without equity.

As, If a Lease be made to [...] upon condition that he shall not [...] or alien the same to B. if the Te­nant alien it to C. and he alien it to B. the condition is not bro­ken.

If a man be seized of Lands in Fee, Perkins. 7, 10. and let the same by Indenture of Lease to a stranger paying five pound Rent per annum, with a condition that if the Lessee will hold over ten years to him and his Heirs, that them he shall pay twenty pounds per an­num, and the Indenture is executed by Livery and Seizin to the Lessee: In this case the Lessor shall have an Action of Debt for the Rent Arrear within the ten years; which proveth the free-hold and the Fee are not in the Lessee before the ten years expi­red: [Page 61] but after the expiration of the ten years, if the Lessee doth continue the possession of the same Land, and doth occupy the same by vertue of the Indenture, then he hath Fee, and shall pay the twenty pound as a Rent [...]eck.

But if a man seized in Lands doth Co. 1. par. Inst. f. 218. b. [...]et the same Land by Lease for term of life, yeelding to him a Rose for the first six years; and if he will [...]old the Land over the six years, then [...]hen to pay three marks per annmm; Here the free-hold is immediately in [...]e Lessee.

A man makes a Lease for years, Perkins. 729, 730. [...]ith this condition, that if the Lessor [...]o aliene the Reversion within the [...] granted by the Lease, then the [...]essee shall have the Fee; and the [...]essor doth aliene the Reversion in [...] by fine to a stranger; In this [...] the Lessee shall not have the Fee, [...] the Free-hold and the Fee are [...]wfully in the Conuzee before the [...]ssee can take it by condition: but the Lessor had granted the Lands a stranger by Deed only, then the [...]ssee should have had Fee by the [...]ndition.

[Page 62]If a man have a Lease for years, and Perkins. 833. demise or grant the same upon con­dition, and dye; his Executors or Administrators shall enter for the condition broken; for they are pri­vy in right, and represent the person of the dead.

If a man make a Lease for years Lit. lib 3. C. 8. upon a condition that the Rent shall be paid at Christmas, and before that time come, the Lessor give a gene­ral Release to the Lessee of all Acti­ons and Demands, this Release doth not acquit the Lessee of the Rent but the Lessor may sue for it, be­cause it was neither due, nor to be paid at the time of the Releas [...] made; and it is a thing not meerly i [...] Action, because it may be grante [...] over.

If a Landlord lets a Lease fo [...] Dyer f. 67. years to two Tenants to hold Joyn [...] ­ly, with a condition that if the Le [...] ­sees dye before the end of the ter [...] the Lease shall be void: Now the Lessees makes division, and one them aliens his part, and dyes; this case the Lessor cannot enter u [...] on the part of him that dyed, b [...] the Alienee shall enjoy his half [...] [Page 63] during the life of the Surviving Les­see.

A Lease made for years upon con­dition, that if the Lessee demise the premises or any part thereof, other than for a year, to any person or persons, then the Lessor and his Heirs to re-enter; the Lessee after­wards devises this Lease to his Son by his Will; this is a breach of the con­dition.

If a man of his meer motion give Dr. & St. lib. 3. cap. 20. fol. 93. Lands to H. H. and to his Heirs by indenture, upon condition that he shall yearly at a certain day pay unto John at Style, out of the same Land, [...] certain Rent; and if he do not pay [...]he Rent, that then it shall be lawful [...]o John at Style to enter; and if the Rent in this case be not paid to John at Style, the said I. S. may not en­ [...]er into the Lands by the Law, though the words of the Indenture [...] that he shall enter; for there is an [...]ncient Maxim in the Law, that no man shall take advantage in a condi­tion, but he that is party or privy to the condition: and this man is not [...]arty nor privy, and therefore he [...]hall take no advantage of it.

[Page 64]In many cases the intent of the Dr. & S. 20. C. f. 93. party is void to all intents, if it be not grounded according to the Law.

As, if a man make a Lease to ano­ther for term of life, and after, o [...] his meer motion, he confirmeth hi [...] Estate for term of life to remain af­ter his death to another and to hi [...] Heirs: In this case that remainder is void in Law; for by the La [...] there can no Remainder depen [...] upon any Estate, but that th [...] same Estate beginneth at the sam [...] time that the remainder doth: an [...] in this case the Estate began befor [...] and the confirmation enlarged n [...] his Estate, nor gave him any new E­state. But if a Lease be made to man for the term of another ma [...] life, and after the Lessor, only of [...] meer motion, confirmeth the [...] to the Lessee for term of his [...] life, the Remainder over in Fe [...] this is a good Remainder over Fee.

No grant can be made, but Dr. & St. lib. 2 C. [...]. p. 94. him that is party to the Deed, exce [...] it be by way of remainder; A [...] [Page 65] therefore if a man make a Lease for [...] of life, and afterwards the [...]ssor grant to a stranger that the [...]enant for term of life shall have [...]e Land to him and Heirs; that [...] is void, if it be made only [...] his meer motion without recom­ [...]nce.

Likewise if a man make a Lease for Ibid. [...] of life, and after grant the Re­ [...]rsion to one for term of life, the [...]emainder over in Fee, and the Te­ [...]nt Attorneth to him that hath the state for term of life only, intend­ [...]g that he only should have advan­ [...]ge of the grant: his intent is [...], and both shall take advantage [...]ereof, and the Attornment shall [...] taken good according to the [...].

If a Tenant for the term of ano­ [...]er Co. [...]. par. Inst. fol. 41. mans life dye living the other [...], he that doth first enter upon the state, after his death, shall be Te­ [...]nt for the other mans life, and shall [...] liable to the payment of the Rent [...]served.

If a Tenant hath a Lease for twenty Perkins. 693. [...] of Lands and Tenements, and [...] the same Lands for part of his [Page 66] term to a stranger, reserving [...] himself forty shillings Rent; In th [...] case he may distreyn for the Rent r [...] served, or have an Action of De [...] at his pleasure, because by commo [...] Intendment he is to have the sa [...] Land after the years determined because he hath granted but parcel [...] the years, so that the Remainder r [...] mains in him.

If Rent be granted to a man, [...] Idem, 108. may grant it away to another befo [...] he be seized thereof.

If a man and his wife be ejected Co. 1. par. Iust: fol. 46▪ a term in the right of his wise, a [...] the husband bring an Ejectione [...] in his own name, and do recover, [...] dye; In this case his Executors [...] have it; and not the wife, because [...] Recovery in his own name did [...] the term in himself.

If a man be possest of a term Cook. ibid. forty years in right of his wife, [...] make a Lease for twenty years rese [...] ving Rent, and dye; here the Ex [...] cutors of the husband shall have [...] Rent for that term, but the wi [...] shall have the remainder of the ter [...] when the twenty years is out: but he had granted the whole ter [...] [Page 67] [...] could have had nothing. [...] release made to a tenant for term Id. 1. par. Inst. fol. 270. years before his entry, is void; but release of the Rent before entry, is [...]od.

The Tenant may grant away his [...]terest to another before entry; [...] although the Lessor do dye be­ [...]re entry, yet the Tenant may [...] into the Lands; and if the Lessee [...] before he enter, his Executors [...] Administrators may enter: and if Lease be made to two, and one of [...]em dye before entry, the other may [...] by survivorship; and a Lessor [...]nnot grant away a Reversion by [...] name of a Reversion, before [...] entry of the Tenant.

If a man grant to a Tenant for Co. 1. par. Inst s 41. [...], that he shall have so many Esto­ [...]rs as shall serve to repair his house, [...] that he shall burn within his [...]use, or such like, during the term; [...]is is appurtenant to the Land, and [...]all run with the same as a thing ap­ [...]urtenant, in whose hands soever the [...]me cometh.

If two Tenants in common do Idem, 1. Pa [...]. Inst. f▪ 197. [...] [...] a Rent of ten shillings, this is [...]veral, and they shall be charged [Page 68] with twenty shillings Rent: but they make a Lease, and reserve t [...] shillings rent, they shall have no [...] but only ten shillings between them

If two Copartners make a [...] reserving Rent, they shall have th [...] Rent in common, as they have the [...] version: but if afterwards they gra [...] the reversion, excepting the [...] then they shall be Joynt tenants [...] the Rent.

If a man Leases lands for years re­serving Rent, and a stranger doth re­cover Dyer 56. & 82. part of the land, then the [...] shall be apportioned, viz. divided, an [...] the Tenant shall pay having respe [...] to that which is recovered, and [...] that which still doth remain in h [...] hands according to the value, to [...] party proportionably.

If a man make a Lease excepting Close and Wood, the Law giveth hi [...] a way to come to it.

If a Tenant for years do take [...] new Lease for more years, this is [...] Perkins. 117. Surrender in Law of the old Lease Watt. and Maidwels case. Hil. 3 Hu [...]ton. Rep. 104. Car. R. 1302. B. R.

A Lessee for years cannot surren­der Noy [...] Max. 74. before his term begin; neither [Page 69] [...]n he surrender part of his Lease, [...] he may grant part of it.

[...]f a Tenant for life or years remove Idem p 72. [...] goods out of the house and land, [...] reason of the greatness of the [...], or for any other cause, and the [...]ssor do enter into the House and [...]; this is no surrender of the [...]ssee.

If a Tenant for years assigne over [...] term and dye, his Executors shall [...]t be charged for Rent due after his [...].

And if the Executors or Admini­ [...]ators of a Lessee for years do [...] over their right in the Lease, [...] lieth no Action of Debt against [...]em for Rent after such an Assign­ [...]nt by them made.

If a Tenant for years assigne his Hern. [...] law of Conv. p. 110. [...]ase to another, the Landlord may [...]arge which of them he will: but if once accept of the Rent from the signee, knowing of the assignment, [...] cannot afterwards bring an Acti­ [...] of Debt against the Lessee, for [...] due after the Assignment.

If a Lessor grant away the rever­ [...]n, Popham. 55. after the Assignment of the [...]see; In this case the Grantee can­not [Page 70] have an Action of Debt again the Lessee for the Rent, because the [...] is no privity between them.

If a Lease for years be made [...] Perkins. 536. a man without any consideratio [...] the Lessee shall be seized to his [...] use.

If a man make a Lease of [...] Dr. & St. [...]. [...]C. 24. to another and to his Heirs for [...] term of twenty years, intending [...] if the Lessee dye within the [...] that then his Heirs should enjoy [...] Lands during the Term; In [...] case his intent is void: and if [...] Lessee dye, his Executors, and [...] his Heirs shall enjoy the term: fo [...] the Law of the Land, all Chattels [...] go to the Executor, and not to [...] Heir.

If a man lets a house with the Hern. L. o [...] Conv. p. 104. purtenances, no Land passes there [...] but if it be with all Lands there [...] belonging, here the Lands used [...] the house do pass.

If a man take a Lease of his [...] Terms delcy, Estop­ple. Co. [...] par. Inst. sol. 47. Land by Indenture, he is then [...] concluded to say that the Lessor nothing in the Land at the time of making of the said Lease; but a the Lease is out, the Estoppel is re [...] ­ved.

