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the rest; but a rent service cannot be suspended in part by the act of the party, and in esse for other part. So it is if the lessor enter upon the lessee for life or years into part, and thereof disseise or put out the lessee, the rent is suspended in the whole, and shall not be apportioned for any part. And where our books speak of an apportionment in case where the lessor enters upon the lessee in part, they are to be understood where the lessor enters lawfully, as upon a surrender, forfeiture, or such like, where the rent is lawfully extinct in part.

Lit. $ 224. Also, if a man hath a rent charge, and his father purchase parcel of the tenements charged in fee, and dieth, and this parcel descends to his son who hath the rent charge, now this charge shall be apportioned according to the value of the land, as is aforesaid of rent service; because such portion of the land purchased by the father cometh not to the son by his own fact, but by descent and by course of law.

THRE'R v. BARTON.

1570.

[Reported Moore, 94 pl. 232.] A man made a lease for a hundred years, and the lessee made a lease for twenty years, rendering rent, with a clause of re-entry; and afterwards the first lessor granted the reversion in fee, and attornment was had accordingly. The grantee purchases the reversion of the term; he will have neither the rent nor the re-entry, for the reversion of the term, to which it was incident, is extinct in the reversion in fee. And this was adjudged at the Assizes between Lord Thre'r and Barton who was lessee, as Stephens relates. And Plowden and others agreed to it; but Popham took this diversity: If a man makes a lease for life, rendering rent, and the lessee for life makes a lease for years rendering rent, and afterwards the lessee for life surrenders to him in the reversion in fee, he will not have the rent of the lessee for years, nor an action of waste, because the tenant for life who surrendered could not punish the waste in this case.

So if the tenant purchases the reversion in fee, he will not have an action of waste during his own life. But otherwise is it if a man makes a lease for years rendering rent, and afterwards grants the reversion for life, or for years, and he in reversion surrenders to him, he will have the rent or waste, because it was once a rent incident to the reversion, and so it was not in the other. But Plouden and Ipseley said that all is one as to the action of waste.

CIBEL AND HILL'S CASE.

COMMON PLEAS. 1588.

[Reported i Leon. 110.] A LEASE was made of a certain house and land rendering rent, and another sum, Nomine poenæ; and for the Nomine pænæ the lessor brought an action of debt. The lessée pleaded, that the lessor hadi entered into parcel of the land demised, upon which they were at issue, and found for the plaintiff'; and now the lessor brought debt for the rent reserved upon the same lease ; to which the defendant pleaded, ut supra, scil. an entry into parcel of the land demised: And issue was joined upon it; And one of the jury was challenged, and withdrawn, because he was one of the former jury: And the issue now was, whether the said Cibel, the lessor, expulit et amovit et udhuc extra tenet, the said Hills. And to prove the same, it was given in evidence on the defendant's part, that upon the land demised there was a brickkiln, and thereupon a little small cottage, and that the lessor entered, and went to the said cottage and took some of the bricks and untiled the said cottage : But of the other side it was said, that the lessor had reserved to himself the bricks and tiles aforesaid, which in truth were there ready made at the time of the lease made, and that he did not untile the brick-kiln house, but that it fell by tempest, and so the plaintiff did nothing but came upon the land to carry away his own goods : And also he had used the said bricks and tiles upon the reparation of the house. And as to the extra tenet, which is parcel of the issue, the lessor did not continue upon the land, but went off it, and relinquished the possession : But as to this last point, it seemed to the court, that it is not material if the plaintiff continued his possession there or not, for if he once doth anything which amounts to an entry, although that he depart presently, yet the possession is in him sufficient to suspend the rent, and he shall be said, extra tenere the defendant the lessee, until he hath done an act which doth amount to a re-entry. And afterwards to prove a re-entry, it was given in evidence on the plaintiff's part, that the defendant put in his cattle in the field where the brickkiln was, and that the cattle did estray into the place where the defendant had supposed that the plaintiff had entered. And by ANDERSON, Justice, the same is not any re-entry to revive the rent, because ther were not put into the same place by the lessee himself, but went there of their own accord. And such also was the opinion of Justice PERIAM.

CARREL V. READ.

QUEEN's Bench. 1595.

(Reported Cro. El. 374.] COVENANT. Lessee for years covenants to drain such water out of land before such a day. He pleads, that before the day the lessor entered, and continued in possession until after the day: and it was thereupon demurred. Adjudged to be no plea, because it is a collateral act to be done by him; unless he had said, that the lessor held him out, and disturbed him to do it.

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(Reported Cro. Jac. 309.) Debt for fifty pounds rent reserved upon a lease for years. The case upon demurrer was, That Anne Breedon, tenant for life, made a lease for fifty years, if she lived so long, rendering annually during the term two hundred pounds quarterly, at Michaelmas, Christmas, the Annunciation, and Midsummer, by equal portions, or within thirteen weeks after every of the said feasts. She dies after Michaelmas, and within the thirteen weeks, and for the rent due at Michaelmas before her death this action was brought; and all this matter being disclosed in the count, the defendant demurred in law.

The sole question was, Whether this rent were due, she dying after Michaelmas, and before the end of the said thirteen weeks?

