Page images

tion sole,) are included in the word "land,” which in its proper sense applies 3 & 4 Will. 4, only to cases in which there are two parties, each claiming an estate in the

C. 27, s. 1. land adverse to each other. It has been held, that the statute does not prevent the tithe-owner from recovering tithes as chattels from the occupier, although none had been set out for twenty years, but that the operation of the statute is confined to cases where there are two parties, each claiming an adverse estate in the tithes. Therefore a person who has received no tithes for twenty years cannot recover the possession of them from another, who has for twenty years received those tithes from the terretenant. (Dean of Ely v. Cash, 15 M. & W. 617; Dean of Ely v. Bliss, 5 Beav. 574; 2 De G., M. & G. 459. See Lord Shannon v. Hodder, 2 Brady, Adair & Moore, 223, n.) The effect of time as between tithe-owner and occupier is determined by 2 & 3 Will. 4, c. 100. (See Salkeld v. Johnston, 1 Mac. & Gor. 242; 18 L. J., Ch. 493; 1 H. & T. 329, where Lord Cottenham expressed his opinion that under that act the proof of the enjoyment of the discharge claimed for the prescribed time is a sufficient answer to a demand for tithes. See 2 Ex. 256; 2 C. B. 749.) The cases on the construction of that act are collected, Shelford on Tithes, 391–398, 3rd ed., and Supplement, 47 — 86.

Tithes, moduses or compositions, belonging to a spiritual or eleemosynary corporation sole, are excepted from the operation of 3 & 4 Will. 4, c. 27. The time for recovering lands belonging to such a corporation is prescribed by 3 & 4 Will. 4, c. 27, s. 29, post.

Tithe rent-charge not belonging to a spiritual or eleemosynary corpora- Tithe rent-charge. tion sole appears to be within the meaning of the word "rent” in sect. 2. It has been held in Ireland that tithe rent-charge is not by virtue of this act extinguished by non-payment. (Shiel v. Incorporated Society, 10 Ir. Eq. R. 411.) See however Darb. & Bos. Stat. Lim. 212. Whether tithe rent-charge belonging to a spiritual or eleemosynary corporation sole is within the act is an open question. (See Darb. & Bos. Stat. Lim. 377.) As to the recovery of arrears of tithes and tithe rent-charge, see note to

Arrears of tithes sect. 42, post.

charge. (6) Hereditament is a very comprehensive term, including whatever may Hereditaments. be inherited, be it corporeal or incorporeal, real, personal or mixed. (Co. Litt. 6 a; 3 Rep. 2; Shep. Touch. 91.) Hereditaments are of two sorts, corporeal, consisting wholly of substantial and permanent objects ; all of which may be comprehended under the general denomination of land. (Co. Litt. 4; 2 Bl. Com. 17.) An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within the same. (Ib. 20.) Many of the latter are not within this act, but the periods of limitation for several incorporeal rights are prescribed by the stat. 2 & 3 Will. 4, c. 71 (ante, pp. 1—28).

(c) Ecclesiastical corporations are those of which not only the members Different kinds of composing it are spiritual persons, but of which the object of the institution corporations. is also spiritual, such as bishops, some deans, and prebendaries, all archdeacons, parsons, and vicars, which are sole corporations; deans and chapters at present, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. (Co. Litt. 150 a; 1 Bl. Com. 471; 1 Kyd on Corporations, 22.)

Eleemosynary corporations are such as are constituted for the perpetual distribution of the free-alms or bounty of the founder of them to such persons as he has directed. (1 Bl. Com. 471.) These are of two general descriptions; hospitals for the maintenance and relief of poor and impotent persons, and colleges for the promotion of learning, and the support of persons engaged in literary pursuits, of which the greater number are within the universities, and form component parts of these larger corporations; and others are out of the universities, and not necessarily connected with them. Between hospitals having a common seal, and colleges in the universities or out of them, there is no difference in legal consideration, the difference is only in degree ; for where in an hospital the master and poor are incorporated, it is a college having a common seal by which it acts, although it have not the name of a college. (Per Holt, Skinn. 484.) There are many hospitals not incorporated in which the succession is kept up by

