plaintiff demurred. And Pemberton, Serjeant, for the plaintiff argued, that this avowry was ill; for the executor of tenant for life is not with in the Statute of 32 Hen. 8, c. 37. For the Statute recites, that, forasmuch as executors had no remedy by the common law for arrears of rent; this Act gives them a double remedy, viz., distress or debt. But the executors of tenant for life had debt at common law for rent incurred in the life of the testator. And therefore Co. Lit. 162 a, says, that tenant for life must be intended tenant pur auter vie, so long as cestui que vie lives in this Act. So Cro. Car. 339, Turner v. Lee, the judges laid down a rule, that where the executor, &c., had remedy by debt at common law, this Statute did not give him distress. Therefore in the principal case the executor having remedy by debt by the common law for the arrearages in the time of the testator, who was tenant for life, he has no remedy by distress given by this Act. Sed non allocatur. For PER CURIAM, this Act of 32 Hen. 8 is a remedial law, and shall extend to the executors of all tenants for life; and the law has been taken so always since the Statute, and has never been questioned. And the words of the Statute are general enough to extend to all. And in Cro. Eliz. 332, Lambert v. Austin, this seems to be admitted, and therefore the rule in Cro. Car. 339, so generally taken, cannot be law.1

CASE, upon a wager concerning a rent-charge of forty pounds a year, whereof the plaintiff, as son and heir of Ellen Brewster, is seised in fee by virtue of a grant to her and her heirs, issuing out of a manor, of which Kidgill is terre-tenant; that the defendant affirmed, it was lawful for him to deduct four shillings in the pound for Parliamentary taxes, which the plaintiff denied, &c. And upon issue joined, a special verdict was found, that on the twenty-sixth of November, 1649, Robert Langford was seised in fee of the manor of B., and that in consideration of eight hundred pounds paid by Ellen Brewster, he granted to her and her heirs a rent-charge in fee of forty pounds per annum, with a covenant in the deed for further assurance; and on the back of the deed this indorsement was: "Memorandum, It is the true intent and meaning of these presents, that the grantee and her heirs shall forever hereafter be paid the said rent-charge, without any deduction or abatement of taxes, charge, or payment out of, for or concerning the said rent, or the said manor or lands charged herewith." And afterwards in 1652, for further assurance, granted and confirmed the rent afore

1 The rest of the case is omitted.

said to Ellen Brewster, and her heirs, with a nomine pœnæ; and Robert Langford covenants, that at the sealing thereof he was seised in fee, and that it was free from all incumbrances, and that he had power to charge the same; and that the said yearly rent of forty pounds per annum, freed from all taxes, shall be forever hereafter duly paid at the time and place for the payment thereof, &c.

The question was, Whether the grantor of the rent, and his heirs, shall be obliged to pay the said rent, without any deduction for, or by reason of any tax imposed by Parliament futurely on the said rent?

HOLT, Chief Justice, delivered the opinion of the court, that the covenant doth oblige the grantor and his heirs without deduction. The case is of very great consequence, and has been a question a long time, whether such covenants extend to all future parliamentary taxes whatsoever; which I think would be very hard, and I can by no means agree thereto in this large sense; but as the nature of this case is, we are all of opinion, that it extends to all those sorts of taxes that shall be given by future Acts of Parliament.1

fee of the manor.

There is another matter in which I have not consulted my Brothers, and that is, whether the terre-tenant in this case is obliged by the covenant: this is a covenant by the grantor of the rent, who was seised in Now who this terre-tenant is does not appear, whether he be heir or assignee; for if he be assignee, I do not think him chargeable in law; for this covenant does not run with the land. Hard. 87. I make no doubt, but that the assignee of the rent shall have covenant against the grantor, because it is a covenant annexed to the thing granted; but that covenant should run with the rent against the assignee of the land, I see no reason. If this rent was granted so to be paid, it would be another matter; but here is only a covenant, and no words amounting to a grant; and therefore there can be no relief in this case against the terre-tenant, but in equity; and therefore for this point I do not see how the plaintiff can have his judgment; for if this covenant should charge the land, it would be higher than a warrantia charta, which only affects the land from the judgment therein given.

