suis assignatis, de capitalibus dominis feodi, libere, haereditarie, pacifice, et in perpetuum quiete, reddendo et faciendo eisdem servicia eis inde debita et consueta 1. Ego vero dictus Johannes et haeredes mei et mei assignati praedictum pratum cum fossis et hayis et cum omnibus suis pertinentiis prout supradictum est praedicto Willielmo et haeredibus suis et suis assignatis warrantizabimus acquietabimus et in perpetuum defendemus.

Hiis testibus etc.

Datum apud Oldecotenhale die Sabbati proxima post purificationem beatae Mariae Virginis, anno regni Regis Edwardi vicesimo quarto.-Madox, Formulare Anglicanum, Ño. cccxxxiii.

1 If a rent be reserved to the grantor, as was not uncommon, this cannot operate as the creation of a rent service, for that would be contrary to the Statute. If, however, the grant be in tail or for life a rent service may be created; for the Statute is no bar to the creation of a tenure as between the reversioner in fee and the tenant of a smaller or particular freehold estate. Where a rent service is created, the lord or reversioner has always the right to distrain for the rent in arrear. Where on a grant in fee simple a rent is reserved to the grantor, this is not a rent service but a rent charge. It is in fact equivalent to a re-grant from the donee in fee simple of a charge upon the lands. In order to give the person entitled to the rent the right to distrain, it was necessary, before the Statute 4 George II, c. 28, that there should be a special clause in the deed by which the rent is created to that effect. If there was no clause of distress the rent was called a rent seck (reditus siccus). The appropriate remedy for the recovery of a rent, before the abolition of real actions, was by Assize of Novel Disseisin.

CHAPTER V.

COMPLETION OF THE COMMON OR EARLIER

LAW.

By the end of the reign of Edward I the main outlines of the law relating to land are complete. There is no statute producing an organic change in the law, such as was effected by the statutes of De Donis and Quia Emptores, till the reign of Henry VIII. During the period extending from the reign of Edward I to the reign of Henry VIII, the changes in the law are to be looked for chiefly in the action of the regular tribunals, and in the growth of a wholly new set of principles affecting land created by the new jurisdiction of the Chancellor. The latter will be discussed in the next chapter. The present will be confined to an examination of the development of certain particular classes of rights during the period above mentioned.

The sources of our knowledge of the law for this period are (1) the official reports of cases decided by the common law tribunals contained in the Year Books1; (2) authoritative text

1 The reports in the Year Books are written in the strange jargon called law-French. Documents such as records of proceedings in court, charters, the text of statutes (most commonly, see above, p. 176), were in Latin. French was formerly the oral language in which all viva voce proceedings were conducted. By 36 Edward III, Stat. 1. c. 15, after reciting that a reason why the laws were so ill obeyed was that they were 'pleaded, showed, and judged in the French tongue, which was much unknown in the realm, so that people which do implead or be impleaded in the king's court and in the courts of other have no knowledge nor understanding of that which is said for them or against them by their serjeants or other pleaders,' it was

books, of which Littleton's work on Tenures, published in the reign of Edward IV, is the most important. The principal classes of rights in relation to land which require notice as attaining further development during this period are-leasehold interests; estates tail; rights of future enjoyment; estates in joint tenancy, and tenancy in common; rights of creditors over the lands of their debtors; and copyhold estates.

§ 1. Leasehold Interests.

The early history of leasehold interests or estates for years has already been noticed, and reference has been made to the change effected in the reign of Henry III, by which leasebold interests were erected into a distinct kind of estate or property in land1. This interest or property is less than freehold, it is wanting in the great characteristic of freehold-uncertainty as to the period at which the rights will come to an end. It is essential to a leasehold, or, as it is often called, a chattel interest in land, that the period of its termination should be fixed from the beginning, or at least be capable of being fixed.

The rights under consideration present characteristics wholly different to freehold interests as to the mode in which they are created, the kind of interest which may be given, the mode in which they devolve on the death of the person entitled, and the remedy by which the right is vindicated.