[Page 71]If two persons be Joynt-tenants of Beverlies case 24. Ca [...]. Claytons Rep. p. 111. Lease for years, and one bid the o­ [...]her go out of the house, and he go­ [...]th out; he that goeth so out may [...]ave an Ejectione firme against the o­ [...]er, as well as if he had Ejected him [...] by force.

CHAP. III. [...] Payment of Rent, Accept­ance, and Extinguishment thereof; Demands, Entryes, Dates, Continuance, Limita­tions, and Determinations of Leases.

[...]T ought to be a principal care of a Tenant, above all things to provide his Rent at the time of payment, whereby he may avoid [...]ch Slavery and Knavery, of cruel [...]ng Landlords.

[...]f a Tenant be to pay his Rent to Landlord at our Lady-day and [...]chaelmas, or within fourteen fifteen dayes after either of the [Page 72] said Feasts; in this case, he is [...] bound to pay his Rent untill the [...] day limitted for payment, for [...] is the legal day of payment, and [...] other before voluntary.

And if there be a clause that if [...] Rent be behind by the space of fift [...] dayes (more or less) after any of [...] said dayes of payment, then the [...] to be void; In this case, if the time [...] mitted be fifteen dayes, then the [...] nant shall have thirty dayes after [...] of the said Feasts, to save his Lease: if the clause in the Lease be, that if Rent be behind for the space of [...] teen dayes next after either of [...] said Feast dayes of payment; [...] the Tenant hath but fifteen dayes [...] allowed him: and so the dive [...] is to be noted in this case in [...] words of a Lease, which with a [...] little and scarce observable alter [...] on makes so much advantage [...] Tenant. Co. 10. lib. f. 227. [...] par. Institutes, f. 202. Hern. [...] Conv. p. 23.

If a man take a Lease for yea [...] Hern. p. 22. 23. pay his Rent at our Lady-day Michaelmas, or within fifteen [...] after either of the said Feasts, [Page 75] [...] Landlord dye after either of the [...] Feasts, and before the fifteen [...]yes be out; the Heir in this case all have the Rent then; for the [...] day is but voluntary, and the [...] day of payment is at the end of [...] fifteen dayes: and if the Tenant [...] that day pay the Rent, such [...]yment is voluntary, and not satis­ [...]ctory; but if payment be in the [...]orning, and the Landlord dye at [...], it is good to give Seizin: and [...]ough this payment be volunta­ [...], yet it is Satisfactory against the [...]eir. Hare and Savills case. M. Jac in com. B. Brownl. R [...]p. 2. part. 273.

If a Tenant for years be to pay his No [...]s Max. p. 80. [...] at Michaelmas, and to perform [...] Covenants; and if he be bound any Obligation to pay his Rent [...]ecisely at the day; he must in this [...] seek out his Landlord to pay [...]; but if his Obligation be only perform the Covenants in the [...], he may then tender his Rent [...] the Land (if no other place be [...] agreement appointed for the pay­ [...]ent thereof) and it is sufficient: for [...] payment is of the nature of the Rent [...] [Page 78] on a Lease for years, he shall never [...] void it; for it was but voidable [...], and his acceptance hath now co [...] ­firmed it.

If a man have Lands in the [...] Accep­tance. of his Wife, and he and his [...] let these Lands for years, reservi [...] a Rent, and afterwards the [...] band dyes, and she before any day [...] payment takes another Husba [...] who accepts the Rent and dyes: [...] this acceptance the Lease is aff [...] ­med.

In like manner if a man and [...] Wife let the Lands of his Wife [...] years rendring Rent, and the Hu [...] ­band dyes; if the Wife accept [...] Rent, it is a good Lease. Terms of [...] Law, Acceptance.

But if a Tenant for life Lease lan [...] for years and dyes, the Lease is voi [...] and the Rent which is reserved up [...] the Lease is determined. And [...] though he in remainder do accept [...] Rent, yet his acceptanre will not [...] it good: for when it is once void [...] death, no acceptance after will [...] it good.

So likewise, if a Tenant in Dow [...] lease for years and dye, the Leas [...] [Page 79] void, and acceptance of the Rent by [...] Heir will not make it good [...].

A Lease for years may be confir­ [...]d Noys Max. p. 78. for a time, or upon condition, or [...] a piece of the land; but if it be a [...]ank-Tenement, it shall enure to [...] whole absolutely.

Observe this difference between Lease for life and a Lease for [...]: in case of a Lease for life, [...]ough the conclusion of the condi­ [...]n be, that it shall be void, yet ac­ [...]tance of the Rent due after the [...], doth affirm it, and make it [...] again. Pennants case. 38. Eliz. 3. l.

If a Parson let a Lease for years Cook Inst. f. 300. [...]his Glebe-land, if it be con­ [...]ed by Patron and Ordinary, shall bind the Successor, or else [...].

If a Lease be made to a man for Dr. &. St. 2. l 20. chap. f. 93. term of another mans life, and [...]rwards the Lessor only of his [...] Motion, confirmeth the Land [...]is Lessee for term of his own [...] the Remainder over in Fee; [...] is a good Remainder in the

[Page 80]If a man let Lands for life o [...] Hern. l. Conv. p. 118. years, reserving Rent, and do ent [...] into any part thereof, and take i [...] profit; the whole Rent is thereb [...] extinguished, and shall be suspend during his holding thereof. Leonar Rep. 110. Goddards case, [...] 34. Eliz. com. Banc. Owens Rep. [...] 10.

If the Tenant come to the Lar [...] ­lord Co. 1. par. Inst. f. 202. at any place upon the ground the day of payment, and tender Rent to the Landlord, it is good nough, and shall save the conditio [...] and the Landlord is bound to ceive it, although it were not at [...] most notorious place, nor last inst [...] of the day; for he may tender Rent at any time of the day, althou the last instant be the legal time payment.

But observe by the way, tha tender of Rent must be of the wh [...] Rent, without deduction of Taxes Assessments, or any other charg [...] for stoppage is no payment in Law. Tr. 23. Car. in B. R. Reg Co. 1. par. Inst. f. 202. pract. p. 327.

If a man let Land by Lease years to another, reserving the [...] [Page 81] the Land to be paid at Michael­ [...]s and our Lady-day, or within [...]een dayes after, and for default of [...]yment to re-enter; In this case it sufficient and lawful for the Te­nt to tender his Rent the last day, if the money [...] be told in that time before it dark; and so it is sufficient for Landlord to demand it the same [...]ur.

If a Lease be made with this [...] 1. Par. Inst. p. 211., That in case of non-payment, Landlord to re-enter; here if Landlord distreyn, he may not enter, but he may accept of the [...]nt and yet re-enter; but if he do [...] the next Rent again, then he not re-enter, for that establisheth Lease. Entry into an acre of land, he name of the whole, is a good [...]; if the Land do all lye in one [...].

[...]n a Lease for years, if the Lessee enant, that if he or his Executors Assigns do alien, that then the [...] shall re-enter, and afterwards makes his Wife Executrix and [...]; and the Widdow marries [...], and her second Husband aliens; [Page 82] In this case the Lessor may re-enter because the second husband is As­signee in the Law.

If a man make a Lease for term o [...] Dr. & St. l. 1. c. 20. f. 35. years, yeelding to him and to h [...] Heirs a certain Rent, upon conditi­on, that if the Rent be behind an [...] unpaid by the space of forty day [...] after any of the dayes of payment that then it shall be lawful to th [...] Lessor and his Heirs to re-enter And after the Rent is behind fort [...] dayes, and is demanded by the Lessor and is not paid; the Lessor dyet [...] and his Heir enters: In this case h [...] entry is lawful; but if the Lessor ha [...] dyed after the Feast-day, and befor [...] the fortieth day, so that he had no [...] demanded the Rent, and his Hei [...] had demanded the Rent at the forti­eth day, and for non-payment he re­enters; in this case his re-entry [...] not lawful.

If a Lease be made to H. for on [...] Dyer 254. and forty years if he live so long, an [...] if he dye within the aforesaid ter [...] that then the Wife of the aforesai H. shall have it for the residue o [...] the said years; this limitation is voi [...] for if H. dye, the term ends, and h [...] Wife shall have nothing in it.

[Page 83]If a man let all his Meadow in D. D [...]er s. 80. containing ten Acres; if there be [...]wenty Acres of it, all passes in this case.

If a man make a Lease for years 1. part. Inst. s. 48., and afterwards make a Deed of Feoffment, and delivers Seizin; If the Lessee be upon part of the pre­mises, and neither know nor assent to it, yet the Livery is void: for though the Lessor hath the Free­hold and Inheritance in him, yet the possession is in the Lessee; and Livery must be given of the pos­session: but if the Lessee be absent, and hath neither Wife, Children, nor Servants (though he have Cattel) upon the ground, the Livery shall be good.

If a Lease be made to hold from Da [...]es. the day of the making, or from the day of the date, or from the date, the Lease shall begin the day after it is delivered.

If the Habendum of a Lease Co. 1. par. Inst. [...] 46. be for a term of one and twen­ty years, without mentioning when it shall begin; it shall then begin Cro. 2. par 263, 264. from the Delivery. So if an Inden­ture of Lease bear Date upon dayes [Page 84] impossible, as Feb. 30. or March 40. There being no such dayes in one Accompt, in this case if the term be limited to begin from the Date, it shall take effect and beginning from the Delivery, as if there had been no Date at all.

If Lands descend to an Heir, he may Noys Max. p. 67. make a Lease thereof before his en­try into the same. If a man makes a Lease to day to one for ten years, and to morrow makes another Lease of the same Lands to another person for twenty years; this second Lease shall be good after the first is expired, for so many years as [...] therein to come.

If a man make a Lease to another Co. 1. par. Inst. fol: 45. for one and twenty years, and after another Lease to commence from the end and expiration of the said term of years, and after the first Lease is surrendred; In this case the second Lease shall commence presently upon the surrender.

But if it had been made to com­mence from the end of the said one and twenty years, there though there had been a surrender, yet it should not have commenced till the term had [Page 85] been out; so that by this you may observe the Law puts a distinction between term of years, and time of years.

If a man lets Lands to another to hold till the Lessee hath levyed twenty pounds; this is a good Lease, notwithstanding the incertain­ty.

Bracton saith that every Lease must have a certain beginning; and ending; Quia id certum est, quod certum reddi potest. Yet you see by the case before, this Rule is contradicted, so that it holds not al­ways, although in the generality it doth.

For if a man make a Lease to another for so many years as I. S. shall name, although this be in­certain at the beginning; yet when I. S. hath named the years, it is then good for so many years as he names.

So likewise, if A. be seized of Co. 1. par. Inst. fol. 45. Lands in Fee, and do grant to B. that when he payes him twenty shil­lings, that then from that time he shall have and occupy the Land for one and twenty years; and after B. pays [Page 86] unto A. the twenty shillings; thi [...] is a good Lease for one and twenty years from that time. Co. 6. l. f. 34▪ 35.

