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out of the same for the life of the devisee of the land, created by the will of one and the same devisor, and without any such original privity between the devisee of the land charged with the annuity, and the devisee of the annuity charged thereupon, as subsists between a lessor and his lessee. We are therefore of opinion that the action of debt is not maintainable on the ground of this Stat. of Ann. c. 14, any more than it is upon the other ground already considered.

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COVENANT. The plaintiffs declare, that, by indenture of the 20th of June, 1805, between one Joshua Barnsley, of the first part, one J. Robinson, a trustee for J. Barnsley, of the second, the defendant of the third, and one J. Jackson, a trustee for the defendant, of the fourth (reciting indentures of lease and release, whereby a plot of land was conveyed to one P. Hope, and the said J Barnsley, their heirs and assigns, as to one undivided moiety, to the use of such person and persons, and for such estate, &c., as P. Hope should, by deed in writing, duly executed, &c., limit or appoint, and, in default of such appointment, after the decease of P. Hope, to the use of the right heirs of P. Hope forever; and as to the other undivided moiety, to the like use, with respect to J. Barnsley; subject to the yearly rent of £42, payable to the relessors; and reciting also other indentures of lease and release, whereby the said P. Hope limited and appointed to J. Barnsley and J. Robinson, and the heirs and assigns of J. Barnsley, his undivided moiety in the plot of land, and also in four messuages, then lately built thereon, in trust, as to the estate of J. Robinson, for J. Barnsley, his heirs and assigns forever, subject to the rent covenants, &c., reserved and contained in the former release; and further reciting that the defendant had contracted with J. Barnsley for the purchase of the plot of land and messuages, subject to the yearly chief rent of £86 3s. 3d.), the said J. Barnsley, by virtue of the said power, limited and appointed one undivided moiety in the plot of land and messuages, to remain to the defendant and J. Jackson, their heirs and assigns forever; and for the further assuring the same, and to convey and assure the other undivided moiety, and in consideration of the yearly rent and covenants, &c., on the part of the defendant, his heirs, executors, administrators, and assigns, to be paid and performed, and also of 58. paid by the defendant to J. Robinson, J. Barnsley, and J. Robinson (according to their several estates) the said J. Barnsley did grant, bargain, sell, alien, enfeoff, and confirm to the defendant and J. Jackson, and the heirs and

assigns of the defendant, all that plot of land, &c., and six messuages built thereon, &c., and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and all the estate, right, title, &c., of them the said J. Barnsley and J. Robinson, habendum to the defendant and J. Jackson, their heirs and assigns, to the use, intent, and purpose, that J. Barnsley and J. Robinson, their heirs and assigns, might have, receive, and take, to the use and behoof of J. Barnsley and J. Robinson, and the heirs and assigns of J. Barnsley (nevertheless, as to the estate of J. Robinson, in trust only for J. Barnsley, his heirs and assigns forever), the clear yearly rent of £86 38. 3d. to be issuing out of the premises, by equal half-yearly payments on the 24th of June and 25th of December, with power of distress and entry for recovery thereof, to J. Barnsley and J. Robinson, and subject to the above rent, and powers for recovery thereof, to the use of the defendant and J. Jackson, and the heirs and assigns of the defendant, forever (nevertheless as to the estate of J. Jackson, in trust only for the defendant, and his heirs and assigns), and the defendant did for himself, his heirs, executors, and administrators, covenant with J. Barnsley and J. Robinson, and the heirs and assigns of J. Barnsley, that he, his heirs or as signs, would pay to J. Barnsley and J. Robinson, and the heirs and as signs of J. Barnsley forever, the said yearly rent, and also that he, his heirs and assigns, would, within one year next ensuing the date of th e indenture, erect, build, and finish, in a good and substantial manner, and forever support and maintain, upon the plot of land, one or more messuages or other buildings, of good brick or stone, or both, set in good lime mortar, and covered with slates, which at the time of finishing, and at all times thereafter, should, together with the messuages conveyed, be of the clear yearly value of double the yearly rent thereby reserved, at the least, over and above all reprises, and, in case of fire, tem pest, destruction, or decay, should rebuild the same, so that at all times, forever, the buildings then erected and to be erected, should continue of the clear yearly value of double the yearly rent thereby reserved at the least, for the better security of the yearly rent thereby reserved; and J. Barnsley and J. Robinson constituted their attorney, to deliver seisin to the defendant and J. Jackson, according to the inden ture, which was accordingly done And J. Barnsley and J. Robinson being so seised of the rent aforesaid, within one year next ensuing the date of the said indenture, viz., on the 24th of June, 1805, by indenture of that date, demised to the plaintiff's, their executors, administrators, and assigns, the said rent of £86 38. 3d., and all their interest in the same for 1000 years. And the plaintiffs assign for breach a year's rent in arrear on the 24th of June, 1814, and also that the defendant or his assigns, did not, within one year next ensuing the date of the first-mentioned indenture, nor at any other time, erect, build, or finish, in a good and substantial manner, or otherwise howsoever, upon the plot of land or any part thereof, one or more messuages, &c., which

