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Avowry, 255. For by his own act he cannot change the avowry of his lord; which is a stronger case than the case at bar: and in the same case, if the lord granted over his seigniory, or if the feoffor died, there the privity, as to avowry, is destroyed; for it is personal, and holds only between the lord himself and the feoffee himself: so, if after the assignment of the lease, the lessor grants over his reversion, the grantee shall not have an action of debt against the lessee, for the privity of contract, as to the action of debt, holds only betwixt the lessor himself and the lessee himself: so in such case, if the lessee dies, the lessor shall not have an action of debt against his executors; for the privity consists only between the lessor and the lessee. See for the case of avowry, Litt. Chap. Releases, 106, 107; 4 E. 3, 22; 2 E. 4, 6; 34 H. 6, 46; 37 H. 6, 33; 7 E. 4, 28; 24 H. 8, Dy. 4; 29 H. 8, tit. Avow. Br. 111. So if tenant in dower, or tenant by the curtesy, grants over their estate, yet the privity of action remains between the heir and them, and he shall have an action of waste against them for waste committed after the assignment: but if the heir grants over the reversion, then the privity of the action is destroyed, and the grantee cannot have any ac tion of waste, but only against the assignee; for between them is privity in estate, and between the grantee and the tenant in dower, or tenant by the curtesy, is no privity at all. See F. N. B. 56, f. temp. E. 1, Waste, 122; 18 E. 3, 3; 30 E. 3, 16; 36 or 38 E. 3, 23; 11 H. 4, 18. And it was agreed, that if the lessor enters for condition broken, or if the lessce surrenders to the lessor, now the estate and term is determined, and yet the lessor shall have an action of debt for the arrearages due before the condition broken, or the surrender made, as it appears by F. N. B. 120; 30 E. 3, 7; 6 H. 7, 3 b ; F. N. B. 122 (against the book of 32 E. 3 Bar. 262, which is not law), and that in respect of the contract between the lessor and the lessee. Note, reader, so great was the authority and consequence of this judgment, that after this time, not only the point adjudged hath been always affirmed, but also all the dif ferences in this case taken by WRAY, C. J., and the court have been adjudged, as you may learn by the cases following Hil. 36 Eliz. in the K.'s B. Rot. 420, between Ungle and Glover it was adjudged, that if the lessee for years assigns over his interest and the lessor by deed indented and enrolled according to the Statute, bargains and sells the reversion to another, that the bargainee shall not have an action of debt against the lessee, for there is no privity betwixt them. But it was unanimously agreed by PоPHAM, Chief Justice, CLENCH, GAWDY, and FENNER, Justices, that after the assignment the lessor himself might have an action of debt against the lessee for rent due after the assignment. Trin. 37 Eliz. in the King's Bench, Rot. 1042, between Overton and Sydhall, two points were resolved by POPHAM, C. J., and the whole

court.

1. That if the executor of a lessee for years assigns over his interest, that an action of debt doth not lie against him for rent due after the assignment.