If a Parson make a Lease of his Glebe for so many years as he shall be Parson there, this is void, be­cause of the uncertainty thereof; for the Parsons time there terminates with his life, then which nothing is more uncertain.

If a Lease be made for one hundred years, if A. and B. live so long; in this case if either of them dye, the Lease is ended.

If an Infant who is seized of Lands Co 1. par. Inst. fol. 45. in Soccage, make a Lease at his age of fifteen years; this is good, and shall bind him.

If a Tenant in Fee marry a Wise, Co. 1. par Inst. fol. 46. and make a Lease of his Lands for years and after dye, and the Wife is thereof endowed, here she shall avoid the Lease, but after her death it shall be in force again against the Heir.

If a man have a term of years in Co lib. 8. [...] 49. in the right of his Wife; if she dye, it remains to him; but if she survive him, it remains to her, and not to his [Page 87] Executors, without he dispose of it in his life-time.

If a man license another to enter and occupy his Lands, this is a good Lease for years in Law. Brownl. 2. part. p. 250.

A Lease for years, although it be never so long, cannot be intayled, be­cause it is a Chattel, which cannot be turned into an Inheritance. Styles Regist. pract. p. 197.

If a man seized in Fee-Simple let a Lease to another, to have and to hold the same Lands for term of life, and do not mention whose life; it shall be taken for the Les­sees life; because the act of every one shall be taken most strongly a­gainst himself.

But if a Tenant in Tail let such a Lease without expressing whose life, it shall be taken for the life of the Lessor.

If a Joynt-Tenant make a Lease Co. 1. par. Inst. f. 185. for Years, of his part, though the Lessee never had possession; or though it be to begin at a Day to come; and the Joynt-Tenant that made it dye before the day; yet the Survivour shall be bound by the [Page 88] Lease, for the Lessee hath a present Interest,

If two take a Lease for their lives, and make partition, either of them dying, his part immediately reverts to the Lessor.

If there be two Joynt-Tenants Golds Rep. 187. for life, and one of them makes a Lease for eighty years, to begin after his Death, and after dyes; This Lease is good against the Survi­vour.

If a Lease be made to the Husband Dr. & St. lib. 2. c. 33. and the Wife, yeelding a greater Rent then the Land is worth; if the Husband dye, the Wife after the Husbands death may refuse the Lease, to save her from the payment of the Rent: but if the Husband o­ver-live the Wife, and then make his Executors, and dyes; if they have Assets; that is, if they have goods sufficient of their Testator to pay the Rent, they cannot refuse it; but if they have no goods suffici­ent of their Testator, to pay the Rent to end of the term, if they relinquish the occupation, they may by special pleading discharge themselves of the Rent, and the Lease.

[Page 89]If I let Lands in which are Mynes, or Trees, I cannot enter to take the Trees, or Mynes, but am a Tres­passer, unless I do reserve such a priviledge to my self when I let the Lands.

But if a Lessor do come upon the grounds Leased, he is no Trespasser, for it shall be intended, that he came [...]o see if Wast were done.

If a Tenant for years, happen by any casualty to loose his Lease, yet he shall not loose his term in the Lands let by such Lease which is lost, if it can be proved that there was such a [...]erm let to him by Indenture; And [...]hat it is not determined.

CHAP. IV. Of Corn sown, who shall have the Crop of Estovers, and Trees blown down; of Di­stresses, What things may be distreyned, and how used; who may take a Distress, for what cause, when, and where.

IT is a usual saying, and generally received opinion, that he that Sows must Reap: but as there is no general rule without some exception; so this holds not always, that he that Sows shall Reap.

But touching the Sowing of Corn; if the Tenant be outed, or his term ends before it be ripe, who shall have the Corn I have already set down in the first Chapter, under the Title of Tenant at Will: sor if a Tenant at Will Sowe his Land, and the Landlord put him out before the Corn be ripe, he shall have liberty to Reap and carry away his Corn, be­cause [Page 91] he knew not when his Land­lord would put him out.

But it is contrary with a Tenant who hath a Lease for years: for if his Lease be out before the Corn be ripe, his Landlord shall have it; because he knew the end of his Lease: where­fore if he Sowed, it is in his own wrong, unless there be a Covenant in his Lease between the Lessor and him, that he shall have his way-going Crop.

But if a Tenant at Will, set Roots, or Sowe Hemp or Flax, or any thing that brings in any yearly profit, if after the planting the Lessor out him, or if the Lessor dye, yet the Te­nant or his Executors shall have the Crop. But it is otherwise if he plant young Fruit-Trees, or other young Trees, as Oaks, Ashes, or Elmes; or Sow the ground with Acorns; In this case if the Lessor out him, he shall have none of these, be­cause these yeeld no yearly profit at present.

If a Tenant for life Soweth the ground, and dye before the Crop be ripe, his Executors shall have it; and so they shall have Grass if it [Page 92] be cut, but if it be unmown they shall not have it, for that is part of the In­heritance till it be severed.

Every Tenant that hath an Estate incertain, shall have the corn sown by him; though he be outed before it be ripe.

If a man be seized in Lan Jure See my Consul­tam pacis, p. 83. uxoris, and Sow this Land, and dye before the Corn be ripe; his Execu­tors shall have the Crop: but if they be Joynt-tenants of Lands, and the Husband soweth the ground and dyeth, the Wife shall then have the Crop.

But if a Woman who holds Land, Hern. l. of con. p. 239. Durante viduitate sua, while she continues her Widdow-hood, and Sows the ground, and marries a Husband before the Corn be ripe; here the Lessor shall have the Corn, because her Estate ends by her own act.

If a man lets a Lease of his Wifes Noys Max. p. 70. Land, she not joyning with him; this Lease is void after his death: but if the Lessee have Sown the Land, he shall reap the Crop. Cowel. Inst. p. 142.

A Tenant holds by Lease, and the Land is recovered against the Land­lord [Page 93] by a title Paramount; in this [...]ase if the Tenant have Sown the Land, he that hath recovered it shall have the Crop, if it be not reaped be­fore Judgment.

There is three kinds of Estovers in Estovers or Boote. the Law, which is incident to the e­state of every Tenant, whether it be for life or years.

House-boote, of which is two kinds; the one to repair the Houses, the other to burn, which is called Fire­boote.

Then there is Estovers, called Plough-boote; that is, stuffe to mend the Tenants Ploughs, Carts, Har­rows, Wayns, and making Rakes and Forks for getting in his Hay and Corn.

Thirdly, There is another kind of Estovers, called Hedge-boote; this is Timber and wood for making Gates, and Styles; and Boughs and Bushes for mending and repairing Hedges, and Fences.

So there is Estoverium edificandi & ardendi, House-boote.

Estoverium arandis, or Plough­boote.

Estoverium Claudendi, or Hedge­boote.

[Page 94] Estover is a word something harsh in sound, being unusually heard in the Ears of Tenants; but Boote i [...] well known unto them.

The one is Norman, the other Saxon; and both have the same sig­nification, viz. an allowance, Com­pensation, or Satisfaction. Any of all these Bootes, a Tenant may take with­out assignment of the Landlord, un­less he be by the Landlord restrey­ned by special covenant in his Lease; which is very usual amongst many Landlords, especially if the Farm be any thing considerable; then they commonly limit the Tenant how much House-boote, or Plough-boote, or Hedge-boote, he may take without assignment; and how much by as­signment.

If a Tenant for life or years, cut Co. l: 4. 31. down Trees, or pull down Houses, or suffer them to fall down; the Les­sor shall have the Trees, and Tim­ber, of the said Houses: for the Lessee had them only as things an­nexed to the Land; and this severance will not give him a greater estate in them.

The Landlord shall likewise have [Page 95] Windsals; that is, Timber-Trees blown down by Wind and Tempest, because they are parcel of his In­heritance; so that the Tenant for life nor years cannot have them, unlesse it be to build withal where Houses are in decay. But if they be Pollards without Timber, the Tenant shall have such when they are blown down.

Distresses is a Law of custome; Distress? [...]hat is, if Rent be in Arrear and un­ [...]aid, the Landlord may take a lawful [...]istress, and that he shall put in [...]ound Overt, there to remain untill [...] be satisfied of what he distreyned [...].

So that if a Landlord distreyn the Dr. & St. l. 1 C. 5. p. 10. [...]attel for Rent, and put them in a [...]ound Overt, and the Beasts dye [...]ere for lack of meat, it is at the [...] of him that ow'd the Beasts, and [...]ot of him that distreyned: for in [...] that distreyned there can be as­ [...]gned no desault, but the default was the other, because the Rent was [...]paid.

Now a distress must be made of [...] a thing wherein some body [...] a certain and valuable Pro­perty; [Page 96] therefore such things as [...] Ferae natura, cannot be distreyned neither can any one distreyn a Hor [...] if any body be on the back of him nor any thing which a man holds i [...] his hand, or carrieth about him, a [...] nexed to his body.

And although the Law be, that Landlord may distreyn any thi [...] that he finds Levant or Couchant u [...] on the premises for his Rent behin [...] whose Goods or Chattels soever be, and may detain the same u [...] till his Rent be satisfied; yet th [...] general Rule hath some Restrict on and Limitation, for there are sev­ral things whereof a Distress cann [...] be taken.

Such things as are for the maint­nance What can­not be di­streyned for Rent. and benefit of trades, c [...] ­not be distreyned for Rent; as Horse in a Smith Shop, nor Horse in an Inn cannot be distrey­ed Noys Max p. 124. for the Rent thereof; nor [...] Materials in a Weavers Shop, [...] the making of Cloth, nor Cloth Terms of the Law, titl. di­stress. Garments in a Taylers Shop, [...] sacks of Corn, nor Meal in a Mill the Rent of the Mill, nor any [...] that the Tenant hath distreyned [Page 97] damage feasant, for that is in the cu­stody of the Law.

Likewise Oxen of the Plough Cook. on Lit. f. 47. may not be distreyned, nor a Mil­stone, though it be raised to be picked, so long as it lies upon the o­ther Stone.

Neither may a Distress be taken of Sheep, if there be a sufficient Distress [...]esides.

Neither can a man sever Horses [...]oyned together, or to a Cart.

Likewise Victuals, nor Sheafes Cook. ibid. [...] Shocks of Corn cannot be di­ [...]reyned: But Carts or Waggons [...]aded with Corn may be distrey­ [...]ed either for Rent, or damage fea­ [...]nts.

No mans Tools wherewith he Cook ibid. [...]orks at his Trade shall be distrey­ [...]ed, as the Carpenters Axe, or a [...]collars Books, &c.

Neither can any thing which is fix­ [...] to the Free-hold be distreyned, as [...]rnaces, Coppers, or Fats fixed for [...]ers or Brewers, (although the [...]nant may remove them during [...] term) nor the Windows or Doors a House, while they are upon Hinges. But if they be removed [Page 98] off from the Hinges, they may be di­streyned.

