Trinity Term, 1827, the jury found a verdict of Not guilty on the first count; and on the second a special verdict, stating, as to the grievances in that count mentioned, that, at the time of making the distress thereinafter mentioned, W. R. Jones and G. Jones had become bankrupts, and the plaintiff's had been chosen and appointed their assignees; that the plaintiffs, as such assignees, before and at the time of the making of the distress thereinafter mentioned, were lawfully possessed, as of their property as such assignees, of the barges thereinafter mentioned to have been taken and distrained by the defendants; and that by an indenture dated the 9th of March, 1816, and made before W. R. Jones and G. Jones, or either of them, became bankrupts, between one T. Brown of the one part, and the bankrupts of the other part, Brown demised, leased, &c. to the bankrupts all that wharf, ground, and premises next the River Thames, and also all that capital brick built warehouse of three floors erected and built thereon, abutting north on the River Thames, east on premises in the occupation of T. Flockton, south on the street cartway and common highway leading from Pickle Herring Stairs to Horsley Down Stairs, and west on the Five Footway or Little Wharf for landing goods, and certain other premises in the indenture particularly mentioned, together with free liberty for them the bakrupts, their executors, &c. during that demise, to land and load goods, &c. in common with the rest of the tenants of Brown, at the said Fi-e Footway or Little Wharf fronting the River Thames, together with

more

all

cellars, ways, paths, passages, lights, easements, profits, commodities, and appurtenances whatsoever to the said wharf, ground, warehouse, and premises, or any of them, belonging or appertaining; habendum, the same premises, with their and every of their appurtenances, unto the bankrupts, their executors, &c., from the 23d March then past for the term of thirteen years, at the yearly rent of £555, by equal quarterly payments, payable to Brown, and after his death to the person who should be entitled to the freehold of the premises. The special verdict then stated, that by the indenture the exclusive use of the land of the River Thames opposite to and in front of the said wharf ground between high and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the said wharf ground and premises, but that the land itself between high and low water mark was not demised; that on the 12th of November, 1826, the sum of £565 of the rent was in arrear and unpaid; and that on that day, and at the time of making the distress thereinafter mentioned, the two barges, the property of the plaintiffs as such assignees, were attached by ropes head and stern to the wharf ground aforesaid, and were lying and being on that part of the River Thames opposite to and in front of the said wharf ground and premises, and between high and low water mark, the exclusive use of which was demised as aforesaid; that the defendants on the said 12th November as the bailiffs of the person who was then entitled to the freehold of the wharf and premises, and was duly authorized by law to distrain for the

VOL. 11.-44

arrears, seized and took the two barges as a distress for the arrears of rent, and shortly afterwards sold and disposed thereof to satisfy such arrears. This case was argued on a former day in this term by

Richards, for the plaintiff.

Starr, contra.

Cur, adv. vult.

LORD TENTERDEN, C. J. It is difficult to understand what is really meant by that part of the finding of the jury, "that the exclusive use of the land of the River Thames opposite to and in front of the said wharf ground between high and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the said wharf ground and premises; but that the land itself between high and low water mark was not demised.” And it is difficult to understand how the exclusive use could be demised and the land not; but in either case the distress cannot be supported. If the meaning of this finding be that the land itself was demised as appurtenant to the wharf, that would be a finding that one piece of land was appurtenant to another, which, in point of law, cannot be. If, on the other hand, the meaning be that the use and enjoyment of this land passed as appurtenant, that would be a mere privilege or easement, and the rent would not issue out of that; the landlord, therefore, could not distrain there for rent issuing out of the land in respect of which the easement or privilege had its existence. That is understood to be the law of the land, and an Act of Parliament was passed to remedy this inconvenience as far as rights of common were concerned. Taking the finding of the jury in either sense, the defendant had no right to distrain on the premises in question, and the judgment of the court must be for the plaintiffs. Judgment for the plaintiffs.