2. If the lessee for years assigns over his interest, and dies, the executor shall not be charged for rent due after his death; for, by the death of the lessee, the personal privity of contract, as to the action of debt in both cases, was determined. And Mich. 40 & 41 Eliz. between George Brome, Esq., plaintiff, and Hore, defendant, the case in effect was such: A. leased to C. 3 acres of land for years rendering rent, the said C. assigned all his estate in one acre to another, A. suffered a common recovery to the use of B. in fee, who brought an action of debt against the first lessee, and it was adjudged by POPHAM, C. J., and the whole court, that the action did lie; for inasmuch as the lessee had assigned his interest but in part, and remained possessed of the residue, that not only the lessor, but also his assignee, or he who claimeth under him shall have an action of debt for the whole rent against the lessee, for there was not privity of contract only, but also privity in estate and contract together; and therefore the action in this case shall go with the estate; as at common law, if before the Statute of Quia Emptores terrarum the tenant had made a feoffment in fee of part of the tenancy, there was not any apportionment, but the lord, or his grantee, should avow on the feoffor for as much as he remained tenant in respect of the residue: but if he had made a feoffment of the whole, then the grantee of the lord should not avow on him, as it hath been said before. See 22 Ass. 52; 24 H. 8, 4 b; 32 H. 8, Br. Accept. for this matter. And PoPHAM, C. J., in this case said, that in case when rent reserved on a lease for years shall be apportioned, if in an action of debt the lessor demands more quam oportet; yet on nihil debet the lessor shall recover as much as shall be apportioned and assessed by the jury, and shall be barred for the residue. And Pasch. 41 Eliz. Rot. 2485, in the Common Pleas, Samuel Marrow brought an action of debt against Francis Turpin and W. Turpin, administrators of Geo. Turpin, and declared on a demise made by the plaintiff by deed indented of certain land to the intestate for years rendering rent, and for rent behind after the death of the intestate, the action was brought; the defendants pleaded, that before the rent behind, one of the defendants had assigned all his interest to Thomas Boorde, of which assignment the plaintiff had notice, and accepted the rent by the hands of the assignee, due at a day after the assignment, and before the day on which the rent was due which is now demanded, upon which the plaintiff did demur. And it was adjudged against the plaintiff, because the privity of the contract, as to the action of debt, was determined by the death of the lessee; and therefore, after assignment made by the administrator, debt did not lie against the administrator for rent due after the assignment, according to the judgment given in Overton and Sydhall's

Case before.

Also it was said, if the lessee assigns over his term, the lessor may charge the lessee or his assignee at his election; and therefore if the lessor accepts the rent of the assignee, he hath determined his election, and shall not have an action against the lessee afterwards for rent due after

the assignment, no more than if the lord once accepts the rent of the feoffee, he shall not avow on the feoffor; and by these judgments and resolutions you will the better understand your books; betwixt which prima facie seems to be some diversity of opinions. Vide 44 E. 3, 5, & 44 Ass. 18; 9 H. 6, 52, by Paston, which agree with the judgment of Sir Christopher Wray. See 8 Eliz. Dyer, 247, and the quare there made is now well resolved.

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ASSUMPSIT for twenty-four pounds. And declares upon an indebitatus assumpsit. Defendant pleads non assumpsit. The jury found, that the plaintiff let to the defendant land for seven years, rendering eight pounds per annum, and the rent was arrear for three years; and that the defendant did owe no other debt, nor made any other promise. Et si, &c. And it was held by the JUSTICES, that the action did not

lie, but only an action of debt.

HUMBLE v. GLOVER.

QUEEN'S BENCH.

1594.

[Reported Cro. El. 328.]

DEBT upon a lease for years, made by Tho. Play to the defendant. And declares upon an assignment of the reversion by indenture of bar gain and sale enrolled. The defendant pleads, that after the grant of the reversion, and before any rent arrear, he assigned over his term to Scotmead, and doth not name his Christian name; but a blank was left for it. Upon this plea it was demurred.

Vide 3 Co.

First Point. If the lessee shall be charged with the rent after the assignment of his term? - And resolved he should not. 23 b, for there is no privity between the bargainee and lessee, but by reason of the privity of estate, which being gone, the lessee is not chargeable but between the lessor and lessee he shall not discharge himself, by assigning over his term; for the privity is by reason of the contract and reservation, rather than by the occupation of the land; which by his own act he shall not discharge: but in this case the privity is destroyed.1

1 The rest of the case is omitted.

ARDS v. WATKIN.

QUEEN'S BENCH. 1598, 1599.

[Reported Cro. El. 637, 651.]