The [...] cannot distrey [...] Tab [...] [...] the House [...] of [...] Tenant, [...] which can­not be [...] in an Assize; nei­ther can any thing be distreyned of which the Sheriff cannot mak [...] a Replevin, or that cannot be r [...] ­stored again in as good a conditi­on as it was when it was distrey­ned.

But a man may distreyn the Bea [...] of a stranger (that come by escap [...] for Rent, though they have not be [...] Levant and Couchant upon [...] ground, according to Cook. 1. par. [...] f. 47.

The Lord of a Leet may sell distress taken for an Amerciam [...] in his Leet, as the King may [...] a distress, because it is the Ki [...] Court.

If a man distreyn Goods or [...], Dr. & St. l 2 C. 27. he may put them where he w­either in a pound Covert, or Ove [...] but if they take any harm, he [...] answer for them.

If they be living Cattel, they ou [...] to be put in a common Pound, [Page 99] [...] in some open place, as in his own [...]ard or Close that distreyned them, [...] in some others by his consent; so [...]at the owner may come lawfully to [...]eed them: And the owner of the Cattel must have notice where they [...], if they be not in a common [...]ound; and then if they dye for [...] of meat, it is the owners fault [...] as it is said before,) but if they be a Pound covert, or out of the [...]ounty, and dye for want of meat, [...] he that distreyned them shall [...]ake satisfaction for them.

Cattel taken damage feasant, may Kitchin. f. 207. [...] impounded in the same Pound, [...]here they are damage feasant; but [...]oods or Cattel taken for other [...]ings may not.

No man ought to drive a distress Co. 1. part. inst. p. 57. Rastal ti­tle di­stress. 11. Wingar. abr. p. 133. [...]ut of the County where it is taken, or out of the hundred, but to a [...]ound Overt within three miles; nei­ [...]er may a distress be impounded several places; nor above four [...] taken for the Fees of impound­ [...]g one whole distress, on pain of five [...]ound.

If a man distreyn Beasts damage Dr. & St. l. 1. c. 27. [...]asant, and put them in the Pound [Page 100] Overt, within the same County, not above three miles out of the hun­dred; and the owner suffers the Beasts to dye for lack of meat, the loss is his own, and he that distrey­ned them, may be at liberty to bring his Action for the trespass if he will; and if it be not a lawful pound, then it is at the peril of him that di­streyned them; and so it is if he drive them óut of the Shire, and they dye there.

If the owner of the Cattel ten­der Ibid. amends to him that distreyned, and he refuse it, yet the owner may not take his Cattel out of the pound; for he may not be his own Judge: and if he do, a Writ De parco fracto for breaking the pound lieth against him; but he must sue a Replevin to have his Cattel delivered him out of the pound, and afterwards plead his tender of amends, of which the Jury must end the controversie.

If the owner of the Cattel pro­cure Ibid. a Replevin to deliver them, and he that distreyned them resist it, and will not deliver them; in this case if they dye after for want of meat, it is at the peril of him that distrey­ned, [Page 101] and the owner shall recover dam­ages against him in an Action upon the Statute for not obeying the Kings Writ.

If a man sends his Servant to take a distress for a Rent or Service, who puts it in the pound; if the ow­ner of the Beasts or a stranger take them out, I shall have an Action De parco fracto, for breaking of the pound.

And if one distreyn Cattel, and pound them in another mans Close with his consent, and the owner of the Cattel come and take them out; in this case he that made the distress shall have his Action for Pound­breach; and the owner of the close, an Action of trespass for breaking of his Closs.

There be certain cases where a Co. 1. par. Inst. f. 204, 205. man may distreyn of common right, and where not of common right: a man may distreyn for Rent-Ser­vice, Homage, Fealty, Escuage, Suit of Court, or for Rent reserved upon a gift in Tail, Lease for life, years or at Will, though there be no clause of distress in the Lease; be­cause these distresses are of common right.

[Page 102]But for Debt, Accompt, Trespass, Dr. & St. l. 2. C. 9. or for Reparations or the like, a man cannot distreyn, neither can any di­stress be taken for any Services which are not certain, nor can be reduced or brought into any certainty. And upon an Avowry damages cannot be recovered, for that which neither hath certainty, nor can be reduced to certainty.

Nevertheless (although it be a Paradox) in some cases there may be a certainty in an incertainty: As for a man to hold of his Lord, to shear all his sheep depasturing within the Lords Mannor; and this is certain enough: although the Lord hath not always a certain number of sheep, but sometimes a greater number, and sometimes a lesser; yet this in­certainty being reduced to the Manner which is certain, the Lord may distreyn for. And a distress is inseparably incident to every Service that may be reduced to cer­tainty.

A man may not distreyn for Rent after the Lease is ended, nor out of the premises, except in some special cases; nor in the night, unless it be damage feasant.

[Page 103]But the Executors or Administra­tors of him who had Lands in Fee, or Fee-tail, or-for life, may either have an Action of Debt against him that should pay it, or distreyn for it; and so may the Husband after the death of his wife, his Executors or Admi­nistrators, and he which hath Rent for anothers life, for the Arrearages after his death.

A man puts Cattel into my pasture Noys Max p. 33. for a week, and afterwards I give him notice that I will keep them no lon­ger, and he will not fetch them away; I may then distreyn them damage feasant.

If a man take Cattel damage feasant, and as he is driving them to Pound, they run into the Yard or House of the man that owes them, and he refuses to let them out again; he that distreyned them may have a Writ of Rescous a­gainst the owner of the Beasts for so doing.

If a Landlord come to distreyn for Co. 1. par. Inst. f. 161. Rent, and see the Cattel, and the Lessee or his Servants drive them out of his Fee; he cannot have a Writ of Rescous, because the Cattel [Page 104] were not in his possession: but he may follow after them, and di­streyn them in another mans ground it being for Rent, but not for da­mage feasant; for they must be ta­ken damage feasant; that is, doing damages.

If a man distreyn goods, and de­clare Claytons Rep. p. 64. pl. 111. not the cause or reason where­fore he doth it, if they be put in [...] House, the owner may break the House, and take them out.

Or if a man distreyn goods with­out cause, the owner may rescu [...] them; but if they be pounded, b [...] cannot break the pound and tak [...] them out, because they are then i [...] the custody of the Law.

But if he find the pound-door un­lockt, he may take them out.

Although there be a general pro­hibition in the Laws of England, tha [...] it shall not be lawful for any man to enter upon the Free-hold or Possessi­on of another, without permission and Authority of the owner, or of the Law; yet this is not without excep­tion.

[Page 105]For if a man drive Beasts along Dr. & St. l. 1. c. 16. the High-way, and the Beasts run into any Mans Corn or Grasse, and he that driveth them goeth af­ter them into the Grounds to fetch them out, he may justifie that en­try into the Grounds to fetch them out.

If a man make a Feoffment and Dr. & S. l. 2. c. [...]. that in Fee by Indenture, reserving a Rent, he cannot distreyn for that Rent, unless a distress be expresly reserved; And if the Feoffment be made without an Indenture reserving Rent, that reservation is void in the Law. And the like Law is, where a gift in Tail, or a Lease for term of life is made, the remainder over in Fee reserving a Rent, that reservation is void in the Law.

Also if a man seized of Land for Ibid. term of life granteth away his whole Estate reserving a Rent, that reser­vation is void in the Law, without it be by Indenture: and if it be by In­denture, he shall not distreyn for the Rent, without a clause of distress be reserved.

Also for Amerciaments in a Leet, Ibid. the Lord may distreyn, although it be [Page 106] in the High-way; but for Amercia­ments in a Court-Baron, he canno [...] distreyn; neither can he distreyn fo [...] an Amerciament in the Leet, in place seized into the Kings hands fo [...] the Kings Debt.

Also if a man make a Lease at Mi­chaelmas, Ibid. for a year, reserving a Re [...] payable at the Feasts of the Annunci­ation of our Lady, and St Micha [...] the Arch-Angel; in this case he ma [...] distreyn for the Rent due at our La­dy-day, but not for the Rent due a Michaelmas, because the time is ex­pired.

But if a man make a Lease at th [...] Feast of Christmas, for to endure to the Feast of Christmas next follow­ing, viz. for a year, reserving a Ren [...] at the aforesaid Feasts of our Lady­day and Michaelmas; In this case he shall distreyn for both the Rents as long as the term continues, that is to say, till the aforesaid Feast of Christ­mas.

And if a man have Lands for Dr. & St. ibid. term of life of J. N. and makes a Lease for terms of years, reser­ving a Rent, the Rent is behind, and J. N. dyeth; there he shall not di­streyn, [Page 107] because his reversion is deter­mined.

And if a Town or Parish be Amer­ced, and the Neighbours by Assent, Assesse a certain Sum upon every In­habitant; And agree, that if it be not paid by such a day, that certain persons thereunto assign'd shall di­streyn; in this case the distress is lawful.

If there be Lord and Tenant, and Ibid. if the Tenant do hold of the Lord by Fealty and Rent, and the Lord doth grant away the Fealty, and reserve the Rent, and the Tenant Attorneth; In this case he that was Lord may not distreyn for the Rent, for it is be­come a Rent-Seck.

But if a man make a Gift in Tail to another, reserving Fealty and certain Rent, and after that he granteth away the Fealty, reser­ving the Rent and the Reversion to himself; in this case he shall di­streyn for the Rent, for the grant of the Fealty is void; for the Feal­ty cannot be severed from the rever­sion.

[Page 108]Also for Heriot-service the Lord Dr. & St. ibid. f. 75. may distreyn, but for Heriot-cu­stome he cannot distreyn, but may Seize.

Also if a Rent be assigned to make a partition or assignment of Dower Egal, he or she to whom that Rent is assigned may distreyn. And in all these cases aforesaid, where a man may distreyn, he may not distreyn in the night, but for damage feasant, that is, where he finds Beasts doing hurt in his ground, he may distreyn them night or day when he finds them; but for Waste, Reparations, Accompts, or for Debts upon Con­tracts, or such like, no man can law­fully distreyn.

CHAP. V. Of Rescous, in what cases it may be Lawful: of Re­plevins, how they are to be sued out; and of Avow­ries to Declarations upon Replevins.

THe word or term Rescous is Cook 1. par. Inst. 160. derived from an old Nor­man verb Rescourrer, which is in the Latine recuperare, that is, to take from, to get again, or recover; So that Rescue is as much as to say, to recover or get again what another hath taken away.

And in the sense of the Law Rescous is a taking away and setting again at Liberty goods distreyned, or the body of a Person Arrested and in an Officers custody by vertue of legal process.

Such kinds of Rescous as apper­tain unto our present subject are of distresses taken, in what cases it may be justifiable to Rescue Goods [Page 110] or Cattel distreyned, and whe [...] not.

If a Landlord distreyn when the [...] Co. l. 4. f. 11. is no Rent due, the Tenant may ma [...] a Rescue, and hinder that distress.

In like manner if a Landlord com [...] 1. Par. inst. f. 160. to distreyn, and the Tenant tend [...] his Rent unto him, and the Lor [...] will distreyn notwithstanding; i [...] this case the Tenant may make Res­cous.