and tithe rent

3 & 4 Will. 4, trustees. (10 Rep. 31, 35.) There are other corporations which may be c. 27, s. 1. classed under the head of eleemosynary, as their object is, by means of

trustees or governors incorporated, to carry into execution some public charity; such is the corporation created in the reign of Queen Anne, under the name of “The Governors of the Bounty of Queen Anne, for the Augmentation of the Maintenance of the Poor Clergy.” (2 Anne, c. 11; 5 Anne, c. 24; 6 Anne, c. 27; 1 Geo. 1, stat. 2, c. 10; 3 Geo. 1, c. 20.) And such are many corporations of trustees or governors of free schools. (See 1 Kyd on Corporations, 25—27.). All these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons, (i Ld. Raym, 6,) and although they, in some things, partake of the nature, privileges and restrictions of ecclesiastical bodies. (1 Bl. Com. 471.) Each university of Oxford and Cambridge is a lay corporation and not eleemosynary, as particular colleges are, although some salaries are attached to some of their officers. (Rex v. Vice-Chancellor of Cambridge, 3 Burr. 1652. See Shelford on the Law of Mortmain and Charities, 8–34.)

Corporations aggregate consist of many persons, of which kind are the mayor and commonalty of a city, the head and fellows of a college, the master and brethren of an hospital, the dean and chapter of a cathedral church. (10 Rep. 29 b; 11 Rep. 69 b.)

Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a corporation sole. (Co. Litt. 43.) So are archbishops, bishops, deans and prebendaries, distinct from their several chapters ; and so is every parson and vicar. (10 Rep. 29 b; Wood's Inst. 109; 1 Bl. Com. 470; 1 Kyd on Corporations, 20.) Corporations are as liable to the operation of prescription as private persons. (Dundee Harbour Trustees v. Dougall, 1 Macq.

H. L. C. 317.) Meaning of the (d) The term freehold, as denoting an estate of a given quantity, or term “ freehold,"

rather of a peculiar quality, is opposed to the term chattel. (Co. Litt. 43 b;
1 Burr. 108.) An estate of freehold may be defined to be “an estate in
possession, remainder, or reversion, in corporeal or incorporeal heredita-
ments, held for life, or some uncertain interest, created by will, or some
other mode of conveyance, capable of transferring an estate of freehold,
which may last the life of the devisee or grantee, or of some other person.”
(Watk. on Conv. by Morley and Coote, 63; Prest. on Estates, 200—203,
See observations on an Estate of Freehold, by Manning, 2 Jur. 459.)
All interests in land for a shorter period than a life, or, more properly
speaking, all interests for a definite space of time, measured by years,
months, or days, are deemed chattel interests, (1 Prest. on Estates, 203,)
which may subsist in both corporeal and incorporeal hereditaments. (Noy's
Maxims, by Bythewood, 142, 357; Bac. Abr. Executors (H. 3).) Chattels
real are such as concern the realty, as terms for years in land, the next
presentation to a church, (Dyer, 135 a,) estates by statute-merchant,
statute-staple, elegit, or the like. (Co. Litt. 118 b.) By the common law
no estate of inheritance or freehold is comprehended under the word

chattels. Heriots.

(e) Heriot is defined to be the best beast, or other thing, due to the lord

on the death or alienation of his tenant. Heriots are usually divided into Heriot service. two sorts, heriot service, and heriot custom. The former are such as are due

upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent; (Lanyon v. Carne, 2 Saund. 166;) the latter arise upon no special reservation whatever, but depend merely upon immemorial usage and custom. (Co. Cop. s. 24.) Heriot service may be recovered either by seizure, (Plowd. 96; Cro. Eliz. 589; 1 And. 298; Gouldsb. 191; 1 Salk. 356; 1 Show. 81; Willes, 192,) or by distress within the manor. (Plowd. 96 a; Cro. Car. 260; Bro. Har. 2; Kich. 133 b; 3 Bl. Comm. 15; Gilbert's Distresses, 10, 11.) Any goods belonging to another, found upon

