a plea not averring the fact of the goods being the property of the tenant, was held bad on demurrer. () Where a creditor took possession of his debtor's goods, and removed them off the premises, with the debtor's assent, in liquidation of a bond fide debt, being fully aware of his debtor's insolvency, and apprehensive of the landlord's distraining, the Court held that the transaction was not within the statute, and that there was nothing illegal in the tenant's allowing a creditor thus to liquidate his debt. (m) In an action against a tenant for fraudulently removing his goods to avoid a distress, it is not necessary to shew an actual participation in the act, if the removal takes place with his privity. (n) Where, however, the action is against a party for aiding and assisting the tenant in the fraudulent removal of his goods, with intent to prevent the landlord from distraining them, it is incumbent on the landlord to prove, not only that the defendant assisted the tenant in such fraudulent removal, but also that he was privy to the fraudulent intent of the tenant; and the statute, as it seems, is so far penal, that in an action by the landlord against a third party, for assisting the tenant in such fraudulent removal, it is necessary to bring the case by strict proof within the words of the first section. (o) In a declaration on this statute to recover double the value of the goods removed, it was averred that 57%. was in arrear for rent: the notice of distress which had been produced at the trial alleged that 55l. was due; the Court held that the sum in arrear was perfectly immaterial, and that the notice of distress might have been abandoned (p) (1) Thornton v. Adams, 5 M. & S. 38. (m) Bach v. Meats, 5 M. & S. 200. (n) Lister v. Brown, 3 D. & R. 501. (0) Brooke v. Noakes, 8 B. & C. 537. Sed vide Stanley v. Wharton, 9 Price, 301. (p) Gwinnet v. Phillips, 3 T. R. 643. We have seen the statute does not extend to the goods of a stranger; and, therefore, if the tenancy has determined by a conveyance away of the reversion by the landlord, he will not, it seems, be enabled to follow the goods removed a ter the tenancy has expired. (s) The section [4] which gives a summary remedy before two magistrates, provided the value of the goods shall not exceed 20%, does not take away the jurisdiction of the superior Courts, but the party has his election either summarily to proceed, or to bring an action upon the statute; and the fact of his having in the first instance made his complaint before a magistrate, will not preclude him from afterwards maintaining such action. (t) If the landlord elect to proceed in a summary way, justices either of the county from which the goods were removed, or of that in which they are concealed, may convict the offenders in their respective counties. (u) (s) Ashmore v. Hardy, 7 C. & P. 501. (t) Horsefall v. Davy, 1 Stark. 169. S. C. Holt's N. P. C. 147. Stanley v. Wharton, 9 Price, 301. (u) Rex v. Morgan, 1 Cald. 156. SECTION II. OF THE ACTION OF DEBT FOR RENT. Debt for rent, when maintainable: Another remedy which the law has especially provided to the landlord for the recovery of his rent, is the action of debt. By the 3 & 4 Wm. IV. c. 42, actions of debt for rent on an indenture of demise, are restricted to ten years after the end of the session, or within twenty years after the cause of such action or suit. (v) At common law, debt lay for the rent of lands demised for life, (w) for years, (x) or at will. (y) But with this distincttion;-that upon a lease for years, or at will, it lay as soon as it became in arrear: but upon a freehold lease, debt was not maintainable until after the lease were determined, either by the death of the party for whose life it was granted, (≈) or by the surrender of the lessee, (a) or by the lessor's putting an end to the lease by entering for a forfeiture, (b) or recovering the lands in an action of waste: (c) which distinction arose from the action of debt lying only upon a contract; and it (v) Sec. 3, et vide Paget v. Foley, 2 Bing. 679. N. S. et vide supra, p. 425. (w) Co. Lit. 162. a. (x) Lit. s. 58. (y) Lit. s. 72. (2) Co. Lit. 162. a. 1 Rol. Abr. 596. 1. 17. Bishop of Winchester v. Wright, Ld. Raym. 1056. (a) Ognel's case, 4 Rep. 49. a. Anon. 4 Leon. 7. (b) Rol. Abr. 596. l. 23, 34, &c. (c) Ibid. 1. 34. was said that when the freehold was determined it was changed into a contract; and that, therefore, as soon as the estate was at an end, debt lay for the arrears previously due. (d) Debt also lay upon the lease of an incorporeal hereditament, as an advowson, common, tithes, market, &c.: not that any rent could issue out of these, but it enured merely as a contract. (e) And by this remedy every kind of rent was recoverable; whether it were money or corn, or other thing reserved by the lease. (ƒ) The statute, 8 Anne, c. 14. s. 4, has now put freehold 8 Ann. c. 14. leases upon the same footing as leases for years or at will, by enacting," that it shall be lawful for any person having any rent in arrear or due upon any lease or demise for life or lives, to bring an action or actions of debt for such arrears of rent in the same manner as they might have done in case such rent were due and reserved upon a lease for years." The action of debt for rent is founded on a privity of con. tract, which is said to be annexed to the person, in respect of the estate, and to follow the estate. As soon, therefore, as the privity of estate is transferred, the remedy by debt is transferred also. Thus, if the lessor grant his reversion to A. the remedy by debt is gone from him, (g) and follows the reversion to the grantee, with whom it remains as long as the reversion; for if he assign it, then the remedy by debt passes with the reversion to his assignee. (h) So after the lessor's death, debt lies by his heir, (i) or devisee, for arrears due after the testator's death. (k) And if only part of the (d) 1 Rol. Abr. 596. 1. 17. (e) Co. Lit. 47. a. (f) Denny v. Parnell, 1 Rol. Abr. 591. 1. 28. Cheney's case, 3 Leon. 260. Anon. 4 Leon. 46. (g) Walker's case, 3 Rep. 22. b. 23. a. (h) Humble v. Oliver, Poph. 55. S. C. Cro. Eliz. 328. Overton v. Sydal, ibid. 555. (i) Year Book, 5 Hen. VII. 19. a. 1 Rol. Abr. 591. 1. 46. (k) Supra. So long only as privity of estate subsists. Attornment immaterial. reversion be assigned, debt lies by the assignee for his proportion. (n) In like manner debt lies by the lord who has the reversion by escheat. (o) And if a reversion is granted in mortmain, debt lies for the rent by the lord who entered for the alienation in mortmain. (p) But sometimes debt lies, though the plaintiff has no reversion at the time of action brought. As, if a man lease for years, and rent become due, and a stranger recover the land against the lessor, the lessor may still maintain debt against his lessee for the arrears of rent. (q) So also, if the lessee assign his whole term to B., and leave himself no reversion, debt will nevertheless lie by him against B. or the assignee of B. (r) And where the lessor assigns his rent without the reversion, the assignee may maintain debt for the rent, because the privity of contract is transferred. (s) At common law, however, in order to give the assignee of the reversion or of the rent, an action of debt against the lessee, it was necessary that the lessee should have attorned, and so have recognised the change of person to whom the rent was due. (t) An attornment at the common law was the assent of the tenant to a grant of the seignory, or of a rent: or of the donee in tail, or tenant for life or years, to a grant of a reversion or remainder made to another; (u) the attornment being necessary to the perfection of the grant. And though the necessity of attornment was in some measure avoided by (n) Broom v. Hore, Cro. Eliz. (r) Newcomb v. Harvey, Carth. 174. (s) Marle v. Flake, 3 Salk. 118. Knowles's case, Dyer, 56. Robins v. Cox, 1 Lev. 32. Allen v. Bryan, 5 B. & C. 512. (t) Co. Lit. 309. a. |