1 Sacheverell

to him and his wife during their lives and to his heirs, where by the custom the wife has her free bench, the wife shall have the rent as incident to the reversion. So if tenant in tail to him and the heirs male of the body of his father let the land, rendering rent to him, his heirs and assigns, the rent shail go to the heir male of the body of his father, though he be not heir to the lessor, for it is incident to the reversion. But a man may reserve a rent to himself for his life, and a different rent to his heir1. If a rent be reserved to the lessor and his assigns, the rent will determine at his death, for the reservation is good only during his life. So if the rent be reserved to him and his executors, he having the freehold, it will determine at his death, because the reversion to which it is incident descends to the heir 2. Co. Litt. 47. a. If a person possessed only of a term make a lease for a term of years, reserving rent to the lessor and his heirs, such rent will determine by the death of the lessor; for the heir cannot have it, as he cannot succeed to the estate; nor the executor, as there

v. Froggatt,
2 Saund. 371,

n. 7.

are no words to carry it to him3. But where one seised in fee 1 Vent. 161. made a lease for years, reserving rent to the lessor, his executors, administrators and assigns, yearly during the term, it was resolved that it should go to the heir of the lessor; for though there was no mention of heirs in the reservation, yet there were words which clearly manifested the intention of the lessor, that the payment of the rent should be of equal duration with the lease, and consequently the rent must be carried over to the heir, who came into the inheritance after the death of the lessor, he having made no other disposition of it. If no reversion be left in the lessor, and the rent is reserved to his executors, administrators and assigns, it will go to them and not to the heir5.

Sacheverell

v. Frogatt, 2 Saund. 367.

5 Jenison v.

P. W. 555.

Extinguishment of rents.]-Where a person having a rent- Lexington, 1 service purchases part of the land out of which the rent issues, the whole of the rent-service is not thereby discharged, but only a part proportioned to the value of the land purchased; but if a man have a rent-charge to him and his heirs issuing out of certain land, if he purchase any parcel of it to him and his heirs, the rent-charge is extinct. The reason of this rule of law is very fully explained by Gilbert, C. B7., upon feudal principles; and it has been held that a devisce is a purchaser within the meaning of the rule, and therefore that a rent-charge is extinguished by a devise to the

6

Litt. s. 222.
Gilb. Rents,

152.

1 Dennett v. Pass, 1 Bing. N. C. 388.

* Litt. s. 224.

3 Saffery v. Elgood, 1 Ad. & El. 191.

Doe v. Hors. ley, 3 Nev. & Man. 571.

grantee of part of the land out of which the rent-charge issues, notwithstanding the devise is expressly made over and above the rent-charge1. Where, however, the land comes to the grantee not by his own act, but by descent or otherwise in course of law, the rent-charge will be apportioned according to the value of the land2.

Remedies for recovery of arrears.]—-The grant of a rent-charge for life by tenant for years is not void, but good as a chattel interest; and the goods of a stranger not shewn to hold the premises by title paramount to the rent-charge may be distrained 3. Where a rent-charge is granted with power to the grantee, in case the rent should be in arrear for a certain space of time, to enter and enjoy the lands charged, and to receive and take the rents, issues, and profits for his own use and benefit until satisfaction of the arrears of rent, with all costs, the grantee may, upon the rent becoming in arrear, maintain ejectment against the terre-tenant without proof of a previous demand of the rent," on the principle that this is not a case of forfeiture for non-payment of the annuity, but only of a right to enter and receive the profits till the arrears are satisfied: in the former case a demand is necessary; in the latter, there is no authority for saying that it is+."

At common law, an action for debt does not lie for a rent or annuity in fee, in tail, or for life, while it continues a freehold interest: and this rule is not confined to rents or annuities created by common law conveyances, but extends to rents or aunuities Webb v. Jiggs, created by devise 5.

4 Mau. & Sel.

119; Kelly v.

Arrears of a rent-charge are recoverable in equity, though there Clubbe, 3 Bro. be a remedy at law, the latter not being adequate; and they may, & Bing. 130. by a court of equity, be raised by sale or mortgage, though a power of entry and distress only be given by the deed. Being created by deed, they can only be discharged by deed-and previous to the 3 & 4 Will. 4, c. 27, they were not barred at law by any statute Cupit v. Jack of limitations 6. The commissioners appointed to inquire into the

son, 13 Pri.

721.

7 P. 50.

state of the law of real property, in their first report7, speaking of rents of this kind, observe that "there is at present no limitation, either as to title or arrears, except that of fifty years created by the statute of 32 Hen. 8, which is held to preclude any presumption of release or payment. We think the limitation as to quit-rents, as well as rent-charges, and all periodical payments is

suing out of land other than conventionary rents between landlord and tenant, should be assimilated to the limitation of actions as to the land itself: that what is tantamount to a dispossession for twenty years should bar the right to the rent; and that the arrears, like other debts, should be barred by the lapse of six years. Where rent is reserved upon a lease under seal, there is no limitation as to the arrears, although, in practice, where there is no proof of acknowledgment, a jury is directed to presume payment after twenty years. We conceive that a positive bar would be much preferable to a presumption, which may be rebutted; and we see no reason why annual payments should be allowed to be sued for after the expiration of six years, whether they may have been secured by deed, or only arise from simple contract." In pursuance of these views, rent-charges and other payments of the like kind were as to title, by the statute above adverted to, put upon the same footing as the land itself out of which they issued, a subject which will be considered in detail under the title of "adverse possession" in the second division of this work; and as to the remedy for arrears it was by this statute enacted, that "no arrears of rent [which word, be it observed, extends to he"riots, and all services and suits for which a distress may be

