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England and Wales High Court (King's Bench Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Duppa v Mayo [1669] EWHC KB J97 (11 January 1669)
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Cite as: (1669) 1 Wms Saund 275, [1669] EWHC KB J97, 85 ER 336

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JISCBAILII_CASE_PROPERTY

Neutral Citation Number: [1669] J97
85 ER 336


11 January 1669

B e f o r e :


____________________

Between:
DUPPA
Executor of Baskervile
v
MAYO

____________________

    [Note: this judgment is in two parts with footnotes at the end of each part. Sub footnotes follow immediatlly after the footnote]

    Hil. 20 & 21 Car. II. Regis, Rol. 1463.
    Herefordshire, to wit. – Be it remembered, that heretofore, to wit, in the term of St. Michael last past, before our lord the King at Westminster, came Thomas Duppa, Esquire, executor of the last will and testament of Elizabeth, Lady Baskervile deceased, by John Crump, his attorney, and brought here into the Court of our said lord the King then there his certain bill against Thomas Mayo, gent. in the custody of the marshal, etc. of a plea of debt; and there are pledges of prosecution, to wit, John Doe and Richard Roe; which said bill follows in these words, to wit; Herefordshire, to wit, Thomas Duppa, Esquire, executor of the last will and testament of Elizabeth Lady Baskervile, deceased, complains of Thomas Mayo, gent. being in the custody of the marshal of the Marshalsea of our lord the King, before the King himself, of a plea, that he render to him 1360l. of lawful money of England, which he unjustly detains from him: for that whereas Robert late Earl of Essex was seised of and in a messuage, and 200 acres of land, 20 acres of meadow, 100 acres of pasture, and 103 acres of wood, with the appurtenances, in Bodenham, Rosbury, Moore, Beeresfield, and Maund, in the said county, in his demesne as of fee: and being so seised thereof, he the said earl afterwards, to wit, on the 4th day of December, in the 43d, year of the reign of the Lady Elizabeth, late Queen of England, at Bodenham aforesaid, demised granted, and to farm let[1] to one Sir Thomas Coningsby, Knight, the said tenements, with the appurtenances, to have and occupy to the said Sir Thomas Coningsby, his executors and assigns, for and during and until the full end and term of 99 years thence next following, if Fitzwilliam, Coningsby, son of the said Thomas, Catharine Coningsby, and Ursula Coningsby, daughters of the said Thomas, or any of them, should so long live: by virtue of which demise he the said Thomas Coningsby afterwards, to wit, on the 5th day of December, in the said 43d year of the reign of the said late Queen Elizabeth, entered into the said tenements, with the appurtenances, and was possessed thereof, and being so possessed thereof, he the said Thomas Coningsby afterwards, to wit, on the 10th day of August, in the year of our Lord 1616, at Bodenham, aforesaid, made his last will and testament in writing,[2] and by the said will (among other things) did give and bequeath to the said Elizabeth Baskervil, and Thomas Baskervil, son of the said Elizabeth, the sum of 50l. a year out of his demesne lands of Orleton and Ashwood Park, to have and to hold the said annuity of 50l. to the said Elizabeth and the said Thomas her son, for and during the term of their natural lives, and the life of the longer liver of them: and if it should happen that the said rent, or any part thereof, should be in arrear and unpaid for three days after a month of St. Michael and the Annunciation of the Blessed Virgin Mary, they should enter and distrain, and retain[3] the distress until the debt should be paid, and ten shillings every day after, nomine poenoe, until the debt should be paid: and after the said Thomas Baskervile should attain the age of 13 years, and his mother living, then the said Thomas should have 20l. yearly of the said devised 50l. for his better maintenance during his mother's life, and then the whole manner as is aforesaid devised. And whereas also the said Thomas Coningsby in his life time, to wit, on the 19th day of September, in the year of our Lord 1617, at Bodenham aforesaid, reciting, that whereas by his last will in writing, bearing date the 10th day of August, in the year of our Lord 1616, he the said Thomas Coningsby by his said will had willed and bequeathed several annuities and legacies, and appointed the same then to be paid yearly out of his demesne lands of Orleton, in the county of Hereford, because that after the making of his said will and testament he the said Thomas Coningsby had otherwise conveyed the said demesne lands of Orleton, whereby the annuities demised out of the same were annulled,[4] he the said Thomas Coningsby, by his last will and testament, did declare his full will, mind, intention, and purpose to be and by the said will he the said Thomas Coningsby did give and devise to one Sidney Coningsby his son, an annuity or yearly rent of 100 marks, to be paid to the said Sidney during his natural life, out of all or any the manors, messuages, lands, and tenements which he the said Thomas Coningsby held by lease in Marden, Bodenham, and Leominster, or elsewhere in the county of Hereford, at the Feasts of St. Michael the Archangel, the Nativity of our Saviour, the Annunciation of the Blessed Virgin Mary, and the Nativity of St. John the Baptist, by equal portions, to begin on that feast which, should first happen after his death: and if it should happen that the said annuity or yearly rent of 100 marks, or any part thereof should be in arrear and unpaid for the space of 28 days after any of the said feasts, on which the same ought to be paid as aforesaid, that then, and from thenceforth, it should be lawful to and for the said Elizabeth Baskervile or any other person who should keep and maintain the said Sidney according to the intention of his said will, to enter into all and singular the manors, messuages, lands, and tenements so held by lease, or assignments of leases as aforesaid, and into every and any part thereof and to distrain, and to detain and keep the distresses there found and taken; until the said rent being so in arrear and unpaid, and the arrears thereof, if any should be, and also the sum of 10s. of forfeiture nomine peonoe, for every week in which the same, or any part thereof, should be in arrear and unpaid, after the end of 28 days next after any of the said feasts in which it ought to be paid as aforesaid, should be fully satisfied and discharged. And the said Thomas Coningsby did further by his last will bequeath, that the said Elizabeth Baskervile and Thomas Baskervile should have the said annuity of 50l. a-year devised to them, for and during their lives, and the life of the longer liver of them, the whole of the said 50l. to be paid to the said Elizabeth Baskervile until the said Thomas Baskervile should attain the age of 13 years, and then 20l. thereof to be yearly paid to the said Thomas for his better maintenance; and that the said annuity of 50l. should be paid, yearly out of the said manors, messuages, lands, and tenements, on the same days and times, and in such manner,, and on the like penalty, distress, and, forfeiture as were next before in the said will declared concerning the said annuity of 100 marks: and he constituted and made his son, the said Fitzwilliam Coningsby Esquire, executor of his said will; and afterwards, to wit, on the 1st day of May in the year of our Lord 1618, at Bodenham aforesaid, died, possessed of the said tenements with the appurtenances: after whose death the said Fitzwilliam proved the said will in due form of law, and took upon himself the burden of the execution thereof, and entered into the said premises with the appurtenances thereof and was possessed for the residue of the said term of years then to come and unexpired and being so possessed thereof afterwards, to wit, on the 20th day of May, in the said year of our Lord 1618, he the said Fitzwilliam at Bodenham aforesaid consented,[5] and then and there declared and published his said consent to the said several legacies in form aforesaid bequeathed. And afterwards, to wit, on the 1st day of June in the year of our Lord 1623, the estate,[6] right, title, and interest of him the said Fitzwilliam, as executor of the said, will, of and in the said premises with the appurtenances, for the residue of the said term of years then to come and unexpired, lawfully came to the said Thomas Mayo; whereby the said Thomas Mayo afterwards, to wit, on the same day and year last mentioned, at Bodenbam aforesaid, entered into the said premises with the appurtenances, and was possessed thereof for the residue of the said term of years then to come and unexpired. And the said Thomas Mayo being so possessed thereof, and being the pernor and receiver of the profits thereof, 250l. parcel of the said 1360l. now demanded of the said annuity or yearly rent of 50l. in form aforesaid bequeathed to the said Elizabeth until the said Thomas Baskervile should attain the age of 13 years, for five whole years ended on the Feast Day of the Nativity of St. John the baptist which was in the year of our Lord 1628, during which said five years he the said Thomas Mayo was the pernor and receiver of the profits of the said lands and tenements, were due and in arrear and not paid to the said Elizabeth. And afterwards, to wit, on the 24th day of June in the said year of our Lord 1628, the said Thomas Baskervile, at Bodenbam aforesaid, did attain his age of 13 years; and the said Thomas Mayo being in form aforesaid possessed of the said premises with the appurtenances, and being the pernor and receiver of the profits thereof, 1110l. residue of the said 1360l. now demanded, of the said annuity or yearly rent of 30l. in form aforesaid bequeathed to the said Elizabeth after the said Thomas Baskervile did attain his age' of 13 years, for 37 years ended on the Feast Day of the Annunciation of the Blessed Virgin Mary, which was in the year of our Lord 1665, during which said 37 years he the said Thomas Mayo likewise was the pernor and receiver of the profits of the said lands and tenements, was in like manner due and in arrear and not paid to the said Elizabeth in her life-time. Which said Elizabeth afterwards, to wit, on the 20th day of June, in the year last aforesaid, at Bodenham aforesaid, made her last will and testament in writing, and by her said will she the said Elizabeth constituted and appointed the said Thomas Duppa to be executor of her said will, and afterwards there died: after whose death be the said Thomas Duppa, on the 27th day of January in the year last aforesaid, at Bodenham aforesaid, in due form of law proved the said will of the said Elizabeth, and took upon himself the burden of the execution thereof: whereby, and by reason whereof, the said annuity or yearly rent of 30l. in form aforesaid bequeathed to the said Elizabeth after the death of the said Elizabeth, at Bodenham aforesaid, was determined, and an action has accrued to the said Thomas Duppa, after the death of the said Elizabeth, as executor of the said will of Elizabeth, to demand and have of the said Thomas Mayo, as pernor and receiver of the profits of the said premises with the appurtenances, the said 1360l.: yet the said Thomas Mayo (although often requested) hath not yet rendered the said 1360l. or any part thereof, to the said Thomas Duppa, but to render the same to him hath refused and still refuses, and unjustly, detains, in delay of the faithful execution of the said will of the said Elizabeth, and to the damage of him the said Thomas Duppa, of 50l.; and therefore he brings suits, etc.; and the said Thomas Duppa brings here into Court the letters testamentary of the said Elizabeth, by which it sufficiently appears to the Court here, that be the said Thomas Duppa is executor of the said will of the said Elizabeth, and has execution thereof, etc.: with this, that he the said Thomas Duppa will verify, that the said Fitzwilliam Coningsby, on the said Feast Day of the Annunciation of the Blessed Virgin Mary in the year of our Lord 1665, and afterwards was surviving and in full life, to wit, at Bodenham aforesaid in the county aforesaid.
    And now at this day, to wit, on Saturday next after the octave of St. Hilary in this same term, until which day the said Thomas Mayo had leave to imparl to the said bill and then to answer, etc. before our lord the King at Westminster comes as well the said Thomas Duppa by his said attorney, as the said Thomas Mayo by Carew Holford his attorney; and the said Thomas Mayo defends the wrong and injury, when, etc. and says, that the said Thomas Duppa ought not to have or maintain his said action thereof against him, because he says that he the said Thomas Mayo doth not owe the said 1360l. nor any penny thereof, to the said Thomas Duppa within six years last past, and ended at the Feast Day of the Annunciation of the Blessed Virgin Mary, which was in the year of our Lord 1665, as the said Thomas Duppa has above thereof complained against him; and this he is ready to verify: wherefore he prays judgment if the said Thomas Duppa ought to have or maintain his said action thereof against him, etc.
    General demurrer to the plea, and a joinder in demurrer.
    But because the Court of our said lord the King here is not yet advised of giving their judgment of and upon the premises, a day is thereof given to the said parties before our lord the King at Westminster, until Wednesday next after fifteen days of Easter, to hear their judgment of and upon the premises, because the Court of our said lord the King here is not thereof yet, etc. At which day, before our lord the King at Westminster come the said parties by their said attornies; and because the Court of our said lord the King here is not yet advised of giving their judgment of and upon the premises, a further day thereof is given to the said parties before our lord the King at Westminster, until Friday next after the morrow of the Holy Trinity, to hear their judgment thereof, because the, Court of our said lord the King here is thereof not yet, etc. At which day, before our lord the King at Westminster come the said parties by their said attornies; and thereupon he the said Thomas Duppa prays 250l. of the said rent of 50l. a-year, for the said five years ended upon the said Feast Day of the Nativity of St. John the Baptist, which was in the said year of our Lord 1628, parcel of the said 1360l. by him above demanded, and also 1102l. 10s. other parcel of the said 1360l. of the said rent of 30l. a-year for 36 years and three quarters of a year ended upon the said Feast of the Annunciation of the Blessed Mary which was in the said year-of our Lord 1665, together with his damages on occasion of the detention of that debt, to be adjudged to him, etc. And the said Thomas Duppa freely here in Court remits to the said Thomas Mayo 7l. 10s. residue of the said 1360l. which he the said Thomas Duppa above demands against him. Whereupon all and singular the premises being seen, and by the Court of our said lord the King here more fully understood, and mature deliberation being thereupon had, because it seems to the Court of our said lord the King here, that the said plea by the said Thomas Mayo in manner and form aforesaid above pleaded, and the matter in the same contained, are not sufficient in law to bar the said Thomas Duppa from having his said action against the said Thomas Mayo; therefore it is considered that the said Thomas Duppa do recover against the said Thomas Mayo his said debt of 1352l. and 10s. and also 10l. 13s. and 4d. for his damages which he has sustained as well on occasion of the detention of that debt, as for his costs and charges by him about his suit in that behalf expended, adjudged to the said Thomas Duppa with his assent by the Court of our said lord the now King here. And the said Thomas Mayo in mercy, etc. And let the said Thomas Mayo, as to the 7l. and 10s. parcel of the said debt above demanded, which he the said Thomas Duppa has above remitted, be thereof quit, etc.

Note 1   It is to be observed, that it is not said that the lessor demised by deed or other writing, but only generally, that he demised the premises for a certain term. There seem to be two reasons for this way of pleading, first, because if the lease were by deed, which was not necessary at this time, the plaintiff is a stranger to it, for he does not claim the land, but only a rent charge out of it, which was created by another instrument; and therefore, as he has not the deed, he cannot state it: 10 Rep. 93, 94,Leyfield's case. 1 Ves. 394,Whitfield v Fausset: and secondly, which seems the chief reason, because the distinction is, that where a lease for years by indenture is the gist and foundation of the action, as where debt, or covenant, is brought upon any covenant contained therein, it is necessary to state the demise to have been by deed; Cro. Eliz. 571,Southwel v Brown; and to set out so much thereof as is sufficient to support the action, and no more; 1 Lev. 88,Elliott v Blake. Cowp. 665,Dundas v Lord Weymouth. Ibid. 727,Price v Fletcher; but where such lease is but inducement to the action, it is only necessary to state generally, that the lessor demised the premises for a certain term, without saying it was by indenture. Seeante, 38, note (3). For at common law, a lease for any number of years might be made by tenant in fee simple by parol only; and though the statute of Frauds, 29 Car. 2, c. 3, ss. 1, 2, enacts, that from thenceforth, all leases, or terms for years, made by parol, and not put into writing, and signed by the lessors, or their agents authorised by writing, shall have only the effect, of leases at will, except leases not exceeding the term of three years from the making," (a) yet it is held, that the statute has not altered the manner of pleading; ante, 211 note (2), and see the next note; and therefore this general mode of pleading is still sufficient, notwithstanding the statute, where the lease for years is only inducement. So, in debt for rent on a demise by indenture, it is not necessary to declare that it was by indenture; but "quod cum dimisisset" generally, is sufficient.(b) However if the defendant pleadsnil habuit in tenementis, it isprima facie, a good plea, (c) because no estoppel appears upon the record; and therefore the plaintiff must reply that the demise was by indenture, and rely upon the estoppel; for if the plaintiff replies, that he had a sufficient estate in the premises, he loses the benefit of the estoppel. Seepost, 325, note (4). 6 T. R. 62,Wilkins v Wingate.

(a) Notwithstanding these express words of the statute, it is held that a parol lease, for more than three years, enures as a tenancy from year to year. 5 T. R. 471Doe v Bell. 8 T. R. 3,Clayton v Blakey. [2 Bing. N. C. 752, Doe v Pullen, by Tindal C.J.: but see the observations in Smith's Leading Cases, vol ii. p. 75,et seq. Parol leases not exceeding the term of three years are valid, and may contain the same special stipulations as regular leases; and whatever remedy can he had upon them, in their character of leases, may be resorted to; Cr. & J. 391,Edge v Strafford. 5 A. & E. 856,Lord Bolton v Tomlin. 1 Nev. & P. 247, S. C.; but, by reason of the 4th section of the statute, they do not confer the right to sue the lessee for damages for not taking possession. 1 Cr. & J. 39l.]. It may not be improper in this place to point out how the landlord or tenant may, in some cases, determine the tenancy. What was formerly considered as a tenancy at will, has in modern times been construed to be, a tenancy from year to year; 3 Burr. 1609,Timmins v Rowlinson. I T. R. 163,Right v Darby. 3 T. R. 16,Doe v. Porter. 8 T. R. 3,Clayton v Blakey; unless the circumstances of the case clearly render such a construction impossible; as where the defendant let a shed to the plaintiff for so long as both parties should like, on an agreement that the plaintiff should convert it into a stable, and the defendant should have all the dung for a compensation, there being no reservation referable to any aliquot part of a year. 4 Taunt. 128,Richardson v Langridge. Under an, agreement "that the tenant shall always be subject to quit at three months' notice," he is not tenant from year to year, but from quarter to quarter. 3 Camp. 510,Kemp v Derrett. It must by no means be understood, that a strict tenancy at will cannot exist at the present day. Such tenancy may clearly be created by the express agreement of the parties: and other cases may be put where such tenancy will even now arise; for instance, the case of a mortgagor in possession. 5 B. & A. 604,Partridge v Bere. 1 D. & R. 272, S. C [But though the mortgagee may treat his mortgagor, as against a stranger, as his tenant at will, he is not bound to do so, and may, therefore, bring ejectment against him as a trespasser, without any previous demand of possession; 8 B. & C. 767,Doe v Maisey. 3 Mann. & R. 107, S. C 9 B. & C. 245, 253, 257, 258,Pope v Biggs. 4 Mann. & R. 193, S.C 5 Bing. 421,Doe v Giles. 2 Moo. & P. 749, S.C 2 Bing. N. C. 538, 543,Waddilove v Barnett. 2 Scott, 763s S.C 4 M. & W. 409,Hitchman v Walton. 1 Mann. & Gr. 117,Brown v Storey. 1 Scott, N. R. 9, SC 11 A. & E. 307,Doe v Barton. 3 Perr. & D. 194, S. C. 6 M. & S. 148,Doe v Boulton; unless he has recognised the right of the mortagor, or his tenant, to hold possession. 7 Bing. 322,Doe v Hales. 5 M. & P. 132, S.C 2 B. & Ad. 473,Doe v Cadwallader. 4 A. & E. 299,Rogers v Humphreys. 5 Nev. & M. 511, S.C 4 M. & W. 409. (See 9 A. & E. 342,Evans v Elliot. 1 Perr. & D. 256, S. C.) As to what shall amount to a re-demise from the mortgagee to the mortgagor, so as to entitle him to notice or demand of possession, see 2 Q. B. 143,Doe v Goldwin. 1 G. & Dav. 463, S.C 2 Q. B. 147,Doe v Day. When a man enters under an agreement for a lease, he is only tenant at will till he pays, or agrees to pay, rent, or settles it in account; and then he becomes tenant from year to year subject to such of the terms of the agreement as are applicable to that species of tenancy, and determinable on the execution of the lease contracted for. 6 Esp. 106,Doe v Breach. 3 B. & C. 483, Hamerton v Stead, by Littledale J. 5 D. & R. 213, S.C Ry. & M. 355,Mann v Lovejoy. 3 Bing. 361,Knight v Bennet. 5 Bing. 118,Cox v Bent. 7 Bing. 451,Regnart v Porter. 1 Cr. M. & R. 398,Doe v Cawdor. 2 Bing. N. C. 749, 753,Doe v Pullen. 6 M. & W. 104, Chapman v Towner, by Parke B.12 A. & E. 476,Doe v Amey. 10 M. & W. 494,Braythwayte v Hitchcock. The law is the same where a man has possession under a lease which is void. 1 A. & E. 52,Richardson v Gifford. 2 M. & W. 365, 367,Doidge v Bowers. 3 Bing. N. C. 850,Beale v Sanders. 3 Mann. & Gr. 498,Berrey v Lindley. 4 Scott, N. R. 61, S.C So where a man has possession under an agreement to purchase, he is a tenant at will; 1 M. & W. 700, Doe v Stanion, by Parke B. 5 C. & P. 595, Doe v Miller. 5 M. & W. 14,Doe v Chamberlaine. 8 M. & W. 118,Howard v Shaw; and he will not be converted into a tenant from year to year by a stipulation in the contract of sale for payment of interest on the amount of the purchase-money until the completion of the purchase: 5 M. & W. 14:secus, where there is a stipulation that the intended purchaser shall pay at the rate of a sum certain per atinum, from the time of taking possession until the completion of the purchase. 6, B. & C. 524,Saunders v Musgrave. (See 4 A. & E. 528,:Seaton v Booth.) For other instances where a strict tenancy at will has been held to exist, see 9 Bing. 356,Doe v Price. 10 B. & C. 718,Doe v Jones. Ibid. 721,Doe v MKaeg. As to how such a tenancy may be determined, see 9 Bing. 356. 10 B. & C. 72l. 2 C. M. & R. 120,Ball v Cullimore. 2 A. & E. 329,Doe v Street. 4 Nev. & M. 42, S.C 7 M. & W. 226,Doe v Turner. 9 M. & W. 643, S.C in Cam. Scacc. A tenant who continues to occupy after the expiration of his term is a tenant at sufferance; until be pays rent, and then be becomes tenant from year to year: 7 T. R. 83,Doe v Watts. 2 B. & C. 100,Bishop v Howard: so if he performs services due from the tenant in the way of rent. 1 B. & Ad. 365,Doe v Morse. But a mere payment of a compensation for the occupation will not thus change the nature of the tenancy. 1 Cr. M. & R. 261,Simpkin v Ashhurst. In order to establish a tenancy from year to year, something must occur, besides the mere holding over, to shew the existence of a new contract for such a tenancy. 1 Mood. & R. 213,Jenner v Clegg. 4 A. & E. 832,Jones v Shears. 8 M. & W. 571, 575,Waring v King. 1 Carr. & M. 280,Alford v Vickery. See also Mood. & M. 1 9,Freeman v Jury. 8 Bing. 170, 174,Woodcock v Nuth. 1 M. & So. 317, S.C However, where a rector succeeded to a rectory upon the death of the former incumbent, in April 1816, and found A. and B. in possession of the glebe lands, having been tenants under the former incumbent, and they continued in possession until after December 1816, when the rector conveyed the glebe lands to a trustee for securing an annuity, it was held that the trustee could not maintain an ejectment against A. and B. without giving them a notice to quit; because, as they had been in possession for more than eight months between the rector's promotion and the grant of the annuity, and had not been disturbed, the rector must be presumed, after such a lapse of time, to have assented to the continuance of their tenancy under the same terms as before. 6 B. & C. 126,Doe v Somerville. 9 D. & R. 100, S.C A tenant who, after having given notice to quit, holds over for a year, paying double rent according to the statute 11 Geo. 2, c. 19, s. 18, may quit at the end of such year without fresh notice. 1 B. & Ad. 904,Booth v M'Farlane.]

