virtue of the Stat. Westm. II, 13 Edw. I, c. 25, and as all remedial and judicial writs, granted by any general act of parliament prior to 4 Jac. I, are reserved in Virginia, unless repealed, the same writ is admissible with us. (Jac. Law Dict. Corody; V. C. 1873, c. 15, § 2.)

2h. Action of Covenant, or of Trespass on the Case in Assumpsit.

These actions recover in damages, the amount in arrears, as for a breach of the agreement of the grantor. Covenant is proper if the grant were under seal, as properly it should be, and assumpsit, if not under seal. (1 Chit. Pl. 131, 113.)

9. Annuities; W. C.

15. Definition of an Annuity.

An annuity is a right to receive a yearly (or periodical) sum, in fee-simple, for life, or for years, and chargeable only on the person of grantor. (1 Th. Co. Lit. 449.)

25. Several kinds of Aanuity; W. C.

1. Annuities originally charged only on the person of the grantor.

An annuity granted to one and his heirs, when not charged on lands, is a fee-simple personal, forfeitable at common law for treason (Nevil's case, 7 Co. 34 b), but as being only personal, it is not a hereditament within the statute of mortmain (7 Ed. I, St. 2), nor is it entailable (not being a tenement), within the statute de donis, 13 Ed. I, c. 1; (2 Bl. Com. 40 & n (34); 1 Th. Co. Lit. 492.)

2b. Annuities by election, when granted issuing out of lands.

When periodical payments are granted, issuing out of lands, it is in the election of the grantee to treat them as charged on the lands; and they are then called rents (very improperly), and are real estate; but by election of the grantee, the charge on the land may be waived, and then they become simply annuities, and are only personalty. (1 Th. Co. Lit. 449-'50.) 35. Remedies to recover arrears of Annuities; W. C. 1. Writ of Annuity.

See 1 Th. Co. Lit. 450.

2h. Action of Covenant, of Trespass on the Case in Assumpsit, or of Debt.

See 1 Chit. Pl. 132, 118, 125.

10. Rents.

The subject of rents which in itself is simple and easily understood, has been complicated by treating under the same name, (of rents), things essentially dif

ferent in nature. This source of obscurity will be more apparent as we proceed. Let us meanwhile advert to (1), The definition of a rent; (2), The qualities of one; (3), The several sorts of rent; (4), Out of what things rent may issue; and on what conveyances it may be reserved; (5), The terms in which rent should be reserved; (6), The time for the payment of rent; (7), The person to whom rent should be reserved payable; (8), To whom rent is payable; (9), The estate which may be had in a rent, and the incidents thereof; (10), The apportionment of rents; (11), The assignment of rents; (12), At what place rents are demandable and payable; and, (13), Remedies for rent.

W. C.

18. The Definition of a Rent.

A Right to a certain profit issuing annually, (or rather periodically), out of lands and tenements corporeal, in retribution, (reditus), for the land that passes. (Gilb. Rents, 9; 1 Th. Co. Lit. 442.)

If a contract is not conformable to this definition, it is not a rent proper, and ought not to be so described; but it may be very good as a contract, and may be enforced as such. (1 Th. Co. Lit. 441, n (B);

V.

Cooper, 3 Wils. 375; Dean of Windsor v. Glover, 2 Wms. Saund. 302.)

25. Qualities of a Rent.

The qualities of a rent arise out of the definition. Thus we find that they comprehend, (1), A right to a certain profit; (2), Issuing periodically; (3), Out of lands and tenements corporeal; (4), In retribution or return; (5), For the land that passes;

W. C.

1. A Right to a certain Profit.

Let it be observed that a rent is a right, of which the arrears, periodically accruing, are merely the fruits. In consequence of omitting to note this obvious distinction between the incorporeal right and the fruits or profits which periodically arise from it, we have it laid down that for a freehold rent reserved on a lease for life, no action of debt lay by the common law during the continuance of the freehold out of which it issued, for that the law would not suffer a real injury to be remedied by an action merely personal. (1 Rol. Abr. 595; 3 Th. Co. Lit. 270, n (U).) And provision had to be made for the case by Stat. 8 Anne, c. 14, which has been, in substance, enacted with us. (V. C. 1873, c. 134, § 7.) And under the influence of the same confusion of thought, not dis

criminating between rent and the arrears of rent, a prohibition was awarded in Miller v. Marshall, 1 Va. Cas. 158, to prevent a justice of the peace from taking cognizance of a claim for arrears of a freehold rent, because it was a freehold estate.

The rent or right itself, where the estate, or interest therein, is an estate of freehold, cannot be recovered in a personal action; but the arrears, like the severed fruits of the soil, are not real property, but personalty; and the injury of withholding them is a personal injury, which a personal action is well fitted to redress.