REPLEVIN. AVowry by the defendant as executor of the last will and testament of William Boucher, deceased, stated that the plaintiff from the 25th of March, 1829, until and after the 25th of March, 1830, and from thence until and at the time of the death of the said W. Boucher, held and enjoyed the premises mentioned in the declaration, &c., as tenant to W. Boucher by virtue of a demise thereof to him the defendant theretofore made at the yearly rent of £70, and because £70 of the rent for the space of one year ending on the 26th of March, 1830, was due, and unpaid until and at the time of the death of W. Boucher, and from thence until and at the said time when, &c., continued in arrear from the plaintiff to the defendant, as such executor, he the defendant

a

as such executor avowed, &c. Plea in bar by the plaintiff, that the said W. Boucher at the time of the making of the said demise in the avowry mentioned, and from thence until and at the time of his death, was seised in his demesne as of fee of and in the said premises, in which, &c., and that the said demise under which the plaintiff held and enjoyed the same, &c., at the yearly rent in the avowry mentioned, was a certain demise thereof, heretofore, to wit on the 25th of March, 1825, made by the said W. Boucher, in his lifetime to the plaintiff for a term of years still unexpired, to wit, the term of seven years. General demurrer and joinder. This case was argued in last Easter Term.1 Follett, in support of the demurrer.

Crowder, contra.

Cur. adv. vult.

LORD TENTERDEN, C. J., in the course of this [Trinity] term delivered the judgment of the court.

The question raised upon this record is this, Whether the executor of

person who was seised in fee of land and demised it for a term of years, reserving a rent, can distrain for the arrears of such rent, accrued in the lifetime of the testator? At common law it is clear that he could not so distrain, and his power to do so, if he has any, must be de rived from the provisions of the Statute 32 H. 8, c. 37, § 1.

th

The preamble of that Statute is material because the enacting part of first section has no words distinctly describing the persons whose executors are empowered to distrain; but refers to the preamble by the word "such."

The preamble and first section of the Act are as follows: “Forasmuch as by the order of the common law, the executors, or administrators of tenants in fee simple, tenants in fee tail, and tenants for term of lives, of rents services, rent charges, rents secks, and fee farms, have no remedy to recover such arrearages of the said rents or fee farms, as were due unto the testators in their lives, nor yet the heirs of such testator, nor any person having the reversion of his estate after his decease, may distrain, or have any lawful action to levy any such arre

rages of rents or fee farms, due unto him in his life as is aforesaid; by reason whereof, the tenants of the demesne of such lands, tenements or hereditaments, out of the which such rents were due and payable, who of right ought to pay their rents and farms at such days and terms as they were due, do many times keep, hold, and retain such arrearages in their own hands, so that the executors and administrators of the persons to whom such rents or fee farms were due, cannot have or come by the said arrearages of the same, towards the payment of the debts and performance of the will of the said testators: for remedy whereof be it enacted, &c., that the executors and administrators of every such person or persons, unto whom any such rent or fee farm is or shall be due, and not paid at the time of his death, shall and may have an action of debt for all such arrearages, against the tenant or tenants that ought to Before LORD TENTERDEN, C. J., LITTLEDALE, PARKE, and PATTESON, JJ.

have paid the said rent or fee farms so being behind in the life of their testator, or against the executors and administrators of the said tenants; and also furthermore, it shall be lawful to every such executor and administrator of any such 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, so long as the said lands, tenements, or hereditaments continue, remain and be in the seisin, or possession of the said tenant in demesne who ought immediately to have paid the said rent or fee farm so being behind, to the said testator in his life, 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, in like manner and form, as their said testator might or ought to have done in his lifetime, and the said executors and administrators shall, for the same distress, lawfully make avowry upon their matter aforesaid."