A tenancy from year to year may be determined by either party giving notice to quit half a year previous to the expiration of any year of the tenancy, unless any other period be fixed by agreement or local custom; which half year must consist of 182 days, except where the rent is payable on the usual quarterly feast days, when notice on one feast day to quit on the next but one, as, for instance, on the 29th of September to quit on the 25th of March, is sufficient. 4 Esp. 199,Doe v Green. [6 Bing. 574,Doe v Roe. 4 M. & P. 391, S. C.] The, notice must be to quit at the end of some current year of the tenancy, computed from the original time of entry; 1 T. R. 159,Right v Darby; although the rent be payable quarterly; 1 Esp. 267,Shirley v Newman; or a quarter's notice be agreed on. 1 Taunt. 555,Doe v Donovan. [1 Q. B. 806,Doe v Dobell. 1 G. & Dav. 218, S.C If the tenant enters in the middle of a quarter, and he afterwards pays rent for that half quarter, and continues then to pay from the commencement of a succeeding quarter, he is not a tenant from the time of his coming in, but from the succeeding quarter-day. 6 Esp. 10,Doe v Johnson. 3 C. & P. 275,Doe v Stapleton. But seeDoe v, Selwyn, Adams on Ejectment, 129.] Where the tenant enters on different parts of the premises at different times, the notice should be given with reference to the substantial and principal part of them, and will be good for all. 2 Black. Rep. 1224,Doe v Snowdon. 6 East, 120,Doe v S pence. 7 East, 551,Doe v Watkins. What is the substantial part, is a question for the jury. 11 East, 498,Doe v Howard. [7 M.&W.139,Doe v. Hughes.] If the tenant hold over by consent after the expiration of a lease, he becomes tenant from year to year [see ante, p. 276]; and notice to quit must be given with reference to the original time of entry under the lease; 5 Esp. 173,Doe v Samuel; even where the lease was determined by the death of the lessor, tenant for life, in the middle of a year. 1 H. Black. 97,Roe v. Ward. And though a parol lease for seven years be void by the, Statute of Frauds, yet a tenancy from year to year arises upon the terms agreed on, so far as they are applicable to such a tenancy [seeante, p. 276]; and if they specify the time of quitting, the notice must be given accordingly. 5 T. R. 471,Doe v Bell. But it was held, that an action for use and occupation would not lie against one who had once been tenant from year to year, but who had not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy could be implied, though the tenancy had not been determined by a notice to quit. 1 B. & A. 625,Leigh v Thornton. [Where a tenant entered, under an agreement for a lease for seven years, which was never executed, it was held, that he was not entitled to notice to quit at the end of the seven years. 4 Bing. 446,Doe v. Stratton. 1 Moo. & P. 183, S.C See also 3 Mann. & Gr. 498,Berrey v Lindley. 4 Scott, N. R. 61, S.Caccord.] The Courts listen with reluctance to objections to the form of notice. 14 East, 245,Doe v Archer. Hence, "I desire you to quit," etc. or "I shall insist on double rent," was held a good notice. Doug. 175,Doe v Jackson. [2 Q B. 143, Doe v Goldwin,accord.] So notice at Michaelmas, 1795, to quit "at Lady-Day, which will be in the year 1795," was held good. 7 T. R. 63,Doe v Kightly. [4 D. & R. 248,Doe v Culliford. 5 A. & E. 350,Doe v Smith. 6 Nev. & M. 829, S.C So a mistake in the notice in describing the farm as being in the adjoining parish to that in which it really lies, is not material, if the tenant was not thereby misled. 12 A. & E. 743,Doe v Wilkinson. 4 P. & Dav. 323, S. C.] So on an Old Michaelmas tenancy notice to quit at Michaelmas was held good, evidence being given that the tenancy commenced at Old Michaelmas. 2 Camp. 256,Doe v Vince. 4 B. & A. 588, Doe v Benson, S. P. [9 C. & P. 467,Doe, v. Perrin. But a lease by deed to hold from the Feast of St. Michael, must be taken to mean New Michaelmas; and extrinsic evidence is not admissible to shew that it means a holding from Old Michaelmas. 11 East, 312,Doe v Lea. So if a defendant avows that there it was payable at Martinmas, to wit, on November 23, he must be taken to mean New Martinmas, i.e. November 11th, and not Old Martinmas, notwithstanding the latter falls on the day laid under the videlicel, i.e. November 23. 8 Bing. 235,Smith v Walton. 1 M. & P. 380, S. C.] Notice to quit "at the expiration of the current year of your tenancy, which shall expire next after one half-year from the date hereof," is sufficient, though no day be mentioned; 2 Esp. 589,Doe v Butler; [6 Bing. 362,Doe v Scott. 4 Moo. & P. 20, S. C.; and is a sufficient demand of possession within stat. 4 Geo. 2, c. 28, s. 1, to render the tenant liable for holding over after the determination of the notice. 6 M. & W. 393,Hirst v Horn] and is perhaps the safest form. Neither does the landlord lose much by adopting it, since the insertion of a day will not make the notice prima facie evidence of a holding from that day; 2 Camp. 258 n.Ibid. 388, Doe v Calvert, overrulingDoe v Harris. Dorchester Sum. Ass. 1784, before Eyre B. cited in 1 T. R. 161; unless the service be personal on the tenant, and be make no objection. 13 East, 405,Doe v Forster. 2 Camp. 647,Thomas v Thomas. 2 Camp. 459,Doe v Woombwell. 2 Taunt. 109, Doe v Liecester, which seems to overrule 4 T. R. 361,Oakapple v Copous. [But it may be observed, that, inOakapple v Copous, it appeared at the trial that he held from a different day, and therefore the prima facie evidence was rebutted. A notice to quit given by the tenant must, in order to be good, be such as on a reasonable construction of it, denotes an intention to give up the premises at the lawful time. 4 Mees. & W. 198,Goode v Howells.] If the tenant; on application by his landlord, state his tenancy to have commenced on a particular day, he is bound by such statement; 2 Esp. 635,Doe v Lambly; and a receipt for rent, stating it to be a year's rent up to a certain day, is prima facie evidence of a holding from that day. 3 Esp. 173,Doe v Samuel. [But where the tenant gives notice to quit at the end of the current year, less than six months-before such end, such notice is ineffectual to determine the tenancy. Seeante, p. 236, note(y).] A parol notice to quit is sufficient; 2 Camp. 96,Roe v Pierce; but it is more advisable to give a written one. 5 Esp. 197,Doe v Crick. Service of the notice by leaving it with a servant at the tenant's dwelling-house, not on the premises, has been held sufficient 4 T. R. 464,Jones v Marsh: [although the tenant be not informed of it till within half a year of its expiration, M. & Malk. 10,Doe v Dunbar. Where A. has been, tenant, and, on his leaving, B. takes possession, notice to quit given to B. is goodprima facie; for it will be presumed that be is the assignee of A. 6 B. & C. 41,Doe, v Williams. 19 D. & R. 30, S.C 6 M. & S. 110,Doe v Murless. See also 2 A. & E. 329,Roe v Street. 4 Nev. & M. 42, S. C.] The notice to quit required by 4 Geo. 2, c. 28, s. 1, to entitle the landlord to double value; must be in writing; but the notice to quit by the tenant, which, entitles the landlord to double rent, if he does not quit accordingly, under 11 Geo. 2, c. 19, s. 18, may be by parol. 3 Burr. 1603,Timmins v Bowlinson. The notice may be given by a receiver appointed by the Court of Chanbery. 5 Burr. 2694,Wilkinson v Colley. 12 East, 57,Doe v Read. An infant must give notice as well as an adult. 2 T. R. 159,Maddon v White. A notice signed by two out of three executors and trustees has been holden insufficient, although it was expressed, to be given on behalf of them all, and the third subsequently assented. 5 East, 491,Right v Cuthell. But where four joint-tenants demise jointly, such of them as give notice to quit, may recover their respective shares in ejectment on their several demises. 3 Taunt. 210,Doe v. Chaplin. And if the notice be signed by a stranger professing to be an agent for all, their subsequent recognition of his authority will be sufficient; 3 B. & A. 689,Goodtitle v Woodward; the distinction between this case and Dight v Cuthell being, that the tenant had in this case such a notice as he could act upon, whereas in the other case the notice was deficient on the face of it. [It has been since held, that if the agent had not authority to give the notice at the time when it was given, -or at least when the half-year mentioned in it began to run, so that the tenant could not then have acted upon it, no subsequent adoption or recognition will make it valid. 10 B. & C. 626,Doe v Walters. 5 Mann. & R. 357, S.C 2 Q. B. 143,Doe v Goldwin. 1 G. & Dav. 463, S.C And as toRight v Cuthell, it has been considered that the true ground of the decision of that case was, that there the particular mode of determining the tenancy prescribed by the terms of the lease, required the concurrence of all the joint-tenants. But it is now established that, generally speaking, a notice to quit by one only of several joint-tenants puts an end to the tenancy as to the whole. 1 B & Ad. 135,Doe v Summersett. 7 Mees. & W. 139,Doe v Hughes. 1 Carr. & M. 280,Alford v Vickery. A mere receiver of rents, as such, has no authority to determine a tenancy by a notice to quit. 10 B. & C. 633, per Parke J. But an agent to receive rent, and to let, has. 2 M. & Rob. 56;Doe v Mizem, coram Patteson J. (See 3 Bing. N. C. 677,Doe v Robinson. 4 Scott, 396, S. C.) As to notice to quit by a mortgagor, who has mortgaged since the tenancy began, see 2 Q. B. 143. 1 G. & Dav. 64l.] Acceptance of rent due since the expiration of the notice is a waiver of it; 6 T. R. 219,Goodright v Cordwent; if the money reach the lessor's hands; 2 Camp. 387,Doe v Calvert; and be received as rent, which is a question for the jury. Cowp. 243,Doe v Batten. So is a distress for such rent. 1 H. Bl. 311,Zouch v Willingall. But after verdict in ejectment against a tenant for not quitting pursuant to notice, a subsequent distress by the landlord for rent due after the verdict, does not waive the notice to quit; nor is it any ground for setting aside the verdict, or staving execution. 8 Taud. 538,Doe v Darby. So a subsequent notice is a waiver; 16 East, 53,Doe v Palmer; unless it expressly save the first; 2 East, 237,Williams v Humphreys; or be given for greater caution, after ejectment brought for part of the premises, and such ejectment be persisted in; S. C.; or be merely a notice that double value will be required. 1 T. R. 53,Messenger v Armstrong. 3 Camp. 117,Doe v Steel. Nor is a promise not to turn the tenant out till the estate is sold a waiver of a prior notice to quit. 10 East, 13,Whitacre v Symons. [Where the tenant gives the notice to quit, and remains in possession after the time limited by the notice, this does not in itself amount to a waiver of it; but the jury must say, whether, under all the circumstances, his acts shewed an intention of continuing tenant or not. 4 Ad. & E. 832,Jones v Shears. 6 Nev. & M. 428, S. C.] By analogy to the notice to quit given in a holding of land, it is held that notice must, be given to determine a composition for tithes: and in general it must be half a year's notice, ending at the expiration of a year, unless any longer notice be necessary to enable the tenant to cultivate the land in the manner most beneficial to himself, according as he is to pay a composition or in kind. 1 Bos, & Pull. 465.Wyburd v Tuck, citing,Hewitt v Adams. Dom. Proc. 1782. 12 East, 83,Fell v Wilson: [4 M. & W. 198,Goode v Howell.] If the occupier disclaim any liability to pay tithes, at all, and deny the parson's title, this dispenses with the necessity of a notice to determine the composition; 1 Brod. & Bing. 4,Bower v Major. 3 B. Moore, 216, S. C.; in the same manner as an express disclaimer of holding under the landlord dispenses with a notice to quit land. Bull. N. P. 96; and see Peake's N. P. C. 197,Doe v Pasquali. [See ininfra.] But the analogy does not hold in the case of a change of parties; for by the parson's death, or avoidance of the benefice, or by achange of the occupier, the composition is ipso facto determined. 10 East, 269, Williams v Powell. If, however, the new parson receive the composition, he must account to the executors of the deceased for their share, according to the portion of the year which had elapsed at the time of the death of the late parson, 2 Ves. & Beames, 331, Aynsley v Wordsworth, overruling 10 East, 267, Williams v Powell, in which the Court of King's Bench had held, that the deceased's share should be calculated according to the value of the tithes which had become severable and payable during the portion of the year which elapsed before his death. [See stat. 4 W. 4, c. 22, post, note (17). As to what shall amount as a disclaimer, so as to supersede the necessity of a notice to quit, it is not necessary that the tenant should have attorned to some other person, or done any act disclaiming to hold as tenant to the landlord. But in order to make a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of landlord and tenant; or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with the existence of that relation, which, by necessary implication is a repudiation of it; 1 M. & W. 695,Doe v Stanion. 1 Mann. & Gr. 135,Doe v Cooper. 1 Scott, N. R. 36, S. C.; and it must be before the date of the day of the demise in the declaration in ejectment; I Cr. M. & R. 398,Doe v Lord Cawdor; and an admission made after the day of the demise, of a disclaimer, will be insufficient unless it amounts to an admission that such disclaimer took place before the day of demise, ibid. 10 B. & C. 816, Doe v Grubb, 5 Mann. & R. 666, S.C. A mere disclaimer by words operates only by way of dispensation with a notice to quit, and not by way of forfeiture; and therefore cannot work a determination of a lease for a definite term of years. 10 A. & E. 427,Doe v Wells. 2 Perr. & D. 396, S.C. Where, in ejectment, the tenants in possession do not defend the action and suffer judgment by default, but a party defends as landlord, it is no answer to the action that they have had no notice to quit: 5 Bing, 327,Doe v Creed. 2 Moo. & P. 648, S. C.:secus, where other persons not defending as landlords are also defendants. 3 Mees. & W. 333,Doe v Horn. As to whether any and what notice to quit is necessary in the case of a weekly or monthly tenancy, see 7 C. & P, 56,Huffell v Armitstead.]

(b) The general rule is, "that wherever an action is founded on a deed, the deed must be declared on. The only case excepted from the general rule is that of debt for rent, in which the deed need not be declared on. That exception, however, seems to have proceeded on the ground that, by the demise, an interest has passed in the land." Per Mansfield C.J 1 N. R. 109,Atty v Parish. In other words, that the action is founded on the privity of estate and not ofcontract; and if so, it is extraordinary that the action should not be local, which it is not. Seeante, 241, n. (6) and(f).

(c) [But a plea of nil habuit in tenementis is bad in an action for use and occupation, whether in assumpsit or in debt. 1 Bing. N. C. 15,Curtis v Spitty. 1 Scott, 737, S. C.]

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Note 2   No person could at common law devise his lands and tenements, or any interest out of them, by his last will and testament, except by custom in some ancient boroughs. Litt s. 167. Co. Litt. 111 b.(d) But the statutes of 32 H. 8, c. 1, and 34 H. 8, c. 5, have enabled tenants in fee-simple to devise their lands and tenements, by their last will inwriting.(e) Whenever, therefore, a will of lands, or of any interest out of them, by tenants in fee-simple is pleaded, it must be averred to have been made in writing for this difference is holden, that where a thing is originally made by Act of Parliament, and required to be in writing, it must be pleaded with all the circumstances required by the Act, as in the case of a will of lands it must be alleged to have been made in writing; but where an Act makes writing necessary to a matter, where it was not so at the common law, as in the case in the preceding note, where a lease for a longer term than three years is required to be in the Statute of Frauds, it is not necessary to plead the thing to be in writing, though it must be proved to be so in evidence. 2 Salk. 519,Anon. A distinction, however, is taken between a declaration and a plea:in the former, the Plaintiff need not shew the thing to be in waiting; but in the latter it must be so pleaded. As when the defendant pleads that another person, for a good consideration, promised to be answerable to the plaintiff for the debt, it was held that it must be shewn to be in writing so that it may appear to be a contract which the plaintiff can enforce. Sir T. Raym. 450, Case v Barber.(f)

(d) And generally by the custom of gavelkind. 2 Bl. Com. 84. Cro. Car. 561,Launder v Brooks. 11 Mod. 122, Brunker v Cook, and the cases and books there referred to. And the observation is not intended to apply to a bequest of existing "chattel interests in lands, which, on account of their original imbecility and insignificance, were deemed personalty, and as such were disposable by will." Harg. Co. Litt. 111 b. note (1).

(e) These statutes enabled tenants in fee-simple to devise the whole of their lands held in socage, and two-thirds of their lands held in chivalry; and the stat. 12 Car. 2, c. 24, having turned all tenures in chivalry into socage, all lands are now devisable; but these statutes do not apply to copyholds, which are devisable according to the custom of each particular manor, and at common law must have been surrendered to the use of the devisor's will, by the devisor himself, and then the will operated as an appointment of the use; but if the devisor had neglected to surrender to the use of his will, the devise was void, although a Court of Equity would, in some instances, have supplied the defect; and now, by stat. 55 Geo. 3, c. 192, a devise of copyhold lands, warranted by the custom of the manor is good without a surrender. [And it was held that copyholds passed under general words in a will made since that statute although there had been no surrender to the use of the will: 7 Bing, 275,Doe v Ludlam. 5 Moo. & P. 48, S.C. 2 Cr. M. & R. 503, Doe v Llewellinsecus, where the will was made before the statute. 5 B. & Ad. 695,Doe v Bird. 2 Nev. & M. 679. A devise by the heir at law is good under this statute, without his having been admitted, or paid the fine due to the lord on the descent 3 B. & Ad. 664,Right v Banks. 5 A. & E. 321,Doe v Wilson. 6 Nev. & M. 809, S. C.] And it need not be in writing or attested by three witnesses, as copyholds and customary freeholds are held, not to be within the 5th section of the Statute of Frauds. 7 East, 299,Doe v Danvers. r 4 B. & Ad. 56,Doe v Hickman. 1 Nev. & M. 780, S.C. 8 A. & E. 1,Doe v Harris. 2 Nev. & P. 615, S.C. By stat. 1 Vict c. 26 (which, however, does not extend to any will made before Jan 1, 1838), copyholds are devisable by a will executed in manner required by that Act.]

(f) Seeante, 211, n. (l). By the 4th section of the Statute of Frauds, it is enacted, that no action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised." It has been held in several cases, that a sale of growing crops is a sale of an interest in land within this section. 2 Bos. & Pull. 452,Waddington v Bristow. 6 East, 602,Crosby v Wadsworth. 2 Taunt. 38,Emmerson v Heelis; but it is otherwise where the crops have arrived at maturity at the time of sale, or are to be taken away immediately. 11 East, 363,Parker v Staniland. 2 M. & S. 205,Warwick v Bruce. The principle of these decisions appears to be this -that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold, from further vegetation, and from the nutriment afforded by the land, the contract is to be considered as for an interest in land; but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is forgoods. [This doctrine has been materially qualified by later decisions, and it appears to be now settled that, with respect to emblements or fructus industriales (i.e. the corn and other growth of the earth which are produced, not spontaneously, but by labour and industry), a contract for the sale of them while growing, whether they are in a state of maturity, or whether they have still to derive nutriment from the land in order to bring them to that state, is not a contract for the sale of any interest in land, but merely for the sale ofgoods. 5 B. & C. 829,Evans v Roberts. 8 D. & R. 611, S.C. 4 M. & W. 343,Sainsbury v Matthews. And it will make no difference whether they are to be reaped or dug up by the buyer or by the seller. 10 A. & E. 759. 2, Perr. & D. 594. The true question is, whether, in order to effectuate the intention of the parties, it be necessary to give the buyer an interest in the land, or whether an easement of the right to enter the land, for the purpose of harvesting and carrying them away, is all that was intended to be granted to the buyer, ibid. But with respect to grass, which, as being the natural produce of the land, is said to be not distinguishable from the land itself, in legal contemplation, until actual severance, the decision of Crosby v Wadsworth appears to be still adhered to, viz. that the purchaser of a crop of mowing grass unripe, and which he is to cut, takes an exclusive interest in the land before severance; and, therefore, the sale is a sale of an interest in land within the statute, ibid. 2 Mees. & W. 248,Carrington v Roots. So it has been held that the sale of growing underwood, to be cut by the purchaser, confers an interest in land within the statute. I Y. &. Jerv. 396,Scorell v Boxall. The same has been held as to an agreement for the sale of growing fruit. 9 M. & W. 501,Rodwell v Phillips. But where the owner of trees growing on his land agrees with another, while they are standing, to sell him the timber, to be cut by the vendor, at so much per foot this is a contract merely for the sale of goods. 9 B. & C. 561Smith v Surman. 4 Mann. & R. 455, S.C. And, per Littledale J. even if the contract were for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, this would not give him an interest in the land within the meaning of the statute. 9 B. & C. 573. (But see. 2 B. & B. 99,Teal v Auty. 4 B. Moore, 542, S.C. 9 M. & W. 505.) In a recent case on this subject, where the plaintiff and defendant orally agreed (in August) that the defendant should give 45l. for the crop of corn on the plaintiff's land, and the profit of the stubble afterwards; that the plaintiff was to have liberty for his cattle to run with the defendant's, and that the defendant was also to have some potatoes growing on the land, and whatever lay grass was in the fields; the defendant was to harvest the corn and dig up the potatoes, and the plaintiff was to pay the tithe; it was held that it did not appear to be the intention of the parties to contract for any interest in land, and the case was not, therefore, within the statute, but a sale of goods, as to all but the lay grass, and, as to that, a contract for the agistment of the defendant's cattle. The Court, however, as to the latter part of this decision, disclaimed impeaching the principle ofCrosby v Wadsworth, but decided on the additional facts in the case before them. 10 A. & E. 753,Jones v Flint. 2 Perr. & D. 594, S.C. Where a contract is within the statute, but is not in writing, it is, as a contract, void altogether; though it may operate as a license, so as to excuse the entry of the purchaser on the land, if not countermanded. 2 Mees. & W. 248.] Still, it has been held in C. P. 2 Brod. & Bing. 362, Peacock v Purvis, that even in aplea, a sale of growing crops [assuming the case to fall within the statute], need not be stated to have been made inwriting. And the Court intimated, that assignments of terms of years need not be pleaded to have been made bywriting. But, with submission, this seems not to apply to cases where the party pleading the assignment takes an interest under it.

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Note 3   Formerly a distrainor could not sell the distress, but only retain it as a pledge or security for payment of rent or other duties, or satisfaction for damage done. And so the law still continues, with regard to distresses of cattle taken damage feasant. But the statutes of 2 W. & M. c. 5, 8 Ann c. 14, 4 Geo. 2, c. 28, and 11 Geo. 2, c. 19, have made great alterations in the law of distress, by empowering persons, who distrain for rent of any kind, to sell the distress for payment of the rent in arrear, if the tenant or owner fails to replevy with sufficient security, within five days after taking the distress, and giving the tenant notice of the cause. This improvement of the remedy by distress was first introduced by the 2 W. & M. c. 5, with respect to rents due on demise or contract, and afterwards, by the 4 Geo. 2, c. 28, was extended to rents seck, rents of assize, and chief rents.    [Back]