UPON demurrer the case was, lessee for thirty years of a parcel of land called Shortwood, lets it for twenty-eight years, rendering £34 rent per annum, and after deviseth £28 parcel of that rent to his three sons, severally to every of them a third part. One of them brings debt for his part of the rent: and, Whether this action lay or not? was the question. It was argued by Rydgley for the plaintiff, and by Nichols for the defendant. GAWDY and FENNER held, that the action well lay; for there is no doubt but that rent may be devised, and be divided from the reversion; for it is not merely a thing in action, but quasi an inheritance, as Knowles' Case, Dyer, 5 b, is; and in 24 Hen. 8, Rysden's Case, Dyer, 4 b. If lessee grants over all his term in part of the land, yet it is chargeable in an action with the entire rent; for he by his act cannot apportion it. And by the grant of part the lessee is not compellable to attorn; for then he should be liable to two actions, or two distresses. But the devise is quasi an act of law, which shall inure without attornment, and shall make a sufficient privity, and so it may be well apportioned by this means. Wherefore, &c. - POPHAM and CLENCH, e contra. For as the lessee by his own act shall not divide the lessor's contract, nor apportion his action; so likewise the law favors the lessee, that the act of the lessor shall not charge him with divers actions, or double distresses, but upon his voluntary attornment; and the contract being entire cannot be apportioned. But POPHAM agreed, that the rent was well devisable, and by that means severable from the reversion. And although a thing in action cannot be transferred over, nor be devised; yet a contract, which ariseth from an interest in land, or which is an interest, may be well transferred over. Wherefore, &c.

-Adjournatur.

The case was now moved again; and GAWDY and FENNER, and CLENCH agreeing with them, held that the devise was good, and well severable; for as to that objection, that a mischief may happen to the tenant, that he shall be subject to two actions and distresses, that is his own fault; for if he pays his rent, he shall avoid it: and the same mischief is, where he deviseth part of the reversion and rent, which is agreed on the other part to be well enough; and although a contract, or a thing in action, cannot be transferred nor divided, yet rent only may be. For it is a thing in possession; for he doth not grant the action, but the law gives it as incident to the rent. And Huntley's Case, 10 Eliz. Dyer, 326, is express, where a devise was of a reversion upon a lease for years,

with the rent, to a man and his sister, and the heirs of their bodies; the sister dies without issue; the brother dies having issue; the heir had the moiety of the rent. - POPHAM e contra. For the difference will be, when part of a reversion and rent is granted, that is good; but when the rent is severed from the reversion, it is otherwise: for then it is but in nature of an annuity, which cannot be granted by parcels, but entirely; but an annuity or rent only are grantable over, because they are things of continuance, and are not personal. And the reason of Huntley's Case is, because the rent is divided with the reversion. But notwithstanding, in regard three of them agreed, he consented that judgment should be entered for the plaintiff. NOTE. That in the argument of this case, a case was cited in this court, Easter Term, 28 Eliz. Roll. 344, where a devise was of an entire reversion and rent, which was void for a third part; because it was holden in capite, and debt was brought for two parts of the rent, and adjudged maintainable.

of

PINE v. LEICESTER.

COMMON PLEAS. 1613.

[Reported Hob. 37.]

HUGH PINE of Lincoln's Inn brought an action of debt in the county against the Countess of Leicester, and declares that the Earl of Leicester, being seised in fee of the manor of Cleobury in the county of Salop, granted a rent charge of 100 pounds per annum, out of the manor unto one Foster and his wife for their lives, and then lays the death of the Lord of Leicester, and how the manor came to my lady, and then the death of Foster and his wife last. And now he, as executor to Foster and his wife, brought this action for arrearages of rent incurred in their life, while the manor was in the hands of the lady; and this action being laid in a county, where it was supposed Pine was strong, it was moved to be laid in a more indifferent shire. Whereupon I said, that they were not well advised; for this kind of action of debt was local, and must needs be laid where the land was, because the lady was not chargeable, but in respect of the possession; whereupon Serjeant Harris, being not of counsel in this case, confessed it had been so adjudged in another case.

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