to inclose and approve the wastes of a manor where the tenants of the manor have a right to dig gravel on the waste, or take estovers there 1. It has been decided that the statute of Merton applies only to common of pasture, that being the only species of common mentioned in the act2; it has, however, been held, conformably it may be thought to the presumed intention and spirit of the act, rather than to its words, that where there is common of pasture and common of turbary in the same waste, the common of turbary will not hinder the lord from inclosing against the common of pasture: and the same principle applies of course to common of estovers, or any other commonable right, as well as to common of turbary. The lord, however, must, in this case, so exercise his right as not to injure the tenant's common of turbary or estovers; for, if he do, he will be liable to an action 3. And therefore, if the lord inclose and leave not sufficient common, the commoners may not only break down the inclosures, but may put in their cattle, although the land be ploughed and sown 4. It is said, that, if the commoner be only abridged of his right, he cannot abate, but if he be excluded, he may do any act to give him access to his common: and, therefore, if the lord plant trees upon a common, without leaving a sufficient common, a commoner must not cut them down, but bring his action 5. On the same principle, although the lord convert any part of the common into a warren, yet, if he do so, the commoners may not kill the conies, but must bring an action 6. It has also been said, that approvement extends not to common in gross 7. It has been decided, that even a lord who is in by wrong, may, by virtue of the Statute of Merton, approve against the tenants and commoners; and in one case 8 it was held, that any person who is seised in fee of common lands, although he be not lord of the manor, may approve, if he leave a sufficiency of common. This, of course, does not apply to a person having a mere right of common, but having, as grantee from the lord, or otherwise, a right of soil in the common. In the case of common per cause de vicinage, existing between the inhabitants of two townships, either township may inclose and bar out the other, though they have inter-commoned time out of mind. Indeed, to destroy a plea of common of vicinage, proof that the lord of either waste has entirely inclosed some part, however small, will be sufficient 9. At common law, lords of manors could not erect buildings on their waste, but by the statute of Westminster it is declared, that, "by occasion of a windmill, sheepcote, dairy, "enlarging of a court, or curtilage necessary, none shall be grieved by assize of novel disseisin for common of pasture;" and this has been held to extend to any kind of building, provided it be for the lord's own habitation, or that of his shepherd; and in the exercise of this right, he is not obliged to leave sufficient pasture for the commoners 1. Nevill v. Hancerton, 1 Lev. 21 Roll. Abr. As the commoner has no right in the soil, he cannot do any 62. thing on the soil, even though it be to the melioration or improvement of the common, as cutting down bushes, fern, digging clay, or even levelling mole-hills; he cannot even make a trench to let off the water, in the event of a flood 2. If a commoner (without license) inclose or build on the common, every commoner may have an action for the damage 3. A commoner may abate hedges erected on a common ; but if he cannot prove his damage, Leon. 201. it seems that a commoner cannot maintain an action. tom for the owners of commonable or open fields to inclose against each other would, it seems, be good5. 116. 1 Roll. Abr. 89, 398; 2 A cus-2 Mod. 65. 5 Hickman v. Thorne, 2 Mod. 104. Hawke v. Taunt. 159. Bacon, 2 Title to waste by adverse possession.]-Twenty years' adverse possession of a waste inclosed is a bar to the entry either of the lord or a commoner 6; but it is usually provided by inclosure acts, that no encroachment which has existed for twenty years before the passing of the act shall be considered as part of the waste, and that no title derived by virtue of such encroachment shall be disputed. In one case, where a person had enjoyed an encroachment forty years, he was held absolutely entitled, notwithstanding he had subsequently accepted a grant of some adjoining land from the lord, in which grant his encroachment was described as 'waste'7; but there were special Doe v. Wright, 1 Stark. 349. circumstances. Where the inclosure of a waste has been made but a short time only, it will be presumed to have been done with the lord's license, if he or his steward were privy to the encroachment; and until the license be revoked or notice given for the encroachment to be thrown up, the lord cannot maintain an action of ejectment 8. Where encroachments have been made by a person being a lessee only of lands within the manor, the encroachment will, on the expiration of the lease, go over as an accessional interest with the lands to the landlord 9. 7 Doe v. Wilson, 11 East, 56. Bryan v. Winwood, 1 Taunt. 208; Doe v. Davies, 142. a.; Gilb. Rents, 20. 2 Gilb. Rents, 20. SECT. 2.-RENTS. Various kinds of rent, 574.—Right of distress for rent, 575.— Different kinds of rent.-A rent consists in the right to the periodical receipt of money, or money's worth, in respect of lands which are held in possession, reversion, or remainder, by the person from whom the payment is due; and must, in general, issue out of lands or tenements of a corporeal nature, whereto the grantor of the rent may have recourse to distrain; and therefore, a rent could not formerly have been reserved out of an advowson in gross, tithes, or other incorporeal heredita1Co. Litt. 47. a. ments 1. A rent may, however, be reserved to the king out of an incorporeal hereditament, because by his prerogative he may distrain all the lands of his lessee for such rent 2; and by the 5 Geo. 3, c. 17, it is enacted, that "leases made by ecclesiastical persons of tithes or other incorporeal hereditaments shall be good, and the rents reserved on such leases may be recovered by action of debt." If a man make a lease for years of land and a stock of sheep,' or lease a house 'with the furniture in it,' reserving rent, the rent issues out of the land; and though the sheep and furniture might be