the lands charged with heriot service, may be distrained. (Bro. Har. 6; Heriot custom. Cro. Car. 260; Austin v. Bennet, 1 Salk. 356.) A heriot due by the custom of a manor may be payable on the death of every tenant of an estate of in- 3$ 4 Will. 4, heritance, or for life or years, (21 Hen. 7, 13 & 15; Keilw. 80; Bro. Har. c. 27, s. 1, 5,) or at will. (Hix v. Gardiner, 2 Bulstr. 196.) As the property of it vests immediately in the lord on the death or alienation of the tenant, the lord may seize the identical thing, though he cannot distrain any other chattel for it. (Cro. Eliz. 590; Keilw. 82 a, 84 b, 167 a; Br. Har. 2, 6, 7; Parker v. Gage, 1 Show. 81.) If the lord of a manor is entitled to five beasts as heriots on the death of a tenant, and he select seven, this selection will not vest in him the property in any five of them. And if the best beast may be claimed as a heriot, the property in any particular beast will not vest in the lord before selection of it. (Abington v. Lipscomb, 6 Jur. 257; 1 Q. B. 776. See stat. 4 & 5 Vict. c. 35; 6 & 7 Vict. c. 23; 15 & 16 Vict. c. 51; 21 & 22 Vict. c. 94,

providing for the commutation of manorial rights in respect of copyholds. See further as to heriots, Shelford on the Law of Copyholds and the Supplement thereto, pp. 119–133; 2 Watk. on Cop. c. 6; 2 Saund. Rep. 168, n.; Cruise, Dig. tit. X., c. 4, ss. 49–63; Com. Dig. Copyhold (K 18), (K 27); Scriven on Cop. 370—391, 4th ed.; Croome v. Guise, 4 Bing. N. C. 148; 5 Scott, 453.) A heriot may be due by custom on the death of a tenant in respect of a tenement of free lands held in fee simple of a manor. (Damarell v. Protheroe, 10 Q. B. 20.)

The decision of the court, that the twenty years within which an action when time begins must be brought for the recovery of rent runs from the day on which the to run. last payment of rent was made, will lead to some difficulty in the case of heriots and other similar rights which become due at uncertain intervals, and also in the possible though not very probable case of a rent reserved, payable every twenty years, or a longer interval. In reference to such cases, it was observed by Parke, B., “if the twenty years are to be calculated from the last payment, a party, it was argued, will lose his right without any default or laches whatever, when the rent is payable at intervals greater than twenty years, and it is shortened to less than a year where it is payable every twenty years; and no doubt great difficulty may exist in dealing with such cases. But as to heriots, probably the answer to this objection may be, that in a case similar to that now before us, the word rent' would not include heriots; for though, by the interpretation clause, the word 'rent is made to include heriots, yet that is only where the nature of the provision or the context does not exclude such a construction; and it may be that the injustice pointed out would afford grounds for holding, that in the clause now under consideration, the word “rent does not include heriots. A similar observation may be made upon the case of rents payable at greater intervals than twenty years, and this may be considered either as falling under the general enactment in the second section, so that each particular heriot or amount of rent due may be recovered within twenty years, or is not provided for by the statute at all, and is left in the same condition as if the act had not passed.” (Owen v. De Beauvoir, 16 Mees. & W. 566. See De Beauvoir v. Owen, 19 Law J., Exch. 177.)

In trover for a heriot, it was proved by entries in the court rolls of a manor, that down to the year 1804 the land in respect of which the heriot was claimed was freehold land, held of the lord by heriot, quit rent, relief, &c. On the death of a tenant, in 1804, a heriot was seized. In 1824 the next tenant died, but there was no entry of any seizure of a heriot on that occasion, or of any reason for the omission. In 1826, the present lord came into possession; and in 1847, upon the death of the next tenant, the heriot now claimed was seized. Since 1804 no quit rent or relief appeared to have been demanded or paid, nor any service of any kind rendered to the lord of the manor.