If Rent be in Arrear, and the Lor [...] Cook ibid Magna Charta. f. 25. distreyn the Tenants Cattel in th [...] High-way wtthin his Fee; here als [...] the Tenant may Rescue them, for n [...] man man distreyn in the High-way but the King and his Officers by spe­cial Authority.

In like manner if a Landlord di­streyn Ibid. f. 122. Averia caracae, goods of th [...] Plough, where there is a suffici­ent distress to be taken besides; or if the Lord distreyn any thing Bastal [...]it. di­stress. 10. that is not distreynable by common Law or Statute: in this case it i [...] lawful for the Tenant to make Res­cue.

But if a Lord come to distreyn H [...]ghs gr [...]abr. abr. 1. pa [...]t. p. 117. C 21 Cattel which he seeth within his Fee, and the Tenant or any others to [Page 111] prevent the distress drive the Cat­tel away out of the Fee; the Lord may follow them with fresh Suit and distreyn the Cattel, and the Te­nant cannot justifie a Rescous of them, because in the judgment of the Law the distress is taken within his Fee.

But if the Lord be coming to di­streyn, Co. 1. par. Inst. fol. 161. and have not sight of the Cat­tel within his Fee, though the Tenant drive them off on purpose, or if the Cattel after the view go out of the Fee of their own accord, or if the Tenant after the view removeth them for any other cause then to prevent the distress; then if the Lord di­streyn them out of his Fee, the Te­nant may justifie a Rescue.

If a man come to distreyn Cat­tel Cook, ibid. damage feasant, and see the Beasts in his Ground, and the ow­ner of the Cattel drives them out before the distress taken; the ow­ner of the Ground cannot follow and take them; for if he do, the ow­ner of the Cattel may Rescue them, for they must be damage feasant; that is, doing hurt at the time of the [Page 112] distress taken; and the owner of the ground may bring his action of tres­pass.

The Lord cannot break open any Cook ibid. Gate that is locked, nor break open any Inclosure to take a distress; So that if a Tenant lock up his Gates, and inclose his Ground, so that the Lord cannot come to distreyn: if the Rent be behind, and the Lord have had actual possession, this is a disseisin.

For the [...]ase and speedy remedy of Replevin. the Country in case of distresses, where the Cattel be pounded, the Statute hath provided, that every Sheriffe, at his first County-day, or within two months after he first re­ceives his Patent, is to depute and proclaim in his Shire-Town four De­puties to make Replevins within his County, which must reside within twelve miles one of another, on pain of five pounds a moneth for every moneth they are wanting.

So that when any mans goods are distreyned or impounded, he may re­pair to one of the Sheriffs Deputies for that purpose; and there he may have a Replevin (upon Plegii de [Page 113] [...]etorn. habendum si, &c.) to cause the [...]oods distreyned to be delivered to he owner.

There is likewise a Writ de Re­legiari facias at the common Law, [...]hereby the Sheriff is commanded, [...]aking pledges of Prosecuting, to re­ [...]eliver the goods distreyned to the [...]wner: but since the other is the [...]eadier and easier way, this Writ is [...]ut of fashion.

In a Replevin, he whose goods are [...]istreyned or impounded becomes [...]he Plantiff, and declares against the [...]ther for unjustly taking and de­ [...]aining his Goods or Cattel contra [...]vad. & pleg, &c.

If a Landlord distreyn, and carry Rastal▪ tit. di­stresses. 7. the distress to hold, or out of the County, so that the Sheriff upon a Replevin cannot redeliver the goods, then upon the Sheriffs return of the Replevin, may have a Writ of Wi­thernam directed to the Sheriff, to take as many of the Lord Beasts, or as much goods in his keeping, till he have made deliverance of the first distress; and if the Goods or Cattel be conveyed to a Fort or Castle, the Sheriff may command [Page 114] the power of the County, and beat down.

If a distress be made in a Franchise or Bailiwick, the Sheriff is t [...] direct his Replevin to the Bail [...] thereof to deliver them upon Ple [...] ges, &c.

The Plantiff in the Replevin oug [...] Property. to have the property of the goods i [...] him at the time of the distress made for if the defendant claim property the Sheriff cannot Replevie the d [...] stress, but the property must be trye [...] by Writ.

So that if the defendant claim property Co. 1. par. Inst. f. 145. in the goods distreyned, the [...] must the Plantiff in the Replevi [...] have a Writ de Proprietate probanda, directed to the Sheriff to try th [...] property; and if the Jury find fo [...] the Plantiff, then the Sheriff must make deliverance of the distress: and if it pass for the defendant, the Sheriff can proceed no further unless the Plantiff bring Writ of Replegiari fa­cis directed to the Sheriff, and then though he do return the property, yet it shall proceed to tryal in th [...] Common. Pleas upon the issue of the property.

[Page 115]The defendant in a Replevin; that is, he that made the distress, may if he see cause bring a Writ of Recordare, and so remove the plant upon the Replevin, out of Sheriffs County-Court into the Common-Pleas; and if the Plantiff declare not, he may have a Retorn. habend. And then if he declare not, a Writ to enquire of damages.

If a man by his Deed grant a Rent with a clause of distress, and grant further that he shall keep the goods distreyned against sureties and pled­ges, till the Rent be paid, this grant is not good, but the Sheriff may Replevie the goods distreyned not­withstanding: for if such a distress should be irrepleviable, the currant of Replevins should be stopped, to the great damage of the Subject.

If the Goods or Cattel of several Co. 1. par. Inst. f. 145. men be destreined, they cannot joyn in a Replevin, but every man must have a several Replevin: for in a Replevin it is a good Plea to say, the property is to the Plantiff and to a stranger; and where there be two Plantiffs, that the property is to one of them.

[Page 116]If a Lord distreyn his Tena [...] wrongfully, although the Cattel [...] come back again to the owner; [...] the Tenant may have a Replevin against the Lord, because he cann [...] have an action of trespass against hi [...].

The Plantiff in a Replevin oug [...] to be careful in giving his instructi­ons for it, for it must be certain in setting down the number and kinds of the Cattel which are distreyned, otherwise the Replevin is no [...] good.

The Avowant is the defendant in Avowry. Replevin; that is, he that made th [...] distress; and when he justifies in h [...] Plea for what cause he distreyned that Plea is called his Avowry.

As if a Landlord distreyns for [...] in Arrear, and the Tenant or owner of the Cattel brings a Replevin, and declares against him for unjustly ta­king and detaining his Cattel, and the Defendant justifies he took it in his own right, and so shewing the cause of the taking in his Plea: this is an Avowry.

But if the Defendant took the di­stress for or in the right of another, then when he hath shewed the cause [Page 117] [...]n his Plea, he must make Conusance [...] acknowledgement of the taking [...]he distress, as being Bailiff or servant [...]nto him in whose right he took it. There are four manner of Avowries which a Lord may make upon a Re­ [...]levin.

1. Avowry upon his very Tenant. Co. l. 9. f. 135. 136.

2. Upon his very Tenant by the Mannor where the Tenant had but a párticular estate.

3. Upon his Tenant by the Man­ [...]or where the Lord had but a par­ticular estate: and these three are Avowryes at the common Law.

4. The Lord may Avow upon the 21. H. 8. C. 19. matter in the Land as within his Fee: this is provided by the Statute 21. H. [...]. C. 19. and is the safest way for the benefit of the Lords; for by this Statute, a Lord may Avow the ta­king a distress, as in Lands holdon of him within his Fee, without naming of any person in certain; which by the Common Law they could not do, but were thereby compelled to A­vow upon a Person in certain, which often proved much to their damage and prejudice: for by the secret Fines, Recoveries, Grants, [Page 118] and Conveyances, which the Tenan [...] used purposely to frame to defra [...] their Lords, they were ignorant up [...] whom to make their legal Avowry which inconveniencies the foremen­tioned Statute hath prevented.

Now in an Avowry upon this Sta­tute, the Plantiff in the Replevin, [...] he Tenant for years or otherwise may have every sufficient answer an [...] aid, and every other advantage in the Law to the Avowry: Disclaims only excepted; for because the Avowry [...] made upon no certain person, he can­not disclaim.

If a Tenant hath Rent behind fo [...] Co. 1. par. Inst. s 266. divers years, and makes a Feoffme [...] in Fee, and the Lord accept the Re [...] or Service of the Feoffee due in h [...] time, he shall loose the Arrerages [...] his Rent due in the time of the Feoffor. For after such acceptance, the Lord cannot Avow upon the Feoffer, nor upon the Feoffee, for the Arrerages due in the time of the Feoffor; but if the Feoffor dyeth, although the Lord accept the Rent or Service by the hands of the Feoffee due in his time, yet he shall not loose the Arrerages, because he is now by [Page 121] the Law compelled to Avow upon [...]e Feoffee; and what the Law [...] him to, shall not be prejudicial [...]to him.

If the Plantiff in a Replevin be [...]n-suit, or otherwise by Avowry [...] or overthrown; then the [...]efendant or Avowant shall recover [...] and damages against the Plan­ [...]f, as the Plantiff should have [...] or had, if he had revovered the Replevin against the [...].

CHAP. VI. In what cases a Tenant or other shall be said to commit was [...] in Houses, Gardens, Woods Pastures, Orchards, &c. and what Wast shall be punishable, and what not.

IT concerns every Tenant, [...] what nature soever his Tenur [...] be, to be very careful herein for he may in committing Was [...] soon become obnoxious to the Law, and incur great damage.

I shall therefore by way of cauti­on shew you in what cases a Tenan [...] may commit Wast, so as to rende [...] himself lyable to loss and punishment and then how far a Tenant may ac [...] upon his Tenure, and not commit a­ny punishable Wast.

If a Tenant for life or years, o [...] Cook I. pa [...]. Inst. f. 53. in Dower, do pull down any of the Houses or Tenements, or suffer them to be uncovered, to the rooting o [...] destroying of the Timber or Mate­rial [Page 121] of the House, this is Waste.

So likewise if Glass-windows be [...]roken down or carried away it is Waste, though the Tenant glazed [...]em himself: for the Glasse is [...]art of the House. It is also Waste [...] take away VVainscot, if it be [...] to the Walls or Posts of the [...]ouse.

It is likewise Waste to take away [...]oors or Windows, or any thing an­ [...]exed or fixed to the Free-hold, al­though the Tenant fixed them there [...]mself.

If a Tenant build a new House [...]here none was before, it is Waste: [...]nd [...] he suffer it to be wasted, it is a [...]ew Waste.

The pulling down of a Stone-Wall, Cook. ibid. or Mud-Wall of a House is Waste.

If a Tenant of a Park, Warren, [...]ove-House, or the like, do not [...]ave such sufficient store as he found [...]hen he entred, it is Waste; and so is to suffer a Park-pale to decay, thereby the Deer are lost or dis­ [...]ersed.

If a Tenant suffer the Houses Co. 1. par. Inst. f. 53. [...] be Wasted, and then Fell Tim­ber [Page 122] to repair them, this is a doub [...] Waste.