But the other three judges thought that this covenant might charge the land, being in nature of a grant, or at least a declaration going along with the grant, showing in what manner the thing granted should be taken, and reckoned the indorsement as part of the deed.

And so judgment was given for the plaintiff.2

1 The part of the opinion in which this is discussed is omitted.

2 s. c. sub nom. Brewster v. Kitchen, 1 Ld. Raym. 317, where the discussion on the running of the covenant is thus given: "But he [HOLT, C. J.] then made another question, which was not observed at the bar, nor by any of the other judges, viz., whether the terre-tenant is liable to an action upon this covenant; and he was of opinion, that he was not. For (by him) if tenant in fee grants a rent-charge out of lands, and covenants to pay it without deduction, for himself and his heirs, you may maintain cove nant against the grantor and his heirs, but not against the assignee; for it is a mere personal covenant, and cannot run with the land. Warranty, which is a real

ST. 8 ANNE, c. 14, § 4. And whereas no action of debt lies against a tenant for life or lives, for any arrears of rent, during the continuance of such estate for life or lives, be it enacted by the authority aforesaid, That from and after the said first day of May, it shall and may be lawful for any person or persons, having any rent in arrear or due upon any lease or demise for life or lives, to bring an action or actions of debt for such arrears of rent, in the same manner as they might have done, in case such rent were due and reserved upon a lease for years.

§ 6. And whereas tenants pur auter vie and lessees for years, or at will, frequently hold over the tenements to them demised, after the determination of such leases: and whereas after the determination of such, or any other leases, no distress can by law be made for any arrears of rent that grew due on such respective leases before the determination thereof; it is hereby further enacted by the authority aforesaid, That from and after the said first day of May, one thousand seven hundred and ten, it shall and may be lawful, for any person or persons, having any rent in arrear or due upon any lease for life or lives, or for years, or at will, ended or determined, to distrain for such arrears, after the determination of the said respective leases, in the same manner as they might have done, if such lease or leases had not been ended or determined.

§ 7. Provided, That such distress be made within the space of six calendar months after the determination of such lease, and during the continuance of such landlord's title or interest, and during the possession of the tenant from whom such arrears became due.

ST. 4 GEO. II. c. 28, § 5. And whereas the remedy for recovering rents seck, rents of assize, and chief rents, are tedious and difficult, be it therefore enacted by the authority aforesaid, That from and after the twenty-fourth day of June one thousand seven hundred and thirty-one, all and every person or persons, bodies politic and corporate, shall and

covenant, will never bind the land of the warrantor, until judgment had in warrantia charta; much less will this personal covenant bind the land. And for a case in point, he cited Hardr. 87, pl. 5, Coke and the Earl of Arundel. In replevin, if the defendant had avowed for arrears of this rent, and the plaintiff had pleaded in bar, rins arrere; the avowant could not have replied this covenant against the terre-tenant ; but if the avowry had been upon the grantor, or his heirs, the avowant might have replied this covenant against them, to avoid circuity of action. Therefore, since it does not appear that the defendant is bound by this covenant (for non constat whether he is terre-tenant or not, or what he is) for this reason he was of opinion, that judg ment ought to be given for the defendant. But the other three judges seemed to be in a surprise, and not in truth to comprehend this objection, and therefore they per sisted in their former opinion, talking of agreements, intent of the party, binding of the land, and I know not what. They gave judgment for the plaintiff, against the opinion of Holt, Chief Justice, for the reason aforesaid."