at the time of finishing was or were, or at any times thereafter

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hath or have been with the other messuages conveyed of the clear yearly value of double the yearly rent at the least, &c.

The defendant prayed oyer of the indenture, and demurred to the declaration. Joinder.

Richardson, in support of the demurrer.

. Littledale, contra.

LORD ELLENBOROUGH, C. J. I am inclined to think that the language of Lord Holt, as to the right of the assignee of the rent to have covenant, was extra judicial; and putting aside that dictum, I do not find any authority to warrant the position that this covenant runs with the rent. I do not see how the analogy, as it regards covenants which run with the land, is to be applied, unless it be shown that this is land; it might as well be applied to any covenant respecting a matter merely personal. The Stat. H. 8 recites that, at common law, such only as are parties or privies to any covenant can take advantage of it: here is neither privity of contract nor privity of estate; the rent is reserved out of the original estate.

BAYLEY, J. I am entirely of the same opinion. The argument for the plaintiff's loses sight of the conveyance by which this rent is created. It is incorrect to state it as a rent charge granted by the owner of the fee; it being a conveyance in fee by Barnsley and Robinson to the defendant to certain uses, one of which is that they shall receive the rent; so that the rent arises out of the estate of the feoffors. It is therefore not a grant by the owner of the fee, and the covenant is a covenant in gross.

ABBOTT, J., concurred.

HOLROYD, J., having been of counsel in the case, declined giving any judgment. Judgment for the defendant.1

PARMENTER v. WEBBER.

COMMON PLEAS. 1818.

[Reported 8 Taunt. 593.]

REPLEVIN for taking the plaintiff's goods and cattle. Avowries: First, for a year's rent due to the defendant from the plaintiff at Ladyday, 1816. Second, for £42 10s., the amount of half a year's rent due on that day. Plea in bar to both, non tenuit; and issue thereon. At the trial before Wood, B., at the last Essex Assizes, a verdict was taken for the defendant on the second avowry for £42 10s., the value of the goods distrained, subject to the opinion of the court upon a case of which the following is the substance.

The defendant being in the occupation of two farms, of one as lessee

1 The benefit of a covenant to pay a fee-farm rent has often been allowed to run in the United States. Scott v. Lunt, 7 Pet. 596 (1833); Streaper v. Fisher, 1 Rawle, 155 (1829); Van Rensselaer v. Read, 26 N. Y. 558 (1863); Tyler v. Heidorn, 46 Barb. 439 (1866). But see Van Rensselaer v. Platner, 2 Johns. Cas. 24.