The reservation, in order to come within the definition of rent, must be of a profit (something not in the grantor before), whether in labor, provisions, part of the annual product, money, or other thing; and it must be certain, or ascertained in amount, or at least capable of being made certain. Hence, a reservation of the trees or of the vesture or herbage growing on the land at the time, would not be a rent, because not a profit; and still less would a reservation of part of the land itself, which, moreover, would be repugnant to the grant. Hence, also, a reservation of labor or of money, without affording any means of determining how much, is not a rent, because not certain; but if it were of so much money as W shall name, or of the shearing of all the sheep on the grantor's estate, that would be certain enough, upon the maxim id certum est quod certum reddi potest. (Gilb. Rents, 10; 1 Th. Co. Lit. 440-'41.)

2. Issuing periodically.

It need not be from year to year, but may be from period to period, whether the period be less or more than a year; e. g., from month to month, from half year to half year, every two years, &c. (2 Th. Co. Lit. 414.) But it must be reserved from period to period during the whole continuance of the grantee's estate. Hence, if the purchase-money of land is payable in instalments, but not at intervals continuing throughout the duration of the estate, it is not a rent. 3. Out of Lands, and Tenements Corporeal.

Hence, if one seized in fee-simple, of a way, or common, should lease it for years, reserving a periodical compensation therefor, it is not a rent, because it issues out of an incorporeal, and not a corporeal tenement. (Gilb. Rents, 20, &c.; 1 Th. Co. Lit. 441-'2.)

The reasons assigned for this doctrine are that the person entitled cannot distrein for the amount in ar

rear where the tenement is incorporeal; nor can he have a writ of assize, inasmuch as the recognitors of assize cannot have a view of the subject; and that incorporeal hereditaments were originally created and allowed for the public good, and therefore were not deemed fit subjects of private profit. Hence, although a reversion and remainder are incorporeal, yet upon a grant of either, reserving a return or compensation, such compensation is a proper rent, because the estate was created to make profit of; and although there can be no distress until by the determination of the particular estate, the interest in reversion or remainder comes into possession, yet then the grantor of the land may distrein for all arrears. (Gilb. Rents, 21 to 23; 1 Th. Lit. 442.)

4h. In Retribution or Return (reditus).

Hence it must be reserved to the grantor of the land, or his heirs, and not to a stranger, for else it would not be a return. And not only is not a reservation to a stranger good at common law, as a rent, but it is altogether void, as inimical to public policy; since, if permitted, the reservation might be made to men of power and influence, who might extort from the tenant more than was contracted for, thus tending to maintenance, and also coming within the purview of the favorite maxim that choses in action shall not be assigned. (Gilb. Rents, 54, & seq.; 1 Th. Co. Lit. 442, & n (C); Bac. Abr. Rents (G).)

5h. For the Land that passes.

Hence, it is not a rent, if it be a compensation not for land, but for a right which passes; e. g., where disseisee releases his right to disseisor, reserving a periodical return. So, if the owner of lands grant a periodical payment issuing out of his lands that is not properly a rent (although, unhappily, it has been so designated), because it is not a retribution for land. This, indeed, is the crowning characteristic of a proper rent, and it is to be regretted that it was ever lost sight of in the nomenclature connected with this subject. (Gilb. Rents, 26-'7; 1 Th. Co. Lit. 442.) 35. The several sorts of Rent.

The several sorts of rent are to be presented, (1), According to their original nature; and (2), According to their existing character;

W. C.

1. The several sorts of Rents, according to their origi nal nature.

The important discrimination to be here made is

between rents proper-that is, rents reserved, on the one side, and rents improper—that is, rents granted— on the other;

W. C.

11. Rents Proper, or Rents Reserved.

That is rents reserved, upon a grant of lands, and corresponding to the definition, supra, p. 32, 18. Had the designation rent never been otherwise applied, it would have saved much confusion of thought, which must of course result from the use of the same word to signify very different things.

21. Rents Improper, or Rents Granted.

A rent improper, or rent granted, is where a certain sum, payable periodically, is granted, issuing out of the grantor's lands. Such grants were found. very convenient, as a security for debts, as marriage portions, and for other domestic occasions, especially if, as generally happened, the grantor charged the lands with a distress, to enforce the payment of arrears. Because this transaction resembled a rent in several particulars (e. g., in stipulating for the payment of a sum certain, payable periodically, and issuing out of lands and tenements), it was very infelicitously so named, although it wanted the most characteristic attribute of a rent, and that whence it derives its name, viz., the being a retribution or return for land that passes.

This discrimination between rents reserved and rents granted, is incomparably the most important connected with the subject, and affords a clue which in general suffices to guide the student through whatever intricacies belong to it.

2h. The several Sorts of Rent, according to their existing character.

"Three manner of rents there be," says Littleton, "that is to say, rent-service, rent-charge, and rentseek"; and although this distinction is not nearly as important as that between rent-reserved and rentgranted, yet it is well worthy of being followed out. (1 Th. Co. Lit. 442);

W. C.

11. Rent-Service.

The exposition of the doctrines applicable to a rent-service may be arranged under the heads following: (1), The definition of a rent-service; (2), The circumstances which must concur therefor; (3), The origin of the term rent-service; and (4), The characteristics of rent-service;