person or persons unto whom such rent or fee-farm is or shall be due, and not paid at the time of his death as is aforesaid, to distrain for the arrearages of all such rents and fee-farms, upon the lands, tenements and other hereditaments, which were charged with the payment of such rents or fee-farms, and chargeable to the distress of the said testator, (6) so long as the said lands, tenements or hereditaments continue, remain and be in the seisin or possession of the said tenant in demesn, who ought immediately to have paid the said rent or fee-farm so being behind, to the said testator in his life, (7) or in the seisin or possession of any other person or persons claiming the said lands, tenements and hereditaments, only by and from the same tenant by purchase, gift or descent, (8) in like manner and form as their said testator might or ought to have done in his life-time, and the said executors and administrators shall, for the same distress, lawfully make avowry upon their matter aforesaid.

III. And further be it enacted by the authority aforesaid, That if any man which now hath, or hereafter shall have in the right of his wife, any estate in fee-simple, fee-tail, or for term of life, of or in any rents or fee-farms, and the same rents or fee-farms now be, or hereaf ter shall be due, behind and unpaid in the said wife's life; then the said husband, after the death of his said wife, his executors and administrators, shall have an action of debt for the said arrearages against the tenant of the demesn that ought to have paid the same, his executors or administrators; (2) and also the said husband, after the death of his said wife, may distrain for the said arrearages, in like manner and form, as he might have done if his said wife had been then living, and make avowry upon his matter as is aforesaid.

IV. And likewise it is further enacted by the authority aforesaid, That if any person or persons which now have, or hereafter shall have, any rents or fee-farms for term of life or lives, of any other person or persons, and the said rent or fee-farm now be, or hereafter shall be due, behind and unpaid in the life of such person or persons for whose life or lives the estate of the said rent or fee-farm did depend or continue, and after the said person or persons do die, then he unto whom the said rent or fee-farm was due in form aforesaid, his executors or administrators shall and may have an action of debt against the tenant in demesn, that ought to have paid the same when it was first due, his executors and administrators, (2) and also distrain for the same arrearages upon such lands and tenements out of the which the said rents or fee-farms were issuing and payable, (3) in such like manner and form as he ought or might have done, if such person or persons by whose death the aforesaid estate in the said rents and fee-farms was determined and expired, had been in full life and not dead; and the avowry for the taking of the same distress to be made in manner and

form aforesaid.

Co. LIT. 162 a.

Now hath Littleton spoken of remedies for the recovery of the arrearages of rents. But since Littleton's time a right

profitable Statute in the 32 year of H. 8, hath been made for the recovery of arrearages of rents in certain cases where there lay no remedy at the common law, and giveth further remedy in some cases where at the common law there was some remedy; which Statute hath been well and beneficially expounded; and hereupon eight things are to be observed.

1. When Littleton wrote, the heirs, executors, or administrators, of a man seised of a rent service, rent charge, rent seck, or fee farm, in fee-simple or fee-tail, had no remedy for the arrearages incurred in the life of the owner of such rents. But now a double remedy is given to the executors or administrators for payment of debts, &c., viz. either to distrain or to have an action of debt.

2. That the preamble of the Statute concerning executors or administrators of tenant for life is to be intended of tenant per auter vie, so long as cestui que vie liveth, who are also holpen by the said double remedy. But after the estate for life determined, his executors or administrators might have had an action of debt by the common law; but they could not have distrained, which now they may do by force of this Statute; for in that point it addeth another remedy than the common law gave.

3. If a man make a lease for life or lives, or a gift in tail, reserving a rent, this is a rent service within this Statute.

Co. LIT. 47 a. First it appeareth here by Littleton that a rent must be reserved out of the lands or tenements, whereunto the lessor may have resort or recourse to distrain, as Littleton here also saith, and therefore a rent cannot be reserved by a common person out of any incorporeal inheritance, as advowsons, commons, offices, corody, mulcture of a mill, tithes, fairs, markets, liberties, privileges, franchises, and the like. But if the lease be made of them by deed for years, it may be good by way of contract to have an action for debt, but distrain the lessor cannot. Neither shall it pass with the grant of the reversion, for that it is no rent incident to the reversion. But if any rent be reserved in such case upon a lease for life, it is utterly void, for that in that case no action of debt doth lie. But if a man demiseth the ves ture or herbage of his land, he may reserve a rent, for that the thing is mainorable, and the lessor may distrain the cattle upon the land: and so a reversion, or a remainder of lands or tenements may be granted reserving a rent, for the apparent possibility that it may come in possession, and they are tenements within the words of Littleton.