Note 4   This is correctly expressed; for the act done by the testator was not properly a revocation of his will, but a parting with the estate out of which the annuity devised was to arise; and, of course the will became null, according to the maxims, "cessante causa cessat effectus. Sublato fundo, tollitur id quod fundi potest." 2 Atk. 272,Brudenell v. Boughton. Ibid. 424,Gallon v Hancock. And if the testator had afterwards repurchased the lands, still the devise of the annuity would have been void, without a republication of the will according to the solemnities required by the Statute of Frauds, 29 Car. 2, c, 3, s. 5, upon the same principle as that a will does not pass lands purchased after the making of it. 4;4, Edw. 3, 6. 33, cited in Dyer, 143 b. 11 Mod. 158, 159, Arthur v Bokenham 3 Rep. 30 b.Butler and Baker's case. A devise of lands is an appointment of particular lands to a particular devisee, and is considered in the nature of a conveyance by way of appointment; and upon that principle it is, that no man can devise which he has no tat the date of such conveyance. It does, not turn upon the construction of the Statute of Wills, 32 H, 8, c. 1, and 34 H. 8, c. 5, which say that "any person having lands, etc. may devise;" for the same rule held before the statutes, where lands were devisable by custom. Cowp. 90, Harwood v Goodright, per Lord Mansfield. And see 11 Mod. 122,Brunker v Cook.(g) It seems, however, to have been for some time a prevailing opinion, that where a man devised particular lands by name, or all the lands which he should die seised of it though he was not seised of them at the time of making his will, but purchased them afterwards, they passed by such devise, without any new publication of the will, because it appeared to have been his intention to pass his after-purchased lands. But where he devised all his lands generally, and afterwards purchased other lands, it was always considered that the after-purchased lands did not pass, because the same intention did not appear. This distinction was taken by Serjeant Loveless in argument inBrett v Rigden, Plowd. 343, 344, the latter part of which distinction was adjudged by the Court; and they did not deny the case put by him to illustrate the former part of the distinction, and which he founded on the authority of 39 H. 6, 18 b. Fitz. Devise, 17. Bro. Devise, S. C. namely, "That where a man devises land in certain, as the manor of Dale, or Whiteacre, which he is not seised of at the making of the will, but purchases after, such lands shall pass to the devisee." And Saunders himself appears to have been of the same opinion. For he devised all his, lands which he had or afterwards should have in Fulham. And there was a difference of opinion among his executors, who were great lawyers, as to the effect of the devise; Maynard being of opinion that the devise was not good for land there, which he had afterwards purchased; and Holt and Pollexfen Justices being of a contrary opinion. 1 Ld. Raym. 438,Lawrence v Dodwell. But this case, so put by Loveless, was denied by Holt C.J. inBrunker v Cook, 11 Mod. 121, S.C. 1 Salk. 238, Fitzg. 228, and the distinction overruled; for it was there decided that a devise of all the testator's lands, tenements, and estate whatsoever, of which he should be possessed or invested at the time of his decease, did not pass an estate purchased after the making of the will; and this decision was affirmed in the House of Lords. 1 Bro. P. C. 1 And Lord Holt observed that the case put by Loveless is not warranted by the 39. H. 6, where it is made a question whether, if a disseisee devises the lands of which he is disseised, and afterwards re-enters, it is a good plea to say that the devisor had nothing in the landsat the time of the devise. He added, that in his opinion the devisor was seised in fee at the time of the devise, and consequently the lands were well devised. For the entry purged the disseisin, and revested the estate in the disseisee, who thereupon was, in consideration of law, in possession of the estate from the time of the disseisin to all intents and purposes by relation, and entitled to recover the mesne profits from that time in an action oftrespass, as much as if he had been in the actual possession thereof all the while; and therefore he might be justly said to have been seised in fee at the time of the devise. But that was very different from the case where the lands are purchased after the making of the will; for there the devisor has neither jus in re nor ad rem at the time. 11 Mod. 127, 128, S. P. by Holt C.J. inMonckton v Pashley, 2 Ld. Raym. 977. See what is said by Eyre C.J.; on this case inGoodtitle v Otway, 1 Bos. & Pull. 602, and by Lord Chancellor Eldon inAttorney-General v Vigor, 8 Ves. 282. It is, however, necessary to observe, that what Lord Eldon is stated to have said in the last case, "that if the devisor is disseised before the execution of the will, his will would not pass the land," it is apprehended must be understood to mean, in case the devisor diesbefore he has entered. For if he enters after he has made his will, his entry has relation to the time of the disseisin, and consequently to the time of making the will, and he is considered in law as having been in the actual seisin of the estate the whole time. This principle is the foundation of the action of trespass for the mesne profits from the time of the disseisin. After judgment and execution in ejectment, the plaintiff is considered in law to have been in the actual possession of the estate from the day of the demise laid in the declaration and may maintain a possessory action, that is, an action of trespass against the defendant as a wrong-doer and trespasser upon his estate from that day. A recovery and execution in ejectment is in truth the same thing with an entry. A man is then said to have entered into his land; for there are but few instances of an actual entry to revest an estate without an ejectment. The above cited case out of the Year Book shews that a subsequent entry by the disseisee makes the will good. The before-mentioned observation of Lord Holt had been the opinion of Lord Bacon long before, who in his Maxims of the Law, Reg. 14, says, that "If I devise the manor of D. by special name, of which, at that time I am not seised, and after I purchase it, except I make a new publication of my will, the devise is void." And now, since the determination inBrunker v Cook, the law is, taken to be clear, that lands purchased after the making of the will do not pass, although the devisor uses expressions of the most manifest intention to do so. The same case had received a similar decision in the Common Pleas under the name ofArthur v Bokenham, 11 Mod. 148. Fitzg.233.(h) However, if a copyhold manor is devised, it has been holden that copyhold premises, parcel of the manor, which are purchased by, and surrendered to, the lord subsequent to the time of making his will, will pass. 6 T. R. 708,Roe v Wegg. So if a man devises a manor, and afterwards a tenancy escheats, it will pass. 11 Mod. 129,Brunker v Cook. S. C. 1 Salk. 238. And the reason is, because the copyhold premises are parcel of the manor, and so is the tenancy when it escheats, and the will operates upon thewhole manor, and therefore they pass as part of that whole. Copyhold premises are considered so far part of the manor, that if a man seised in fee of a copyhold manorex parte materna, purchase a copyhold estate of inheritance held of the manor, the newly acquired copyhold will go to his heirsex parte materna, and not to his heirs general. 6 T. R. 710,Roe v Wegg. But if a mortgagee in fee devises all his lands, tenements, and hereditaments, the mortgaged lands do not pass unless the equity of redemption be foreclosed; (i) and if, after such devise made, a foreclosure is had, yet such estate shall not pass by the general words, lands, tenements, and hereditaments, because a foreclosure is considered as a new purchase of the land. 1 Atk. 605, 606,Casborne v Inglis. But it is not necessary in equity that the devisor should be seised of the legal estate in the lands at the time of making his will. If he have such an equitable interest in them at the time that he may call for a conveyance of the legal estate, it is sufficient, and the lands will pass by the will, if it appears to have been the testator's intent to devise them, although the legal estate be not conveyed to the testator until a subsequent period, or even not conveyed to him at all. As where a person, or another for him as trustee, enters into articles, or a contract in writing, for the purchase of lands either immediately, or on some future day, and pays the purchase money, or is to pay the money at a future time, the lands are bound in equity, and considered as his, from the execution of the articles, or contract, and the vendor is a trustee for the vendee from that time. 1 Atk. 573,Green v Smith. And therefore the land will pass in equity by a devise of them made after the execution of the articles or contract, and before they are, or were to be, conveyed; and if the testator dies before the lands are, or were to be, conveyed pursuant to the contract, and before the purchase-money is paid, the devisee may call for a conveyance of them from the vendor, and compel the testator's executor to pay the money out of the personal estate; for the money is also bound by the articles as well as the lands, and the vendee is a trustee as to the money for the vendor. This rule applies as well where the contract is for the purchase of copyhold, as of freehold estates. 1 Chan. Cas. 39,Davie v Beardsham. Prec. Chan. 320,Greenhill v Greenhill. S.C. 2 Vern. 679. 9 Mod. 78,Acherley v Vernon. 1 Ves. 438,Potter v Potter. 11 Ves. 554,Rose v Cunynghame.(k) Hence it seems to follow that a subsequent conveyance of the legal estate tocestui que trust, or to a trustee for his use, does not amount in equity to a revocation of the will. 3 Atk. 741,Parsons v Freeman. S. C. Ambl 118, per Lord Hardwicke, Watts v Fullarton, cited inDoe v Pott, Doug. 718. SeeWillet v Sandford, 1 Ves. 178, 186. Therefore, if a mortgagor, where the mortgage is in fee, devises the mortgaged premises, and afterwards pays off the mortgage, and the mortgagee conveys the legal estate either to the mortgagor himself, or to a trustee for him, such conveyance of the legal estate does not in equity operate a revocation of the will. Doug. 710,Doe v Pott.(l) But at law the conveyance of the legal estate to cestui que trust would be a revocation. For it has been holden that if before the Statute of Uses, 27 H. 8, c. 10, cestui que trust had devised the use, and afterwards came the statute, which transferred the use to the possession, it was a revocation, because the use was gone by it. See 2 Ves jun. 429. 1 Rol. Abr. 616 (R.), pl. 2. In like manner, if A. devises his estate, and afterwards mortgages it in fee, it is a total revocation at law, though in equity it is considered as a revocation pro tanto only. 1 Atk. 600,Casborne v Inglis. 3 P. Will. 62, Chester v Chester(m). And therefore, if, after the making of the will, the lands are conveyed to thecestui que trust, that is, the mortgagor, they will, on his death, descend upon his heir, and the devisee must have recourse to a Court of Equity to compel the heir to convey the estate to him. But a will as to a personal estate relates to the testator's death, and will pass every thing he was possessed of at that time, unless it be restrained by some expression in the will. SeeAll Soul's College v Coddrington. 1 P. Will. 597.Ibid. 575,Wind v Jekyl. But a devise made before the testator has entered into articles or a contract for the purchase of lands, will not pass such lands so contracted for after the making of a will. 2 P. Will. 629,Langford v Pitt. 1 Atk. 573,Green v Smith. See Dyer, 143, in the margin.(n) A will may be republished either by a re-execution of it, or by a codicil. It was never thought necessary to write the will over again in order to republish it. Soon after the passing of the Statute of Wills, 32 H. 8, c. 1, it was holden that, where, after a will had been revoked by operation of law, the testator allowed it to be his will without writing it anew, it was a republication, and the land should pass by the will, as much as if it never, had been revoked. 1 Rol. Abr. 617 (Z.), pl. 2. Any thing which shewed an intent that the will should be of a subsequent date, was a sufficient republication.Ibid. pl. 1, 618, pl. 7. Such an allowance of a will, as amounted to a republication, might be by parol before the Statute of Frauds, though the will itself could only be in writing. Ambl. 494, Cro. Eliz. 493, Beckford v Parnecott. 1 Rol. Abr. 618, pl. 8. But by that statute no land shall pass by a will unless it be signed by the testator, and attested in his presence by three witnesses. And for a considerable time after the making of the Statute of Frauds, it seems to have been settled, that the allowance or republication of a will, either where it had been revoked, or to pass after purchased land, could only be, by force of that statute, by a re-execution of the will itself by the testator in the presence of three witnesses, in the same manner as is required to the execution of the will at, first; and that there could not be a republication by implication. Thus inLytton v Lady Falkland, in 1708, cited in Com, Rep. 383, where the testator purchased some lands after making his will, and by a codicil attested by three witnesses, said, "I make, this codicil, which will shall be owed to, and be part of my last will, which I have formerly made," it was decreed by Lord Cowper, assisted by Sir John -Trevor, Master of the Rolls, Lord C. J. Trevor, and Mr. Justice Tracy, that this was not a republication; for since the Statute of Frauds there can be no devise of landsby an implied republication; for the paper, in which a devise of lands is contained, ought to be re-executed in the presence of three witnesses. And inPenphrase v Lord Landsdown, 11 Ann. also cited in Com. Rep. 384, where, on a trial at Bar, it appeared that John, Earl of Bath, made his will in. 1684, and afterwards, upon the 15th of August, 1701, sent for seven persons, and said he sent for them to be witnesses of his will, and sometimes to be witnesses to the republication of his will: he took the codicil in one hand, and the will in the other, and said, "This is my will, and I publish this codicil as part thereof," and signed the codicil, which lay upon the table with the will, in the presence of the witnesses, who subscribed it in his presence: by the codicil he referred to the will, saying he did not intend wholly to revoke it, but devised by the codicil as follows, directing it to be taken as part of his will: he then made several devises and bequests: he put the will and codicil into a sheet of paper, and sealed them up in the presence of the witnesses; but the will was not unfolded before the witnesses, nor did they sign it, but the codicil only: now, though these were strong circumstances to make it a republication from the manifest reference to the will, the expression that the codicil was to be taken as part of it, and the annexation of it to the will, yet it was holden by Parker C.J. and the whole Court of King's Bench, that it was not a republication; for since the statutea republication could not be by implication, but the will must be re-executed. S.C. 10 Mod. 97. So where the testator, after making his will, made a codicil, executed by him in the presence of three witnesses, which began thus, "A codicil to be annexed to my will," whereby he gave a leasehold estate which he had bequeathed by his will to a legatee who died in his lifetime, and added another trustee for some charities he had given by his will, it was holden that the codicil was no republication of the will. Prec. Chan. 439,Sympson v Hornsby. And before the statute, if the testator wrote in his will that J. D. should be his executor, it was not a republication to pass after purchased lands. 1 Rol. Abr. 618, pl. 9. But inAcherly v Vernon., Com. Rep. 381. 3 Bro. - P. C. 107, it was held first by Lord Chancellor Macclesfield, and afterwards in the House of Lords, that a codicil duly executed in the presence of three witnesses, though it did not appear to have been annexed to the will, but only referred to, and ratified and confirmed, the will, amounted to a republication, being considered as incorporated with the will, and both together making but one will. So that, by holding this constructive republication to be sufficient, the former cases, in which it had been determined that there could be no republication by implication since the Statute of Frauds, seem to have been overruled. This case has been generally followed ever since, (1 Ves. 437,Potter v Potter. Ambl. 487,Jackson v Hurlock. S.C. cited 1 Ves jun. 492. 1 Ves. 485,Gibson v Lord Montford. S.C. Ambl. 93; but no decision.Doe v Davy, Cowp. 150), though not without some dissatisfaction. For, as it has been well observed, a direct re-execution is an unequivocal act, making the will operate precisely as if it was executed upon the day of the republication. But a reference to the will proves only that the devisor recognises the existence of the will: which the act of making a codicil necessarily implies; not that he means to give it any new operation, or to do more by speaking of it than he had already done by executing it. 7 Ves. 118. In the case ofThe Attorney-General v Downing, Ambl. 573, where by the codicil the testator gave some legacies and two annuities, which he charged his lands with, Lord Camden held the codicil was no republication, because it was neither annexed to the will, nor did its contents shew an intention to republish the will. But with regard to the annexation of the codicil to the will, the codicil was not annexed to the will inAcherly v Fernon; and inGibson v Lord Montfort, 1 Ves. 494, Lord Hardwicke observed, that Lytton v Lady Falkland was put in the report of it in 3 Ch Rep on the annexation, but that could make no difference; for all codicils are by law fastened to the will. And Lord Commissioner Eyre thought, that, since the Statute of Frauds, mere annexation would hardly do, because it is mere matter of fact and parol. 1 Ves jun. 488. But the case of The Attorney-General v Dowding was overruled inBarnes v Crowe, 1 Ves jun. 486, upon the Authority ofAcherly v Vernon. The principle established by Barnes v Crowe seems to be, that a codicil attested by three witnesses, though it relates only to personal estate, is an implied republication of the will. For the testator's acknowledgment of his former will considered as his will at the execution of the codicil, if not directly expressed in that instrument, must be implied from the nature of the instrument itself; because by the nature of it, it supposes a former will, refers to it, and becomes part of it, and being attested by three witnesses, his implied declaration and acknowledgment seems also to be attested by three. By the codicil inBarnes v Crowe, the testator revoked some legacies, and gave a moiety of two leasehold houses, and concluded thus: "In witness whereof I, the said testator, have to this my writing, contained in this and part of the said sheet of paper, which I declare to be a farther codicil to my said, last will and testament, and which is to be accepted and taken as part thereof, set my hand and seal." And inPigott v Waller, Wes. 98, a codicil executed by the testator in the presence of three witnesses, though it only revoked two legacies given by the will, and another codicil, and gave another legacy in lieu thereof, was holden to be a republication of the will to pass after-purchased lands. There the words of the codicil were, "A codicil made and published by me, and to be annexed to my will, and made part thereof to all, intents and purposes." But where the testator had by his will devised all his freehold and copyhold estate, and afterwards purchased new lands, and then made a codicil, whereby, after reciting that he had devised all his freehold and copyhold to certain trustees, he revoked the same so far as related to two of the trustees named and devised his said lands to the other trustees upon the same trusts, and concluded with declaring the codicil to be part of his will, that was held not to pass the after-purchased lands. For in that case it appeared, upon the face of the codicil, that it was not the intention to pass any other lands than those which were devised by the will. 7 T. R. 482,Strathmore v Bowes.(o) With respect to revocations of wills, they are either implied by operation of law, which may still be, notwithstanding the Statute of Frauds,or express; according to the direction of the statute. Implied revocations have been decided upon nice and artificial reasons, from an inclination, it is said, which the law always shews to favour an heir, and to prevent him from being disinherited, where the intention of a testator is doubtful. 3 Atk. 747,Parsons v Freeman. The grounds of the decisions have not always been uniform; for some of them have been determined upon the presumed intent of the devisor to revoke his will; and others upon the ground of its being a positive rule of law, making the act done a revocation, without any regard to the intent; which last seems to be the most sensible reason. Indeed, generally speaking, the intention of the testator is defeated by implied revocations. But they have been established by so long a series of authorities, that Courts of law feel themselves bound down by them, though very often not without regret. 4 Burr. 1960,Roe v Griffits. Doug. 722,Doe v Pott. It seems clear that the estate devised must remain in the same condition until the testator's death; For any the least alteration or new-modelling of the estate, after the will, is an actual revocation. 11 Mod. 157, per Trevor C.J. iArthur v Bokenham, S.C. Fitzg. 24l. Holt's Rep. 750, S. P. 3 Atk. 803,Sparrow v Hardcastle.(p) And that whenever the devisor puts the whole interest of the lands devised out of himself, by any conveyance whatsoever, after making his will, it is a revocation of it, although he takes the same estate back again. 4 Burr. 1960,Roe v Griffits. Therefore, if a man seised in fee makes his will, and afterwards executes a feoffment in fee to the use of himself, and his heirs and so takes back the same estate he had when he made his will, it is a revocation; 1 Rol. Abr 615, (Q.) pl. 1, 616, pl. 2. 11 Mod. 158,Arthur v Bokenham. 3 Atk. 748,Parsons v Freeman. Dyer, 143 a. b.; though 1 Rol. Abr. 616, (U.) pl. 4, is to the contrary. So if be afterwards levies a fine, and declares the use of it to himself and his heirs, it is a revocation. 1 Wils. 310,Parsons v Freeman. It has been said by very high authority, that if a man barely levies a fine after he has made his will, the fine, without a deed leading or declaring the uses, would not be a revocation.Williams v Owens, 2 Ves jud. 600. But perhaps this is doubtful, because it seems clear, that the fine would by operation of law result to the use of the conusor and his heirs; 2 Wils; 19, Armstrong v Wholesey; and in 2 Salk. 590.Abbot v Burton, it is adjudged that there is no difference as to the operation of a fine, etc. whether the use is reserved to the conusor and his heirs by express limitation, or results back to him and his heirs by operation of law. Afterwards, in the case ofHarmood v Oglander, 6 Ves jun. 222, Lord Alvanley, with his usual candour, observed, that he thought the editor was justified in his doubt. And inParsons v Freeman, Lord Hardwicke says, "that if a man devises land and levies a fine without any use declared, this is a revocation; and yet be takes back the old use unaltered, which is a prodigious strong case; " cited in 2 Ves jun. 431, Bridges v Duchess of Chandos. (q) Imperfect conveyances, as a feoffment without livery, and a bargain and sale without inrolment, after making the will, are held to be revocations, because they import an intention in the testator to revoke. 1 Rol. Abr. 615, (P.) pl. 4, 5, 6. 3 Atk, 803,Sparrow v Hardcastle. 7 Ves. 378. So where a common recovery is suffered by the devisor after he has made his will, but there is no good tenant to the pioecipe, it shall be a revocation. For it is a valid recovery against the devisor and all parties thereto, and after his death against all privies, that is, the devisees of the estate,by estoppel. And if, instead of being a valid, it had been an imperfect recovery, still, according to all the cases, it would, have operated a revocation. 2 Bos. & Pull. N. R. 491, Doe on dem of Lushington v Bishop of Landaff.(r) And if a man seised in fee-simple makes his will, and afterwards thinking he, had only an estate tail, suffered a recoveryin order to confirm his will, yet it is a revocation of it. 3 Atk. 803,Sparrow v Hardcastle. So where tenant in tail, with remainder or reversion to himself in fee, makes his will, and afterwards suffers a recovery and declares the uses thereof to himself in fee, it is a revocation. 3 Lev. 108,Dister v Dister. 11 Mod. 157, 158,Arthur v Bokenham. 3 P. Will. 163,Marwood v Turner. And where tenant for life, remainder to trustees to support contingent remainders, remainder to his first and other sons in tail, with reversion to himself in fee, makes his will, and afterwards suffers a recovery and limits the uses to himself in fee, this, though a mere nugatory recovery, being suffered by tenant for life, is held a revocation of the will. 3 Wils. 6,Darley v Darley. So where, after the making of the will, the testator executes any legal conveyance of the whole estate to another, it is a revocation; as where he conveys by lease and release to the relessees in fee, though it be only for the purpose of letting in a term to secure a jointure, and the same estate, subject to the term, is limited back again to the grantee and his heirs, it is a revocation; (s) though if the devisor had demised the premises for a term of years to the same use, it would only be a revocation, quoad the term. 7 T. R. 399,Goodtitle v Otway. So in the case ofLord Lincoln v Rolls. 1 Eq. Cas. Abr. 411, S. C. Show. P. C. 154, where Edward Earl of -Lincoln made a marriage settlement on a person whom he never married, or asked to marry him, though, this was a conveyance made for a special purpose, and he was in of his, old use, it was determined by the House of Lords to be a revocation of his will. (t) And so isPollen v Hubard,, 1 Eq. Cas. Abr. 412. The same principle is established inBrydges v Duchess of Chandos, 2 Ves jun. 417, and lately in K. B. in the abovementioned case ofGoodtitle v Otway, where all the cases upon the subject were cited and considered; see also 2 Ves. jun. 505William v. Owens. InLuther v Kidby, 3, P. Will. 170, note. 8 Vin. 148, pl. 30, MS. and cited in 3 Burr. 1490, Swift v Roberts, where a tenant in common in fee made his will, and afterwardsmade a deed of partition, andlevied a fine, and declared the use as to one moiety, in severalty to himself in fee, this was held to be no revocation. See 6 Ves jun. 219, Harmood v Oglander, where Lord Alvanley, then Master of the Rolls, expresses his dissatisfaction with this decision. See however what is said by Lord Eldon, as to the distinction between the two cases of Luther v Kidby andTickner v Tickner, inMaundrell v Maundrell, 10 Ves. 256, 264. See 7 Ves. 564,Knollys v Alcock. 8 Ves. 281, Attorney-General v Vigor. In the above-mentioned case ofTickner v Tickner, cited in 3 Atk. 742;Parsons v Freeman, it was held, that where the deed of partition so far altered the estate, as to let in power of appointment, it was a revocation. There a person being seised of, an undivided moiety in fee made his will, and afterwards by a deed of partition, and by fine the estate, was allotted to such uses as he should oppoint by deed in writing, and in default of such appointment to him in fee, this was held to be a revocation. So where the testator conveyed the estate not merely for the purpose of securing a mortgage of the devised lands, but also to other uses operating an alteration of the estate beyond that purpose, though the other uses were substantially the same as existed at the time of the conveyance, it was holden to be a revocation of the will in equity as well as at law. As where the uses were to the mortgagee for a term of years, to secure the mortgage, andafterwards to the devisor for life, without waste, remainder to his wife for life, remainder to himself in fee, though it was the same estate that the devisor and his wife had in the premises before. 6 Ves jun. 199, Harmood v Oglander, S.C. 8 Ves jun. 106.(u) But if a man makes his will, and afterwards demises the estate for any number of years, it is only a revocation for the term; 1 Rol. Abr. 616 (U.) pl. 1, 2, 3. Cro Jac. 49,Coke v Bullock. Cro. Car. 23,Hodgkinson v Wood. 6 T. R. 710,Roe v Wegg; that is, the devisee takes the estate subject to the lease.(x) Revocations have been also holden to be necessarily implied from a total change and alteration of the circumstances and situation of the testator after making his will.(y) As where a man devises away his whole estate, and afterwards marries and has issue, and dies without expressly revoking his will, leaving his wife and issue unprovided for, this is considered as an implied revocation of his will. For where so entire a change in the circumstances of a person has happened, and new objects of care have arisen which he could not have had in his contemplation at the time, the will is not regarded as a considerate provision, but by operation of law is revoked. This principle is holden to be founded not so much on an intention to revoke, implied fromthose circumstances happening afterwards, as on a tacit condition annexed to the will itself at the time of making it, that the party does not then intend that it should take effect if there should be a total change in the situation of his family. 5 T. R. 58,Doe v Lancashire. Or perhaps it may be a condition annexed by the law itself to all dispositions of property by will, that they shall not be of any effect under those circumstances.(z) This principle was borrowed from the civil law Just lib ii. tit. 13. "De Posthumis," and was first adopted into the law of England in the construction of wills of personal estates. Thus inLugg v Lugg, 1 Ld. Raym. 441. S.C. 2 Salk. 592. 12 Mod. 236, where A. made his will and thereby devised all his personal estate to B. and C. and afterwards married and had children, and died without taking any notice of his will, this was held to be a revocation of his will. So inOverbury v Overbury, 2 Show. 242, it was adjudged, that if a man make his will, and dispose of his personal estate among his relations, and afterwards has children, it is a revocation of his will. And inEyre v Eyre, cited inCook v Oakley, 1 P. Will. 304, a subsequent marriage and birth of a child was construed a revocation of a will of personal estate, being a total alteration of the testator's circumstances.(a) But with respect to a will of realproperty, although Sir John Trevor, Master of the Rolls, inBrown v Thompson, Dec. 8, 1701 (cited in 1 P. Will. 304, note), held that a subsequent marriage and having children was a revocation of a will ofland, yet this was afterwards in some degree denied by the Court of Common Pleas inDriver v Standring, 2 Wils. 90, and much doubted by. Lord Hardwicke inParsons v Lanoe, 1 Ves. 191. S.C. 1 Wils. 243. Ambl. 557, and was not finally settled until the case ofChristopher v Christopher, in the Exchequer, 6th July 1771, cited in 4 Burr. 2171, note, and 2182,addend. where the testator made a will of land in the time of a former wife, who died without issue, and he married a second wife by whom he had issue, and it was determined by Parker Chief Baron, and Smith and Adams Barons, against Perrot Baron, that it was a revocation. And upon the authority of this case it was afterwards holden by De Grey C.J. Parker C.B. and Sir Eardley Wilmot, in the cockpit, inSpragge v Stone, cited inBrady v Cubitt, Doug. 35, 3d. edit. Ambl. 721, where a man devised away his whole estate real and personal to another, and afterwards married and had issue, that the subsequent marriage and birth of a child were in point of law an implied revocation of the will. This rule was afterwards extended to marriage and the birth of a posthumous child. As where A. being, unmarried devised lands to B. and his heirs; after the, making of the will, A. married, and, his wife was pregnant, which being known to him he expressed an intention to revoke his will, and gave directions to an attorney to prepare another will, but died before any other will was prepared and after his death his wife was delivered of a son; this was holden to be a revocation of the will.Doe v Lancashire, 5 T. R. 49.(b) But this rule applies, only in cases, where the wife and children, the new objects of duty, are wholly unprovided for, and where there, is an entire disposition of the whole estate to their exclusion and prejudice.Kennebel v Scrafton, 2 East, 541. Therefore, where A. bequeathed all his personal estate to B. and devised an annuity of 150l. to her for her life out of the rents of his freehold and copyhold estates, or by mortgage, etc. and in case he should have any child or children by her who should be living at his decease, he gave 60l. a-year out of the rents of his said estates, or by mortgage, for the maintenance and education of each such child until twenty-one, and then 3000l. to be divided among them, if more than one; and if but one, to be paid to such only child, to be raised out of his said estates, and devised the estates over to others, subject to the said annuities and payment: afterwards the testator married the said B. and had children by her, and died before expressly revoking his will: it appeared, that in a conversation which the testator had with his wife a short time before his death about his will, he said, that he had consulted a professional gentleman, who told him that the will, as it then stood, was a good and sufficient will; and observed he had thereby amply provided for her and her children:" it was holden that this subsequent marriage and birth of children did not amount to a revocation: for although it was a general proposition of law, that marriage and the birth of a childwithout provision made for the objects of these relations, of themselves operated a revocation of a will of lands, yet that could not be said to be the case where the same persons, who after the making of the will stood in the legal relation of wife and children, were before specifically contemplated and provided for by the testator, though tinder a different character and denomination. And therefore there was not in that case that total change in the situation of the family, and that total destitution of provision for those who ought to be the objects of the testator's care and protection, which could vacate the will on the ground of a supposed tacit condition that it should be void upon atotal change, in the situation of the testator's family, and a total want of provision for the family so newly circumstanced; or upon the ground of a presumed intention to revoke.Ibid. 530. 7 Ves. 366,Ex parte the Earl of Ilchester. So Lord Mansfield inBrady v Cubitt, Dougl. 39, 3d. ed. says, "But upon my recollection, there is no case in which marriage and the birth of a child have been held to raise an implied revocation, where there has not been a disposition of the whole estate." (c) But marriagealone, or birth of a childalone, after making the will, is not, without other special circumstances, sufficient to operate a revocation.Wellington v Wellington, 4 Burr. 2171 inJackson v Hurlock, Ambl. 495.Shepherd v Shepherd, cited inDoe v Lancashire, 5 T. R. 51 note (a.).Ward v Philips, 5 T. R. 53, note. Wells v Wilsonibid. 52, note.(d) There is some difference of opinion whether parol evidence of the testator's, declaration in favour of his will can be received in cases of revocations by marriage and birth of a child. InLugg v Lugg, 1 Ld. Raym. 441. 2 Salk. 592. 12 Mod. 236, it is said, that if by any expression, or any other means, it had appeared that it was the testator's intention that his will should continue in force, the marriage and birth of issue would not have been a revocation. So inBrady v Cubitt, Dougl, 31, 3d. ed it was decided, that an implied revocation of a will by a subsequent marriage and the birth of a child, may be rebutted by parol evidence; for, by Lord Mansfield, it affords a mere presumption of revocation, which, like all other presumptions, may be rebutted by every sort of evidence. But inDoe v Lancashire, 5 T. R. 60, Lord Kenyon said, "he disclaimed paying any attention to the declaration of the testator stated in that case, because letting in that kind of evidence would be in direct opposition to the Statute of Frauds, which was passed in order to prevent any thing depending either on the mistake or perjury of witnesses." And Buller Justice concurred, and observed that if there were any revocation at all, it was so by presumption of law independently of express declarations. See 4 Ves. 848,Gibbons v Caunt. InKennebel v Scrafton, 2 East's Rep. 530, 541, it became unnecessary to determine this point, and therefore the Court gave no opinion upon it.(e) In all other cases of revocations implied by operation of law from the acts done by the testator after making his will, such as levying a fine, suffering a recovery, or executing a feoffment or any other conveyance of the premises devised by the will, whether perfected or not, it seems to be considered as fully settled that no parol declarations in favour of the will can be received in evidence to rebut the revocation implied by law from the Acts. As where Sir T. C. made his will and devised his estate, and afterwards, upon his marriage, by deeds of lease and release settled the same estate to certain uses, and died soon after his marriage without issue; it was holden, that parol evidence of the testator's declarations, that his will should remain in force notwithstanding the settlement, could not be received.Goodtitle v Otway, 2 H. Black. 516. InMartin v Savage, cited inPotter v Potter, 1 Ves. 440, and inGibson v Montfort, 1 Ves. 489, the testator declared his will was in the custody of S., and that it was and would be still his will: the point was, whether the declaration, which was subsequent to a settlement by fine, which had revoked the will by altering the estate, was a republication of the will? Lord Hardwicke held, that parol evidence, should not be admitted, as it would elude the Statute of Frauds. Therefore, if subsequent marriage and the birth of a child amounted to an implied revocationby operation of law, there seems to be the same objection to the admissibility of parol evidence of the testator's declarations in favour of the will, as in cases of revocations implied by acts done by the testator. And besides, after the will has been so revoked by marriage and the birth of a child, these parol declarations would have the effect of republishing the will, which, as it has been already observed, they cannot have since the Statute of Frauds. On the other hand, in support of the admissibility of such evidence, it is argued that the circumstances of marriage and the birth of a child amount only to a presumptive revocation, and as the circumstances from which the resumption is inferred arise out of parol evidence, they may be repelled by the same kind of evidence. See the observations made onBrady v Cubitt, by Eyre C.J. in 2 H. Black. 522, and by Buller Justice,ibid. 524. So that upon the whole it seems doubtful whether parol evidence of the declarations of the testator respecting the will are not alike inadmissible in the case of a revocation by marriage and birth of a child, as in the case of other implied revocations by operation of law. (See 7 Ves. 353.) (f) But if a feme sole makes her will and afterwards marries, the marriage alone is a revocation of the will. For, as it is the nature of that instrument to be ambulatory during the testator's life, and marriage disables her from making any other will, the instrument ceases to be any longer ambulatory, and must be therefore void. Therefore, generally speaking, the will of afeme sole, ceases to have any operation after she becomes covert.Forse v Hambling, 4 Rep. 60 b.Doe v Staple, 2 T. R. 695, 697.Cotter v Layer, 2 P. Will. 624. 2 Black. Com. 499. 2 Bro. Ch Cas. 544,Hodsden v Lloyd. And though the wife should survive the husband, yet the will shall not revive after the husband's death.Lewis's case, 4 Burn. Eccl. Law, 47. But where an estate is limited to uses, and a power is given to a feme covert before marriage to declare those uses, such limitation of uses may take effect.Doe v Staple, 2 T. R. 695.(g) Here it may not be improper to take notice of the case of acontingent will, where, whether it will eventually take place as a will or not depends upon the happening or not happening of a certain event. As where a person intending to go to Ireland made his will in these words, "If I die before my return from my journey to Ireland, that my house and land at F., and all the appurtenances and furniture thereto belonging, be sold as goon as possible after my death, and thereout all my debts and funeral charges be paid. Item 1000l. to A. out of the said money arising by the said sale, and 100l. to B." The testator, after making the said will, went to Ireland and returned to England, lived some years afterwards, and died. It was held by Lord Hardwicke that the will was contingent, depending upon the event of the testator's returning to England, or not; and that, as he did return, the will could have no effect, but was void.Parsons v Lanoe, 1 Ves. 190.(h) With regard to express revocations, they depend upon the statute 29 Car. 2, c. 3, c. 6, which enacts that "no devise in writing of lands, tenements, or hereditaments shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating, the same, by the testator himself, or in his presence and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force, until the same be burnt, cancelled, torn, or obliterated by the testator, or his directions in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses declaring the same." See 2 Black. Rep. 1043, Bibb v Thomas.(i) Before this statute, wills of lands, made either under the particular custom of boroughs, or by virtue of the statute 32 H. 8, c. 1, of Wills, might be revoked by express wordswithout writing. For although the last-mentioned statute requires wills, of lands to be in writing, yet it is silent as to the mode in which they may be revoked.Brook v Warde, Dyer, 310 b. pl. 81.Symson v Kirton, Cro. Jac. 115. Sty. 343, 418.Eggleston v Speke, 3 Mod. 260. And therefore, if the testator had said, "I revoke my will," and desired the persons present to bear witness of it, that would have been a revocation.Cranvel v Sanders, Cro. Jac. 497. And although to such express words of revocation he had added, "that he would alter his will when he dame to such a place," and died before he came there, it would nevertheless have been a revocation Dyer, 310 b. 1 Rol. Abr. 614 (O.), pl. 1; for the will being already expressly revoked it was immaterial in that respect whether he altered it or not. See alsoBurton v Gowell, Cro. Eliz. 306. But words declaring only a future intention to revoke were not considered a revocation before the Statute of Frauds. As if the testator had said, "I will alter my will," or, "it shall not stand:" these words, being indicative only of an intention to revoke at some future time were holden not to be a revocation. Cranvel v Sanders Cro. Jac. 497. 1 Ro 1. Abr. 615(P.); pl 1. Moor, 874, 875. And so it is since the Statute of Frauds, notwithstanding the instrument containing words of an intention to revoke be executed according to the directions of the statute. As where a testator by, a subsequent will, duly executed and attested, devised away a reversion in fee which had been given to him since the making of a former will, and at the conclusion of the subsequent will added, that, "as to the rest of his real and personal estate he intended to dispose the same by a codicil to that his will thereafter to be made," and afterwards died without doing any other act to revoke his will; it, was adjudged that these words, declaring only an intention to revoke, though reduced into writing with all the formalities of the statute, did not amount to a revocation, any more than a parol declaration of the same words would have done before the statute.Thomas v Evans, 2 East, 488.(k) With respect to a revocation by a subsequent will or codicil, it seems to be established that a subsequent will or codicil does not revoke a former will, unless it be inconsistent with it, or contain express words of revocation; and therefore two wills, disposing of the same land, may be construed together, unless they are inconsistent with each other. Cowp. 90,Harwood v Goodriqht. As where a man devised to his youngest son and his heirs, and afterwards married, and devised the same land to his wife for life, paying annually to his youngest son and his heirs a certain rent; the second will was holden to be no revocation, but both might stand, although they were by several writings, unless the subsequent will were manifestly contrary to the first, or there were an express revocation therein; but they ought to stand together if they might, as if made by and in one and the same writing. And his intention appeared that he did not mean to alter it as to his son, but, only to provide for his wife; and by appointing the rent to his son it appeared that his intent was that the reversion should be to his son.Coward v Marshal, Cro. Eliz. 721. This cage is recognised by Lord Hardwicke inWillet v Sandford, 1, Ves. 187. And upon the same principle it has been decided, that a subsequent will is no revocation unless the contents of it are known; and it is not to be presumed from the mere circumstance of another will having been made, that it revoked the former. As where it was found by a special verdict that the testator, after the making of a former will, made another will in writing, but, what the contents and purport of it were the jury did not know. The second will was holden not to be a revocation of the, first, for the other will might concern other lands, or no lands at all, or be a confirmation of the former.Hitchins v Basset, 1 Show. 537. 3 Mod. 203. 2 Salk. 592. And this judgment was affirmed in the House of Lords. Show. Cas. Parl. 146. Hence it seems to follow, that what Lord Hale is said to have laid down in a former case upon the same will (Seymour v Nosworthy, Hardr. 376), namely, that a second substantive independent will, though it does not by express words import a revocation of a former will, or pass any land, amounts in law to a revocation," is either not correctly reported, or if it be, is overruled by the subsequent case ofHitchins v Basset, 3 Wils. 512, per Blackstone Justice. So in a more modern case it was found by a special verdict, that the testator did make and duly publish another will in writing in the presence of three subscribing witnesses, who duly attested the same; that the disposition made by the testator by the second will was different from the disposition in the former will, but in what particulars was unknown to the jury: but they did not find that the testator cancelled the second will, or that the devisee under the first will destroyed the same; but what was become of the second will the jury could not tell: it was adjudged in the K. B. on error, that the second will was no revocation of the first; and the judgment of the Court of C. B. to the contrary was reversed;Harwood v Goodright, Cowp. 87. 3 Wils. 497. 2. Black. 937; and the judgment of the K. B. was affirmed in the House of Lords. 7 Bro. P. C. 344.(l) It has been holden that the words, in the 6th clause of the Statute of Frauds, "unless the same be altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or four witnesses, declaring the same," are to be construed in thedisjunctive; namely, that a former will can only be revoked either by another will or codicil, or by some other distinct writing, not being a will or codicil, merely revoking the former will signed in the presence of three or four witnesses. For the words "signed in the presence of three or four witnesses," are in construction adjudged to refer only to the preceding words "other writing." and not to the words "other will or codicil in writing." For the statute having in the preceding section (5th) directed what was necessary to be done in order to make a good and valid will or codicil of land, uses only the words "some other will or codicil in writing," which is as much as if it had said, by some other will or codicil made according to the requisites of the preceding section respecting the devise of land. And then the meaning of that part of the sixth clause seems to be, that if the testator intends barely to revoke his will without more, he may do so by writing signed in the presence of three witnesses, but who need not subscribe their names in his presence: (m) but if the revocation arises from another will or codicil inconsistent with the first, such will or codicil must be executed according to the solemnities of the fifth section of the statute respecting devises of land, which requires that the witnesses should subscribe their names in the presence of the testator; or in other words, it must be an effective will or codicil within that section, otherwise it is insufficient to revoke the former will, although it contains express words of revocation, and is as if no second will existed. For it seems ridiculous to say that wills of revocation shall be executed in one way, and wills of devising in another.Hoil v Clark, 3 Mod. 218.Grayson v Atkinson, 2 Ves. 458.Ellis v Smith, 1 Ves jun. 11.Onyons v Tyrer, 1 P. Will. 343. S.C. Prec in Chan. 459.Eccleston v Speke, Carth. 80, 81. 3 Mod. 258. 1 Show. 89. 3 Salk. 396, s. 5. And if such subsequent will be not an effective will within the fifth section, although it contains express words of revocation, it shall not let in the heir, but the first will shall stand; because the meaning of the second will was to give to the second devisee what it had taken from the first without any consideration had to the heir; and if the second devisee take nothing, the first can lose nothing. 1 P. Will. 345. Prec in Chan. 460. It has been adjudged that a devise of lands void in respect of the incapacity of the devisee to take, as a devise to a Papist, who by statute 11 & 12 W. 3, c. 4, s. 4, and before statute 18 Geo. 3, c. 60, could not take by devise, shall nevertheless revoke a former devise.Rooper v Radcliffe, 1 Bro. P. C. 460. 10 Mod. 237. 2 P. Will. 4. So a subsequent grant to a person incapable of taking has been holden a revocation of a former devise. As where a husband had devised all his estate real and personal to his brother, and afterwards by a deed poll granted to his wife all his substance which he then had or might have, though this could not by law take effect as a grant to the wife, yet being an act inconsistent with the will, it was adjudged to be a revocation of it.Beard v Beard, 3 Atk. 72.(n) It has been decided that an acknowledgment by the testator before the three witnesses that his name in the will is of his handwriting, is a sufficient signing as well upon the fifth clause relating to the devise of lands, as upon the sixth respecting revocations, although the words "signed in the presence of three witnesses," are expressly mentioned in the sixth clause touching revocations.(o) And it has been even holden that the three witnesses may subscribe their names separately at three different times; and if the testator acknowledges his name to be his handwriting before each, or signs before one and acknowledges before the rest, it is a sufficient signing upon both clauses.Lemayne v Stanley, 3 Lev. 1. Skin. 227.Cooke v Parsons, Prec in Chan. 184.Peate v Ougly, Com. Rep. 197.Dormer v Thurland, 2 P. Will. 510, per Lord King.Stonehouse v Evelyn, 3 P. Will. 254.Grayson v Atkinson, 2 Ves. 454, 458.Ellis v Smith, 1 Ves jun. Il. SeeHilton v King, 3 Lev. 86.(p) With respect to a revocation arising from cancelling the will, it has been holden that cancelling is an equivocal act, and in order to operate a revocation must be done with an intention of revoking the will. As if a man was to throw ink upon his will instead of sand, though it might be a complete defacing of the instrument, it would be no revocation; or suppose a man having two wills of different dates by him, should direct the former to be cancelled, and through mistake the person should cancel the latter, such an act would be no revocation of the last will.Burtonshaw v Gilbert, Cowp. 52. So where a man made a second will to the use of the same person whom he had devised the land to by his first will " but with a variation, only in the name of one of the trustees, but which second will was not good because not duly attested according to the Statute of Frauds, and the testator cancelled the first will upon a mistaken presumption that he had effectually revoked it, but not with a design to revoke the devise as to the real estate, this was holden to be a cancelling by mistake, and therefore no revocation;Onion v Tyrer, 2 Vern. 741. Prec in Chan. 459. 1 P. Will. 343; the principle of which case was recognized by Lord Mansfield in the before cited case ofBurtonshaw v Gilbert.(q) And the same has been held with respect toobliteration. As where lands were duly devised to two trustees upon trust for certain purposes, and afterwards the testator struck out the name of one of the trustees, and inserted the name of two others, leaving the purposes of the trust unaltered, though varying in certain particulars, and did not republish his will, it was adjudged that the testator's intent appearing to be only to revoke by the substitution of another good devise to other trustees, as such new devise could not take effect for want of the proper requisites of the Statute of Frauds, it should not operate a revocation; or at most it could only operate a revocation pro tanto as to the trustee whose name was obliterated, leaving the devise good as to the old trustee whose name was retained.Short on dem. Gastrell v Smith, 4 East, 419. So where a man duly devised land to two persons as joint-tenants in fee, and afterwards struck out the name of one of the devisees, and did not republish his will, the obliteration will only operate a revocationpro tanto.Larkins v Larkins, 3 Bos. & Pull. 16. See furtherHide v Mason, Vin. Devise, 140, pl. 17, S.C. Com. Rep.451, Hyde v Hyde, cited in Com. Rep. 455.Burkitt v Burkitt, 2 Vern. 498.Sutton v Sutton, Cowp. 812.(r) And where the testator, a little before his death, cancelled his will in the presence of several persons, and said, "I cancel my will," and desired them to bear witness of it, this was considered as a sufficient cancelling the other duplicate which he had not by him. Com. Rep. 453, 454. 1 P. Will. 346(s) A will revoked by a subsequent will, but not cancelled, was held to be re-established by the cancellation of the subsequent will.Goodright v Glazier, 4 Burr. 2512.(t)