It was held, that the lord's right of action was not barred by the second section of this act, and that there was no ground for presuming that the tenure of the lands had been changed or even that the heriot had been released by the lord. It seems that the right to the quit rent was barred by the statute. (Earl of Chichester v. Hall, 17 Law T. 121, Q. B.) See the discussion of these cases in Darb. & Bos. Stat. Lim. 208, 224, where an opinion is expressed, that rents due at long and uncertain intervals and heriot service are within the meaning of the word "rent'in sect. 2 of this act, and are liable to be extinguished thereby, but that heriot


3 & 4 Will. 4, custom is wholly unaffected by the act; and further, that in the case of c. 27, s. 1.

heriot service time begins to run from the moment of a heriot being due

and unpaid. Negligence in In the absence of evidence adverse to the rights of the lord of a manor, exacting acknow the court will not presume the enfranchisement of land shown to have been ledgments for

copyhold in 1717 from mere negligence by the lords in exacting the small fines.

acknowledgments for fines, &c., which were then commuted. Wood, V.-C., said it was not a case to which any statute of limitations applied. (Turner

v. West Bromwich Union, 9 W. R. 155.) Different kinds of (f) A rent (reditus) is properly, a sum of money or other thing to be

rendered periodieally, in consequence of an express reservation in a grant or demise of lands or tenements, the reversion of which is in the grantor or person demising. (2 Bl. Comm. 31 ; Gilb. on Rents, 9, &c.) There are

at common law three sorts of rents : rent-service, rent-charge, and rentRent-service. seck. (Litt. s. 213.) Rent-service is so called because it hath some cor

poreal service incident to it, as at least fealty or the tenant's feodal oath of fidelity. (Co. Litt. 142.) For if a tenant holds his land by fealty and ten shillings rent, or by the service of ploughing the lord's land and five shillings rent, these pecuniary rents being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or in arrear, at the day appointed, the lord may distrain of common right, without reserving any special power of distress; provided he hath in himself the reversion or future estate of the lands and tenements, after the lease

or particular estate of the lessee or grantee is expired. (Litt. s. 215.) A Rent-charge. rent-charge is where the owner of the rent hath no future interest or rever

sion expectant in the land; as where a man by deed maketh over to others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be in arrear or behind, it shall be lawful to distrain for the same. In this case the land is liable to distress, not of common right, but by virtue of the clause in the deed, and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it. (Co. Litt. 143.) Rent-seck (reditus siccus), or barren rent, is, in effect, nothing more than a rent reserved by deed, but without any clause of distress. (2 Bl. Comm. 42.) Either a rent-service disconnected from the reversion (Ards v. Watkin, Cro. Eliz. 637, 651), or a rent-charge may be divided by will or by deed, operating under the Statute of Uses, so as to make the tenant liable without attornment to several distresses by the devisees or cestuis que use. It seems that since the stat. 4 Anne, c. 16, s. 9, a rent-charge may be so divided by a conveyance of any kind. (Rivis v. Watson, 5 Mees. & W. 255. See Colborne v. Wright, 2 Lev. 239.)

There are also other species of rents, which are reducible to these three. Rents of assize are the certain established rents of the freeholders and ancient copyholders of a manor (2 Inst. 19), which cannot be departed from or varied." Those of the freeholders are frequently called chief rents (reditus capitales); and both sorts are indifferently denominated quit-rents (quieti reditus), because thereby the tenant goes quit and free of all other services. A fee-farm rent is a rent-charge issuing out of an estate in fee, of at least one-fourth of the value of the lands at the time of its reservation. (Co. Litt. 143.) For a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee-simple instead of the usual method, for life or years. (2 Bl. Comm. 43.) An opinion is expressed by Mr. Hargrave (Co. Litt. 143 b, n. 5), that the true meaning of fee-farm is a perpetual farm or rent, the name being founded on the perpetuity of the rent or service, and not on the quantum; and that the term is not applicable to any rents except rent-service, where he differs from Mr. Douglas, who had thought that a fee-farm was not necessarily a rent-charge, but might also be a rent-seck. (Bradbury v. Wright, Dougl. 627, n. 1.) These are the general divisions of rent; but the difference between them (in respect of the

remedy for recovering them) is now abolished. Remedy by dis- By stat. 4 Geo. 2, c. 28, s. 5, the same remedy was given by distress,

and by impounding and selling the same, in cases of rents-seck, rents of Fiven by 4 Gco.2, assize, and chief-rents, which had been duly answered or paid for the space c. 28, s. 5.


tress for recovering rents-seck

of three years within the space of twenty years before the first day of that 3 & 4 Will. 4, session of parliament (January, 21, 1731), or should be thereafter created, c. 27, s. 1. as in case of rent reserved upon lease. Unless the case is brought within this section, a rent-seck cannot be recovered by distress. (Bradbury v. Wright, Dougl. 627.) It is not, however, necessary that the three years mentioned in the statute should be continuous; it is sufficient if, for the space of three whole years within twenty years before the passing of the act, the rent was paid, though those years may not be consecutive. (Musgrave v. Emerson, 10 Q. B. 326.)