Co. LIT. 147 b. If a man seised of lands in fee, and possessed of a term for many years, grant a rent out of both for life in tail or in fee, with clause of distress out of both, this rent being a freehold doth issue only out of the freehold, and the lands in lease are only charged with a distress. But if he had granted the rent only out of the lands in lease for term of the life of the grantee, this had issued out of the term, and the land had been charged during the term, if the grantee lived so long.1

1 See Butt's Case, 7 Co. 23 a.

KNOLLES' CASE.

COMMON PLEAS. 1534.

[Reported Dyer, 5 b.]

Montague moved this case: One Thomas Knolles was seised of lands devisable, and made a lease for years rendering rent, and devised this rent to a stranger, and died, and the stranger is seised of the rent, and dies: Whether his heir or his executors should have this rent, or not? And BALDWIN, Chief Justice, and SHELLEY, said, that no devise lies of a rent, for that it is a new thing, to which the custom runs not. 2. And so said SHELLEY, that he was always of opinion, notwithstanding Fitzj. was contrary, that a rent-charge out of gavelkind is not departible, but if it be reserved on a lease so as it is incidental to the reversion, peradventure it is departible; and that point he would willingly learn. But as to the last point, whether the executors or the heir should have it, it is clear that the executors shall have it, for their testator never had but a chattel in it.

THE case was in effect: Walker leased certain lands to Harris for years, the lessee assigned all his interest to another, Walker brought an action of debt against Harris for rent behind, after the assignment, and whether the action were maintainable or not, was the question. And it was objected against the action, that the land was debtor, and not the person but in respect of the land; and a difference was taken between a personal and a real contract, for if a man lets a stock of cattle or other goods for years, rendering rent at several days, he shall not have an action of debt till all the days be incurred. So if a man makes an obligation or other contract to pay several sums at several days, he shall not have an action of debt till all the days are past. But in the case of a lease for years, which is a real contract, the lessor shall have an action of debt after every day, as appears by 45 E. 3, 8; 2 E. 4, 11, which proves that the lessee is not charged in respect of any personal contract, but in respect of the realty. And therefore, when the lessee assigns over all his interest, all the realty, which always follows the land, is gone. Also, if a man sells goods for money to be paid at several days, in such case, although the goods be taken by one who hath right before the day, yet the seller shall have an action of debt in

:

respect of the contract: but if a man makes a lease for years rendering rent, if before the day incurred the lands be evicted by title paramount, the lessor shall not have an action of debt in respect of the contract, because it is a real contract, and follows the estate of the land, and the rent issues out of the land, and the person is not the debtor but in respect of the land; for if the lessee grants over all his interest, the lessor may have an action of debt against the assignee, with whom there was no contract by deed. But forasmuch as the rent issues out of land, the assignee who hath the land, and is privy in estate, is debtor in respect to the land so if a man leases three acres, rendering rent, and the lessor ousts the lessee of one acre, he shall have an action of debt for no part; but if the lessor recovers part in an action of waste, or enters into part for a forfeiture, or by surrender, or by special condition for entry into part; or if part of the land be evicted by title paramount; in all these cases the rent reserved on the lease for years, which is a rent service, shall be apportioned. Ergo, the contract follows the land, for otherwise the lessor might in all those cases have an action of debt for the whole rent in respect of the contract, as he shall have on a sale of goods; for which matter see 20 H. 6, 23 a; 9 E. 4, 1 a; 21 E. 4, 29 a, b, which book is to be intended of a lawful entry, as for a forfeiture, or by surrender, and not of a tortious entry, 4 H. 7, 6; 7 E. 6, tit. Apportionment, Br. 26; 25 H. 8, 36; 13 H. 8; 30 H. 8, Apportionment, Br. 7; 3 H. 7, 17. And so all the books are well reconciled. So it appears, that although in every lease for years there is a contract between the lessor and lessee, yet that contract is annexed to an estate, and follows the land. So on the other side, if the lessor grants over his reversion now the contract runneth with the estate, and therefore the grantor shall not have any action of debt for rent due after his assignment, but the grantee shall have it, for the privity of the contract follows the estate of the land, and is not annexed to the person but in respect of the estate: as where there be divers parceners of an advowson, the eldest hath prerogative to make the first presentment; but it is not in respect of her person only, but as it is annexed to her estate. For as 5 H. 5, 10 b, it is agreed, her husband, who is tenant by the curtesy, shall have it: so if one coparcener hath a rent granted her for owelty of partition, she may distrain for it of common right, with out any words of distress; and so shall her grantee, for it was not annexed to her person only, but to the estate also, as it is held in 21 H. 6, 11. So the grantee of a reversion and the lord by escheat shall have an action of debt for the rent, as it is held in 5 H. 7, 18 b, for the contract is incident to the estate: and it was said, that it was held by Sir Ro. Catlin, late Chief Justice, that the lessee shall not be charged for rent due after the assignment. But on great deliberation and conference with others, it was adjudged by WRAY, L. C. J., SIR THOMAS GAWDY, and the whole Court of King's Bench, that the action would lie (after such assignment).

And first for the apprehending of the true reason of this case, and of

all the other cases, which have been urged on the other side (for the law always, and in all cases, is consonant to itself), it is to be known, that as to the matter now in question there are three manner of privities, scil. privity in respect of estate only, privity in respect of contract only, and privity in respect of estate and contract together: privity of estate only; as if the lessor grants over his reversion (or if the reversion escheat) between the grantee (or the lord by escheat) and the lessee is privity in estate only, so between the lessor and the assignee of the lessee, for no contract was made between them. Privity of contract only, is personal privity, and extends only to the person of the lessor and to the person of the lessee, as in the case at bar, when the lessee assigned over his interest, notwithstanding his assignment the privity of contract remained between them, although the privity of estate be removed by the act of the lessee himself; and the reason thereof is,

First, because the lessee himself shall not prevent by his own act such remedy which the lessor hath against him by his own contract, but when the lessor grants over his reversion, there, against his own grant, he cannot have remedy, because he hath granted the reversion to another, to which the rent is incident.

Secondly, the lessee may grant the term to a poor man, who shall not be able to manure the land, and who will, for need or for malice, suffer the land to lie fresh, and then the lessor will be without remedy either by distress or by action of debt, which would be inconvenient, and in effect concerns every man (for, for the most part, every man is a lessor or a lessee); and for these two reasons, all the cases of entry by wrong eviction, suspension and apportionment of rent are answered: for in such cases either it is the act of the lessor himself, or the act of a stranger; and in none of the said cases the sole act of the lessee himself shall prevent the lessor of his remedy, and introduce such inconveniences, as hath been said.

The third privity is of contract and estate together, as between the lessor and the lessee himself; and WRAY, Chief Justice, and SIR THO. GAWDY said, that as he who is a bastard born hath no cousin, "so every case imports suspicion of its legitimation, unless it has another case which shall be as a cousin-german, to support and prove it." And therefore it was agreed by the whole court, that if there be lord and tenant, and the tenant makes a feoffment in fee, in this case betwixt them for the arrearages due as well before the feoffment as after, till notice, &c., it is only privity as to avowry, and not any privity in estate or in tenure, which privity shall not go with the estate, and yet it is more in the realty than the case at bar; a fortiori in the case at bar, when the lessee assigns his interest, yet privity of contract between the lessor and lessee, as to the action of debt, remains. And at the common law, before the Statute of Quia Emptores terrarum, if the tenant made a feoffment in fee to hold of the chief lord, the feoffee could not by any tender that he could make, compel the lord to avow on him, but the lord always might avow on the feoffor, as appears in 33 E. 3,