2 Saund. 166); the latter depend merely upon immemorial usage and 3 & 4 Will. 4, custom (Co. Cop. s. 24). Heriot service may be recovered either by seizure c. 27, s. 1. (Plowd. 96; Cro. Eliz. 589; 1 And. 298; Gouldsb. 191; 1 Salk. 356; 1 Show. 81; Willes, 192), or by distress within the manor (Plowd. 96 a; Cro. Car. 260; Bro. Har. 2; Kich. 133b; 3 Bl. Comm. 15; Gilbert's Distresses, 10, 11). Any goods belonging to another, found upon the lands charged with heriot service, may be distrained (Bro. Har. 6; Cro. Car. 260; Austin v. Bennet, 1 Salk. 356). A heriot due by the custom Heriot of a manor may be payable on the death of every tenant of an estate of in- custom. heritance, or for life or years (21 Hen. 7, 13, & 15; Keilw. 80; Bro. Har. 5), or at will (Hix v. Gardiner, 2 Bulstr. 196). As the property of it vests immediately in the lord on the death or alienation of the tenant, the lord may seize the identical thing, though he cannot distrain any other chattel for it (Cro. Eliz. 590; Keilw. 82 a, 84 b, 167 a; Br. Har. 2, 6, 7; Parker v. Gage, 1 Show. 81). The property in any particular beast will not vest in the lord before selection of it (Abington v. Lipscomb, 1 Q. B. 776; see stat. 4 & 5 Vict. c. 35; 6 & 7 Vict. c. 23; 15 & 16 Vict. c. 51; 21 & 22 Vict. c. 94, providing for the commutation of manorial rights in respect of copyholds. See further as to heriots, Shelford on Copyholds and the Supplement thereto, pp. 119-133; 2 Watk. on Cop. c. 6; 2 Saund. Rep. 168, n.; Cruise, Dig. tit. X., c. 4, ss. 49-63; Com. Dig. Copyhold (K. 18), (K. 27); Scriven on Cop. 210-224, 6th ed.; Croome v. Guise, 4 Bing. N. C. 148). A heriot may be due by custom on the death of a tenant in respect of a tenement of free lands held in fee simple of a manor (Damarell v. Protheroe, 10 Q. B. 20).

In a case of heriot service, where a manor had been settled, it was held that the right of the remainderman to seize a heriot in 1847 (he being then entitled in possession) was not barred by sects. 2 and 3, owing to the nonpayment of a heriot to the tenant for life in 1824 (Chichester v. Hall, 17 L. T. (O. S.) 121). In Lord Zouch v. Dalbiac (L. R. 10 Ex. 172), a case of heriot custom, where it was admitted that more than twenty years before the heriot the subject matter of the action became due, a previous heriot had become due which the lord had not seized, the lord's right of seizure was not barred under this statute. Opinions were expressed that neither heriot custom nor heriot service were within sects. 2 and 3 (Ib. 182); and that if rent did anywhere in the statute include heriots, it might be in sect. 42 (p. 179). Bramwell, B., doubted whether it was the general intention of the statute to bar not merely the right to a particular heriot, but the title generally (See the relation of the statute to heriots discussed in Owen v. De Beauvoir, 16 M. & W. 566; De Beauvoir v. Owen, 5 Exch. 166; Darb. & Bos. Stat. Lim. 208, 224).

In the absence of evidence adverse to the rights of the lord of a manor, Negligence the court will not presume the enfranchisement of land shown to have in exacting been copyhold more than a century ago, from mere negligence by the lords acknowledgin exacting the small acknowledgments for fines, &c., which were then ments for commuted. Wood, V.-C., said it was not a case to which any statute of fines. limitations applied (Turner v. West Bromwich Union, 9 W. Ř. 155; see

also as to these presumptions, Chichester v. Hall, 17 L. T. (O. S.) 121).

(f) A rent (reditus) is properly a sum of money, or other thing to be Different rendered periodically, in consequence of an express reservation in a grant kinds of rents. or demise of lands or tenements, the reversion of which is in the grantor or person demising (2 Bl. Comm. 31; Gilb. on Rents, 9, &c.)

There are

at common law three sorts of rents: rent-service, rent-charge, and rent

seck (Litt. s. 213). Rent-service is so called because it hath some corporeal Rent-service. service incident to it, as at least fealty or the tenant's feodal oath of fidelity (Co. Litt. 142). And for these, in case they be in arrear, the lord may distrain of common right, without reserving any special power of distress; provided he hath in himself the reversion or future estate of the lands, after the lease or particular estate of the lessee or grantee is expired (Litt. s. 215). A rent-charge is where the owner of the rent hath Rent-charge. no future interest or reversion expectant in the land; as where a man by deed maketh over to others his whole estate in fee-simple, with a certain

3 & 4 Will. 4, c. 27, s. 1.

Rent-seck.

Remedy by distress for recovering rents-seck given by

4 Geo. 2, c. 28,

8. 5.

Distress for rents.