Waste is properly in Houses, Gardens, and Timber-trees; that is, Oak Ash and Elme, which are counte [...] Timber generally in all places, except in some Coppy-holds Elme not.

Now these Timber-trees are sai [...] to be Wasted either by cutting the [...] down, lopping or topping them, o [...] any other wayes decaying the Timber.

And in some Countries when Idem. Timber is scarce, Beech is accounte [...] Timber, or other Trees used fo [...] building Houses; and there the cutting of them is Waste.

Or if a Tenant suffer the youn [...] Germens of Trees to be destroyed this is destruction, and punishable i [...] Waste.

To cut down any Trees, as Willows, Birch, or the like, which stan [...] and grow in the defence and with in view of the dwelling House, i [...] Waste.

It is Waste to cut down Haze [...] which grow not under the grea [...] Trees, but in a quarter of the Woo [...] by themselves.

[Page 123]If a Tenant grub up or destroy a Co. 1 par. Inst. s, 53. [...]uick fence of white-thorn, it is wast.

Burning of a house by negligence [...] mischance is Wast.

Where is a Wood, and nothing [...]rowing there but under-wood, [...]he Tenant cannot cut all: but if it [...] a Wood where great trees grow amongst the underwood, there he may cut all the underwood.

It is Wast to cut apple-trees if they bear fruit, though they lye a­ [...]ong the ground.

It is also Wast to cut Damsin­ [...]rees or any fruit-trees growing in garden or orchard.

To dig for Gravel, Chalk, Clay, Brick, Earth or Stones, or the like, [...] Wast; and so it is if a Tenant dig [...]or any Mynes which were not open [...]t the time of the Lease made.

To suffer a bank or Wall of the [...]ea to be in decay, so that by the [...]lux and Reflux of Sea, the Marsh is overflown, so that it becomes un­profitable, is Wast.

But if the Sea break in suddenly [...]y a violent tempest, it is no Wast.

It is Wast also if a Tenant suffer the banks of any River or Water to [...]ecay, whereby the ground is sur­roundded, [Page 124] or becomes unprofitable so it is to suffer pasture-ground t [...] be surrounded so as it becom [...] Rushy; or Arable land, so that becomes tough clay.

It is wast for any Tenant to convert Arable into Wood, or Meado [...] into Arable.

The punishment in Wast is trebl [...] damages; and forfeiture of the plac [...] Wasted.

There is voluntary or actu [...] Wast, and permislive Wast.

An action of Wast lyeth against Tenant by the courtesie, Tenant fo [...] life or years, half a year, or Tenan [...] in Dower, by him that hath the e­state of Inheritance, in any of al [...] these cases before mentioned.

But Wast doth not lye against [...] Guardian in Soccage, but an Action of Accompt or trespass.

Neither doth Wast lye against [...] Tenant by Elegit, Stature-Merchan [...] or the Staple; but an Action of Ac­compt after the Debt and damage levyed.

Waste doth not lye against a Te­nant Co. 1 par. Inst. 54. at will: but if such Tenant vo­luntarily pull down houses, or cu [...] [Page 125] down Timber-trees or the like; in this case the Lord may have an acti­on of trespass against him.

But against a Tenant in Mort­gage Noy. Max. p. 33., either an action of Wast or an accompt will lye against him, be­cause his estate, is conditional.

If two or more Joynt-Tenants, or Tenants in common, be in a house, and one will repair the house, and the other will not; in that case he that will repair it may have a writ de Reparatione faciend.

If a Landlord covenant to repair the house, and doth it not, in this case the Lessee may cut timber grow­ing upon the ground and repair it, though he be not compellable there­unto, and shall not be punishable in Wast for so doing.

No man can have an action of Cook. 1. part Inst. p. 53 wast unless he have the immediate estate of inheritance; but somtime another shall joyn with him.

As if a Reversion be granted to two, and the Heirs of the one, they two shall joyn in an action of wast.

In like manner the Surviving Co­partners and the Tenant by the cour­tesie shall joyn in an action of waste.

[Page 126]If a Tenant for years commit Waste and dye, no action of Waste lyeth against his Executors or Ad­ministrators for waste done before their time.

If there be two Copartners of a [...]itchin s. 214. Reversion, and one of them dye, the Aunt and Neece shall joyn in an Action of waste.

If a Tenant for life commit waste, and after surrender his estate, and the Lessor accepts it; the Lessee is then discharged of the waste.

If a stranger commit Waste upon the lands which one holdeth for life or years, the Tenant shall suffer for it, and is left to take his remedy over against he that did it.

If a Landlord covenant to deliver timber out of the same land to re­pair the house let, and will not deli­ver it, and for defect thereof the Te­nant will not repair it, but suffers the house to fall down; this is waste in the Tenant, and he is punishable for it.

But if the timber be to be taken out of other lands, and be not deli­vered, then the Tenant is excusable if he suffer the house to fall, and no [Page 127] action of waste lies against him.

If a single woman Rent lands and Idem. marryes, and her husband commits waste and dyes, she shall be punished for this waste done by her husband.

But if a Lease be made to a man and his wife, and the husband com­mits waste and dyes; in this case the wife shall not be punished for such waste, unless she agree to the e­state.

If a woman be Tenant for her life Cook. 1. pa [...]. I [...]st. 54., and marries, and her husband com­mit waste, and the wife dyeth, the man is not punishable for this waste: but if a woman be possessed of a term of years, and takes a husband who commits waste, and the wife dyes; here the man is liable to an action of waste for the waste by him committed, because he enjoyeth the term of the Lease.

If a man make a Lease for life, or years, and after grants the Reversi­on, for years, the Lessor shall have no action of waste during the years; for he himself hath granted away the Reversion, in respect whereof he is to mainteyn his action.

If an action of waste be brought, [Page 128] and the Term end while it is depend­ing, yet the writ shall not abate: for although the Plaintiffe cannot reco­ver the place wasted, yet he shall re­cover the treble damages.

Likewise if one be Tenant for Co. 1. part. Inst. f. 285. term of anothers life, and makes waste, and afterwards the Cestui que vie dyes, here the Lessor shall recover treble damages, but cannot recover the place wasted, for that falls to him by the death of the Cestui que vie.

It waste be done in one corner of Cook 1 part. Inst. s 54. a Wood, that place only which is wasted shall be recovered: but if it be done here and there about the wood; then the whole wood shall be recovered, or as much wherein the waste sparsim is done.

And so in Houses, so many Rooms Idem. shall be recovered wherein there is waste done.

If a man make waste, in cutting Reg [...]st. pract p. 343. trees which grow in hedge-rowes, which inclose pastures, nothing shall be recovered but the place wasted, that is, the circuit of the roots, and not the whole pasture; but if trees grow scatteringly about the pasture, [Page 129] then the whole pasture is forseited if they be cut.

It is good plea in bar to a writ of Waste, to say that the house fell by a sudden tempest, although the Te­nant did covenant to repair it; but it is no plea in an action of cove­nant.

It is also a good plea in a writ of Waste, to say that the house was Ruinous at, the time of the Lease making, and the Timber so putrified and Rotten that it fell.

It also a good plea to say, that the Plaintiffe hath entred upon the Land, before which entry no waste was made; or that he Surrendred, and the Plaintiff did accept; be­fore which time no Waste was made.

If a Tenant doth waste, and af­terward Cook 1 part. Inst. f. 285. Surrenders, and the Lessor agrees, yet the Lessor may have an action of waste and recover treble damages.

If an action of waste be brought by husband and wife in remainder in special tail, and the wife dyeth (the suit depending) without issue; in this case the writ of waste shall a­bate.

[Page 130]If a Lease be made to hold to one Idem. f. 220. without any impeachment of waste then the Tenant may cut down trees, and convert them to his own use: but if the words be to hold without impeachment for any action of waste [...] in this case if the Lessee cut down trees, the Lessor shall have them.

If a Tenant for life grant a rent-charge, Cook. 1. part Inst. 233. 234. and after doth waste, and the Lessor recover in an action of waste, he shall hold the land charged during the life of the Tenant for life; but if the rent were granted after the waste done, the Lessor shall then avoid the grant made by the Lessee for life.

If a Tenant in Fee release to his Idem f. 345. Tenant for life all his right, yet he shall have an action of waste.

And if a Tenant in Tail make a Lease for his own life, yet he shall have an action of waste.

But if there be a Tenant for life, the remainder to another in Tail, and he in the remainder release to the Tenant for life all his right and State in the land; he cannot afterwards have an action for waste.

If the Grantee of a Reversion [Page 131] bring an action of waste, the Lessee may plead generally that he hath no­thing in the reversion.

If a Lessee before his term begin enter into the lands let to him, and do an act which amounteth unto waste, the Lessor shall not have an action or waste for the same.

None shall have judgement to re­cover in an action of waste, where the waste comes but to 12 d. or such a small sum.

If waste be done upon lands let Cook. 2 part Inst. s. 303. for term of years, or life, by one a­gainst whom the Lessee can have no remedy in Law for committing the same waste, the Lesse in such case is not punishable for the same by the Lessor, except there be a special co­venant in the Lease, that he shall not permit nor suffer waste to be done.

If the house be uncovered when the Tenant cometh in, it is no waste to the Tenant if he suffer it to fall down.

The raising of a new frame of a house which was never covered, is no waste. If a house fall by sudden tempest, or be burnt by lightning, or destroyed by Enemies, or the like, [Page 132] without any default of the Tenant, or was Ruinous at his coming in, and fall down; this is no waste.

And the Tenant may build the same again with such materials as remain, and with other Timber growing upon the ground; but he must not make the house any larger then it was, for if he do it is waste.

If a Tenant fix a Furnance, and not to the Walls nor Posts of the House, if he take it away within his term it is no waste.

If a Tenant in Fee fix a Furnace in the middle of the house, the heir shall have it and not the Executors.

If a house fall by a great wind or tempest, the Lessor shall have the Timber, for it is no waste, and the Lessee is not bound to build it up a­gain.

CHAP. VII. The Tenants Law, touching Mens Buildings in the City of London, For prevention 19 Ca [...]. 2. of Suits between Landlords, Tenants, and under-Tenants in the City of London, whose Houses were destroyed by the dismal Fire which hap­ned the 3. Sept. 1666. For the speedy Rebuilding the City, and preventing differ­ences, It is enacted:

THat the Justices of the A Court of Judi­cature for Rebuild­ing the City. Kings-Bench and Common-Pleas, and Barons of the Exchequer, being of the degree of the Coise, or any three or more of them, to hear and deter­mine all differences which may arise between Landlords Proprietors, Tenants, Lessees, Under-Tenants, or late occupiers of any Houses, Courts, Yards, Grounds, Wharfs, [Page 134] or of any claiming any Estate, or Title in or to the same their Heirs, &c.

And to defalk apportion or abat [...] Rent or Rents, and to limit and prefix or limit time for Rebuilding and to proceed from time to time and at such place or places as any three or more of them shall think fit; Sine forma et figura Judicij, and to enquire by Jurors Verdict, Wit­nesses upon Oath, Examinations of parties interessed, or otherwise to hear and determine all differences between the parties interessed con­cerning the premises.