(g) 2 Ves. 427, Brydges v. Duchess of Chandos, S. P. [The law is altered in this respect as to wills made after the year 1837. (Seepost, 277, note (h)).

(h) [But now, by the new Statute of Wills (1 Vict c. 26, s. 3), the power of disposing by will, executed as required by that Act, is extended to all such real and personal estate as the testator may be entitled to at the time of his death, notwithstanding that he may have become entitled to the same subsequently to the execution of his will. This statute, however, does not extend to any will made before Jan. 1, 1838 (see sect. 34).]

(i) [When this reported dictum of Lord Hardwicke in Casborne v Scarfe and Inglis (inadvertently cited above by the name ofCasborne v Inglis), was relied on before Lord Eldon, be said that be did not believe that Lord Hardwicke said so. 8 Ves. 436. At all events, the law is now otherwise; for it is settled that, although the devisee will not take any beneficial interest in the lands in mortgage, yet the legal estate will pass under a general devise of real estate, notwithstanding the equity of redemption be not foreclosed; unless the will charges the devised estates with debts, or legacies, or annuities, or in some manner inconsistent with a devise of trust or mortgaged estates. 8 Ves. 417,Lord Braybroke v Inskip. 10 Ves. 101,Ex parte Morgan. 1 Jac. & W. 494,Wall v Bright. 2 Y. & Coll. 347,Bainbridge v Lord Ashburton. 8 Mees. & W. 553,Doe v Lightfoot.]

(k) 10 Ves. 613,Broome v Monck. 2 Mod. 462,Holmes v Barker. So where the words of the will were insufficient to pass real, property, it was held that lands contracted for before the date of the will would descend to the heir, and must be aid for out of the personal estate. 2 Eden, 139,Cave v Cave.

(l) [It is now fully settled with respect to equitable estates generally, that the taking of a subsequent conveyance, which merely clothes the equitable estate with the legal title, is no revocation of a devise of the equitable estate. 3 Mylne & K. 296,Clough v Clough.Post, 278, note M.]

(m) 3 Ves. 654,Cave v Holford. 3 Ves. 685,Earl Temple v Duchess of Chandos. 6 Ves. 219,Harmood v Oglander. 17 Ves jun. 134,Tucker v Thurston. [See 1 Cr. & M. 140,Johnson v Johnson.]

(n) [But seeante, p. 277 note (h).]

(o) 2 Bos. & Pull. 500, S.C. under the names ofBowes v Bowes. A codicil attested by three witnesses, "to be taken as part of his will," was held to be a republication, and to pass lands contracted for before the date of the will, and conveyed between it and the codicil. 2 M. & S. 5,Goodtitle v Meredith. That case was decided on the authority of the series of cases mentioned in this note of Mr. Serjeant Williams; the effect of which, as stated b Lord Ellenborough C.J. is, "to give an operation to the codicilper se, and independently of any intention, so as to bring down the will to the date of the codicil, making the will speak as of that date, unless indeed a contrary intention be shewn, in which case it will repel that effect." See also 1 Mer. 285,Hulme v Heygate. 2 Mer. 128,Rowley v Eyton. [3 B. & C. 705,Duffield v Elwes. 5 D. & R. 764, S.C. 2 Bing. 429,Guest v Willasey. 10 Moo. 223. 3 Bing. 614. 12 Moo. 2, S. C. 10 B. & C. 895,Williams v Goodtitle. For instances, where, in accordance withStrathmore v Bowes, the ordinary presumption of republication by codicil has been counteracted by a contrary intention apparent on the face of it, see 3 Y. & Jerv. 278, Smith v Dearmer, 2 Russ. & M. 117,Monypenny v Bristow. 3 Mylne & K. 666,Hughes v Turner. The new Statute of Wills (1 Vict c. 26) does not appear to have altered the general law as to republication by codicil. The subject, however, with respect to wills within the operation of that statute, has greatly diminished in importance; for not only is the testamentary power extended to after purchased lands (s. 3, seeante, p. 277, note (h)), but it is further enacted (s. 24) "that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." With respect, indeed, to wills, which shall be in any manner revoked, the law as to republication has been materially altered by the 22d section; for it is thereby enacted, that no such will or codicil, or any part thereof, shall be revived otherwise than by re-execution or by a codicil duly executed as required by that Act,and shewing an intention to revive the same. This section proceeds to enact, that "when any will or codicil, which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shewn." This enactment appears to provide for cases similar to that ofCrosbie v M'Doual, 4 Ves. 610, where the testator had executed several codicils to his will containing partial alterations of, and additions to it; and, by a further codicil, referring to the will by date, he changed one of the trustees and executors, and in all other respects expressly confirmed the will: and this confirmation was held not to revive the parts of it which were altered or revoked by the former codicils. It has been held that a will or codicil not duly attested may be republished and made operative by a subsequent codicil having the requisite attestation, though the latter document be in no way annexed to the prior will or codicil. But it should seem that it must distinctly refer to it. See 1 Cr. & M. 42,Doe v Evans. 1 A. & E. 423,Utterton v Robins. 2 Nev. & M. 819, S.C. 5 Sim. 274,Gordon v Reay.]

(p) But see stat. 1 Vict c. 26, s. 23 (post, p. 278, note (u)), which appears wholly to abolish revocations of this nature for the future.]

(q) 3 B. Moore, 21, Parker v Biscoe, S. P. [8 Taunt. 699, S. C.]

(r) So a deed, intended to operate as an appointment of uses, although not sufficient for that purpose, may have the effect of revoking a will, if the party appear to have had that intention. 5 T. R. 124,Shove v Pinke. See also 2 Swanst. 274, Vawser v Jeffery, by Lord Eldon. But it was held, that a will was not revoked by a deed void, under the Statute of Mortmain, on account of the death of the grantor within twelve months after its execution. 2 Bing. 136,Matthews v Venables. 9 Moore, 286, SC So it ways held that a will made by a woman in the exercise of a power of appointment, was not revoked by a subsequent deed made by her during coverture. 1 Russ. 564,Eilbeck v Wood. A deed void at law for fraud and covin is no revocation; for it is not the testator's deed, and may be regarded as a nullity. Ambl. 216, Hick v Mors 8 Ves. 283,Attorney-General v Vigor. But a deed, which is good at law, is a revocation in equity as well as at law, though it was executed under circumstances which makes it void in equity. 5 Sim. 1, Simpson v Walker, overrulingHawes v Wyatt, 3 B. C. C. 156.]