Rents for
which a dis-

tress may be
made within

3 & 4 Will. 4,

c. 27.

rent payable thereout, and adds to the deed a covenant or clause of dis-
In this case the land is liable to distress,
tress if the rent be in arrear.
not of common right, but by virtue of the clause in the deed, and there-
fore it is called a rent-charge, because in this manner the land is charged
with a distress for the payment of it (Co. Litt. 143). A rent for equality
of partition is not a rent-service but a rent-charge of common right, and
may be distrained for (Litt. s. 253). Rent-seck (reditus siccus), or barren
rent, is, in effect, nothing more than a rent reserved by deed, but without
any clause of distress (2 Bl. Comm. 42; see Dodds v. Thompson, L. R. 1
C. P. 133). Either a rent-service disconnected from the reversion (Ards v.
Watkin, Cro. Eliz. 637, 651), or a rent-charge may be divided by will or
by deed, operating under the Statute of Uses, so as to make the tenant
liable without attornment to several distresses by the devisees or cestuis
It seems that since the stat. 4 Anne, c. 16, s. 9, a rent-charge
may be so divided by a conveyance of any kind (Rivis v. Watson, 5 M. &
W. 255; see Colborne v. Wright, 2 Lev. 239).

que use.

There are also other species of rents, which are reducible to these three. Rents of assize are the certain established rents of the freeholders and ancient copyholders of a manor (2 Inst. 19), which cannot be departed from or varied. Those of the freeholders are frequently called chief rents (reditus capitales); and both sorts are indifferently denominated quit-rents (quieti reditus), because thereby the tenant goes quit and free of all other services. A fee-farm rent is a rent-charge issuing out of an estate in fee, of at least one-fourth of the value of the lands at the time of its reservation (Co. Litt. 143; see Bradbury v. Wright, Dougl. 627, n. 1). These are the general divisions of rent; but the difference between them (in respect of the remedy for recovering) is now abolished.

By stat. 4 Geo. 2, c. 28, s. 5, the same remedy was given by distress, and by impounding and selling the same, in cases of rents-seck, rents of assize, and chief-rents, which had been duly answered or paid for the space of three years within the space of twenty years before the first day of that session of parliament (January 21, 1731), or which should be thereafter created, as in case of rent reserved upon lease. As to this section, it was held that, unless the case was brought within it, a rent-seck could not be recovered by distress (Bradbury v. Wright, Dougl. 627). It was not, however, necessary that the three years mentioned in the statute should be continuous; it was sufficient if, for the space of three whole years within twenty years before the passing of the act, the rent was paid, though those years might not be consecutive (Musgrave v. Emerson, 10 Q. B. 326). A rent-charge granted by deed containing no power of distress is within the section (Dodds v. Thompson, L. R. 1 C. P. 133).

Now by Conv. Act, 1881, s. 44, post, where an annual sum is, by an instrument coming into operation after December 31, 1881, charged on land or the income thereof, whether by way of rent-charge or otherwise, and which annual sum is not a rent incident to a reversion, such annual sum can be recovered by means of (1) a distress, (2) an entry, (3) a demise of the land charged.

As a general rule, a person who has parted with the reversion cannot distrain (Parmenter v. Webber, 8 Taunt. 593; Langford v. Selmes, 3 K. & J. 226; see as to a mortgage, Trent v. Hunt, 9 Exch. 14). If a lessee make an underlease of his whole term, that amounts to an assignment (Beardman v. Wilson, L. R. 4 C. P. 57; Hyde v. Warden, 3 Ex. D. 83); v. Cooper, 2 and if rent be reserved, the assignor cannot distrain (Wils. 375). Under certain circumstances, however, the rent reserved may amount to a rent-charge (See Williams v. Hayward, 1 E. & E. 1040), to which apparently 4 Geo. 2, c. 28, s. 5, would apply.

It was said by Patteson, J., that the language of the first section of this An interpretation clause does act cannot limit the sense of the term rent. not restrain the meaning (7 Q. B. 979). Where a tenant holds premises by the service of cleaning the parish church, without any pecuniary render, such service is a "rent" for which a distress may be made, within the meaning of the Limitation Act, 3 & 4 Will. 4, c. 27, ss. 1, 8 (Doe v.

Benham, 7 Q. B. 976, 981). So the service (under the like circumstances) 3 & 4 Will. 4,
of ringing the church bell at stated hours from Michaelmas to Christmas c. 27, s. 1.
(Doe v. Benham, 7 Q. B. 976, 983). It is laid down in Co. Litt. 142 a,
that "rent may as well be in delivery of hens, capons, roses, spurs, bows,
shafts, horses, hawks, pepper, comine, wheat, or other profit that lieth in
render, office, attendance, and such like, as in payment of money;" and
that for these things there may be a distress. So in Co. Litt. 96 a, it is
said, "A man may hold of his lord to shear all the sheep depasturing
within the lord's manor; and this is certain enough, albeit the lord hath
sometime a greater number and sometime a lesser number there; and yet
this uncertainty being referred to the manor, which is certain, the lord
may distrain for this uncertainty." So in Litt. s. 137, it is laid down,
that if land be holden by the service of singing a mass every Friday, the
lord may distrain for not doing it (Doe v. Benham, 7 Q. B. 982). The
keeping up of a grindstone upon land for the convenience of the parish,
was held not rent, or "profits of land" within the third section of the act
(Doe v. Hinde, 2 M. & Rob. 441; Doe v. Benham,7 Q. B. 978).