It was argued by Iedley for the defendant, and Yelverton for the plaintiff; and, after argument at the bar,

FLEMING, Chief Justice, and Williams delivered their opinion, that this rent was not due; for the reservation being in the disjunctive at the four feasts, or within the thirteen weeks after every of the said feasts

, nothing is due until the end of the thirteen weeks, but there is only an election given to the lessee to pay it at the feasts, if he will, but until the end of the thirteen weeks he cannot demand it by distress or action of debt, and therefore is not any duty; and if the ancestor make such a lease, and die after Michaelmas

, before the end of the thirteen weeks, this rent shall go to the heir, and not to the executor: and if the lessor release all actions and demands after Michaelmas, before the end of six months, this rent is not released; but peradventure by a particular release, with precise words, it may be released : and if the lessee make a forfeiture, and the lessor enter therefore in the interim, betwixt Michaelmas and the end of the thirteen weeks, no rent is due

And there is a difference betwixt this case and the case
Foster, Cro. Jac. 233, where a lease made for twenty-

to the lessor. of Barwick v.

one years rendering annually at Michaelmas, or within forty days, such rent, the lease beginning at Michaelmas shall end there; and the rent was due for the last year, although the year expired before the forty days; for the reservation being annually during the term, at the said feasts, or within forty days, it shall be expounded according to their contract at the end of every forty days during the term: but the term ending at Michaelmas, so as there cannot be forty days after during the term, the law rejects that forty days at the last feast; for that cannot be, and then it is due at the feast, according to the contract of the parties : but here the term being uncertain, depending upon the life of the lessor, the law respects the thirteen weeks as the feasts ; and as if she die before the feasts, it is not due; so if she die after the feasts, and before the thirteen weeks end, it is not due by the contract : and if there be an eviction by elder title betwixt Michaelmas and the thirteen weeks, there is not any rent due ; for the reservation is at such days during the term.

Croke, Justice, to the contrary; for the rent is reserved payable annually, and is a duty at the said feast, otherwise it is not annually reserved, nor payable : and the addition, " or within thirteen weeks,” is but an enlargement of the day of payment, for the case of the lessee at his election: and be denied the law to be so in the cases put of the death of the ancestor after Michaelmas, where the eviction is after Michaelmas; for he held, that the rent is due to the executor, and not to the heir, and is due notwithstanding the eviction after Michaelmas; for otherwise the intent of the parties to have an annual reservation is destroyed, if the rent be not due until a year and a quarter after. Et adjournatur.

Note. - Afterwards it was adjudged for the defendant. See Drer, 142, and the case of Smith v. Bustard.1

DORREL V. ANDREWS.

1616.

[Reported Hob. 190.) ACTION of debt was brought by Mrs. Dorrel against Andrews, a knight, upon a lease made by her to him in trust for Trussel, for seventyfive pounds, a quarter's rent, and declared of a demise de toto illo messuagio capitali maner, et domo mansionali, cognit. per nomen de Causton infra parochiam de Dunchurch, ac omnia horrea ter. tinementa, &c., scituat. in Causton. The defendant pleads an entry and expulsion out of the garden house, and well, though parcel of the tenements, &c. : whereupon issue; and the venue was de Causton. infra parochiam de Dunchurch, and the plaintiff had judgment, notwithstanding exception taken to the venue.

1 See Marshall v. Moseley, 21 N. Y. 280.

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[Reported Aleyn, 26.) In debt the plaintiff declares upon a lease for years rendering rent at the four usual feasts ; and for rent behind for three years, ending at the Feast of the Annunciation, 21 Car., brings his action: The defendant pleads, that a certain German prince, by name Prince Rupert, an alien born, enemy to the king and kingdom, hath invaded the realm with an hostile army of men ; and with the same force did enter upon the defendant's possession, and him expelled, and held out of possession from the 19 of July, 18 Car., till the Feast of the Annunciation, 21 Car., whereby he could not take the profits ; whereupon the plaintiff demurred, and the plea was resolved insufficient.

1. Because the defendant hath not answered to one quarter's rent.

2. He hath not averred that the army were all aliens, which shall not be intended, and then he hath his remedy against them; and Bacon cited 33 H. 6, 1 e, where the jailer in bar of an escape pleaded, that alien enemies broke the prison, &c., and exception taken to it, for that he ought to show of what country they were, viz. Scots, &c.

3. It was resolved, That the matter of the plea was insufficient; for though the whole army had been alien enemies, yet he ouglit to pay his rent. And this difference was taken, that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath

reniedy over, there the law will excuse him. As in the case of waste, if a house be destroyed by tempest, or by enemies, the lessee is excused.

Dyer, 33 a; Inst. 53 d, 283 a ; 12 H. 4, 6.

Co. 4, 84 b; 33 H. 6, 1. So in 9 E. 3, 16, a supersedeas was awarded to the justices, that they should not proceed in a

cesser during the war, but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore if the lessee covenant to repair a house, though it be burned by lightning, or thrown down by enemies, yet he ought to repair it. Dyer, 33 a; 40 E. 3, 6 h. Now the rent is a duty created by the parties upon the reservation, and had there been a covenant to pay it, there had been no question but the lessee must have made it good, notwithstanding the interruption by enemies, for the law would not protect him beyond his own agreement, no more than in the case of reparations. This reservation then being a covenant in law, and whereupon an action of covenant bath been maintained (as Roll said), it is all one as if there had been an actual covenant.

Another reason was added, that as the

no

So of an escape.

cessavit upon a

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