(s) Id Ves. 519, Vawser v Jeffrey, S. P. [2 Swanst. 268. In this case the testator also covenanted to surrender certain copyhold property to the uses of the settlement. The Court of K. B. certified, on the assumption that a surrender had actually been made according to the covenant, that, notwithstanding the settlement was a revocation as to the freeholds, the surrender was no revocation as to the copyholds. 3 B. & A. 462. And this opinion was adopted 'by Lord Lyndhurst C. 3 Russ. 479. The ground of this decision was, that by the surrender nothing more passed out of the surrenderor than was necessary for the purposes of the settlement, and the rest remained in him, not as under the surrender, but in respect of his old estate. What was done, therefore, did not operate as an entire revocation, but was a revocation only as to the partial interest, the new estate which was created by the surrender.]

(t) [In this case, the settlor was seised of the equitable fee only. Whence it appears that equitable estates are governed by the same doctrine, in this respect, that legal estates are. See 5 Sim. 618, Lock v Foote,accord. The rule, indeed, seems general, that every act of revocation at law is a revocation in equity, except where the object of the party, in doing the act, is merely to make a security for payment of debts, or where there is a dealing with the legal estate only (seepost, p. 278, n. (u)); and except also in the case of a partition; in which last case, if there is a change in the use, the will be revoked. (Seepost, p. 278.)]

(u) [So, though the conveyance of an estate to trustees, upon trust to sell for payment of debts, is not revocation in equity of a prior will, notwithstanding such conveyance declares that the surplus money arising from the sale shall be personal estate of the testator, yet if it have the further purpose to provide an annuity for the separate use of the wife until the sale, it will be a revocation; because the wife will be entitled to the annuity after the death of her husband, if the sale do not take place in his lifetime. 4 Russ. 28,Hodges v Green. So, though the taking of a conveyance, which merely clothes the equitable estate with the legal title is no revocation of a devise of the equitable estate (seeante, p. 277, note (l), yet if the conveyance is so framed that the legal estate acquired subsequently to the devise is modified differently from the equitable estate possessed at the time of the devise, it is a revocation. 2 Ves. & B. 382,Rawlins v Burgis. 4 Madd. 368,Ward v Moore. 6 Madd. 221,Brain v Brain. 1 Keen, 369, Bullin v Fletcher. 2 Mylne & Cr. 432, S.C. But now by stat. 1 Vict. C. 26, s. 23. " No conveyance or other act, made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid (seepost, p. 279, note (h)), shall prevent the operation of the will in respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death."]

(x) A binding and valid contract for the sale of lands devised, is in equity as much a revocations as a conveyance would be at law; 19 Ves. 178, Bennett v Tankerville; though the contract be rescinded after the devisor's death,ibid. [6 Sim. 40,Tebbott v Voules.]

(y) [But by stat. 1 Vict c. 26, s. 19, 11 No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." Seepost, p. 279, note (e).]

(z) [And of this opinion were all the Judges of England (assembled in the Exchequer Chamber, absente Lord Denman) in the great case of Marston v Doe dem.Fox, 8 A. & E. 14. 2 Nev. &. P. 504. The subsequent death of the child was held not to revive the will. 1 Phil. 342,Emerson v Boville.]

(a). 1 Ves. & Beam. 397, Skeath v York S. P.

(b) But marriage, and the birth of a child, will not revoke a will of land made in favour of children by a former marriage; 1 Ves. & Beam. 390,Skeath v York; the reason is, because such revocation would operate only to let in the eldest son to the whole of the estate, which by the will is divided between him and the other children of the first marriage; but as there would be no such consequence as to the personalty, it was held in the Ecclesiastical Court that the will was revoked as to the personalty,ibid. [1 Phil. 339,Hollway v Clarke.] See further, 2 Salk. 593, note,Wright Netherwood.

(c) [4 A. & E. 587,Doe v Edlin. 1 Hagg. 705,Talbot v Talbot. 2 Hagg. 561, Johnson v Wells,accord. But, semble, if there were a child of the marriage, the revocation could not be prevented by the circumstance of an estate acquired by the testator after the making of the will descending upon the child, and thereby becoming a provision, for him. 8 A. & E. 14. 2 Nev. & P. 504. In order to take the, case out of the general rule, and to prevent a revocation, it was held not sufficient that a provision was made for the wife only, but that such provision must also extend to the children of the marriage,ibid.]

(d) See also 4 M. & S. 10, Doe v Barford, in which it was held that the birth of a posthumous child was no revocation of a will made after marriage, although there had been no other child of the marriage, and although neither the testator nor his wife, at the time of his death, were aware that the wife wasenceinte. But the birth, of children, combined with other circumstances, may in some cases revoke a will made after marriage. 1 Phill. Eccl. Rep. 447,Johnson v Johnson. [InGibbons v Caunt, 4 Ves. 848, Lord Alvanley expressed a strong opinion that a revocation would be presumed from the birth of children by a first wife after the date of the husband's will and second marriage, though he had no children by that marriage.]

(e) There are not any subsequent cases on this subject; but it appears that parol, evidence is always admitted in the Ecclesiastical Courts. [1 Phill. 469, 472,Johnson v Johnson. 2 Add. 455,Gibbens v Cross. 1 Curt. 494,Fox v Marston. But it was finally settled in Marston v Doe dem. Fox (ante, p. 278, note (z)) that in the Temporal Courts no evidence of the testator's intention that his will should not be revoked, is, admissible to rebut the presumption of law that such revocation should take place. All questions, however, as to implied revocations by marriage and the birth of issue, are now put to rest by the stat. 1 Vict c. 26, s. 18, by which it is enacted, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions):" and by sect. 19, which enacts, that "no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." The reason for the exception in the 18th section is, that a' revocation of the will, in a case to which the exception applies, would operate only in favour of those entitled in default of appointment, and the new family of the testator would derive no benefit whatever from it. -It remains to be considered to what cases these enactments of the new statute extend. The 34th section enacts, that "'this Act shall not extend to any will made before the 1st day of January, 1838." And if the language here employed were exactly and strictly construed, it would seem to follow, that if a will were made at any time before that date, and the testator were to marry after the Act came into operation, the statute would not apply, and the will would not be revoked thereby; while, on the other hand, such a will might be revoked by a presumption of an intention on the ground of an alteration in circumstances taking place at any time during the life of the testator, though after January 1, 1838. But the construction hitherto put upon the statute has been, that wills made previously to 1838, with respect to revocations to be effected subsequently, are subject to the provisions of the Act. 1 Curt. 775, 776,Hobbs v Knight.]

(f) [See ante p. 279, note (e).]

(g) [Seeante, p. 279 b. note (e).] Where two unmarried sisters made mutual wills, it was held that the marriage of one did not revoke the will of the other. 4 Ves. 160,Hinckley v Simmons.

(h) [The Courts, however, are cautious how they construe conditions of this sort. Therefore, where a testator, by three letters, gave certain testamentary directions, "in case I should die on my travels," it was held by Sir J. Nicholl, in the Prerogative Court, that although the testator returned and lived many years afterwards, yet, as by subsequent acts he recognised the papers two years before his death, his return was not such a defeasance as to invalidate the disposition of his property directed by them. 3 Phillim. 209,Strauss v Schmidt. See also 2 Phillim. 294,Ingram v Strong. 3 Phillim. 625,Forbes v Gordon. InBurton v Collingwood, 4 Hagg. 176, a will, written eighteen years before the testator's death, containing this passage, "lest I die before the next sun, I make this my last will," was admitted to probate, the Court holding the disposition not contingent; and adherence to it being shewn by careful preservation. But see 4 Hagg, 179,In the Goods of Ward.]

(i) [By stat. 1. Vict c. 26, s. 20, "no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same." And by sect. 21 it is enacted, "that no obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as herein-before is required for the execution of the will; but the will, with such alteration as part, thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the, foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will." It will be observed that the words " cancelling and obliterating," which occur in the Statute of Frauds, are omitted in the new statute, and that the words " otherwise destroying" are substituted.; And it has been held in the Prerogative Court, that cancellation and striking through with a pen is not a revocation since the new Act; 2 Curt. 458,Stephens v Taprell; but that the testator's cutting out his signature is. 1 Curt. 768,Hobbs v Knight. In the construction of the Statute of Frauds it was held inBibb v Thomas, cited in the note above, that, in order to operate a revocation, it was not necessary that the instrument itself should be consumed or torn to pieces. In that case the testator gave the will a "rip" with his hands, so as almost to tear a bit off; then rumpled it together, and threw it upon the fire, but it fell off: still it must soon have been burnt, had not a bystander picked it up unseen by the testator, and put it in her pocket: this was held a sufficient revocation; for that it was both a burning and a tearing; and that throwing it on the fire with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute. However, inDoe v Harris, 6 A. & E. 209, S.C. 1 Nev. & P. 405, it was held, that in order to effectuate a revocation by burning, an intention and attempt to burn was insufficient; for that there must be an actual burning of the will to some extent. There a testator, intending to destroy a will, threw it on the fire; but a devisee under the will snatched it off, against the wishes of the testator, and took it away, a corner of the envelope only being burnt, and no part of the will itself banking been affected by the fire: the testator afterwards insisted on its being thrown on the fire again, with intent that it should be burnt, and the devisee then promised to burn it, but did not do so: it was held by the Court of Queen's Bench, that the will, so far as it related to freehold property, was not revoked; because there was no burning of the will itself to satisfy the Statute of Frauds; and no evidence whatever of what was said, proving an intention to revoke, could supply that deficiency. The same Court, however, afterwards held that the will was revoked in respect of a copyhold estate bequeathed by it, the Statute of Frauds not extending to property of that nature. 8 A. & E. 1. 2 Nev. & P. 615. There seems to be no reason why these decisions should not be applied to the new Statute of Wills. But assuming them to be adopted as authorities in its construction, it is difficult to state any precise rule with respect to the extent to which the burning or tearing of the will must go, in order to effect a revocation. In giving judgment inDoe v Harris, Lord Denham observed, that doubt might be entertained now, whether the proof given in Bibb v Thomas would be sufficient as to the acts of burning and tearing. Patte son J. said, "there must be, at all events, a partial burning of the instrument itself. I do not say that a quantity of words must be burnt; but there must be a burning of the paper on which the will is." Williams J. said, "The will must be torn or burnt; and the question will always be, whether that was done with intention to cancel. How much should be burnt, or whether the will should be torn into more or fewer pieces, it is not necessary to lay down." Coleridge J. said, "The question is put, whether the will must be destroyed wholly, or to what extent? It is hardly necessary to say; but there must be such an injury with intent to revoke as destroys the entirety of the will; because it may then be said, that the instrument no longer exists as it was." And Sir Herbert Jenner, in giving judgment in Hobbs v Knight, cited and adopted: the view of the question thus taken by Mr. Justice Coleridge, as applicable to the construction of the new statute. 1 Curt. 778. It must here be observed, that if the act of the destruction be inchoate and incomplete, it will not amount to a revocation Thus] in 3 B. & A. 489, Doe v Perkes, where a testator being angry with one of his devisees, tore his will into four pieces, but was prevented from, further tearing it, partly by force and partly by entreaty, and afterwards becoming calm expressed his satisfaction that no material part was injured, and that the will was no worse; the Court held that it had been properly left to the jury to say whether the testator had perfected his intention of cancelling the will, or whether he was stoppedin medio; and the jury having found the latter, the Court refused to disturb the verdict. [See the summing up to the jury of Holroyd J. in this case, Gow, N. P. C. 191.] But where the testator threw his will into the fire, out of which it was snatched by a bystander, and preserved, without the testator's knowledge, the will was held to be cancelled.Bibb v Thomas,ubi supra.

(k) [But see 1 Curt. 580,Walcott v Ochterlony. 8 A. & E. 1,Doe v Harris., 2 Nev. & P. 615, S. C.]

(l) Where there, were two inconsistent wills, and a codicil referring to the first by date as the last will, it was held that such codicil cancelled the intermediate will, and that evidence of mistake was inadmissible. 4 Ves. 616, Crosbie v M'Doual.

(m) It seems not to be necessary that the witnesses should subscribe their names at all. Vin. Abr. Devise (R.) 4. Phillips on Evidence, vol ii. p. 254. [By the new Statute of Wills, the writing must be executed in the same manner in which a will is required to be executed. Seepost, p. 280, note (o).]

(n) [Seeante, p. 278, note (r).]

(o) [It was further held, that it was sufficient if the testator acknowledgedin fact, though not in words, to the witnesses that the instrument was his will, even though such acknowledgment conveyed no intimation whatever, or means of knowledge, either of the nature of the instrument or the object of signing; and, consequently, that if the witnesses subscribed their names as witnesses, at the testator's request, without seeing his signature, or being informed of the nature of the instrument, the statute was satisfied. 6 Bing. 310,While v Trustees of the British Museum. 7 Bin 457, [Wright v Wright. 1 Cr. & M. 140,Johnson v Johnson. The new statute (1 Vict c. 26, s. 9) enacts, that no will (or testament or codicil, or any other testamentary instrument) shall be valid unless the signature shall be "made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." Where the testator produces the will, with his signature visibly apparent on the face of it, to the witnesses, and requests them to subscribe it, this is held a sufficient acknowledgment of his signature within this section. 3 Curt. 451, Gaze v Gaze. Ibid. 547,Blake v Knight. Ibid. 611,Keigwin v Keigwin. Ibid. 756,In the Goods of Ashmore. But not where be conceals his signature from them. 3 Curt. 160,Ilott v Genge: affirmed in the Privy Council, Feb. 1844, (butquoere, on what ground).Hudson v Parker, Prerog. July 4, 1844. See alsoinfra, n. (p).]

(p) [The new statute (seeante, p. 280, note (o)) makes it necessary that both the witnesses shall be present at the same time when the signature is made or acknowledged by the testator. And they must attest it in the presence of the testator, though not of each other. 3 Curt. 659, per Sir H. Jenner Fust. But it has been held by the same learned Judge that the Act is not complied with, unless both witnesses shall attest and subscribe after the testator's signature shall have been made or acknowledged to them when both are actually present at the same time. 3 Curt. 243,Moore v King. Ibid. 648,Cooper v Bockett. This point, however, is understood to be now sub Judice on appeal to the Privy Council.] A will, attested by three witnesses, was written on the three sides of a sheet of paper, and concluded by Stating, that the testator had signed his name to the two first sides, and his band and seal to the last side. He did put his name and seal at the end of the will, but did not sign his name to the two first sides. It was urged that the will was invalid for want of sufficient execution, and the case ofRight v Price, 1 Doug. 241, was cited. In that case the will was in five sheets of paper, and the testator signed but two of them; it was held not duly executed. But in the present case the will was held good, on the ground that the testator did all be intended to do at the time of execution. 2 Brod. & Bing. 660,Winsor v Pratt. [The making of a mark by the testator is a sufficient signing. 8 A. & E. 94,Baker v Dening. But putting a seal by him is not. 1 Wils. 313,Smith v Evans. 2 Ves sen. 459,Grayson v Atkinson. 1 Ves jun. 13, 15,Ellis v Smith. 17 Ves. 459,Wright v Wakeford; which in this respect appear to overruleLemayne v Stanley, 3 Lev. 1. S. C. 1 Freem. 538. So a man may attest by mark;. 3 Curt. 756; though not by sealing,semble. 3 Curt. 117,In re Byrd. So a man may well attest, who, not knowing how to write, has his band guided by another. 3 Q. B. 117,Harrison v Elvin. 2 G. & D. 769, S. C.]

(q) And by Dallas C.J. inWinsor v Pratt, 2 Brod. & Bing. 657. [And by Sir John Nicholl inLord John Thynne v Stanhope, 1 Add. 5.]

(r) So where a man made his will according to the Statute of Frauds in July 1812, and in November, 1816, made various interlineations and obliterations, struck out the original date, and substituted a day in the latter month and year, but did not re-sign or republish the will, and also had a fair copy made of the original will thus altered, but did not execute it; it was held that these obliterations and interlineations, coupled with the circumstances of the case, did not amount to a revocation: 2 Brod. & Bing. 650,Winsor v Pratt. [See also 1 Hagg. 143,In the Goods of Applebee. 4 Russ. 435,Kirke v Kirke. These cases have fully established the doctrine of what are termed dependent relative revocations, i, e. where the act of cancelling, etc. being done with reference to another act, meant to be an effectual disposition, will be a revocation or not according as the relative act be efficacious or not. In other words, where it is evident that the testator, though using the means of revocation, could not intend it for any other purpose than to give effect to another disposition, though if it had been a mere revocation, it would have had effect, yet the object being only to make way for another disposition, if the instrument cannot have that effect, it shall not be a revocation. 7 Ves. 372, Ex parte Lord Ilchester, by Lord Alvanley. This doctrine has been lately applied by the Judicial Committee of the Privy Council to the construction of the 21st section of the new Statute of Wills (ante, p. 279, note (i)) in a case where a legacy had been given, and the amount was afterwards obliterated by the testator, so as to be quite illegible, and another sum was substituted, but without the attestation required by that section: and their Lordships held that the obliteration did not operate as a revocation, because the testator's intention appeared to be to revoke by the substitution of another bequest, which in his apprehension would be effectual, but which in fact was not so; and, therefore, that the will ought to be pronounced for in its integral state, that being ascertainable by evidencealiunde.Brooke v Kent, Privy Council 31 March, 1840.Soar v Dolman, 3 Curt. 121, accord. In connection with this principle it has been established, that a subsequent will made under the impulse of a mistaken notion of a fact, and referring to the fact as having actually happened, and as being the foundation, of the present testamentary act, will not revoke a former will; according to the case, "pater credens filium suzm esse mortuum, alterum, instituit hoeredem; filio domi redeunte, hujus institutionis vis est nulla."-Cicero de Oratore, lib i. c. 38. As where a testator gave legacies to the grandchildren of his sister, and afterwards, by a codicil, revoked the legacies, giving as a reason that the legatees were dead; upon its being proved that the fact of their death was not true, it was held that the legacies were not revoked, on the ground that the cause of revocation was false. 3 Ves. 322,Campbell v French. See also 1 Hagg. 378,In the Goods of Moresby. 10 A. & E. 228,Doe v Evans. 2 Perr. & D. 378, S. C.]

(s) [So where a testator has the custody of one of two duplicate wills, and it cannot be found after his death, the presumption of law is that be destroyed itanimo revocandi; and both parts are consequently to be considered revoked, unless such presumption be rebutted. 2 Phillim. 23,Rickards v Mumford. 2 Hagg. 266,Colvin v Fraser. For the law is, that if a will was in the testator's custody, and upon his death it be found among his repositories mutilated, it is to be presumed that be himself did the act of mutilation; 1 Castemp. Lee,Davies v Davies. 3 Hagg. 568,Lambell v Lambell; or if it cannot be found, that be himself destroyed it,animo revocandi. 3 Hagg. 184,Lillie v Lillie. 4 Hagg. 245,Wargent v Hellings. 1 Moore, P. C. R. 299,Welch v Phillips. As to the case of a testator having the custody of both duplicates, and cancelling or destroying one of them only, see 13 Ves. 310,Pemberton v Pemberton. 3 Hagg. 548,Roberts v Round. The cancellation of a codicil has been held to have the effect of cancelling an interlineation in the will to the same effect. 3 Ves 5. & B. 122,Utterson v Utterson. Again, the destruction or mutilation of a will has been held to be an implied revocation of a codicil. 4 Hagg. 361,Coppin v Dillon. But there have been cases where the codicil has appeared so independent of, and unconnected with, the will, that under the circumstances the codicil has been established, though the will has been held invalid. 2 Castemp, Lee, 335,Barrow v Barrow. 2 Add. 231,Medlycott v Assheton. 1 Curt. 289,Tagart v Hooper.]

(t) But if a will be once cancelled, nothing but a formal republication will re-establish it. 13 Ves. 290,Pemberton v Pemberton. [Since the decision ofGoodright v Glazier, cited in the note above, it has been denied that there is any decided principle of law without limitation, that on the revocation of the subsequent will, the former uncancelled will shall revive. 1 Phillim. 419, Moore v Moore, before the delegates. And in the Ecclesiastical Courts it has been regarded as a question of intention, uncontrolled by any presumption, either adverse to, or in favour of, the revival.Ibid. 2 Add. 125, Usticke v Bowden. 1 Hagg. 326,Kirkcudbright v Kirkcudbright. But now with respect to wills which are within the operation of stat. 1 Vict c. 26, it is enacted by section 22 of that Act, that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed as required by that Act.]

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Note 5   If a man devises his chattels real or personal, or gives any specific legacy, the legatee cannot either enter into the land if it be a chattel real, or take the legacy, without the consent of the executor. For the personal estate being liable, in the Hands of the executor, to the payment of the testator's debts, he must take care to satisfy the debts before he pays the legacies. The law therefore requires the assent of the executor to such legacies, otherwise, he may be guilty of adevastavit, and liablede bonis propriis, without any fault in him. Co. Litt. 111 a. Perk s. 488, 570. 1 Rol. Abr. 618 (A), pl. 1, 2. All. 39.Eeles v Lambert, Went. Ex. 222. Finch. Law. 172. The legatees have no property in the legacies by the devise until the assent, though they have an interest in them. Sty. 55. And the devisee of a chattel realmust aver in pleading, that he entered into the land with the consent of the executor. Sty. 65,Matthew v Herle. Otherwise he shall be taken to be a disseisor. Moor, 358,Carter v Love. S.C. Owen, 56. If the devise be of a chattel real to the executor himself, he shall take it as executor, until he has made his election to take as legatee. Plowd. 520,Welcden v Elkington. 10 Rep. 47 b. Lampet's case. 1 Str. 70,Young v Holmes.(u) InDoe v Guy, 3 East, 120, it is held that an ejectment is maintainable against an executor, after his assent to the bequest, to recover a leasehold estate bequeathed by the defendant's testator to the lessor of the plaintiff.(x) But when a man seised of an estate in fee devises the same in fee-tail, for life, or years, the devisee may enter without the assent of the executor, because he has nothing to do with the real estate. Co. Litt. 111 a. See 11 Mod. 126.

(u) It is difficult in many cases to determine what shall be such an assent by an executor as will amount to an election to take as legatee: It seems that where the whole term in a lease for years is bequeathed to the executor, an entry by him on the land will amount to an assent to take as legatee: but not so, where the term is bequeathed to him for life only, as he may want the remainder for payment of debts; and if his entry were considered as an assent to take himself as legatee, it would operate also as an assent to the remainder, and preclude him from selling it for payment of debts. Therefore, where the testator bequeathed a term to one of his executors for life, with a power of leasing for twenty-one years, the executor entered and made a lease for forty-two years, reserving rent to himself, his executors, administrators, and assigns; it was held that the lease should take effect for the whole forty-two years out of the lessor's legal interest as executor. 7 Taunt. 217,Doe v Sturges. 2 Marsh. 505, S.C. The principle in all the cases is, that if the executor in administering the property do any act as legatee, he shall be considered as having assented; but if not, though what be does may be inconsistent with his character of executor, he shall not. Per Gibbs C.J. S.C. [See further, on this subject, 3 B. & Ad. 675,Doe v Tatchell. 3 Bing. N. C. 493,Richards v Browne. 4 Scott 262, S. C.]

(x) But in general, an action at law cannot be maintained for a legacy. 5 T. R. 690,Deeks v Strutt. See 2 Saund. 137, note.

