titled subject thereto, to make an entry, &c. to recover such land, shall be deemed to have first accrued at the determination of the first of such years or other period, or at the last time when any rent, payable in respect of such tenancy, shall have been received, which shall last happen. sufferance. When a lessee has entered under a lease, and the term Tenant by has run out, such lessee, if he hold over, will be merely tenant by sufferance, until acceptance of rent by the lessor, or other agreement with him. (i) And if tenant for years surrender, and then hold over, he will be either tenant by sufferance, or a disseisor, at the election of the landlord. (j) But if the lessor receive rent, or the lessee be permitted to continue on the land for a twelvemonth, a tenancy from year to year will then be implied. (k) There is no privity between the reversioner and tenant by sufferance, and, therefore, a release to him by the reversioner is not of avail to vest the estate in him; (7) and if tenant by sufferance is turned out of possession by his landlord, without demand of possession, he cannot maintain ejectment, having no interest in the land, although it seems he might have trespass. (m) (i) Co. Lit. 57. b. () Pennington v. Morse, Dyer, 62. a. (*) Doe dem. Hollingsworth v. Stennett, 2 Esp. N. P. 716. (1) Butler v. Duckmanton, Cro. Jac. 169. (m) Doe dem. Harrison v. Murrell, 8 C. & P. 135. CHAPTER THE SECOND. Corporeal or incorporeal. Dignities. Advowson. Tithes. Of the things which may be demised. IT But dignities, which are only grantable by the crown, cannot be granted for years. (c) If an advowson is leased for years, an action of debt may be maintained for the rent agreed on; and if a vacancy occur during the term, the lessee shall present. If the lessee himself accepts a presentation from the lessor, it will be a surrender of the term. (d) As to tithes, the statute of the 5 Geo. III. c. 17, was passed, confirming leases then already made by ecclesiastical persons, of tithes and other incorporeal hereditaments, for one, two, or three life or lives, or twenty-one years, and to enable them to grant such leases and to bring actions of (a) Shep. Touch. 268. (b) Bac. Abr. Leases (A). (c) Co. Lit. 16. b. Reynel's case, 9 Rep. 97. b. Sir Geo. 84. (d) Gybson v. Searls, Cro. Jac. debt for the recovery of rents reserved, and in arrear on leases for life or lives. (e) But leases of tithes were unquestioned, if confined to the life of the party making the grant. (ƒ) By a recent statute, (g) tithes are in a course of being Commutation commuted into rent-charges throughout the kingdom; and act. by the 88th section of that act it is provided, that it shall be lawful for the lessee, being in occupation of any tithes commuted under that act, by an instrument in writing, under his hand and seal, to be made in such form as the commissioners shall direct, and confirmed under their seal, to surrender and make void the lease by which the tithes are held, or enjoyed by such lessee, at the time of the commutation, so far as the same may relate to the said tithes; and it shall be lawful for the commissioners, by the same instrument, to direct what compensation (if any) shall be given by the immediate lessor of any lessee at rack rent, so surrendering any lease of any such tithes, to such lessee, and what allowance (if any) shall be made by any lessee to his immediate lessor of any such surrendered lease, in consideration of the non-fulfilment of any conditions contained in such lease, and what deduction (if any) shall be made from the rent thenceforth payable by any lessee to his immediate lessor, in respect of other hereditaments which may have been included with the said tithes in any such lease, provided always, that any intermediate lessor, to whom any such lease shall have been surrendered, shall, as regards his immediate lessor, be taken to be the lessee in occupation of the tithes included in the said lease. There are many offices which the public benefit re- Offices. (e) 5 Geo. II. c. 17. (f) Shep. Touch. 241. Brewer v. Hill, 2 Anst. 413. Bourchier v. Morgan, ibid, 40. 4. Cox v. Brain, (g) 6 & 7 Wm. IV. c. 71. quires should be filled by persons of skill and experience, which, if leased for years, might pass to executors; or might, if the termor died intestate, remain vacant until administration should be granted. Such are offices of public trust; and more particularly those concerning the administration of justice. And, therefore, it was decided in the reign of queen Elizabeth, that such offices as that of marshal of the Marshalsea, warden of the Fleet, Custos Brevium, chirographer, clerk of the Pipe, of the king's silver, or of the crown, remembrancer in the Exchequer, or such other officers of the several Courts of Justice, cannot be granted absolutely for years. (h) But as the inconvenience and danger of their passing to unskilful executors, &c., are avoided by leasing them for years during the life of the grantee, such form of demise has been holden to be good. (i) Thus, where one made a grant for years of the stewardship of a court-leet and court-baron, it was held to be void as to the court-leet, being a judicial office; but good as to the court-baron, where the office was merely ministerial; the suitors being the judges of that court: but the grant appearing afterwards to be for years, determinable upon the death of the lessee, it was held good for both, because there was no danger of its going to executors or administrators. (k) In one case, the dean and chapter of Westminster, who were grantees of the Gatehouse prison (since pulled down) to them and their successors for ever, leased it for years to A.; and no objection was made to such lease. (1) But there (h) Sir George Reynel's case, 9 Rep. 97. b. S. P. Meade v. Lenthall, Cro. Car. 587. 3 Mod. 143. (i) Sutton's case, 6 Mod. 57, S. C. Ld. Raym. 1005. And now by stat. 27 Geo. II. c. 17, the office of marshal of the Marshalsea, as well as the subordinate offices in that pri son, are made unalienable for years by the patentee of the crown. (k) Howard v. Wood, Sir T. Jones, 126. S. C. 2 Lev. 245. (1) Rex v. Lady Broughton, 2 Lev. 71. S. C. 3 Keb. 32. Sir T. Raym. 216. seems a difference between this case and that of the marshal of the King's Bench: for in the latter, the objection was to the crown's granting an office relating to the administration of justice for years: but in the case of the Gatehouse, the dean and chapter, who were the immediate grantees of the crown, were themselves perpetual goalers, and still remained liable to the crown as such. (m) Such offices as merely require common diligence, and may be executed by deputy without any ill consequence to the public, may be leased for years. Therefore the offices of postmaster-general, (n) king's printer, (o) warden of ports and havens, (p) gun-founder, (q) park-keeper, (r) gauger, (s) aulnager, (t) garbler of spices and registrar of policies of assurance in London, (u) and such as are merely ministerial in courts of justice, as surveyor of the green-wax, sealer of writs and subpoenas, (v) &c. ; have all been granted for years, and the grants have been deemed good. stock Goods and chattels may also be leased for years. Thus Live and dead cattle and other live and dead stock may be demised by themselves, and the lessee shall have the use and profit of them during the term.-The lessor can, however, have no certain reversion in live animals; for though the lessee will have no right to sell or destroy, or give them away, yet if they happen to die during the term, they become the absolute property of the lessee. (w) So, their young shall belong to the lessee, not to the (m) Bac. Abr. Leases (A). (n) Veale v. Prior, Hardr. 352. (0) Ibid. 352. (p) Ibid. 354. (q) Ibid. (r) Zouch v. Sir Edw. Moore, 2 Rol. Rep. 274. (s) Hardr. 354. (u) Ibid. 351. (v) Bro. Abr. Leases, 40. (w) Bac. Ab. Leases (A). |