The proper mode of granting an estate for years at common law is by words of demise followed by the entry of the lessee.

provided that 'all pleas which shall be pleaded in any courts whatsoever shall be pleaded, showed, defended, answered, debated, and judged in the English tongue, and that they be entered and inrolled in Latin.' Reports of proceedings still continued to be in French till the reign of Elizabeth, and the practice lingered on till the close of the seventeenth century. It was however prohibited by an Act of Parliament passed in the time of the Commonwealth, anno 1650, cap. 37.

1 See above, Chap. III. § 17.

2 In this chapter the expression 'common law' is applied to the rules of

The appropriate words of the grant are demisi, concessi, et ad firmam tradidi-demise, grant, and to farm let. The lessee is sometimes called the termor, sometimes, from the main object of the transaction, the farmer.

It was not necessary that the words of demise should be in writing until the passing of the Statute of Frauds (29 Car. II, c. 3), which rendered writing necessary for the validity of all leases, except those for a term not exceeding three years, and fulfilling certain conditions as to rent.

In order to complete the interest of the lessee, it is, at common law, necessary that the words of demise should be followed by his entry on the lands. The words of demise, spoken or written, confer a right to enter, technically called an interesse termini, but the lessee does not become actually tenant in possession until he has made entry upon the land demised.

Leasehold interests, requiring no livery of seisin, may at common law be created so as to take effect in possession or enjoyment at a future time. This is impossible in freehold interests except in the case of remainders1. A lease to commence next Christmas conveys a perfect right to the lessee to enter at Christmas, and to hold for the specified term.

Again, leasehold interests are not subject to the rules affecting the devolution of freehold interests. Before the change recorded by Bracton2, the only parties who could under any circumstances have claimed the benefits of a lease on the death of the lessee were his executors or administrators, and that only when the lease rested on an express covenant by deed. Hence, when leasehold interests became rights of property (or rights available not only against the lessor, but also against all the world), the older law, which have in some cases been modified or supplemented by subsequent legislation, to be afterwards noticed.

1 See below, § 3.

2 See above, Chap. III. § 17.

3 The administrator is the person appointed, formerly by the Ecclesiastical Court, now by the Court of Probate, to administer and distribute the personal property of the intestate.

it was natural that they should not be brought under the rule of primogeniture, but should pass under the will to the executors of the deceased, or, in the case of intestacy, to the administrator, with the rest of the chattels. Thus leasehold interests came to be classed with personal property. Since however they are rights over things immoveable, they received the mongrel name of 'chattels real,' and cannot be excluded from a treatise professing to deal with real property.

The nature of the remedy provided for the ejected leaseholder, contra quoscunque dejectores, has already been stated1. The writ of ejectio firmae, however, left the lessee without remedy in two cases. First, not having the freehold, he was liable to be ousted by the successful plaintiff in a collusive action against the lessor, in which the lessor allowed judgment to go against him by default, or, as it was technically called, suffered a recovery. A partial remedy for this injustice was provided by the Statute of Gloucester, but the leaseholder was not wholly protected against a proceeding of this nature till the Statute 21 Henry VIII, c. 15. Secondly, if the lessor ejected the lessee, and then enfeoffed a third person, the lessee could not bring his writ of ejectio firmae against the feoffee, because he was not the ejector; nor against the lessor, because he was not in possession. A further remedy was therefore necessary, and a writ was devised called the writ of quare ejecit infra terminum, which was available in the case supposed against the feoffee3.

Thus the interest of the lessee for years was gradually protected at all points, and took its place as a distinct class of rights of property.

An important class of interests, of the nature of estates for years, should be mentioned here. These are estates at will, estates from year to year, and estates at sufferance.

A tenancy at will is where the land is held by the tenant so long

1 See Chap. III. § 17.

2 6 Edward I, c. II. See Coke upon Littleton, 46 a.

3 See Fitzherbert, Natura Brevium, 198 a.