taken as pledges, yet no rent can be reserved out of the use of them, because nothing can yield a rent which the lessor cannot at any time have recourse to for a distress; but these things may be moved or driven from the premises, and so taken out of the distress of the lessor 3. In conformity with these principles, in a recent case 4, where an action of debt was Barn. & Cress. brought for rent, the plaintiff declared upon a demise of "a messuage, land, and premises with the appurtenances," but gave in evidence an agreement, describing the property as "a messuage or tenement, stable and out-buildings, with the cottages, garden, land, and appurtenances thereto belonging, together with the furniture, utensils, and instruments," the Court of King's Bench held, that though "the furniture was one of the things demised, yet, in point of law, the rent is paid out of the real property and not out of the furniture, and therefore it was sufficient for the plaintiff to allege and prove a demise of the real " Id. 175. Dickenson, 6 251. Saunders v. Musgrave, property out of which the rent claimed issued." Under an agreement that the purchaser shall pay to the vendor at the rate of 1007. per annum, from the taking possession till conveyance executed, the money is due as rent 1. Rents are either rent-service, rent-charge, or rent-seck. Barn. & Cress. Although every species of rent is comprised in this description, 524. yet there are some kinds of rent known by particular names. Rents of assize are the established rents payable by the freeholders and ancient copyholders of certain manors; those of the freeholders being frequently called chief-rents, and both sorts indifferently denominated quit-rents, because thereby the tenant goes quit and free of all other services. A fee-farm rent is a perpetual rent reserved on a conveyance of the fee simple. After the statute of quia emptores, granting in fee-farm, except by the king, became impracticable, because the grantor parting with the fee is, by the operation of that statute, without any reversion, and without a reversion there can be no rent-service 2. A perpetual rent may however be reserved on a grant of lands in fee; and if a power is inserted in the conveyance for the grantor, his heirs and assigns, to distrain for the rent when in arrear, and also a power to enter and receive the profits until the arrears be paid, the rent is good as a rent-charge, but not as a fee-farm. All other rights to periodical payments out of land are mere annuities; and though they may be made to the grantee and his heirs, and therefore are rightly called hereditaments,' yet they are not tenements,' and may be disposed of by will as personal Rent may either consist of a fixed money payment, or a portion of the produce of the soil, or in the case of mines it may even consist of a portion of the ore, which is the substance of the land itself 3. estate. Right of distress for rent.—Whenever the payment or render of rent is connected with tenure, whether it be perfect, as where the rent is due to the lord of the manor, or imperfect, as where it is due to the reversioner, it is called rent-service, and by the common law is accompanied with the right of distress for non-payment. Rents may, however, be created, independently of tenure, by deed or will. If a power of distress was given to enforce payment, it is called a rent charge; if no such power was given, it is called a rent-seck. It was held in a recent case 4, that arrears of a rentcharge may be distrained for without an express authority for 2 Bradbury v. Wright, Doug. 627, n. 1 Brediman's Ca., 6 Co. 57. 1 Leon. 269. Litt. s. 346; Co. Litt. 143. b. 5 Gilb. Rents, 61. that purpose; but on what principle or on what authority 1, the court had arrived at this conclusion it would be difficult to say *. Reservation of rent.-A rent can only be reserved to the person 'Co.Litt.143. b. from whom the estate moves, and not to a stranger 2. If reserved to a stranger it is a sum in gross 3. Therefore, upon a feoffment, gift, or lease, rent-service can be reserved to none but the feoffor, donor, lessor, or his heirs; for the rent is payable as a return for the possession of the lands, and therefore can only be made to the person from whom the land passes 4. As during the life of the lessor the rent cannot be reserved to a stranger, so after his death it can be reserved to none but the reversioner, for to him the land would belong if it were not demised 5. If a person make a lease to commence after his death, reserving rent to his heirs, this will be a good rent-service arising in the heir, not by way of purchase, but as incident to the reversion descending to him, and therefore may be released by the ancestor during his life, which it could not be if it were a new purchase in the heir 6: but where father and his son, heir apparent, demised land for years, to begin after the death of the father, rendering rent to the son; the father died, the lessee entered, and the rent being in arrear the son distrained. It was resolved that this reservation of rent was utterly void; for, though the son did prove heir, it bettered not the case by the event; but the reservation must have been to the 'heir' or 'heirs' of the lessor by that name, for that is the only word of privity in law requisite for the reservation of rent, for 62 Roll. Ab. 447, pl. 2; 2 Saund. 370. Oates v. Frith, the heir is eadem persona cum antecessore 7. Hob. 130. Where the reservation of the rent is general, the law directs according to the intent and nature of the thing demised. As if tenant in tail make a lease for years, rendering rent to him and his heirs, the rent goes to the heir in tail along with the reversion; or, if tenant for life, with remainder over, with power to make leases, demises rendering rent to him, his heirs and assigns, it shall be adjudged to him in remainder. So if lessee for a term of years make a lease for a shorter term, rendering rent to him and his heirs during the term, it shall go to the executor. So where a copyholder, by license, grants a lease rendering rent The remedy by distress at common law, besides being limited to rents incident to tenure, was subject to many difficulties. The legislature, by the stat. 28 Geo. 2, c. 28, simplified its application and extended it to rents seck, rents of assize, and chief rents. (Sect. 5). |