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his odd mash) to crop one-third of the arable and wheat, and reap that wheat after his tenancy has expired, and he crop more than one-third, the landlord will be entitled to all that which is last sown, or above one-third, unless it is shewn that the tenant has a lien on it for the sowing and the seed. (g) But a parol permission by the landlord to crop beyond onethird or odd mash, will be binding both on the landlord and incoming tenant. (r)

Where the outgoing and incoming tenants agree for the sale and purchase of the crops, &c., the landlord's rights will not, of course, be thereby affected. (s)

(q) Caldecott and another v. Smythes, 7 C. & P. 80.

(r) Griffith v. Tombs, 7 C. & P.

810.

(s) Vide Petrie v. Daniel, 1 Smith, 199.

Landlord not affected by agreement

between out

going and in coming tenants.

BOOK THE FOURTH.

CHAPTER THE FIRST.

Of the Landlord's Proceedings against his Tenant, and the Tenant's Defence thereto.

SECTION I.

3 & 4 Wm. 4, c. 27.

3 & 4 Wm. 4, c. 42.

OF A DISTRESS FOR RENT.

BEFORE considering this subject it may be proper to

advert to some recent decisions on the statutes of the 3 & 4 Wm. IV. c. 27, and 3 & 4 Wm. IV. c. 42.]

The first of these statutes was passed for the limitation of actions and suits relating to real property, and for simplifying the remedies for trying the rights thereto. By sec. 42, it was enacted, that from and after the 31st of December, 1833, no arrears of rent or of interest, in respect of any sum of money, charged upon or payable out of any land or rent, or in respect of any legacy or any damages in respect of such arrears of rent or interest should be recovered by distress, action, or suit but within six years next after the same should have become due, or next after an acknowledgment of the same in writing should have been given by the person by whom the same was payable, or his agent.

In the same session of parliament an act, c. 42, was passed for the further amendment of the law and the better advance

ment of justice, and by sec. 3 it was enacted, that all actions of debt for rent upon an indenture of demise, all actions of covenant upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance should be brought within ten years after the end of the then present session, or within twenty years after the cause of such action or suits, but not after.

Bartlett.

After the passing of these acts a case occurred, (a) in which Paddon v. an action was brought to recover twenty years' rent upon an indenture of lease. In answer to the action, the statute of the 3 & 4 Wm. IV. c. 27, was pleaded as to part, and an assignment of the reversion as to the rest. The action had been commenced on the 22nd of July, 1833, and the statute received the royal assent on the 24th of July, 1833, being two days after.

In answer to the plea of the statute it was contended that the case was not within it, the statute not being retrospective, and in this view of the case the Court concurred. It was also contended that the act did not apply to actions for rent on specialty, and if it did, it was repealed by the 3 & 4 Wm. IV. c. 42. But on this point the opinion of the Court was not required.

In a subsequent case, (b) an action of covenant was brought Paget v. Foley. for rent, being ten years and a half in arrear, and the defendant pleaded, as to part, that it did not become due within six years, nor had any acknowledgment been given, to which the plaintiff demurred. In support of the demurrer it was contended, as in the former case, that the statute of the 3 & 4 Wm. IV. c. 27, did not apply to rent reserved on a deed, or if it did, it was repealed by the subsequent statute, and that sec. 42 of the 3 & 4 Wm. IV. c. 27, applied only to rent on simple contract, or to claims for use and occupation. On

(a) Paddon v. Bartlett, and another, 4 Nev. & M. 40. 5 Nev. & M. 833.

(b) Paget v. Foley, 2 Bing. 679. N. S.

Distress defined.

the other hand, it was argued that by the 3 & 4 Wm. IV. c. 27, the plaintiff's were precluded from recovering any arrears of rent unless within six years after the same became due, and that the statute of the 3 & 4 Wm. IV. c. 42, was not incompatible with, and did not repeal the former act. The judges of the Court of Common Pleas appear to have been unanimous in opinion that the action of covenant might be maintained within the limits of the 3 & 4 Wm. IV. c. 42, the language of which was express and precise. But they apparently differed as to the operation of the 3 & 4 Wm. IV. c. 27, the Chief Justice entertaining a strong opinion that sec. 42 of the statute applied to rent charges, and not to rents reserved on leases, in which, however, Bosanquet, J., did not seem to concur, nor did he think the statute could have been confined to leases by parol, supposing the subsequent statute not to have passed.

According, therefore, to the view taken by the Chief Justice, sec. 42 of the 3 & 4 Wm. IV. c. 27, does not apply to rents reserved on lease, and must be confined to rent charges; but if the construction put on the statutes by Mr. Justice Bosanquet be right, then, although the 3 & 4 Wm. IV. c. 27, is in part repealed by the 3 & 4 Wm. IV. c. 42, yet as the latter does not extend to the remedy by distress, it will follow that notwithstanding the lessee may have his action for rent in arrear to the extent of the 3 & 4 Wm. IV. c. 42, yet as to his remedy by distress he is confined to the six years prescribed by the 3 & 4 Wm. IV. c. 27. So far as the writer may hazard an opinion, the construction put on the statutes by the C. J., is the most free from difficulties.

A distress is the taking of a personal chattel out of the possession of the wrong-doer, into the custody of the party injured, to procure a satisfaction for the wrong committed. (c)

The thing taken, as well as the process, is in our law books frequently called by the same name of a distress.

(c) 3 Bl. Com. 6.

The general nature of rents has been already discussed; (d) and it may, therefore be necessary merely to remind the reader, that a distress was at common law incident to rent service only, and could not be taken for a rent charge, unless a special provision to that effect was inserted in the grant; but that this distinction is now abolished by the statute 4 Geo. II. c. 28, which gives the remedy by distress for all kinds of rents issuing out of real property. Out of a mere personal chattel, indeed, a rent cannot issue: but the landlord's remedy by distress will not be defeated by the demise being of lands and goods jointly; and, therefore, where this point was raised in the case of furnished lodgings, the Court of Common Pleas decided, that a distress might be taken for the rent of these, because the whole rent issued out of the real part of the demise. (e)

By the common law, the general rule was, that rent being By whom may incident to the reversion, a distress could be taken by him be taken. only who had the reversion. And, therefore, it is laid down that for a rent reserved upon a gift in tail, or a lease for years or at will, the grantor or lessor shall distrain of common right, though no distress be spoken of: but in case a man make a feoffment in fee, reserving a rent, he shall not distrain for that rent, unless a distress be specially reserved. And so where a gift in tail, or a lease for life, was made with remainder over to a stranger in fee, reserving a rent to the feoffor, he could not distrain. Since the statute of quia emptores, a rent-service cannot be reserved on a grant in fee, although it may be supported as a rent-charge. Prior to the statute of the 4 Geo. II., a distress for such a rent could not be had, it not being incident to the reversion; but as by that statute, distress is given for any species of rent, (f) the feoffor, upon such a reservation, will have a right to distrain as for a rent-charge. (g)

(d) Vide supra.

(e) Newman v. Anderton, 2 N. R. 224. And see Baynes v. Smith, 1 Esp. N. P. 206.

(f) Vide Hargrave's note, Co. Lit. 144. a.

(g) Bradbury v. Wright, Dougl.

624.

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