A tenant by elegit has a right to distrain without attornment. (Lloyd Distress for rents. v. Davies, 2 Exch. R. 103.) Ăn action of debt lies on an express covenant for the payment of a freehold rent charged on land conveyed in fee. (Varley v. Leigh, 2 Exch. R. 446.) Rolfe, B., guarded himself against expressing an opinion that debt will lie for rent in consequence of the abolition of real actions by 3 & 4 Will. 4, c. 27, s. 36. (1b. p. 450.) It is clear, if a lessee for years assign his term, reserving a rent, with no clause of distress, not having any reversion, he cannot distrain for the rent either by the common law or by the statute (- — v. Cooper, 2 Wils. 375; Parmenter v. Webber, 2 B. Moore, 656. See 4 Taunt. 720; 8 Taunt. 593; Langford v. Selmes, 3 K. & J. 220), although he may re-enter on the breach of a condition. (Doe v. Bateman, 2 B. & Ald. 168.) A. being seised in fee, leased premises to B. for sixty-one years, and afterwards granted a lease to C. of the same premises to commence at the expiration of the sixty-one years : it was held, that A. had not parted with his reversion by the lease to C., so as to take away his right to distrain for rent due from B. under his lease. (Smith v. Day, 2 Mees. & W. 684.) A rent-charge granted for life by a tenant for years is good as a chattel interest, and the goods of a stranger not shown to hold the premises by title paramount to the rent-charge (as by a prior demise) may be distrained for the arrears. (Saffery v. Elgood, 1 Ad. & Ell. 191.) An agreement for a future lease, at a rent certain, is not a sufficient reservation of rent, and will not constitute a demise; and where a party is let into possession under such an agreement, the lessor cannot distrain, but must resort to his action of use and occupation. (Hegan v. Johnson, 2 Taunt. 148; Dunk v. Hunter, 5 B. & Ald. 322.) Where a party, entitled to a term in land, let the land by parol to another, at a weekly rent, for the whole of such term, and it is the intention of the parties to create the relation of landlord and tenant, use and occupation may be brought for the whole of such term, although the lessee has given a week's notice to quit before the expiration of the term, and has quitted accordingly. Such a demise will not be deemed an assignment, against the intention of the parties, though nothing be left in the party demising. (Pollock v. Stacey, 9 Q. B. 1033.)

It was said by Patteson, J., that the language of the first section of this Rents for which a act cannot limit the sense of the term rent. An interpretation clause does distress may be not restrain the meaning. (7 Q. B. 979.) Wher a tenant holds premises made, within

8 & 4 Will. 4, c. 27. by the service of cleaning the parish church, without any pecuniary render, such service is a "rent" for which a distress may be made, within the meaning of the Limitation Act, 3 & 4 Will. 4, c. 27, ss. 1, 8. (Doe d. Edney v. Benham, 7 Q. B. 976, 981.) So the service (under the like circumstances) of ringing the church bell at stated hours from Michaelmas to Christmas. (Doe d. Edney v. Billett, 7 Q. B. 976, 983.) It is laid down in Co. Litt. 142 a, that “rent may as well be in delivery of hens, capons, roses, spurs, bows, shafts, horses, hawks, pepper, comine, wheat, or other profit that lieth in render, office, attendance, and such "like, as in payment of money ;” and that for these things there may be a distress. So in Co. Litt. 96 a, it is said, “A man may hold of his lord to shear all the sheep depastaring within the lord's manor; and this is certain enough, albeit the lord hath sometime a greater number and sometime a lesser number there; and yet this uncertainty being referred to the manor, which is certain, the lord may distrain for this uncertainty.” So in Litt. s. 137, it is laid down, that if land be holden by the service of singing a mass every Friday, the lord may distrain for not doing it. (Doe d. Edney v. Benham, 7 Q. B. 982.)

Where the overseer of a township claimed lands which they had allowed

« EelmineJätka »