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Note 6   Seeante, 112, note (1).    [Back]


     
    85 ER 366
    1669
    DUPPA
    Executor of Baskervile
    -v-
    MAYO
    Debt[1] for the arrears of a rent-charge against the defendant as pernor of the profits: the plaintiff declares for 1360 l. and shows that Robert late Earl of Essex was seised of a messuage, 200 acres of land, 20 acres of meadow, 100 acres of pasture, and 400 acres of wood with the appurtenances, in Bodenham, Rosebury, Moore, Bearfield and Maund, in the county of Hereford, in his demesne as of fee; and being so seised, on the 4th of December, in the 43d year of Elizabeth, demised the said tenements to Sir Thomas Coningsby, Knight, habendum for 99 years, if Fitzwilliam Coningsby, Katherine and Ursula Coningsby, or either of them, should so long live; by force of which demise the said Sir Thomas Coningsby entered and was possesses; and being so possessed afterwards, to wit, on the 10th of August 1616, made his will in writing, whereby (among other things) he gave and bequeathed to Dame Elizabeth Baskervile, (the plaintiff's testatrix), and Thomas Baskervile her son, an annuity of 50 l. a-year out of the demesne lands of the devisor in Orleton and Ashwood Park; to have and to hold the said annuity to them for their lives, and the life of the longer liver of them, (with a formal clause of distress); and that after the said Thomas Baskervile should attain the age of 13 years, (his mother being alive,) then the said Thomas should have 20 l. yearly of the said devised 50 l. for his better maintenance during his mother's lifetime, and then the whole in manner aforesaid devised; and that afterwards, to wit, on the 19th of September 1617, the said Thomas Coningsby, reciting that by his last will he had given several annuities and legacies to be paid out of his demesne lands, but had now sold his said demesnes in Orleton, whereby the legacies could not take effect out of those lands, he for this reason declared his intent, and gave and bequeathed to Sidney Coningsby his son 100 marks a-year, to be paid to the said Sidney during his natural life out of all or any of the manors, messuages, lands and tenements which the said Thomas Coningsby by his last will further bequeathed, that the said Elizabeth Baskervile and Thomas Baskervile should attain the age of 13 years, (his mother being alive), and then 20 l. thereof to be paid yearly to the said Thomas for his better maintenance, and that the said annuity of 50 l. should be paid yearly out of the same manors, messuages, lands, and tenements aforesaid, at the same days and times, in such manner, and upon like penalty of distress and forfeiture, as in the said will were declared for and concerning the said annuity of 100 marks; and made the said Fitzwilliam Coningsby executor of the said will; and afterwards, to wit, on the firs of May in the year of our Lord 1618, the testator died so seised; after whose death the executor proved the will, and entered into the said lands, and assented to the legacy; and afterwards, to wit, on the first of June in the year of our Lord 1623, the estate, right, title, and interest of the said executor of and in the premises came to the said defendant; by virtue whereof he entered and was possessed, and being so possessed, 250 l. (parcel of the said 1360 l.) of the rent of 50 l. so devised to the said Elizabeth until the said Thomas should attain the age of 13 years, for five years ended upon the Feast of St. John the Baptist in the year of our Lord 1628, (during which time the said defendant was pernor of the profits), where in arrear and unpaid to the said Elizabeth: and afterwards, to wit, on the twenty-fourth day of June in the year 1628 aforesaid, the said Thomas Baskervile attained his age of 13 years; and 1110 l. residue of the said 1360 l., of the said rent of 30 l. a-year so devised to Elizabeth after that Thomas should have attained his age of 13 years, for 37 years ended upon Lady-Day 1665, during which time the defendant was pernor of the profits, was in arrear and unpaid to the said Elizabeth in her life-time, and that the said Elizabeth afterwards made her will, and the plaintiff her executor, and afterwards died, the said money not being paid: whereby an action hath accrued to the plaintiff to demand and have the said money from the defendant, being pernor of the profits; yet the said etc. and makes a profert of the letters testamentary, etc. To which the defendant pleaded nil debet infra sex annos, but did not conclude to the contrary, but concluded with a verification; upon which plea the plaintiff demurred: and in this term judgment was given against the defendant for the bad conclusion of his plea;[2] and the plaintiff perceiving that he had mistaken the last sum, namely, the said 1110 l., and the time when it became due, he having alleged it to be due for 37 years at Lady-Day 1665, whereas it appears that from the Feast of St. John the Baptist 1628, until the said Lady-Day 1665, there can only be 36 years, and three quarters of a year, and so he had demanded 7 l. 10 s. more than he ought, he entered a release of the 7l. 10s. upon the record, and entered his judgment of the residue.
    And afterwards the defendant brought a writ of error in the Exchequer-Chamber; and several exceptions were taken to the declaration by the counsel for the plaintiff in the writ of error; 1. That the action was brought against the defendant alone, whereas there were other lands liable; for it appears that the said testator Coningsby had devised the rent out of his lands in Leominster, as well as out of his lands whereof the defendant was pernor of the profits, and therefore the defendant ought not to have been charged alone.[3] 2. That the rent of 50l. was jointly devised to the said testatrix Elizabeth and Thomas Baskervile, and therefore it survived to the said Thomas, and the plaintiff had no cause of action: and although the testator directed how it should be paid, namely, 20l. to Thomas, and 30l. to the said Elizabeth, yet it was objected, that the estate in the rent was joint, and such direction will not alter the estate, but is only an equitable appointment, for which the party grieved may have a subpoena; but the estate continued joint, and in law all the arrears became due to the said Thomas Baskervile by survivorship.
    But these two exceptions were over-ruled by the Court. The first, because it does not appear that the testator had any other lease except that from the Earl of Essex; for although the testator mentions lands in Leominster, yet it does not appear that he had any land there; but if the truth had been so, the defendant in the King's Bench ought to have shewn it by his plea;[4] but now it does not appear to the Court that he had any other lands. And as to the second exception, the Court declared that it was a several rent, and not a joint rent, for the testator devised the whole 50l. a year to the said Elizabeth until Thomas Baskervill should attain his age of 13 years (his mother being alive), and then he devised that the said Thomas should have 20l. a year of that rent of 50l. for his better maintenance. Now, if the testator had intended the rent to be joint, then the clause would be absurd; for if the rent were joint, then Thomas would have had twenty-five pounds a year, being a moiety of the rent of 50l.; but the testator said, that Thomas should have 20l. for his better maintenance; but it would be for his worse maintenance if the rent should be construed to be joint: and therefore this exception was also over-ruled.
    Whereupon two other exceptions were take to the declaration. 1. That the plaintiff by his declaration has demanded more rent and for a longer time than by his own shewing appears to be due to him; for he has demanded one thousand one hundred and ten pounds for 37 years ended at Lady-Day 1665, whereas it appears that there can be but one thousand one hundred and two pounds ten shillings for 36 years and 3 quarters of a year ended at the same time; and then the remitting of the surplusage, by the plaintiff, after the demurrer joined cannot aid him; for by this means the defendant will be tricked without any default in him, because, at the time when he demurred, he had good cause of demurrer; and by his demurrer[5] and the joinder of the plaintiff the whole declaration was then in the judgment of the Court; and it was too late for the plaintiff to aid his declaration afterwards; and therefore the Court of King's Bench ought to have given judgment upon the declaration without any regard to the remitting of the overplus; and so the defendant cannot recover thereon, because he has demanded more than is due to him.
    2. It appears that the plaintiff has demanded, and his judgment to recover 250l. of the rent of 50l. a year for five years ended at the Feast of St. John the Baptist 1628; and the plaintiff shews that the said Thomas Baskervile, afterwards, to wit, on the 24th day of June in the year of our Lord 1628, became of the age of 13 years, which was the same Feast of St. John the Baptist upon which the plaintiff supposes the 250l. to be due: then, if the said Thomas Baskervile was of the age of 13 years, upon the same Feast of St. John the Baptist, the plaintiff ought to have demanded only 7l. 10s. for the quarter ended at that feast, for a quarter of the said 30l., and the said Thomas Baskervile has demanded and recovered 5l. more than by his own shewing was due to him.
    And afterwards in Hilary term, 22 & 23 of the King, it was argued for the plaintiff in the first action: and as to the first of the two last exceptions, it was argued that the plaintiff before judgment might well release the overplus:[6] and if he had not released it, yet the Court ought to have given judgment for him for so much as is well demanded, and he shall be barred for the residue. And Godfrey's case, 11 Reprort, 45 b. was cited, that when a man brings an action for two things, and it appears that he cannot have an action at all for one of them, then the whole writ shall not abate, but he shall have judgment for that which the action is well brought for, and shall be barred for the rest: but if it appear that he may have an action in another form for the other thing, there the whole writ shall abate:[7] but in this case the plaintiff cannot have any action whatever for the 7l. 10 s. which was the overplus, for it was not yet due, and therefore is within the first part of the rule of Godfrey's case; and it is there said that if an avowry be made for rent, and it appears by the shewing of the party himself that part of it is not yet due, yet the avowry is good for the rest, and shall not abate in the whole.[8] Thus in Cro. James, 104, Woody's case, debt for 40l. upon the Statute of Usury, and declares that the defendant had corruptly lent 20l. and that against the form of the statute he had lent 20l. and a nil copiat was awarded for the last 20l. for which the plaintiff declared insufficiently: and it is there held, that if the defendant had demurred to the declaration, the plaintiff should have recovered the first 20l. for what he had properly declared, and should be barred for the rest. So if debt be brought against executors upon an obligation and a simple contract together, and the defendant demur to the whole declaration, the plaintiff shall recover his debt upon the obligation, and shall be barred for the debt upon simple contract.[9] So Moor's Rep. 281, Battey v. Trevillion, if any avowry be for an entire rent, and it appears that the avowant has title only to two parts of it, the whole avowry shall abate; but if it appear that part of the rent for which the avowry is made is not in arrear, the avowry shall not abate, but shall stand for that rent which appears to be in arrear. And in Hobart's Reports, Andrews v. Delahay, bill of debt against an attorney upon three obligations, and it appears by the condition, that one of the obligations is not yet forfeited; the plaintiff shall have judgment upon the other two obligations, because, as it is there said, they are as several demands;[10] and so Hob. Rep. 133, Howell v. Sambacks, avowry for rent and a nominee poenoe together, without alleging any demand; yet upon demurrer it was adjudged that the avowant had judgment upon his avowry for the rent. And the case of Barber and Pomroy, Style's Reports, 175, was also cited. But Chief Baron said, that there was no judgment given.[11]
    And s to the second exception, it was argued that the postea might well stand with the preceding matter; for the natural day consists of 24 hours, and begins at midnight and ends the next midnight: Co. Litt. 135 a.: but the time of payment of rent is at the time of sun-set, and then it shall be demanded, and a tender thereof afterwards comes too late; so the rent in question might become due at sun-set, and Thomas Baskervile might afterwards, and before midnight, become of the age of 13 years. And it was further argued, that if the scilicet were repugnant to the postea it was void, Hob. 272;* and then the want of a day is only matter of form, of which no advantage can be taken by the defendant unless he had demurred specially.[12]
    * Stukeley v. Butler.
    And in real and mixt actions the time is never inserted, as appears in 20 Ass. 16, Bro. Tit. Pleading, 62; and here it is averred precisely that the said 250l. were due at the said Feast of St. John the Baptist, 1628, and afterwards the said Thomas attainted the age of 13 years, and that all the rest of the rent was due after the said Thomas had attained the age of 13 years: therefore it is precisely averred, and plainly appears, that the rent was due in the same manner as the declaration supposes; and then it is not material upon what day precisely the said Thomas attained the age of 13 years, especially when the other party has not demurred and shewn it for cause: and Cro. James, 96,[13] and 429,[14] were cited, where it appears that a scilicet shall be void, because it is repugnant to the postea, and so no day is alleged, and yet good; for the postea of itself is sufficient, although no day is precisely alleged,[15] and the scilicet is void here; wherefore it was prayed to affirm the judgment. But notwithstanding this, the Court, and especially Hale Chief Baron, strongly inclined to reverse the judgment for this exception; and Hale said, that although the time of sun-set was the time appointed by the law to demand rent, to take advantage of a condition of re-entry, and to tender it to save a forfeiture, yet the rent is not due until midnight; for if a man seised in fee makes a lease for years, rendering rent at the Feast of St. John the Baptist, upon condition of re-entry for non-payment, now the lessor, if he will take advantage of the condition, must demand it at sun-set;[16] yet if he dies after sun-set, and before midnight, his heir shall have this rent, and not his executors, which proves that the rent is not due until the last minute of the natural day. And as to the other reason, he said, that although the word postea is sufficient in many cases, where the party alleges it in point of fact only, yet here it was insufficient, because the plaintiff had mistaken the law; for it is not said that, after the said Feast of St. John the Baptist, Thomas attained his age of 13 years; but it is said that after the 250l. rent was due, to wit, upon the same feast, he attained that age, and so he has mistaken the law: for the plaintiff supposes that the rent of 250l. was due upon that feast, although Thomas attained the age of 13 years upon the same day, which is not so; and then his alleging it by a postea, where it appears judicially that it was not afterwards, but that Thomas attained the said age before, that is to say, before the rent was due, signifies nothing, but it is a bad conclusion by the plaintiff against law.
    But it was moved by the Court, that Jones of counsel for the plaintiff, and Baldwin Serjeant for the defendant, should compromise the matter; to which the parties assented; and so the matter was determined without any judgment; but Duppa had only 300l. for all the rent, as I afterwards heard.

Note 1   The executors of tenant for life of a rent-charge and of tenantpur auter vie, after the death ofcestui que vie, might bring debt to recover the arrear of such rentby the common law; and although the contrary might, at first view, be inferred from the generality of the preamble of the statute 32 H. 8, c. 37, which recites, that "by the order ofthe common law, executors of tenants for term of life of rent-charges had no remedy to recover such arrears," yet these words have in construction been restricted to mean,tenants pur autre vie so long as cestui que vie lives. Co. Litt. 162 a. b. 4 Rep. 49 b.,Ognel's case.(y) But the executors of tenant for life could not distrain for the arrears by the common law, which may they may now do by force of this statute.Ibid. Indeed, inTurner v. Lee, Cro. Car. 471, it was held, that the statute did not extend the remedy by distress to those persons who had remedy by action of debt by the common law, and therefore it was said, that executors of tenant for life could not distrain. However, in Cro. Eliz. 332, Lambert v. Austin, it seems to have been taken for granted that the statute did not operate thus restrictively; and in 1 Ld. Raym. 172, Hool v. Bell, the case of Turner and Lee is denied, and it is said "that the statute 32 H. 8 is a remedial law, and shall extend to all tenants for life, and the law has been taken always to be so since the statute, and has never been questioned; and that the words of the statute are general enough." See Co. Litt. 162 a. b., and Mr. Hargrave's notes, 289-299. Lord Coke recommends the remedy by distress as the most pain and certain. Co. Litt. 162.(z)

(y) Debt will not lie by the common law for the arrears of a rent devised to A. payable out of land during the life of B. so long as B. lives. The reason is, because the law will not suffer a real injury to be remedied by an action merely personal. [See post, vol. ii p. 304, note (8).] Neither does it lie by force of the stat. 8 Ann. C. 14, s. 4; for that statute applies only to cases of demises from landlord to tenant. 4 M. & S. 113,Webbs v. Jiggs. [3 B. & B. 130,Kelly v. Clubbe. 6 B. Moore, 335, S. C. 4 M. & W. 133,Randal v. Rigby.]

(z) The first clause of the stat. 32 H. 8, c. 37, enacts "that the executors and administrators of tenants in fee-simple, tenants in fee tail, and tenants for term of lives, of rent services, rent charges, rent secks, and fee farms, may distrain for the arrearages of such rents and fee farms, upon lands charged with the payment of the same, and chargeable to the distress of the testator, so long as the said lands continue in the seisin or possession of the tenant in demesne, who ought to have immediately paid the said rent or fee farm, or in the seisin or possession of any other person or persons claiming the said lands, only by and from the same tenant, by purchase, gift, or descent, in the manner and form as their testator might or ought to have done, in his lifetime; and the said executors and administrators shall, for the same distress, lawfully make avowry upon their matter aforesaid." Upon this clause a question arose, whether the executor of a person seised in fee of land, who had demised it to a tenant for years, could, after the death of the lessor, distrain for arrearages of rent. See the cases collected in Selw. N. P. 664. See also 2 B. Moore, 48,Meriton v. Gilbee. 8 Taunt. 159, S. C. 1 Brod. & Bing. 279,Martin v. Burton. 3 Moo. 608, S. C. [2 Bing 193,Staniford v. Sinclair. 9 Moore, 376, S. C. The point was expressly decided in the negative inPrescott v. Boucher, 3 B. & Ad. 849; andJones v. Jones, 3 B. & Ad. 967. But now by stat. 3 & 4 W. 4, c. 42, s. 37, "it shall be lawful for the executors or administrators of any lessor or landlord to distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime." And by sect. 38, the distress may be made after the lease is ended, if made within six months, an during the continuance of the possession of the tenant who owes the rent. And all the provisions in the several statutes relating to distresses for rent are made applicable to such distress.] If a tremor for years underlet for years and die, his executor may distrain for arrearages at common law; for the arrearages were never separated from the reversion, and both belong to the executor. Latch, 211,Wade v. Marsh.    [Back]

Note 2   A distinction has been taken with respect to the Statute of Limitations between assumpsit and debt –that inassumpsit, if defendant insists upon the statute he must plead it, and of course conclude the plead with an averment, to give the plaintiff an opportunity of answering it; but that in debt the defendant may give the statute in evidence under nil debet generally. 1 Lev. 110, 111, Lee v. Rogers. 1 Ld. Raym. 153,Draper v. Glassop. 1 Salk. 278, Anon. 3 Bac. Abr. 518. Com. Dig. Pleader (2 W. 16). Gilb. H. C. P. 3 Ed. 66. Ambl. 232. As toassumpsit, it is clear that the statute must be pleaded; and it seems questionable whether the same rule would not now be extended to actions ofdebt. On the one side, the same reasons for pleading the statute seem equally applicable to both actions. The statute contains several exceptions, such as coverture, infancy, imprisonment, and the like, which would take the case out of it in both actions alike. If the statute is not pleaded, the plaintiff is equally liable to be surprised, and therefore not prepared to answer, in one action as in the other. In either case the statute does not extinguish the debt, but only takes away the remedy; and it is optional whether the defendant will insist upon the statute or waive it: if he intends to insist upon the statute, he should plead it to prevent surprise; and if he does not, it should be presumed that he intends to waive it. And it is very usual in practice to plead to debt on simple contract, that the cause of action did not accrue within six years; to which the plaintiff may of course reply, either that he was within any of the exceptions in the statute, or that he had sued out a latitat within time, as is the common casein assumpsit.(a) but on the other side, the principal case in authority to the contrary, viz. that there can be no such special replication; for it is here held, that the plea must conclude to the country, which decision can only be founded upon the ground that the words infra sex annos are surplusage; for if the plea of infra sex annos sere good, the proper conclusion, it should seem, would be with a verification. And moreover it is added, that "non assumpsit" is in the past tense, and relates to the time of making the promise, but "nil debet" is in the present, and relates only to the time of bringing the action; and that this case in Saunders is recognized by Chief Baron Comyns in his Digest, Pleader (2 W. 16). However, the modern practice is to plead the statute in one action as well as the other, and to conclude with a verification.(b)

(a) [See post, vol. ii. P. 1, et seq. notes toMellor v. Walker]

(b) See 2 Saund 62, not (6). [The plea need not conclude with a verification (see ante 234, note(i)); though it must not conclude to the country. Seeante, 103, note(b). Since the new rules it is obvious, that the distinction above suggested, as to pleading the statute, between debt andassumpsit, cannot possibly exist; for the plea of nil debet is no longer allowed (seeante, 38, note(o). And before the new rules the distinction had been expressly repudiated, and the new judicially adopted which is taken in the note above. 1 Cr. & J. 1, 9,Chapple v. Durston. And accordingly it is held that the statute must be replied specially to a plea of set-off, and cannot be taken advantage of under the general replication ofnil debet. Ibid.]

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Note 3   See statute 32 H. 8, c. 37, s. 1. Co Litt. 162 b. 7 Rep. 39 b.Lillingston's case.    [Back]

Note 4   That is, he should have pleaded that matterin abatement; for wherever any person, who ought to have been joined as a defendant, is omitted, it is pleadable in abatement only; the reason is, because such plea gives the plaintiff a better writ, which is the true criterion to distinguish a plea in abatement from a plea in bar.(c)

(c) [6 A. & E. 614,West v. Turner. 1 Nev. & P. 617, accord.]

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Note 5   There seems to be an inaccuracy in this statement, though the effect of the argument upon the question will be perhaps much the same. It is to be observed, that the defendant did not demur to thedeclaration, nor the plaintiff join in demurrer, as is above stated; but the plaintiff demurred to theplea, because it concluded with a verification instead of to the country, which, before the stat. 4 Ann. C. 16, was a defect in substance, and bad upon a general demurrer. 2 Saund. 190,Roberts v. Marriet. 2 Mod. 60,Snow v. Wiseman. The argument, however, is founded upon this principle, that where there is a demurrer, notwithstanding it is allowed, advantage may yet be taken of any substantial defect in the preceding pleadings of the party demurring; as in the principal case, though the plea was bad, still it was competent to the defendant to object to the declaration.(d) The argument therefore is, that the record stood at the time of the demurrer and joinder therein, there was a fatal defect inthe declaration, which it was not in the plaintiff's power to remedy by entering a remittit damna afterwards. If, indeed, the defendant had demurred specially to the declaration for this cause, that the plaintiff had demanded more than by his own shewing was due, it should seem that the plaintiff could not remedy this defect by remitting the overplus afterwards; for it would perhaps be analogous to those cases where counts are improperly joined, or there is some informality in one of the courts, which defects may in general be cured by entering a nolle prosequi as to the improper or informal counts; but if there be a demurrer to the declaration for this cause, the plaintiff will not be permitted to cure the defect by entering anolle prosequi. 1 H. Black. 108,Rose v. Bowler. 4 T. R. 360,Drummond v. Dorant. (e)

(d) But upon a demurrer to a plea in abatement, no objection can be taken to the declaration. 2 Lutw. 1592,Belasyse v. Hester. [Unless where the plea, though in form pleaded in abatement, is in substance a plea in bar. 1 Q. B. 667,Dundalk Railway Company v. Tapster. 1 Gale & D. 657, S. C.]

(e) Seeante, p. 207, note.

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Note 6   So 1 Rol. Abr. 784 (R), pl. 2, 785 (S), pl. 1. Dyer, 369 b. pl. 56. Sir T. Raym. 395,Cutforthay v. Taylor. 5 Mod. 213, 214, 215,Thwaites v. Ashfield. 1 Vent. 49, Anon. Carth. 437,Morris v. Golder. Com. Dig. Pleader (C. 48). 1 Bac. Abr. 12. But where the sum demanded depends upon a deed or other instrument, and in nothingextrinsic, as in debt or covenant to pay 20l., there can be noremittitur; for the variance, which is made, is inconsistent with the deed or other instrument upon which the duty demanded depends: otherwise where it may be more or less extrinsic; as in debt for rent, if more be demanded than is due, it may be remitted; for the variance is notinconsistent with the deed; and as the plaintiff is to recover on the trial what appears on evidence to be due, so in demurrer he is to have judgment for no more than he ought to recover, and may remit the rest. 2 Salk. 659,Incledon v. Crips. S. C. 7 Mod. 87. 2 Ld. Raym. 814. (f)

(f) [10 East, 143,Buckley v. Kenyon.]

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Note 7   Same diversity per Brian and Vavisor, 9 H. 7, 4 a. b. Com. Dig. Abatement (M. N.). Gilb. H. C. P. 3d 259, 260. Doc. Plac. 4. And as to the latter part of the above rule, see 11 Report, 46 a. 4 Leon. 39,Scott's case. Hob. 88,Herrenden v. Palmer. Carth 235,Rogers v. Cook. S. C. 1 Salk. 10. 1 Show. 366. 2 Strange, 1271,Hookin v. Quilter. S. C. 1 Wilson, 171. 2 Lev. 110,Curtis v. Davis. 10 Mod. 316,Betts v. Michell. 11 Mod. 196,Tate v. Whiting. 3 T. R. 659,Pettrie v. Hannay. 4 T. R. 347,Jennings v. Newman. But there it appears by the confession or shewing of the plaintiff himself, that he has no cause of action as to part, the whole writ shall abate. Doc. Plac. 4. Cro. Jac. 104,Wood's case. Hob. 279,Earl of Clanrickard's case. Ibid. 164,Colt v. Bishop of Litchfield. 2 Lev. 197,Harker v. Moreland. For whatever proves the writ false in a material point, at the time of suing it out, shall abate the writ entirely. Hob. 217,Crookhay v. Woodward. Ibid. 279. Gilb. H. C. P. 3d ed.247, 248. Com. Dig. Abatement (M). See 2 Saund. 210, Foxwist v. Tremaine, note.     [Back]

Note 8   S. P. per Brian and Vavisor, 9 H. 7, 4 b.contra. Hob. 164; but this seems founded only upon the opinion of Fineux, which is expressly denied by Brian and Vavisor, in the Year-Book above-mentioned, and is contrary to all the alter authorities. The defendant may therefore abate his avowry as to so much of the rent as is not yet due, and take judgment for the rest. But if he takes judgment for the whole rent, it is error. 2 Salk 580,Richards v. Cornforth. S. C. Com. Rep 42. 1 Ld. Raym. 255. 5 T. R. 248,Harrison v. Barnby. (g)

(g) Since the stat. 11 Geo. 2, c. 19, s. 22, which gives the general form of avowry, it is the constant practice that the avowant recovers for so much rent as he proves to be due without regard to his having avowed for more. 6 East, 434,Forty v. Imber. See 2 Saund. 319, note. [But the rent so recovered must be part and parcel of that which he claims by his avowry. Therefore, where he claims double rent, which became due to him under stat. 11 Geo, 2, c. 19, s. 18, in consequence of his tenant's having holden over after having given a notice to quit, the landlord cannot, under such an avowry, recover any single rent due to him under a contract. 4 B. & C. 922, 938,Johnstone v. Hudlestone. 7 D. & R. 411, S. C.]