Looking at these words independently of decided cases, it should seem that the Legislature meant to provide remedy for those only who were previously without any remedy, by action or otherwise; and the Statute provides a double remedy, namely, by action of debt, and by distress. What persons had a remedy by action of debt, and the reasons why they had it, will be found laid down in Bacon's Abridgment, tit. Rent (K) 6, referring to Gilbert on Rents, 93, Co. Lit. 162, and Ognel's Case, 4 Co. 49. The passage is as follows: "The remedy by action of debt extended only to rents reserved on leases for years, but did not affect freehold rents; the reason whereof is this: Actions of debt were given for rent reserved upon leases for years, for that such terms being of short continuance, it was necessary that the lessor should follow the chattels of his tenant, wherever they were, or wheresoever he should remove them: but when the rents were reserved on the durable estate of the feud, the feud itself, and the chattels thereupon were pledged for the rent; and if the land were unstocked for two years, the lord had his cessavit per biennium to recover the land itself; and hence it is that if the durable estate of the feud determined, as if the lessee for life died, the lessor might have an action of debt for the arrears : because the land was no longer a security for the rent, and therefore the chattels of the tenant were liable to satisfy the arrears in an action of debt wherever the tenant removed them. So it was in the case of a rent charge; for if a man were seised of it in fee, and it was arrear, he could have no action of debt for the arrears; and if he died, his heir could not have any real action for the arrears, for that is proper for the recovery of the possession, which was still in him, nor could he have a personal action, because, besides the former reason, it were absurd to give a real action for the rent running on in his own time, and a personal action for the arrears in the lifetime of the ancestor at the same

time; for it could not be supposed to be both a real and personal thing ; for this reason also, the executor could have no action for the arrears, (who is entitled to the personal estate), and also because he could not entitle himself by virtue of the contract that created the rent, since the heir was constituted representative by the contract, and by consequence that representation excluded all other persons from taking any benefit representatives that did not come under that character."

as

The view of the Statute which has been above suggested, was acted upon in the case of Turner v. Lee, Cro. Car. 471, in which it was held, that where a rent charge had been granted for years, if the grantee long live, the executor of the grantee could not distrain under

should so

the Statute, because he had a remedy by action of debt at the common law. If this construction had always been adhered to, the present Case would be clear; but a different view of the Statute seems to have been taken in a previous case of Lumbert v. Austin, Cro. Eliz. 332, in Which it was assumed that the executor of the grantee for his own life of a rent charge could distrain under this Statute, although it is plain that such executor had a remedy by action of debt at common law, the estate for life in the rent having been determined. And in Hool v. Bell, 1 Ld. Raym. 172, the point was expressly so held. It was there argued that the expression "tenants for life" in the Statute must be taken to mean tenants pour autre vie, whose executors were certainly

ithout remedy during the life of cestui que vie; but the court said: The Statute 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 Lambert v. Austin this seems to be admitted, and therefore the rule in Turner v. Lee, so generally taken, cannot be law." The case of Hool v. Bell appears to have been always treated as good law, and it must be considered that the Statute 32 H. 8, c. 37, is not confined to persons who had no remedy at all previously.

The question then is whether the present case be within the words or meaning of the Statute. The words are "executors or administrators of tenants in fee simple, tenants in fee tail, and tenants for term of lives, of rents services, rent charges, rents secks and fee farms.” Nothing is said as to tenants for term of years. If therefore the testator in the present case was tenant for term of years, his executor is not within the words of the Statute. If the testator was tenant of the rent at all, it seems difficult to say that he was tenant for a longer time or for a greater estate, than the rent could have continuance; it seems absurd to say that a man is seised in fee of a rent, the duration of which is limited to a few years, or to a particular life. In the case of a rent charge granted for years, it is impossible to say that the grantee is within the words "tenant in fee simple, fee tail, or for term of lives,” and why should a lessor who reserves a rent to himself and his heirs, by a lease for years, be thought to be within the same words? The reahich are pressed in argument are that the rent is incident to the

sons