That the definitive order of the said Fol. 7. 8. [...] Justices and Barons, or any three of them shall be final, No Writ of Error or Certiori shall be for re­versal or removal of the same.

The said Judges, or any three, or more of them, have power to or­der the surrendring, Abridging, Leasing, Determining or Charging of any Estates in the premises; to add longer time to Leases not ex­ceeding forty years, at such Rent and Fine, or without, as they shall think fit.

Upon the Petition of any person [Page 135] concerned; The said Judges shall issue our Notes or Warrants, under the hands of any three of them, to warn the persons therein named, to appear before them, at such time and place as such Note shall specifie. And upon non-appearance, Oath be­ing made of the service, the said Justices and Barons, or any three of them, to proceed to definitive Or­der.

Enacted, That the said Justices Fol. 80. and Barons or any three of them, shall be a Court of Record, and shall cause all Judgments and Determina­tions to be Recorded in a Book of Parchment; and that every Judg­ment be Signed by three of the said Justices and Barons, and to be kept amongst the Records of the City.

The said Justices and Barons are to order a Table of Fees for the Of­fieers to be imployed in the said Court.

Where any Order is made by a lesser number then seven of the said Justices and Barons; then any Person grieved by such order, may put in Exceptions in seven dayes to [Page 136] the chief Justices and chief Barron, or any two of them, who are to ac­quaint the rest therewith, and to hear the Parties, and consider the said Exceptions: And if seven or more subscribe that they find cause, then any seven or more of the said Justices and Barrons shall within twenty dayes after the Exceptions delivered, review the former order, And to reverse, confirm, enlarge or diminish the same as they shall think fit.

This Act to continue in force till the last of December, 1668. and no longer.

Enacted, That the Lord-Mayor, 19 Car. 2. R. fol. 84. 85. Aldermen, and Common-Counsel, shall nominate Surveyers or Supervi­sors to see the Rules touching the The build­ings to be surveyed. New building of the City observed: If any one build contrary to the Rules hereafter mentioned, the same to be deemed a Nusance, and the builder to enter into Recognizance before the Mayor and Justices, to abate, demolish or amend the same, according to the Rules and Orders; and if the Offender refuses, he shall be committed to the common Gaol [Page 137] of the City, without Bayle or Main­prize; there to remain till he shall have abated, demolished, or amen­ded the same; or else such irregu­lar Buildings may be demolished by order of the Court of Alder­men.

The Surveyers to take an Oath for Fel. 86. the impartial execution of their Of­fice.

There shall be only Four sorts of Idem. Buildings and no more.

The least sort in By-Lanes. Four sorts of Build­ings.

The second sort in Streets and Lanes of Note.

The third sort of Houses Fronting the principal Streets.

The fourth sort of Houses for Persons of extraordinary quality, not fronting either of the three former wayes; the Roofs of the three first sort of Houses to be Uni­forme.

The Lord-Mayor, Aldermen, and Idem. Common-Counsel, shall declare which shall be accompted By-Lanes; which Streets or Lanes of note; and which High and Principal Streets.

All the Streets and Lanes intended Fel. 87. [Page 138] to be rebuilt, shall be Marked and Staked out, by order of the Lord-Mayor, Streets and Lanes to be sta­ked out. Aldermen, and Common-Council, that the breadth, length, and extent thereof may be known and observed.

None shall wilfully pull up, or Penalty for pul­ling up a­ny Stake or Mark. remove any Stake or Mark-Stone on paine of ten pounds to the use of the City, or three Months imprisonment without Bayle or Mainprize; or if the Offender be not able to satisfie such Penalty, then the Justices may by order under his or their Hands and Seals, cause such Offender to be whipped neer the place where the of­ence shall be committed, till his body be bloody: And it shall be lawful for the said Justice or Justices to reward the Insormer out of the penalty, not exceeding a third part thereof.

Enacted, That the out-sides of all Fol. 88. Buildings in and about the City, be made of Brick or Stone; or Brick and Stone together; except Door­cases and Window-frames, the Brest, Summers, and other parts-of the first Story to the Front between the peers, to be of Oken-timber. The said Doors, brest, Summers and Win­dow-Frames [Page 139] to be discharged of the burthen of the Fabrick by Arch­work of Brick or Stone.

Enacted, That the Supervisors Fol. 89. Surveyors to see there be party-Walls. take care, that there be party-walls, and party-peers, set out equally on each Builders ground, to be built up by the first Builder, and that there be touching left in the Front-wall by the first Builder, for the better Joyn­ing of the next House to the same.

That no man be permitted to build on the said party-wall, or on his own ground, till he hath re-imbur­sed the first Builder the full moyety of the said party-Wall and Peers, with Interest for the forbearance of the same, after the rate of six pounds per cent. per annum. to be accounted from the beginning of the said first building.

If any difference arise concerning the true value of the said charge; the same to be referred to the Alder­man of that Ward, and his Deputy.

And where the said Alderman and his Deputy, or one of them shall be parties, or cannot compose such dif­ference, The Lord Mayor and Court of Aldermen, to examine, hear, and [Page 140] determine the same, from whence there shall be no appeal.

The first and least sorts of Houses Fol. 90. The As­size of Build­ings▪ shall be two Stories high, besides Cellars and Garrets; the Cellars thereof to be fix Foot and an half high, if Water hinder not.

The first and second Story to be nine Foot high from the Floor to the Cieling: All Walls in Front, and Rear of the first Story, be of the length of two Bricks thick; and thence upwards to the Garrets, one Brick and an half; the back part of the Garret Walls not to be less in thickness, than the length of one Brick.

And that the thickness of the par­ty-Walls between these Houses, be of one Brick and an half, as high as the Garrets; and the thickness of the Party-Wall in the Garrets be one Brick in length, and the Timber and Stone to be of the Assize set down in the Table.

The Houses of the second sort of Assize of the second sort of Building. building, shall be three Stories high, besides Cellars and Garrets; And the Cellars to be six Foot and an half high, (if Water hinder not;) [Page 141] The first and second Stories to be [...]en Foot high, from the Floore to the Cieling; the third nine Foot; [...] Walls of the first Story to be of [...] thickness of two Bricks length and an half, and upwards to the Gar- [...]et one Brick and an half; the thick­ [...]ess of the Party-walls to be two Bricks length; the first Story and hence upwards, one Brick and an [...]alf; the Timber and Stone as is pre­ [...]cribed in the Table.

The Houses of the third sort of Third sort of Build­ing. building to be four Stories high, be­sides Cellars and Garrets: The first Story to be ten Foot high; the se­cond ten Foot and an half; the third [...]ine Foot; the fourth eight Foot and [...]n half.

All the Walls of the first Story to be the thickness of the length of two Bricks and an half; and upwards to the Garret Floore one Brick and an half; the thickness of the Party-Walls two Bricks length as high as the first Story, and to the Garret Floore one Brick and an half; Timber and Stone as in the Table.

Mansion Houses being the biggest Fourth sort of Houses. and fourth sort of building, not [Page 142] fronting Streets or Lanes, to keep fol: 39. the Assize set down in the Table; the Number of Stories and height to be at the Builders discretion, so it ex­ceed not so [...] Stories.

In all high Streets to be Belconie [...] Belconies and Pent­houses. four foot-broad, with rayles and ba [...]rs of Iron to stand equally in distance from the ground; and the vacancy of the Front to be supplyed with a Penthouse, of the breadth of the Belcony, to be covered with Lead, Slate, or Tile, and Ceiled un­derneath. The water to be convey­ed into the Channels by party-Pipes, and the Pavements under the Bel­conies and Penthouses to be made of flat Stone.

No first Floore in any high Street Cellar Floores. be laid above 18 inches above the Street, nor under six.

No Trap-doores, nor open grates to be made into any Cellar, without the Foundation, but all lights be made upright.

That there be no Bulks, Jetties, Posts, &c. beyond the Antient Foun­dation in any Street or Lane, saving onely in the high Streets, the Stall­boards when the Shop windows are [Page 143] open may turn over [...] and no more into the [...].

All persons seized in any ground Limitati­on for Building: formerly builded upon, shall build the same in three years; in default thereof, Proclamation to be made by Act of Common Council upon the ground, and at the Exchange be­tween twelve and two of the Clock, that the persons concerned, rebuild within nine moneths next ensuing; and in refusal or neglect of rebuild­ing, the Mayor and Court of Alder­men to issue out Warrants to the Sheriffs, to Impannel a Jury to in­quire of the value of the ground.

After the inquiry & value, the said ground to be sold under the Com­mon Seal of the City, and the money to be paid into the Chamber of Lon­don, and to be paid out by the Cham­berlain to the persons Interest there­ [...]n.

The said Sales to be inrolled upon Record in the said City, and shall fi­nally barre all persons, their Heirs, and Assignes, to claime any Estate out of the ground so sold, and the Purchasor freed and discharged from all Incombrances precedent the said sale.

[Page 144]The Justices of the Kings Benc [...] Wages of Work-men and prices of Mate­rials. or any two or more of them, m [...] call before them Brick-makers, Til [...] makers, and Lime-burners, th [...] make or burn Brick, Tile, or Lim [...] within five miles of the Thames, an [...] confer with them if they will be pr [...] ­sent, or in their absence, to Asses [...] reasonable prices upon Bricks, Til [...] and Lime, to be delivered at th [...] Kilns; and of the Carriage of th [...] same materials both by Land a [...] Water.

The said Justices of the King Bench, or any two or more of the [...] upon the complaint of the Lor [...] Mayor and Court of Aldermen, ma [...] limit and rate the wages of Brick makers, Tile-makers, Lime-burner [...] Carpenters, Brick-layers, Mason [...] Plaisterers, Joyners, Plummers, o [...] other Artificer work-man or L [...] ­bourer.

The said Rates and Prices bein [...] so Assessed, shall be set down in Table, and Proclamation there [...] made by the Lord Mayor, which sha [...] binde all persons concerned.

If any one refuse to sell materia [...] Penalty of Refusal. at the rate Assessed, or refuse [Page 145] work for the wages Assessed, or leave his work begun before it be finished, unless it be for non pay­ment of wages; or if any one shall directly or indirectly Article or a­gree for greater wages or prices then shall be Assessed, and be there­of convict by one witness before a Justice, he shall suffer Imprisonment one moneth, or pay such Fine as the Justice shall set upon him, not ex­ceeding ten pounds; out of which Fine the Justice is to satisfie the par­ty injured, and pay the remainder to the Chamberlain of London, for the re-edifying the publick buildings of the City.

All Carpenters, Brick-layers, Forreig­ners to work as we [...]l as Free­men. fol. 49. Masons, Plaisterers, Joyners, and other Artificers, Work-men and Laborers, who are not Free-men, shall be set to work as well as Free­men, and injoy the same privi­ledges; and after they have wrought seven years in their respective Arts, they shall have liberty to work as Freemen of the said City, during their lives.