See 1 Sm. L. C. (9th ed.) 91; Sugd. V. & P. (14th ed.) 593–596. A covenant to pay a fee farm rent was held to run against an assignee of the covenantor in Van Rens selaer v. Read, 26 N. Y. 558 (1863), and Streaper v. Fisher, 1 Rawle, 155 (1829). See cases under covenants running with the land, ante, pp. 439 et seq.

may have the like remedy by distress, and by impounding and selling the same, in cases of rent seck, rents of assize, and chief rents, which have been duly answered or paid for the space of three years, within of twenty years before the first day of this present session of Parliament, or shall be hereafter created, as in case of rent reserved upon lease; any law or usage to the contrary notwithstanding.

the space

In a writ of error in a judgment in the Common Pleas, in an indebitatus assumpsit, it appeared that the plaintiff below had declared, that possessed of a house in Newgate Market, in considera

whereas he was

tion that he would permit the defendant, being a butcher, to have the use of the passage in it for hanging up his meat, he would pay him at

th

rate of 30s. per year for the same; the plaintiff averred that he did

le the defendant have the use of this passage for a year and half, by

re

joi

ason of which there was the sum of £2 5s. due to him. Issue was ned on non assumpsit, and a verdict found for the plaintiff. Mr. Stange submitted it, that debt for rent ought to have been brought, and that an indebitatus assumpsit would not lie. Mr. Parker, on the other side, said that he conceived that this was not a rent, by reason that no part of the house was let, but merely the use of the passage agred for; he conceived, therefore, that debt for rent would not lie. He Observed further, that this agreement being to pay after the rate of such a sum, was another reason why such action could not be maintained. And for this purpose he cited 4 Mod. 78. But though such action would have lain, yet upon an express promise an indebitatus assumps it will lie likewise; and for this purpose cited Hardress, 366. The COURT was of the same opinion; accordingly affirmed the judgment.

ST. 11 GEO. II. c. 19, § 14. And to obviate some difficulties that many times occur in the recovery of rents, where the demises are not by deed, be it further enacted by the authority aforesaid, That from and after the said twenty-fourth day of June, it shall and may be lawful to and for the landlord or landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant or defendants, in an action on the case, for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action any parol demise or any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff in such action shall not therefore be nonsuited. but may make use thereof as an evidence of the quantum of the damages to be recovered.

IN replevin, the defendant avows under a distress for rent due from the plaintiff to him upon an assignment of a lease of a term for years to the plaintiff, in which assignment there is no clause of distress; the single question is, Whether this is such a rent for which a distress lies, there being no reversion in the defendant. It was said for the defendant, that although rent be incident to the reversion, yet it is not an inseparable incident, and therefore it may be severed from the reversion; and although there is no clause of distress in the assignment of the term, yet the rent reserved thereupon may be considered as a rent-seck, and distrained for by the Statute 4 Geo. 2, c. 28, § 5, and that it appears clearly to be the intent of the parties that the plaintiff should pay rent to the defendant; this case was so clear that the court gave judgment for the plaintiff without hearing his counsel.

CURIA. There are two ways of creating a rent: the owner of the lands either grants a rent out of it, or grants the lands and reserves a rent; there is no such thing as a rent-seck, rent-service, or rent-charge issuing out of a term for years. Bro. Dette, pl. 39, cites 43 Ed. 3, 4, per Fynchden, Ch. Justice C. B. If a man hath a term for years, and grants all his estate of the term rendering certain rent, he cannot distrain if the rent be in arrear; this case is law and in point: therefore if the avowant will recover what is owing to him from the plaintiff, he must bring his action upon the contract.

Judgment for the plaintiff per totam curiam.

In that case the third count was precisely similar to the present: 1 the defendant demurred to it, and assigned for causes that it did not set forth any demise of the premises, nor for what term they were demised, nor what rent was payable, nor for what length of time the defendant held and occupied the premises, nor when the sum of £5 thereby supposed to be due became due, nor for what space of time; but after argument the Court of Common Pleas gave judgment for the plaintiff on that account.

1 I. e. Wilkins v. Wingate, 6 T. R. 62, to the report of which this note is appended. The third count in Wilkins v. Wingate was for use and occupation for £10 for half a

year.