See cases under Covenants running with the Land, ante, pp. 439 et seqq.

to Lord Petre, and of the other as lessee to the Rev. M. Boskell, on the 20th September, 1814, an agreement in writing, dated on that day and stamped with a £2 stamp, was entered into between the plaintiff and the defendant, by which the plaintiff was to have the two farms during the leases of the same, the plaintiff to remain tenant to the defendant during the leases." The agreement then stated the rents, rates, and taxes, and provided, that should the property tax be taken off, it should be taken off from the plaintiff, he agreeing to pay to the defendant £200 for the fallows, dung, and improvements. The defendant was to pay all rates, rents, and taxes up to Michaelmas, 1814, and the plaintiff agreed to farm according to the tenor of the leases, and for every default, to pay according to the forfeiture of the leases. The rent was to be paid half-yearly, at Lady-day and Michaelmas. The plaintiff was to take possession on or before Michaelmas-day then next, or to forfeit £50; and if the defendant refused to comply, he was to forfeit £50. At the leaving of the farms, the plaintiff was to be paid for the fallows and dung. The plaintiff paid the £200 mentioned in the agreement: possession of the farms was given to him by the defendant at Michaelmas, 1814; and one year's rent afterwards growing due, had been paid by the plaintiff to the defendant. It was contended at the trial, that the agreement operated as an absolute assignment by the defendant to the plaintiff of all the defendant's interest in the farms; an d that, therefore, the defendant, having no reversion left in him, CO uld not legally distrain.

The question for the opinion of the court was, whether the plaintiff was entitled to recover. If the court should be of that opinion, then a verdict was to be entered for him, with nominal damages; if not, the verdict for the defendant was to stand.

Best, Serjt., for the defendant.

Blosset, contra.

DALLAS, C. J. I am of opinion that the instrument in question amounts to an absolute assignment of the defendant's interest in the two farms; and that, therefore, this distress cannot be supported. In the case in Wilson [- v. Cooper, 2 Wills. 375], the defendant avowed under a distress for rent due from the plaintiff to him upon an assignmen of a lease of a term for years to the plaintiff; and the question was, Whether that was a rent for which a distress would lie? Though there was a rent reserved upon that instrument, the court held that the assignor, having granted all his estate in the term, could not distrain; and in giving their judgment, referred to Brooke's Abridgment, tit. Dette, pl. 39, where the Year Book, 43 Edw. 3, 4, is cited for the following proposition: "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." I am of opinion that the plaintiff is entitled to judgment. PARK and BURROUGH, JJ., of the same opinion.

note.

Judgment for the plaintiff.'

1 See Preece v. Corrie, 5 Bing. 24; The King v. Wilson, 5 M. & Ryl. 140, 157-162

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THIS was an action of debt for rent, tried before Bayley, J., at the last sittings in this term for Westminster. The declaration alleged a demise of "a messuage land and premises with the appurtenances." The plaintiff, for the purpose of proving the amount of rent due, put in evidence an agreement dated the 20th of September, 1825, between J. M. Farewell, the late husband of the plaintiff, and the defendant, which described the property demised as being "a messuage or tenement, stable, and outbuildings, with the cottage, garden land, and appurtenances belonging thereto, together with the furniture, utensils, and implements." The learned judge considering the agreement as an entire contract for the rent of the house, &c., with the furniture, &c., held the variance fatal, and nonsuited the plaintiff, but gave him leave to apply to the court to set aside the nonsuit, and enter a verdict for £120. A rule nisi for that purpose was obtained by Rowe, who relied on Spencer's Case, 5 Co. 17; Emott v. Cole, Cro. Eliz. 255; Newman v. Anderton, 2 New Rep. 224; Walsh v. Pemberton, Selw. N. P. 6th edit. 616, to show that no portion of the rent issued out of the furniture, but that the whole issued out of the land, and therefore the demise was well laid as a demise of the house, &c.

Chitty showed cause on the last day of the term.

Rowe was stopped by the court.

PER CURIAM. It appeared that the furniture was one of the things demised. But in point of law the rent issued out of the real property, and not out of the furniture. It was sufficient, therefore, for the plaintiff to allege and prove a demise of the real property out of which the rent claimed issued, and the rule for entering a verdict for the plaintiff Rule absolute.1

must be made absolute.

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TROVER for two barges; first count on the possession of the bankrupt, second count on the possession of the assignees. Plea, Not guilty. At the trial before Lord Tenterden, C. J., at the London Sittings after

1 But see Newton v. Wilson, 3 Hen. & Munf. 470; Mickle v. Miles, 31 Pa. 20; Vetter's Appeal, 99 Pa. 52.

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