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Note 9   S. P. 2 Saund. 379,Pinkney v. Inhabitants of East Hundred. So in covenant, if some breaches be well assigned and some not, and there be a demurrer to the whole declaration, the plaintiff shall have judgment for those breaches which are well assigned.Ibid. 380. Cro. Jac. 557,Bressy v. Humphreys. So if there are several counts in the same declaration, some good and some bad, and the defendant demurs generally to the whole declaration, the plaintiff shall have judgment for so much as is good. Com. Dig. Pleader (Q. 3.).(h)

(h)Ante, p. 207, note; and see 1 N. R. 43, Judin v. Samuel. 6 East, 333, S. C. and 5 B. & A. 652,Orton v. Butler. See also 11 East, 565, Powdick v. Lyon, in which case the plaintiff declared in scire facias upon a judgment in K. B. with aprout patet per recordum, and also on an affirmance of that judgment in error in the Exchequer Chamber without aprout patet, etc.; to this the defendant demurred: but the Court held the demurrer too large, as the plaintiff's demand was divisible; and judgment was given for the plaintiff. [The judgment of Lord Ellenborough, in this case, seems to have been the main foundation of some modern decisions at variance with the principal note above, (and also with the case ofPinkey v. Inhabitants of Rotel, 2 Saund. 379, and the note (14) to that case), viz. that if a demurrer to the declaration be too large (as it is called), that is, be pointed to all the counts, or to all the breaches in the declaration, in a case where one of them only is defective, the Court will give judgment for the plaintiff generally, notwithstanding the defective count or breach. 4 Dowl. 513,Fergusson v. Mitchell. 2 Cr. M. & R. 687. Tyrw. & Gr. 179, S. C. 2 Cr. M. & R. 692,Spyer v. Thelwell. Tyrw. & Gr. 191, S. C. 1 M. & W. 6,Price v. Williams. Tyrw. & Gr. 197. 5 Dowl. 317,Wainwright v. Johnson. 2 M. & W. 599,Teague v. Morse. 7 A. & E. 841,Webb v. Baker. 3 Nev. & P. 87, S. C. 4 M. & W. 451,Boydell v. Jones. 6 M. & W. 564,Parrett Naviagion v. Stower. The consequence of giving such general judgment is, that if the bad count or breach is good after judgment, the plaintiff may recover upon it; if bad, he may cure it by entering anolle prosequi, or having the damages separately assessed, and entering aremittitur damna; if he does not, the judgment may be arrested, or a writ of error brought. 5 Dowl. 318. 7 A. & E. 842. 4 M. & W. 451. However, this doctrine has been not little questioned. (See the able and learned notes of the reportes in 1 Mann. & Gr. 201, Hinde v. Gray, and 4 Dowl. 524.) And of late the Courts have shewn a strong disposition to revert to the older kind of judgment on the demurrer, in case one count only is good, or one breach only well assigned, viz. to award that the plaintiff shall recover upon such count or breach, and shall be barred as to the residue. 11 A. & E. 411, Monkman v. Shepherdson. 10 M. & W. 735,Briscoe v. Hill. 1 Mann, & Gr. 801, Davis v. Blackwall Company, per Tindal C. J. Ashby v. Harris, Q. B. T. T. 1843.] So in an action against the sheriff for a false return of nulla bona to afi.fa. Against the goods of A. and B., an averment that there were goods of A. and B. in the county was held to be supported by evidence that there were goods of A.; for the averment is divisible. 4 M. & S. 349,Jones v. Clayton. So if part of a breach of covenant be good, it is no cause of demurrer that special damage is laid, which is not recoverable. 5 B. & A. 712,Amory v. Brodrick. 1 D. & R. 361, S. C. 3 T. R. 374,Duffield v. Scott.

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Note 10   The difference seems to be this, where the duty to be recovered is certain and entire upon the face of the contract of speciality, a demand of more than is due is bad, and cannot be aided by the entry of a remittitur; but where the duty is composed of several parcels, a demand of more than is due may be aided by a remittitur of the overplus; for the plaintiff must recover according to the proof, and not to the demand. Cro. Jac. 499, Pemberton v. Shelton. 2 Ld. Raym. 815, Ingledew v. Cripps. 7 Mod. 88, S. C.(i).

(i) Therefore, in covenant for seven quarters' rent, a plea pleaded to the whole breach, shewing a surrender before the last four of the seven became due, is bad; for the breach is not entire, and the plaintiff may recover for so much as he proves. 5 Taunt. 27,Barnard v. Duthy. [10 East, 143,Buckley v. Kenyon.]

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Note 11   This is a mistake. In the case ofGrips v. Ingledew, 7 Mod. 87, the roll in Barber v. Pomroy was brought into Court, by which it appeared that judgment was entered for the plaintiff. The entry of the judgment is Hill. 24 Car. 1, Rol. 951. See also 2 Ld. Raym. 816. 5 Mod. 215.    [Back]

Note 12   Seeante, p. 118, Cutler v. Southern, 169, Skinner v. Andrews, and the authorities there cited. 1 Ld. Ryam. 367,Cook v. Harris.    [Back]

Note 13   Adams v. Goose. This case was disapproved of by Bridgman C.J. 1 Sid. 8, Goodgaine v. Wakefield, but is recognised inBuller's Nisi Prius, 106, and seems now to be considered as good law.    [Back]

Note 14   Tesmond v. Johnson. So 1 Black. Rep. 494, 495,Bishop of Lincoln v. Wolferstan.    [Back]

Note 15   See 1 Str.233,Hayman v. Rogers. Cro.Jac.135,Osbourn v. Rider. Ibid. 154,Brigate v. Short. Ibid. 602,Rutter v. Mills. 2 Bulstr. 29,Mirrill v. Smith; and see also the stat. 16 & 17 Car.2, c.8.    [Back]

Note 16   Where there is a condition of re-entry reserved for non-payment of rent, several things are required by the common law to be previously done by the reversioner, to entitle him to re-enter. 1. There must be a demand of the rent. Bro. Demaunde, 19.(k) 2. The demand must be of the precise rent due; for if he demands a penny more or less, it will be ill. 1. Leon. 305,Fabian and Windsor's case. S.C.Cro.Eliz. 20l.(l) 3. It must be made precisely upon the day when the rent is due and payable by the lease to save the forfeiture. A where the proviso is, "that if the rent shall be behind and unpaid by the space of 30 or any other number of days, after the days of payment, it shall be lawful for the lessor to re-enter;" a demand must be made on the 30th, or other last day. Co.Litt.202a., and Hargrave's note (3). Plowd. 172b. 173a.Hill v. Grange. 10 Rep. 129a.,Clun's case. Plowd. 70a. b.,Kidwelly v. Brand. Cro.Eliz.48,Cropp v. Hambledon. 4 Leon. 180,Wood and Chiver's case. 1 Leon.142,Smith and Bustard's case. 2 Lutw.1139,Kirby v. Green. 4. It must be made aconvenient time before sunset. Ibid.(m) 5. It must be made uponthe land, and at the most notorious place of it. Therefore, if there be a dwelling-house upon the land, the demand must be at the front of fore door, though it is not necessary to enter the house notwithstanding the door be open. But if the tenant meet the lessor either on or off the land at any time of the last day of payment, and tender the rent, it is sufficient to save a forfeiture; for the law leans against forfeitures. Co.Litt. 20l b. 202a. 7 Rep. 28,Maund's case. Plowd. 70a. b.,Kidwelly v. Brand. Cro.Eliz. 73, Scot v. Scot. 4 Leon. 180,Wood and Chiver's case. 7 T. R. 117,Doe v. Wandlass. 6. Unless a place is appointed where the rent is payable; in which case the demand must be made at such place. Co.Litt.202a. 7. A demand of the rent must be made in fact, and so averred in pleading, although there should be no person on the land ready to pay it. Plowd. 70 a. b.,Kidwelly v. Brand. 1 Rol. Abr. 458. 8. If, after these requisites have been performed by the reversioner, the tenant neglects or refuses to pay the rent, then the reversioner is entitled to re-enter. However it is to be observed, that no actual entry is necessary to be made by him into the land, but it is sufficient to bring an ejectment only; though it was held other wise until Lord Hale's time, when it was decided that the entry confessed by the defendant in the ejectment was sufficient without any actual entry; which decision has been adhered to ever since. 1 Vent.248, Anon. 2 Ld.Raym. 750,Little v. Heaton. S.C. 1 Salk.259. Post, 319,Clarke v. Pywell. 3 Burr.1896, 1897,Oates v. Brydon.(n) It follows as a necessary inference from what has been premised, that a demand made after or before the last day which the lessee has to pay the rent in order to prevent a forfeiture, or off the land, will not be sufficient to defeat the estate. 7 T.R. 117,Doe v. Wandlass. But now to obviate these niceties in some cases, it is enacted by statute 4 Geo. 2, c.28, s.2 "that in all cases between landlord and tenant, as often as it shall happen that one half year's rent shall be in arrear, and the landlord or lessor, to whom the same is due, hath right by law to re-enter for the non-payment thereof, such landlord or lessor shall and may, without any formal demand or re-entry,(o) serve a declaration in ejectment for the recovery of the demised premises; or in case the same cannot be legally served, or no tenant be in actual possession of the premises, then to affix the same upon the door of any demised messuage, or in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, tenements, or hereditaments, comprised in such declaration in ejectment, and such affixing shall be deemed legal service thereof, which service or affixing such declaration in ejectment shall stand in the place and stead of a demand and re-entry; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry, and ouster, it shall be made appear to the Court where the said suit is depending by affidavit, or be proved upon the trial, in case the defendant appears, that half a year's rent was due before the said declaration was served, and that no sufficient distress was to be found on the demised premises, countervailing the arrears then due,(p) andthat the lessor or lessors in ejectment had power to re-enter; then and in every such case the lessor or lessors in ejectment shall recover judgment and execution, in the same manner as if the rent had been legally demanded, and a re-entry made;(q) and in case the lessee, his assignee, or other person claiming or deriving under the said lease, shall suffer judgment to be recovered on such ejectment and execution to be executed thereon without paying the rent and arrears, together with full costs, and without filing any bill for relief in equity, within six calendar months after such execution executed, then and in such case the said lessee, assignee, and all other persons claiming and deriving under the said lease, shall be barred and foreclosed from all relief or remedy in law or equity, other than by writ of error, for reversal of such judgment, in case the same shall be erroneous; and the said landlord or lessor shall from thenceforth hold the said demised premises discharged from such lease."(r) The intention of this Act was to take off from the landlord the inconvenience of his continuing always liable to an uncertainty of possession, from its remaining in the power of the tenant to offer him a compensation at any time in order to found an application for relief in equity;(s) and to limit and confine the tenant tosix calendar months, after execution executed, for his doing this; or else that the landlord should from thenceforth hold the demised premises discharged from the lease. 1 Burr. 619,Doe v. Lewis. The Act prescribes a method of proceeding in the ejectment in two cases, viz. one in case of judgment against the casual ejector; the other in case of its coming to a trial. In the former case, an affidavit must be made in the Court where the suit is depending, that half a year's rent was due before the declaration was served, and that no sufficient distress was to be found upon the premises, countervailing the arrears then due, and that the lessor had power to re-enter: in the latter case, the same thing must be proved upon the trial. 1 Burr. 620. Therefore it is held that this statute does not extend to cases where there is sufficient distress upon the premises, and consequently in such cases the lessor must still proceed at common law as before the statute. 7 T. R. 117,Doe v. Wandlass.(t) So much with respect to a power of re-entry. The same requisites, which have been above mentioned as necessary to entitle a lessor to re-enter, are necessary to entitle him to recover anomine poenoe, as it is called, which is not considered so much a remedy for the recovery of the rent, as a penalty to oblige the tenant to a punctual payment of it. Therefore where the proviso is, that if the rent be in arrear for the space of thirty days next after the days of payment, the lessee shall forfeit 10s. a day by way of penalty; in that case, in order to entitle the lessor to recover the penalty, there must be a demand of the rent in like manner in every respect, as, we have above seen, is required in cases of re-entry for non-payment of rent. Co. Litt. 202 a. 1 Rol. Abr. 459 (Z.), pl. 3. Hob. 82,Grobham v. Thornborough. 133,Howell v. Samback. 7 T.R. 117. A distinction is taken between a power to re-enter, or anomine poenoe, and a power to distrain; as where a rent is granted payable, etc. and in default of payment, if it be demanded the granteemay distrain; in this case it is held not to be necessary to make a demand on the day as in the case of re-entry, or anomine poenoe, but he may demand the rent at any time after. 7 Rep. 28 b.Maund's case. Co.Litt. 202a. 7 T.R. 117. In cases of conditions of re-entry there is a difference between leases for lives and leases foryears; and with respect to the latter, there is also a difference betweenthem, which arises entirely from the manner in which the condition of re-entry is expressed in the lease. As to the leases for lives, it is held that, if the tenant neglect or refuse to pay his rent after a regular demand, or is guilty of any other breach of the condition of re-entry, the lease is only voidable, and therefore not determined until the lessor re-enters, that is, brings an ejectment for the forfeiture, though the clause of the condition should be, that for the non-payment of the rent, or the like, the leaseshall cease and be void. For it is a rule, that where an estate commencesby livery, it cannot be determined before entry. Plowd. 135, 136,Browning v. Beston. Therefore, if the lessor after notice of the forfeiture, which is a material and issuable fact, (3 Rep. 64 b.Pennant's case. 2 T.R. 430, 431, Roe v. Harrison,) accepts rents which accrued due after, or does any other act which amounts to a dispensation of the forfeiture, the lease, which was before voidable, is thereby affirmed. But if there be a leasefor years, with a condition that, for non-payment of the rent, or the like, the lease shallbe null and void, if the lessor makes a legal demand of the rent, and the lessee neglects or refuses to pay, or if the lessee is guilty of any other breach of the condition of re-entry, the lease is absolutely determined, and cannot be set up again by acceptance of rent due after the breach of the condition, or by any other act.Goodright v. Davids, Cowp. 804.(u) But if such a lease the clause be, that for non-payment of the rent, it should be lawful for the lessor to re-enter, the lease is onlyvoidable, and may be affirmed by acceptance of rent accrued due after, or other act, if the lessor had notice of the breach of the condition at the time. Plowd. 133,Browning and Beston's case. Co.Litt. 215a. 3 Rep.64a. b.Pennant's case. Cowp. 804,Goodright v. Davids. It is necessary, therefore, to inquire what other acts besides those above-mentioned do amount to a waiver or dispensation of the forfeiture.(x) Where the condition of re-entry is, "in case the lessee or his assigns shall assign the premises without licence," if the lessor licenses the lessee to assign any part, it is dispensation of the whole condition, and the lessee, or his assignee, may assign all the residue without licence. 4 Rep.119, 120,Dumpor's case. S.C.Cro.Eliz. 815, 816. 1 Rol.Abr.471 (G.) pl.1, 2.(y) So where the condition of re-entry isfor non-payment of rent, and the lessee does not pay it upon demand, yet if the lessor afterwards distrains, though for the same rent for which the demand was made, he has affirmed the lease, for he thereby admits the continuance of it; because at common law no distress can be made after the lease is determined. 3 Rep. 64 b.Pennant's case.(z) Now indeed, by statute 8 Ann. C. 14, s. 6,7, a lessor may distrain in six calendar months after the determination of a lease for life, years, or at will, if the lessor's title or interest, and the possession of the tenant, from whom such rent became due, be continuing. See 1 H. Bl. 5,Beavan v. Delahay.(a) Where the condition of re-entry is, "if the lessee shall underlet, assign, or transfer the premises, or any part thereof, without the consent of the lessor in writing under his hand and seal," acceptance by the lessor of rent due after a breach of the condition, with notice of it, is held to be a waiver of the forfeiture. Cowp. 803,Goodright v. Davids. But in such case there can be no express licence given by the lessor to underlet, etc. exceptby writing under his hand and seal: a parol licence will not do;(b) though acceptance of subsequent rent with notice is sufficient to waive the forfeiture. 2 T.R. 425, 430,Roe v. Harrison. Where the condition of re-entry is, "that if the lessee shallassign, transfer, orset over, or otherwise do and put away the indenture of demise, or the premises thereby demised, or any part thereof," etc and underlease has been held not to be a breach of the condition. 3 Wils.234,Crusoe v. Bugby.(c) But where the condition is, "that if the lessee shall set, let, or assign over the said demised premises, or any part thereof, etc." an underlease is considered to be within the terms of the proviso. 2 T.R. 425,Roe v. Harrison. SeeDean (Lessee of Earl Stanhope) v. Skegg, 2 T.R. 138, andFox v. Swann, Sty. 482, 483.(d) At the common law, an assignee or grantee of a reversion could not enter for a condition broken; for, to prevent all maintenance, the common law did not allow an assignment of a title of entry or re-entry. Co.Litt.214. But if the estate ceased by breach of the condition without entry, as where in a lease for years the lease is to be void by breach of the condition, the assignee of the reversion might take advantage of it at the common law. Co.Litt. 214 b. 215a. 1 Rol.Abr.473. 3 Rep.65a.Pennant's case. But where a lease for life was with such a condition, or a lease for years, with a condition that if such a thing be donethe lessor shall re-enter, the grantee of the reversion could not enter by the common law. Co.Litt.215a. But by statute 32 H. 8, c. 34, it is enacted (among other things), that all persons being grantees or assignees to the King, or to or by any other person, and the heirs, executors, successors, and assigns of every of them, shall and may have and enjoy all and ever such like advantages against the lessess, their executors, administrators, and assigns, by entry for non-payment of rent, or for doing of waste, or other forfeiture, as the lessors or grantors themselves, or their heirs, should have had and enjoyed. Upon this statute it is held, that not only an assignee of the reversionin fee, but alsofor life or years, shall take advantage of a condition of re-entry. Co.Litt.215a. But an assignee of part of the reversion is not within the statute; as if a lease be made of three acres upon condition of re-entry, the assignee of the reversion of two acres shall not enter for a breach of the condition; for the condition being entire cannot be apportioned by the act of the parties, but shall be destroyed. Co.Litt.215a. Dyer, 309a. 4 Rep. 120 a. b.Dumpor's case. 5 Rep. 55b. 1 Rol.Abr. 472. Moor, 98. Cro.Eliz.833. 4 Leon. 27.(e) But an assignee of reversion shall not take advantage of a breach of every condition of re-entry, but only of the conditions mentioned in the statute, (viz.) for non-payment of rent, for doing waste or other matter of the same nature; for though the statute speaks ofother forfeiture, yet it is to be understood only of other forfeitureof the same nature; such as of a condition to do a thing incident to the reversion, as payment of rent is, or for the benefit of the estate, as the not doing of waste is; Co.Litt.215b.; and not of conditions to do, or not to do, collateral acts, ante, p. 240. Therefore it has been doubted whether the assignee of the reversion can take advantage of a condition of re-entry, if the lessee shallassign without licence. Sir T. Raym. 250,Lucas v. How. See Litt.s. 347. Perkins, 831. Fearne, 192. A covenant not to assign does not run with the land, and assignees are not bound unless named. 2 Atk.219,Philpot v. Hoare.(f) Whence it seems to follow that a condition ofre-entry, if the lessee assigns without licence, is not within the statute, and that the assignee of the reversion cannot maintain an ejectment for a breach of such a condition any more than he could do at the common law.(g)

(k) Where a demand is necessary, it may be made by an agent having sufficient authority, which authority he is not bound to shew unless required to do so. 7 East, 363,Roe v. Davis. In 1 Brod. & Bing. 187, Doe v. Smith, Wood B. argues that the stat. 4 Geo. 2, c.28, has made it compulsory on the landlord to proceed under it, and that he cannot proceed as at common law by demand, etc. wherever that statute applies.

(l) [So where the rent is payable quarterly, the demand must be confined to one quarter's rent. 3 C. & P. 613,Doe v. Paul.]

(m) In 4 Taunt. 555, Tinkler v. Prentice, it was held, that in pleading a tender of rent on the land it must be shewn that the tenant was on the land time enough before sunset to have counted the money. Wherever, therefore, a demand or a tender is not made personally, the person making it must be on the land time enough before sunset to count the money, and must remain till the sun has set. See Aleyn, 252,Fabyan v. Rewmston. [And it appears that, even when the demand is personal, it should be made at the last hour of the day, at sunset; for the tenant has till then to pay, and the demand should be made at the time when he is bound to pay. 3 C. & P. 613, Doe v. Paul, coram Lord Tenterden. See 2 D. & R. 29,Doe v. Brydges.]

(n) 2 Dougl. 477,Goodright v. Cator. [2 B. & C. 490,Doe v. Masters. 4 D. & R. 45, S.C.]

(o) In 2 M. & S. 525, Doe v. Alexander, a question arose, whether the statute removes the necessity of a demand, when there is a proviso of re-entry in case the rent be in arrear a certain time,being lawfully demanded. Lord Ellenborough C.J. thought that there where parties by their stipulation introduce the necessity of a demand, that stipulation is not made null by the statute, but a demand must still be made, though not a demand according to the niceties of the common law. However, the other Judges of the Court of K. B. thought that before the statute the words "lawfully demanded" were in substance contained in the common law proviso, and that consequently their being expressly stated since the statute cannot vary the legal effect of the proviso: and they therefore held that a demand was unnecessary. [5 B. & A. 384, 394, Doe v. Wilson, per Abbott C.J. and Holroyd J.accord.]

(p) Proof that no sufficient distress was found o the premises on some one day, after the day on which the rent is payable to save the forfeiture, is prima facie evidence, and sufficient to bring the case within the statute, unless the defendant shew that there was a sufficient distress. 15 East, 286,Doe v. Fuchau. Where the lease contains a clause of re-entry for non-payment of rent, in case no sufficient distress be found upon the premises, the landlord is bound to search every part of the premises. Forest. 19,Rees v. King. [But the words "no sufficient distress," mean no sufficient distress that can be got at. Therefore, where the tenant had locked up the outer door of the premises, so that the landlord could not get at them to distrain, it was held that he was entitled to recover. M. & Malk. 77, Doe v Dyson, coram Lord Tenterden.]

(q) [Therefore, where the declaration in ejectment is served, the parties are in the same situation as if a legal demand had been made on the day when it ought to have been made at common law; and the title of the landlord must be taken to have accruedat that time, and not on the day on which the declaration in ejectment is served. Hence, it is no ground of objection that the day of the demise in the declaration is prior to the day of service. 3 B. & C. 754,Doe v. Shawcross. 5 D. & R. 711, S.C. Indeed, it could not be after that day; because it would then appear upon the proof, that the nominal plaintiff had no title at the time of service. 3 B. & C. 754. Accordingly, it is not essential part of the plaintiff's case to prove the day when the declaration in ejectment was served. 3 B. & C. 755, per Bayley J. However, it has been generally considered necessary to prove the service, in order to shew that half a year's rent was due before. Doe v. Sir F. Knowles, coram Wightman J. June, 1843, accord. A variance between the amount of rent proved to be due and the amount demanded by the plaintiff in his particulars of breaches is not material. 3 Bing. 3, Tenny v. Moody. 10 B. Moore, 252, S.C.]

(r) By the 4th sect. Of the same statute, the lessee or his assignee is entitled to stay the proceedings on payment of the arrears of rent and costs, which clause extends to the mortgage of the term. 3 Taunt. 402,Doe d. Whitfield v. Roe. [The Court will not extend this relief to the tenant after trial. 2 B. & C. 490,Doe v. Masters. 4 D. & R. 45, S. C. And where the ejectment is brought on a forfeiture by breach of covenant to repair, the Court has no power to stay proceedings upon terms, if the lessor of the plaintiff does not consent. 10 A. & E. 71,Doe v. Asby. 2 Perr. & D. 302, S.C.]

(s) Courts of Equity always relieved against forfeitures for non-payment of rent. See the cases collected in Comyn's Landlord and Tenant, p. 439. [See also 1 Hare, 109,Bowser v. Colby.] But it seems now to be settle that they will not relieve in any case where the forfeiture is incurred by a breach of covenant sounding wholly in damages where the parties cannot be put in statu quo. Ibid. and 2 Price, 200, Bracebridge v. Buckley, where all the cases are considered. [See also 4 Sim. 96,Green v. Bridges.]