made], or any damages in respect of such arrears of rent, shall “be recovered by any distress, action, or suit, but within six years "next after the same respectively shall have become due, or next "after an acknowledgment of the same, in writing, shall have "been given to the person entitled thereto, or his agent, signed "by the person by whom the same was payable, or his agent: "provided nevertheless, that where any prior mortgagee or other "incumbrancer shall have been in possession of any land, or in "the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a 'subsequent mortgage or other incumbrance on the same land, "the person entitled to such subsequent mortgage or incum"brance may recover in such action or suit the arrears of in"terest which shall have become due during the whole time that "such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the "said term of six years1."

PP 2

' Sect. 42.

SECT. 3.-RIGHTS OF COMMON.

Various kinds of commonable rights, 580.—Extinguishment of rights of common, 582.-Inclosure of waste, 583.-General Inclosure Act, 584.-Act for inclosure of common fields, 604. Various kinds of commonable rights.]—Rights of common are privileges which had their origin in the feudal distribution of the country into manors. The lord of the manor is the absolute owner of the soil of all the copyhold and waste lands within it, subject, as to the former, to the estate at will of the copyholders, and as to the latter, to the rights of pasturage and other commonable rights which his freehold and copyhold tenants have acquired over them. A right of common, in its general sense, is a privilege which one or more persons claim, to take or use some part or portion of that which another man's lands, waters, woods, &c. naturally produce. Thus it is, that, though the property of the soil in common or waste lands, within the manor, belongs entirely to the lord of that manor, the use of it or of its natural produce is in him jointly with the commoners. The right of the commoners is an incorporeal right or hereditament, commencing, or presumed to have commenced in some agreement between the lord and his tenant, which, by lapse of time, has acquired the nature of a prescriptive right, supposed to have had its origin in some deed or instrument in writing which has been lost.

As the terms import, common of turbary is a right of cutting turf; common of piscary, a liberty of fishing; common of estovers, the right of cutting in the lord's woods a sufficient quantity of wood for the repair of houses, hedges, &c. Common of pasture, the right of feeding the commoner's cattle upon the waste lands of the manor. This is usually the most important of the commonable rights, and is either appendant, appurtenant, in gross, or per cause de vicinage. Common appendant' is a right belonging to a man, from time out of mind, in respect of his arable land, for beasts commonable, that is, beasts of the plough, or such as manure the ground 1. The law an122. a.; 2 Inst. nexed this right of common as inseparably incident to the grant

11 Co. Litt.

64.

1 Nels. Abr. 456 (A); Co. Litt. 122.

? Scholes v.

Hargreaves,
5 T. R. 46.
Emerton v.
Selby, 2

Lord Raym.
1015.

Plow. 161.

5 3 Salk. 93.
6 1 Danv. 797.

7

Co. Litt. 121,

of the lands, for the purpose of enabling the tenant to cultivate them: and for this reason, common appendant cannot, as it seems, be severed from the land, or created at the present day: and it can only be claimed in respect to ancient arable land, or to a manor, farm, or plough-land; not to a house, meadow, or pasture: though, if a house be built on part of ancient arable land, or a part be employed for meadow or pasture, the right will still be appendant to the remaining land, but not to the house or meadow1. Common for cattle, levant and couchant, cannot be claimed by prescription as appurtenant to a house without any curtilage or land2; but a prescription has been held good for common appendant to a cottage, because a cottage has at least a curtilage annexed to it; because, to make it a lawful cottage, there must be four acres laid to it3. Common appendant is in its nature without stint; but by custom it may be limited. It can, however, be exercised by no more cattle than the land, to which the common belongs, is able to maintain5. It may be for a certain time only 6. Common appurtenant' may be annexed to any estate in the same or any other lordship, and may extend to other beasts, besides such as are regularly commonable, as hogs, goats, or the like7. The owner of a right of common appurtenant can keep but a number proportionate to his land; for he can common with no more than the land, to which his common belongs, is able to maintain 8. 3 Salk. 93. Hence, it seems, that common appurtenant cannot, any more than common appendant, be claimed in respect of a house without land; for, in that case, there can be no cattle levant and couchant 9. Common appurtenant, it has been said, can only be claimed by immemorial usage and prescription, which the law esteems sufficient proof of a special grant or agreement for this purpose. Though, according to older authorities, it seems clear, that it may be created by grant at the present day 10: and this is agreeable to reason, as it owes its creation to a special grant, which may as well be made now as at a former period. So (if it be for a certain number of beasts, but not otherwise), common appurtenant may be granted over, and severed from the estate11, and is apportionable on alienation of part of the land 12. "1 Danv. 802. But if the commoner purchase part of the land, or release part of the land from his right, the common appurtenant is pro tanto in the first case, and wholly in the second, extinct 13. Common in "Co. Litt.122.a.

122; 4 Rep.37; Plow. 161.

9 Scholes v.

Hargreaves, 5 T. R. 46; Benson v.

Chester, 8 T. R. 396

10 Co. Litt. 122. a n. (4.)

19 Co. Litt.122.a.