All differences touching Lights, Lights and Wa­ter-cour­ses. Water-courses or Gutters, shall be [Page 146] determined by the Alderman of the Ward, and his Deputy where the difference is, if they be not parties concerned; but if they be concern­ed, or cannot determine the same, the Lord Mayor and Court of Alder­men, to do it without Apeal.

The numbers and places for all Sewer [...] and Pa­vings. Common Sewers, Draynes, and Vaults, and the pavings and pitching the Streets shall be set out by such persons as the Lord Mayor, Alder­men, and Common Council shall appoint under their Common Seal▪ and they or any seven of them with the Surveyors or one of them, shall order and direct the making, alter­ing, and cleansing of Vaults, Sinks, and Sewers, and to impose a reason­able Tax upon all houses within the said City and Liberties towards the same, and to Levy the same by Di­stress in case of refusal.

No other Commissioners to in­termedle fol. 101. in the premises in seven years, and so long after, till the said Buildings be fully finished.

The Lord Mayor, Aldermen, and idem. Noisome T [...]ades Prohibi­ted. Common Council, to prohibite such Trades to be used or exercised in [Page 147] the high Streets, as they shall judge noysome or perilous in respect of Fire.

The Lord Mayor and Court of Aldermen, and common-Council may remove any of the Conduits out of the High-Streets, and erect them in such other places as they shall think fit.

The Lord Mayor, Aldermen, and Streets to be enla [...] ­ged, Fol. 102. Commons may Enlarge the Streets in such manner as there shall be cause, by the approbation of his Majesty, and not otherwise; and may enlarge any Passage which is lesse than four­teen Foot in bredth. And to make a New Street from Guild-Hall to Cheap-side, of such bredth and wid­ness as they shall judge meet.

The Lord Mayor, Aldermen, and Satisfa­ction for [...]r taken a­way, Fol. 1 [...]4. Common Council, to treat with the Owners of such ground as shall be ta­ken away, or imployed as afore­said; and in case of refusal or other impediment, to issue out Warrants to the Sheriffs, to return a Jury, to inquire of and assess Damages and Recompence to the owners of any such Houses or Ground: And such Verdict and Judgment thereupon, [Page 148] and the payment of the money so a­warded to the owners, or tender, and refusal thereof, shall be binding against the said parties, their Heirs, Executors, Administrators and As­signes, and others claiming any title or interest in the said Houses or Ground; And be a full Authority for the Lord Mayor, &c. to convert the same to the purposes aforesaid.

In case of refusal or incapacity Improve­ments, Fol. 106. of any of the owners, or others interessed in the said Houses, to a­gree and compound with the Lord Mayor, Aldermen, and Commons for the same, A Jury shall be im­panelled, to assess upon the parties interested such sums of money, con­sidering the improvement of their Houses, as they shall judge fit in con­science and reason.

All sums of money so raised, to be paid to the City- Chamberlayn, who is enabled to recover the same by Action at Law, and his Receipt shall be a good discharge: Which money, shall be imployed for satis­faction for such Houses and Ground as shall be converted into Streets, Markets, Passages, and other pub­lique [Page 149] places; and such satisfaction so given, or tendered, shall devest the propriety of the owners of such ground, and the same shall be here­by invested in the Lord Mayor, Commonalty and Citizens of Lon­don, and their Successors.

Wheresoever all persons claim se­veral Several Claims determi­nable by the Judg­es, &c. interests in any Ground to be sold by the Lord Mayor, and Alder­men by vertue of this Act; if any difference arise between the said per­sons so interessed, the Justices of the Kings Bench, and Common-Pleas, and Barons of the Coif, of the Ex­chequer, or three or more of them, are finally to determine the same, without formality of Proceedings, and to award such distribution of the money to the parties interessed, according to their respective Estates or Interests, as to them shall seem reasonable. According to which or­der and distribution, the said pur­chase-money shall be paid by the Chamberleyn to the said several per­sons respectively.

The second day of September (un­less An year­ly Fast. Fol. 108. it be Sunday) and if so, the next day following to be for ever obser­ved as a yearly Fast.

[Page 150]A Columne or Pillar of Brass or Stone to be erected on, or as neer as conveniently may, to the place where the Fire began, with an In­scription to be thereon, in perpetual Remembrance of the said dreadful Visitation.

All tenders of money, or payments Ensu­rance Of­fice. which ought to be made in the late Assurance Office, or in the Royal Ex­change, may be made at the Assurance Office in Gresham-Colledge, and be valid to all intents and purposes. Churches, Fol. 109.

The number of Churches to be re­built, shall not exceed 39. which are to be appointed by the Arch-Bishop of Canterbury, and Bishop of London.

The Scites, and Materials, and Yards of such Churches as shall not be rebuilt, are vested in the Lord Mayor, and Aldermen; and so much of the Ground as shall not be laid in­to the Streets, shall be sold; And the money to be imployed towards the rebuilding of such Churches as are intended to be built.

This Act shall not extend to St. Pauls Church, St. Faiths nor St. Gregories by St. Paul's, nor any of the Church-yards thereunto belong­ing.

[Page 151] Thames-Street, and the Ground Thames-Street to be raised. fol. 110. between the said Street and the Thames, shall be raised three foot higher then now it▪ is.

No house or other building (ex­cept Cranes and Sheds) shall be built within 40 foot of the Thames, from the Tower to the Temple; Nor any house or other building (Cranes only excepted) shall be built within 70 foot of the middle of any part of the Common Sewers called Bride­well-Dock, Fleet-Ditch, and Turn­mil-brook, before the 24th. of Ma [...]ch, 1068.

From the 24th. of June 1667. to to the 24th. of June 1677. All Coales brought into the River, to be sold by the Chaldron or Tun, shall pay 12 d. every Chaldren, and for every Tun 12 d. to be paid by the Master or owner of every Ship or Vessel to the Mayor and Commonalty, &c, or their Deputies or Assignes before the ship break bulk.

To prevent Fraud; The Coale­meeters shall deliver Certificates to the Officers or Assignes of the said Mayor and Comonalty, of the quan­tity of Coales delivered from on Board any Vessel; if any be Con­cealed, [Page 152] there shall be paid 5. [...]. for every Chaldron or Tun so Conceal­ed, unless the Importer within 24 hours after Certificate delivered in by the Coale-meeter, give in his Post Entry, and satisfie the duty for such surplusage.

The money raised upon this Im­position, shall first be disposed to sa­tisfie such persons, whose Grounds shall be taken for the enlarging of the Streets and passages within the City; and the Residue shall be im­ployed for the making of Wharfs and Keys, and building of Prisons within the said City.

All money hereupon to be receiv­ed, to be entred in a book or books of Vellam or Parchment, to be kept in the Chamber of London; where also shall be kept another book or books, wherein shall be entred the Accompts of all payments and dis­bursements, expressing the time when the occasion for which, and the name of the person or persons to whom the same was disbursed.

All persons concerned to have free accesse to the said Books, when the Chamberlains Office is open, to view [Page 153] the same without paying any Fee.

The Chamberlain before the end of Michaelmas Term in every year, shall deliver upon Oath into the Receipt of the Exchequer, a true The Wa­tér-house. Copy of the said books, conteyning all the Receipts and disbursements of the preceding year, ending upon the 24th. of June next before; which is to be received gratis, and kept a­mongst the Records of the Exche­quer, whether any person concerned may have accesse to view and peruse the said books without paying any Fee or Reward.

The Water-house adjoyning to London. Bridge may be rebuilt where formerly it stood.

The Lord Mayor and Aldermen may enlarge the passage called Wa­ter-Lane, from Fleet-street to White-Fryars-Dock by the Thames, and to enlarge a passage to the said River, from Cheapside through So­per-Lane, to Thames-Street, and from the three Cranes to the Thames; and to enlarge another passage through Mincing-Lane, by St. Dunstons in the East, to Thames-Street, near the Custome-House; [Page 154] and to make the said passages 24 foot in breadth; giving notice to the Proprietors before the last day of May, 1667. of their resolutions here­in; and to give them satisfaction for their ground, according to the di­rections of this Act.

Assize of Timber and Stone for the First sort of Houses.

For the first Floor, Summers under 15. foot, 12. inches, and 8. inches.

  • Wall-Plates at 7. and 5. inches.
  • Rafters under 15. foot,
    inches.
    • at foot 8
    • at top 5
  • Single Rafters, 4 and 3 inches.

For the Two other sorts of Houses.

foot, foot, inches, inc.
Summers in length, 10 to 15— 11-& 8
15 18 13 9
18 21 14 10
21 24 16 12
24 26 17 14
thickness, depth,
Joysts which bear 10. foot inches, inches,
3 6
3 7
3 7
3 8
3 8

[Page 155]

Prin­cipal Raf­ters from length thickness
Foot Foot inches, inches
15 to 18 at foot 9 7
at top 7
18 21 at foot 10 8
at top 8
21 24 at foot 12 8½
at top 9
24 26 at foot 13 9
at top 9
Single Rafters
not exceeding fo. inc. inc.
in length, 9 5 4
in bredth, 6 4 3½
thickness,
Foot, inches, inches,
Single quarters in length 8 3½ 1½
Double quarters, 8 4 3½
F. I. I.
Sawed Joysts in length, 8 6 4
Laths in length 4 1½ 1 quarter
5
and half inch.

Assize of Stone.

Inches, First sort of Houses Corner Peers 18. Square
Middle Peers 14. & 12.
Double Peers 14. & 18.
Door-Jambs 12. & 8.
Fo. Inch. Second and third sort of Houses Corner Peers 2. & 6. Sq.
Middle Peers 18. Square
Double Peers 24. & 18
Door-Jambs 14. & 10

No Timber to be laid within twelve Inches of the foreside of the Chimney-Jambs.

No Timber be laid within the Tun­nel of any Chimney, upon pain of 10 s. to the Workman, and 10 s. eve­ry week it so continues.

Joysts and Rafters, not to be laid above twelve Inches distant, and no quarters at above fourteen Inches distant.

No Joysts to bear at longer length than ten Foot; and single Rafters at nine Foot.

The Roofs, Window-frames, [Page 157] and Cellar-floors to be made of Oak.

Tile-pins to be made of Oak.

Summers and Girders to lye ten Inches into the Wall; and Joysts eight Inches, and not to be laid over the Head of any Doors or Win­dows.

FINIS.

Books newly printed: To be sold by W. Jacob and John Amery.

THe Compleat Lawyer, by W. Noy, sometime Reader of Lin­colns-Inn, Late Atturny General to King Charles the First, In Octavo, Price [...] s.

The Life and Death of Alexander the Great, King of Macedon, in 10 Books, by Q [...]intus Curtius Rufus, (exactly conferd with the Original, and purged from many gross errors and absurdities) In Octa. Price bound 3 s.

[Page] Luis Veneria. Wherein the Names, Nature, Subject, Causes, Signs, and Cure, are handled: Mistakes in these disco­vered, rectified; Doubts and Questi­ons succinctly resolved: By John Wynnell, M. D. In Octa. Price bound 1 s.

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