(t) [But by special consent of the parties, a re-entry may be for default of payment of rent, without the aid of the statute, and without any demand of the rent according to the common law: as where the lease contains a proviso that if the rent be in arrear for twenty-one days, an ejectment may be maintained without actual re-entry, and without any demand of rent. 2 B. & C. 490,Doe v. Masters. 4 D. & R. 45, S.C.]

(u) Where the words of the proviso were, "that the lease shall be deemed null and void to all intents and purposes" on a certain default of the lessee, it was held that the true construction of this proviso is, that it shall be voidable only at the option of the lessor: for the Court will not permit the lessee to take advantage of his own wrong. 4 B. & A. 401,Doe v. Bancks. The same point had been previously determined inRede v. Farr, 6 M. & S. 121. That was an action against the surety on a bond conditioned for the performance of the covenants in a lease, in which lease was a proviso, that if the rent should be in arrear a certain time, whether demanded or not, the lease should be null and void: the lessee purposely suffered the rent to be in arrear beyond time, and then paid it, and afterwards finding that this lease was a disadvantageous one, gave a regular notice to quit, contending that this lease had become void, and that he was tenant from year to year only: but the Court held that the lease was voidable only, and had been set up again by the subsequent payment of rent; and therefore that the defendant, although merely a surety, was liable for breaches of covenant committed by the lessee subsequent to the expiration of the notice to quit. [These causes were followed by that ofArnsby v. Woodward, 6 B. & C. 519. S.C. 9 D. & R. 536, where the proviso, besides the statement that, if any of the covenants should be broken, the term should cease, determine, and be utterly void, added, "and it shall be lawful to and for the landlord into and upon the demised premises to re-enter," etc.; and it was held that this proviso did not make the lease absolutely void, but voidable only by breach of covenant. The Court was further of opinion, that a subsequent receipt of rent by the landlord was a waiver of a forfeiture; and, per Lord Tenterden, if the proviso had been in the very words found in Doe v. Bancks andRede v. Farr, the receipt of the rent would have been an admission that the lease was subsisting at the time when the rent became due, and he could not have afterwards insisted on a forfeiture, previously committed; and, per Littledale J., the landlord was bound to re-enter, in order to take advantage of the forfeiture, as in the case of freehold interest. See also 4 B. & Ad. 664,Roberts v. Davey. 1 M. & W. 402,Doe v. Birch. 4 Bing. N.C. 395,Malins v. Freeman. 6 Scott, 187, S.C. 1 Hare, 109, Bowser v. Colby, accord. These authorities appear to be strongly opposed to, if not to overrule, the distinction taken in the principal not above, between leases for lives and leases for years; inasmuch as they seem to establish, that, although a lease for years contains a proviso that it shall be utterly void for non-payment of rent, or other breach of covenant, yet it shall be regarded as voidable only, so that the landlord, by the acceptance of rent or the like, with notice of the breach, will waive the forfeiture.]

(x) Some positive act of waiver is necessary: merely lying by and witnessing a forfeiture by the exercise of a prohibited trade is not sufficient, where there has not been any acceptance of rent. 3 Taunt. 78,Doe v. Allen. [And it has been doubted whether even a demand of rent, which has become due subsequent to a forfeiture, amounts to a waiver. But see 1 M. & W. 402,Doe v. Birch. If the forfeiture be a continuing one, as where it is incurred by the using of rooms in a manner prohibited by a covenant in the lease, the acceptance of rent after such user is no waiver of the forfeiture incurred by a subsequent continuing user. 9 B. & C. 376, Doe v. Woodbridge, 4 Mann. & R. 302, S.C. So where there was a covenant to insure the demised premises, and keep them insured during the term; and the premises were never insured previously to a distress for rent, and the tenant continued to suffer them to remain uninsured de died in diem after the distress; it was held that this was a continuing breach, for which the landlord might recover in ejectment, on a demise subsequent to the distress. 1 B. & Ad. 428,Doe v. Peck. So if a neglect to repair continues from day to day, that is a continuing cause of forfeiture. 2 CR. & J. 667, 669,Doe v. Durnford. But a forfeiture incurred by the lessee's becoming insolvent is not a continuing one. 5 B. & Ad. 765,Doe v. Pritchard. 4 Bing. N.C. 38,Doe v. Rees. 6. Scott, 161, S.C. The receipt of rent, after an ejectment is brought on a forfeiture, is not waiver of such forfeiture. 1 C. & P. 346,Doe v. Meux. It has been held, that if the conduct of the lessor has been such as to mislead the lessee into neglect of a covenant, the lessor shall not be allowed to insist on such neglect as a ground of re-entry. R. & Moo. 343, Doe v. Rowe. 2 C. & P. 246, S.C. 9 C. & P. 706,Doe v. Sutton. See also R. & Moo. 29,Doe v. Ekins. 1 C. & P. 155, S.C. 2 Mann. & Gr. 752.]

(y) So where the lessor has once assented to an assigned of the whole lease, the condition is gone. [And equity has followed the law in this respect. 12 Ves. 191,Jones v. Jones. 14 Ves. 173,Brummell v. Macpherson. 1 Ves. & B. 191,Macher v. Foundling Hospital.] See the cases, post, notes (d) and(f). See also 5 Taunt. 249, Lloyd v. Crispe, where it was laid down by Sir James Mansfield C.J., that a landlord, by accepting rent of the assignee, although he had never assented to the assignment in writing according to the terms of the proviso, had waived the condition, and that the assignee might assign to another without licence. But the landlord, by waiving his right of re-entry by acceptance of rent from his lessee after one underletting, does not lose his right to re-enter on a subsequent underletting. 4 Taunt. 735, Doe v. Bliss. [5 B. & Ad. 771, per Tuanton J. Ibid. 781, per Patterson J.] Andquoere, whether, if he had by writing licensed an underlease of the whole premises for a portion of the term, the lessee could have underlet for the residue of the term without further licence? It should seem not; for thought in Dumpor's case a licence to assign part was held to operate as a licence to assignall, on the ground that a condition is entire and cannot beapportioned, and therefore a licence to underlet part would operate as a licence to underletall, yet a licence to underlet the whole for a portion of the term is no apportionment of the condition, but rather a suspension of it, against which no rule of law seems to militate, inasmuch as the entirety of the condition is preserved; and on the preservation of the entirety of the condition, the distinction noticed in the subsequent part of the learned serjeant's note turns, viz. that an assignee of part of the reversion in the whole premises may take advantage of a condition, but an assignee of the whole reversion in part of the premises cannot.

(z) Where a lease contained a clause of re-entry in case the rent should be in arrear twenty-one days, and there should be no sufficient distress, Lord Ellenborough held that the landlord having distrained within the twenty-one days, but continued in possession after, did not waive his right of re-entry. 1 Stark. 411,Doe v. Johnson. Where the lease contained a general covenant to repair, and also a covenant to repair upon three months' notice, Lord Ellenborough C.J. held that the landlord, by giving notice, had not waived his right of re-entry for the breach of the general covenant. 2 Camp. 520,Roe v. Paine. [In this case the notice required the tenant to repairforthwith. But if the notice had required him to repairwithin three months, the landlord would have thereby waived his right of re-entry for the breach of the general covenant (although the right of action for the breach of it would have remained). 4 B. & C. 606,Doe v. Meux. 7 D. & R. 98, S.C. If such a notice did not operate as a waiver of the forfeiture for the breach of the general covenant, the extreme injustice would follow, that the landlord might bring ejectment, after the tenant had put the premises into complete repair pursuant to the notice. So where the lease contains a general covenant to repair, and a proviso for re-entry upon breach of any covenant, and also a proviso that the landlord, in case of non-repair, may give the tenant notice to repair, and in case the repair shall not be done within a prescribed period, may perform it himself, and distrain upon the tenant for the expense, the landlord, by giving notice under this latter proviso, will waive his right of re-entry for a breach of the general covenant. 5 A. & E. 277,Doe v. Lewis. 6 Nev. & M. 764, S.C. See 4 B. & Ad. 84,Doe v. Brindley. 1 Nev. & M. 1, S.C.]

(a) See post, Vol. II. p. 284, note (2).

(b) [Post, Vo. II. p. 47, 48, note (1) toFowell v. Forrest. 1 V. & B. 188,Macher v. Foundling Hospital. 3 Madd. 218,Richardson v. Evans.]

(c) [So where the condition of re-entry was, if the lessee should "grant any underlease, or let, set, or assign, transfer, set over, or otherwise part with" the demised messuage, or that present indenture of lease, it was held that the deposit of the lease with a creditor, as a security for the payment of money advanced, was no forfeiture. 4 D. & R. 226,Doe v. Hogg. R. & Moo. 36. 1 C. & P. 160, S.C.]

(d) [See also 1 Capm. 20,Doe v. Worsley. 12 Ves. 395,Greenaway v. Adams. 15 Ves. 265,Church v. Brown.] So where the tenant holding under a similar condition entered into partnership with A., and agreed that he should have the use of a back room and other parts of the premisesexclusively, and of the rest jointly with the tenants, the lease was held to be forfeited. 1 M. & S. 297,Roe v. Sales. [So where the tenant engaged, that in case he should let, assign, or demise, or suffer to be occupied by any other person, without the consent in writing of the landlord, any part of the meadow or ancient pasture ground demised, he should pay an additional rent; and the tenant, without the consent of the landlord, suffered other persons to use small portions of the land for the purpose of raising a potato crop; it was held that this was an occupation of the land by other persons, such as to entitle the landlord to the additional rent: 1 Cr. M. & R. 55, Greenslade v. Tapscott: and the Court appeared to doubt the authority of Doe v. Laming, 4 Camp. 77, where a clerk in the Post Office had lodged for more than a year in a room of the demised premises (a coffee-house), of which he had had exclusive possession; and Lord Ellenborough held that this was no breach of the tenant's covenant not to grant any underlease for any term whatsoever, or let, assign, transfer, or set over, or otherwise part with the said messuage etc. or his term therein, or any part thereof, without licence, etc.; his Lordship saying, that the covenant could only extend to such underletting as a licence might be expected to be applied for; and who ever heard of a licence from a landlord to take in a lodger?] An assignment by operation of law, as by the bankruptcy of the lessee, is no forfeiture; 2 Eq. Cas. Abr. 100,Goring v. Warner. 2 Atk. 219,Philpot v. Hoare. Ambl. 480, S.C. 3 M. & S. 353,Doe v. Bevan; unless it be expressly covenanted that the lease shall be forfeited by the bankruptcy of the lessee. 2 T.R. 133,Roe v. Galliers. See also 6 T.R. 684,Domett v. Bedford. [1 Cr. M. & R. 405,Doe v. David. So where the lessee by deed conveyed all his property to trustees for the benefit of his creditors, and subsequently a commission issued against him, and he was found bankrupt; it was held that the deed, being an act of bankruptcy and void, did not operate as a valid assignment of the lease, which therefore passed to the assignees, and so no forfeiture. 5 B. & C. 308,Doe v. Powell. 8 D. & R. 35, S.C. 2 Y. & Jerv. 372,Powell v. Lloyd.] Neither is an assignment by the sheriff under a fi. fa.; 8 T.R. 58,Doe v. Carter; unless the lessee by his own voluntary act procures or occasions the lease to be taken in execution; 8 T. R. 300,Doe v. Carter; or the lease is made to depend on the actual occupancy of the premises by the lessee. 2 East, 481,Doe v. Hawke. 8 East, 185,Doe v. Clarke. Where the proviso contains an exception of assignments by will, the executors or legatee cannot therefore assign without licence; but where they had done so, and the lessor had accepted rent of their assignee, the condition was held to be waived, and that the assignee might assign without licence. 5 Taunt. 249,Lloyd v. Crispe. In the same case it was held, that the vendor of a term is bound to procure the lessor's licence to the assignment, and not the vendee. Under a covenant not to carry on, or suffer to be carried on, any trade or business, an assignment to a schoolmaster was held to be a forfeiture. 1 M. & S. 95, Doe v. Keeling. [But where the lessee covenanted that he would not do any act, matter, or thing, upon the demised premises, which might he grow, or lead to the damage, annoyance, or disturbance of the lessor, or any of his tenants, or to any part of the neighbourhood; and the proviso for re-entry was that the lessee should not permit any person to inhabit the premises, who should carry on certain specified trades or businesses (that of a licensed victualler not being any of these), or any other business that might be, or grow, or lead to be offensive, or any of his tenants, or to any part of the neighbourhood; and the proviso for re-entry was that the lessee should not permit any person to inhabit the premises, who should carry on certain specified trades or businesses (that of a licensed victualler not being any of these), or any other business that might be, or grow, or lead to be offensive, or any annoyance or disturbance to any of the lessor's tenants; it was held that the opening of a public-house on the premises was not a breach of the covenant or proviso. 1 B. & C. 713, Jones v. Throne. 3 D. & R. 152, S.C. Again, under a covenant in a lease of a house, not to use or exercise the trades or businesses of a butcher, baker, slaughterman, melter of tallow, tallow-chandler, tobacco-pipe burner, soap-maker, sugar-baker, fellmonger, dyer, distiller, victualler, vinter, tavern-keeper, or coffee-house keeper, tanner, common brewer, or any offensive trade, without licence; it was held that the lease was not forfeited by carrying on any occupation besides a trade; and that it was not a trade to use the house as a private lunatic asylum, the word trade in this covenant being applicable only to a business conducted by buying and selling. 2 A. & E. 161,Doe v. Bird. 4 Nev. & M. 285, S.C. The general rule is, that a clause of re-entry be construed strictly. Accordingly, a proviso in a lease, giving power of re-entry if the tenant make default in performance of any of the clauses by the space of thirty daysafter notice, was held not to apply to a breach of a covenant not to allow alterations in the premises, or suffer new buildings to be made on them without permission. 1 B. & Ad. 715,Doe v. Marchetti. So a proviso for re-entry, if the lessee "shall do or cause to be doneany act, matter, or thing, contrary to and in breach of any of the covenants," was held not to apply to a breach of a covenant to repair, the omission to repair not being an act done within the meaning of the proviso.3 B. & Ad. 299,Doe v. Stevens. However, in Doe v. Elsam, M. & Malk. 189, Lord Tenterden said, that he did not think that provisoes for re-entry were to be construed with the strictness of conditions at common law; but that, being matters of contract between the parties, they should be construed as other contracts, according to fair and obvious construction, without favour to either side. See aldo 3 B. & Ad. 402,Doe v. Jepson. Where the forfeiture relied on is a breach of covenant by the lesee's omitting to do some act, it lies on the lessor to give some evidence of the omission. 2 C. & P. 245,Doe v. Robson. Accordingly, where the alleged forfeiture was by breach of a covenant to insure in some office, in or near London, it was held that the omission to insure must be proved by the plaintiff. 8 A. & E. 571,Doe v. Whitehead. 3 Nev. & P. 557, S.C. The landlord's re-entry for a forfeiture is no bar to an action of covenant for a breach accrued before the re-entry, notwithstanding, by the terms of the condition of re-entry, the landlord is to have the premises again, "as if this indenture had never been made;" for this means only that he is to have themfrom the time of re-entry, as if the indenture had not been made. 4 Bing. N.C. 178,Hartshorne v. Watson. 5 Scott, 506, S.C. The landlord, on re-entry, is entitled to the emblements which he finds growing on the land, in all cases where the condition of re-entry is for a forfeiture occasioned by the act of the lessee, or in consequence of his act. 7 Bing. 154,Davis v. Eyton. 4 Moo. & P. 820, S.C.]

(e) See 2 B. & A. 105, Twynam v. Pickard, that an assignee of the reversion in part of the land may maintain covenant by virtue of the statute 32 H. 8, although he cannot enter for condition broken.

(f) "It cannot run with the land: because the question of its running with the land supposes an assignment, and the very assignment by act of law, or with the licence of the lessor, destroys the covenant." Comyn on Landlords and Tenants, p. 220, citing 3 Wils. 33,Bally v. Wells. 5 Taunt. 795,Doe v. Smith. 2 Marsh. 395, S.C. where it was held that a lessee bankrupt, coming in as assignee of his own assignees, was discharged from his own covenant not to assign without licence. See also the cases in note(d). [But inDoe v. Smith, the covenant did not name assigns: where it does, it should seem that they will be bound by it. 8 B. & C. 486,Paul v. Nurse. 2 Mann. & R. 525, S.C. And although the condition for re-entry is destroyed when the lessor has licensed an assignment, yet it may be doubted whether it is correct to say that the covenant is destroyed; and still more so, when he has merely waived the forfeiture. See 2 Mann. & Gr. 729, 751,West v. Blakeway. 3 Scott, N. R. 199, 215, 216, S.C.]

(g) In order to take advantage of a condition of re-entry, it is not necessary that the party should have any reversion in the land. 2 B. & A. 168,Doe v. Bateman. [But a power of re-entry cannot be reserved to a stranger to the legal interest, whose real title is disclosed on the lease. 4 Taunt. 23,Doe v. Lawrence. 2 Cr. & J. 232,Doe v. Adams. Therefore where a man bequeathed certain leasehold premises to trustees, on trust to permit and suffer his wife to receive the rents, etc.; and afterwards the surviving trustee and the widow granted a lease of the premises, the rent to be paid to the widow, and the lessors reserved a power to re-entry on non-payment of the rent, and the lease disclosed the title of the widow, who, after the death of the trustee, entered on the premises; it was held that, being a stranger to the legal estate, the power to re-entry could not be reserved to her, and that the lease operated as a lease by the trustee, and a confirmation by her. 2 Cr. & J. 674,Doe v. Goldsmith. Where in an under-lease it was provided that the lease and the original lessor might re-enter for any breach of covenant, it was held, that the lessee alone might maintain ejectment for a forfeiture incurred by the under-lease. 4 Bing. 276,Doe v. White. 12 B. Moore, 526, S.C. As to what form of words will make a condition of re-entry, see 8 B. & C. 308,Doe v. Watt. 1 Mann. & R. 694, S.C. 4 C. & P. 3,Doe v. Kneller. It is not essential that the lease should be under seal. 8 B. & C. 308. 1 Mann. & r. 694. It is a good defence to an ejectment for a forfeiture, that the landlord, after the execution of the lease, conveyed away his title to the premises by mortgage. 5 B. & Ad. 1065,Doe v. Edwards. 3 Nev. & M. 193, S.C.]

(h) And so is the law at this day, [in cases of leases granted before the passing of the stat. 4 W. 4, c.22], notwithstanding the statute hereinafter mentioned. 2 Madd. 268,Norris v. Harrison. By statute 11 Geo. 2, c.19, s.15, it is enacted, "that where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, the executors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such under-tenant or under-tenants of such lands, tenements, or hereditaments, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion, of such rent, according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionable part thereof respectively." This statute applies to all cases where the lease determines by the death of the tenant for life: therefore, where the tenant for life has a power to make leases upon certain terms, but in fact makes leases not pursuant to the power, upon his death the rent must be apportioned; 1 Swanst. 337,Ex parte Smyth; and see the elaborate notes of the reporter in the same case, and Clarkson v. Lord Scarborough there cited. In those cases the tenant for life having a power to lease by deed, with certain covenants, had leased by parol from year to year. It should seem, however, that if the lease, or an agreement for it, be in writing, and under such circumstances that the tenant must be considered in equity as a purchaser, the contract, although not made strictly pursuant to the power, will be inforced in equity to the extent of the power, and of course the statute will not apply. 1 Swanst. 357, Ex parte Smyth, note. Whether the executors of tenant in tail, who has made leases, void as against the remainder-man, and dies without issue, be within the equity of this statute, seems doubtful. Ambl. 198,Paget v. Gee. 2 Bro. C.C.659,Vernon v. Vernon. Whitfield v. Pindar there cited. 8 Ves. 308,Hawkins v. Kelly. The utmost extent of the cases is, that if the remainderman has received the whole rent, he shall account in equity to the executors of the tenant in tail. It is questioned by Mansfield C.J. in 3 Taunt. 331, Wykham v. Wykham, whether the executors of tenant pur auter vie are within this statute. But, with submission, that question can hardly arise; for it should seem that either the special occupant, or executor or administrator, or devisee of tenant pur auter vie would be bound by a lease granted by him in his lifetime, and the rent payable under that lease would of course go with the reversion, since the lessee's interest in such case is not determined by the death of tenantpur auter vie, but by the death ofcestui que vie. Probably there is an error in the report, and the question intended to be put by Mansfield C.J. was, whether it had ever been determined that tenant pur auter vie was entitled to a portion of the rent under this statute, where cestui que vie died between two-days. That he is within the mischief of the Act seems clear, for otherwise the rent would be lost; and it is no answer to say that he might have provided for the case by express covenant, for so might tenant for his own life. The words of the statute, however, confine its operation to executors of tenant for life, and it might probably be considered too great an extension of the equity of it, if tenant pur auter vie were held to be entitled to its benefit. [These questions have been cleared by the passing of the stat. 4 W. 4, c. 22, which, after reciting the stat. 11 Geo. 2, c. 19, and that "doubts have been entertained whether the provisions of the said Act apply to every case in which the interests of tenants determine on the death of the person by whom such interests have been created, and on the death of any life or lives for which such person was entitled to the lands demised, although every such case is within the mischief intended to have been remedied and prevented by the said Act; and it is therefore desirable that such doubts should be removed by a declaratory law: and whereas, by law, rents, annuities, and other payments due at fixed or stated periods are not apportionable (unless express provision be made for the purpose), from which it often happens that persons (and their representatives) whose income is wholly or principally derived from these sources, by the determination thereof before the period of payment arrives, are deprived of means to satisfy just demands, and other evils arise from such rents, annuities, and other payments not being apportionable, which evils require remedy," it is enacted, "that rents reserved and made payable on any demise or lease of lands, tenements, or hereditaments, which have been and shall be made, and which leases or demises determined or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by such leases, and the recovery of a proportion thereof by the person granting the same, his or her executors or administrators (as the case may be), be considered as within the provisions of the said recited Act." And by sect.2 , "from and after the passing of this Act, all rents service reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power (and which leases shall have been granted after the passing of this Act [Royal Assent, June 16, 1834], and all rents charge, and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in the United Kingdom of Great Britain and Ireland, made payable or coming due at fixed periods under any instrument that shall be executed after the passing of this Act, or periods under any instrument that shall beexecuted after the passing of this Act, or (being a will or testamentary instrument) that shall come into operationafter the passing of this Act, shall be apportioned so and in such manner that on the death of any person interested in any such rents, annuities, pensions, dividends, moduses, compositions, or other payments as aforesaid, or in the estate, fund, office, or benefice, from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatsoever of the interest of any such person, he or she, and his or her executors, administrators or assigns, shall be entitled to a proportion of such rents, annuities, pensions, dividends, moduses, compositions, and other payments according to the time which shall have elapsed form the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions, and other payments being made; and that every such person, his or her executors, administrators, and assigns, shall have such and the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities, pensions, dividends, moduses, compositions, and other payments, when the entire portion of which such apportioned parts shall form part shall become due and payable, and not before, as he, she, or they would have had for recovering and obtaining such entire rents, annuities, pensions, dividends, moduses, compositions, and other payments if entitled thereto, but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid, but the entire rents of which such portions shall form a part, shall be received and recovered by the person or persons who, if this Act had not passed, would have been entitled to such entire rents; and such portions shall form a part, shall be received and recovered by the person or persons who, if this Act had not passed, would have been entitled to such entire rents; and such portions shall be recoverable form such person or persons by the parties entitled to the same under this Act in any action or suit at law or in equity." And by sect. 3., "the provisions herein contained shall not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description." The first section of this Act does not appear to provide for the case of a lease made by a tenant in fee to a tenant for life reserving rent; and therefore where such a lease, having been granted before the passing of the Act, determines by the death of the lessee for life between the two rent days, the rent is lost and cannot be apportioned. The Act, in this section, appears to contemplate two cases only, viz. the case of a lease determining on the death of a lessor, and the case of a lease determining on the death of the life for which the lessor was entitled. And even if the lease were granted after the passing of the Act, it may be doubted whether such a case falls within the 2d section, and whether that section is not confined to cases where the rent continues and is to be apportioned between the person, or his representatives, who was entitled when it began to accrue, and another person who has come in as remainder-man, or reversioner, or otherwise. InOldershaw v. Holt, 12 A. & E. 590. 4 Perr. & D. 307, S.C. the Court of Q.B. expressed an opinion that the Act did not apply to the case of a landlord determining the relation of landlord and tenant by his own act. It was held by Lord Cottenham that the Acto does not apply to rents payable by tenants from year to year, which have not been reserved by an instrument in writing. 4 Mylne & Cr. 484,In re Markby. And it has been since held by Wigram V.C. that the Act applies only to cases where the interest of the party entitled to the rents, or other periodical payments, determines by death or some other means. And, consequently, that rents are not apportionable between the real and personal representatives of tenant in fee. 3 Hare, 173,Browne v. Amyot.]

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