By stat. 3 & 4 Will. 4, c. 42, ss. 37, 38, the executors or administrators Right of
of any lessor or landlord may distrain upon the lands demised for any executors to
term, or at will, for the arrearages due to such lessor or landlord in his distrain.
lifetime, in like manner as such lessor or landlord might have done in his
lifetime (sect. 37). And such arrearages may be distrained for after the Distress after
determination of such term or lease at will, in the same manner as if such end of term.
term or lease had not been ended or determined: provided such distress be
made within the space of six calendar months after the determination of
such term or lease, and during the continuance of the possession of the
tenant from whom such arrears became due; and all powers and provi-
sions in the several statutes, made relating to distresses for rent, are made
applicable to the distresses so made as aforesaid (sect. 38). See before that
act, Prescott v. Boucher, 3 B. & Ad. 849.

Since stat. 8 Ann. c. 18, s. 6, rent accruing before the expiration of a tenancy can be distrained for within six months after the tenancy expires, and while the tenant continues in occupation. See before that act, Williams v. Stiven (9 Q. B. 14).

It has been decided, that a distress may be taken for arrears of a rent- Right to charge created by will, although the testator does not in terms give a distrain for power to distrain, such power being a consequence drawn by law from annuity given the rentcharge (Rodham v. Berry, Watk. Conv. by Cov. 243, n. (a)). So by will. in the case of annuities charged on land by wills containing no power of distress, the annuitant can distrain under 4 Geo. 2, c. 28, s. 5 (Buttery v. Robinson, 3 Bing. 392; Roper v. Roper, 3 Ch. D. 720); and a receiver will not be appointed (Sollory v. Leaver, 9 Eq. 22); except, perhaps, where the rents are not sufficient, or the annuity has been long in arrear (Kelsey v. Kelsey, 17 Eq. 500). In the case of an annuity created since 1881, see Conv. Act, 1881, s. 44, post.

charge.
6x praham
Div 343, Searle 4

Since the abolition of real actions, a rentcharge in fee may be recovered in Action of debt an action of debt, either under a covenant binding the terre-tenant (Varley for rentv. Leigh, 2 Exch. 446), or independently of one (Thomas v. Sylvester, L. R. 8 Q. B. 368). But the rule does not apply when the land is situate out of England (Whitaker v. Forbes, 1 C. P. Div. 51). See as to the old law, Webb v. Jiggs (4 M. & S. 112). Rent cannot as a general rule issue out of an incorporeal hereditament, Rents not in so as to warrant a distress, which can only be made in respect of a fixed general issuascertained rent reserved out of land (2 B. & Ad. 339). A rent could not able out of formerly be reserved out of an advowson in gross, tithes, or any other incorporeal incorporeal hereditament (Co. Litt. 47 a, 142 a; Gilb. on Rents, 20, 22). hereditaA rent cannot be reserved out of a rent (2 Roll. Abr. 446; Keilw. 161); nor out of a mere privilege or easement in land (Buzzard v. Capel, 8 B. & C. 141). Part of a rent may be granted, although it cannot be reserved out of an old rent (2 Ves. sen. 178).

ments.

The king, however, may reserve a rent out of an incorporeal heredita- Exceptions ment, as well as out of lands, because by his prerogative he may distrain to the rule. for such rent on all the lands of his tenant (Co. Litt. 47 a; 2 Inst. 132;

3 & 4 Will. 4, c. 27, s. 1.

Lease of tithes.

Old limitation act as to

rents.

Annuities.

Annuities charged on land.

Annuities

not charged
on land.

5 Rep. 4; Gilb. on Rents, 22). And the grantee of fee-farm rents from
the Crown might exercise the same power (1 P. Wms. 306). A rent may
be reserved upon a grant of an estate in remainder or reversion, for the
remedy by distress will arise when the lessee comes into possession (Co.
Litt. 47 a) for all the arrears (2 Roll. Abr. 446).

A lease by a bishop of tithes only, rendering the ancient rent, was held
void against the successor, because there was no remedy for the rent by
distress or assize (Tanlintine v. Denton, Cro. Jac. 111; Windsor v. Gover,
2 Wms. Saund. 230). But by stat. 5 Geo. 3, c. 17, all leases for one, two,
or three lives, or for any term not exceeding twenty-one years, of any
tithes, tolls, or other incorporeal hereditaments, without any lands by any
bishop, college or hall, dean and chapter, precentor, prebendary, hospital,
or any other person who is enabled by statute to make such leases of any
corporeal hereditaments, are as effectual against the lessors and their
successors as any leases of corporeal hereditaments are by virtue of
32 Hen. 8, c. 28, and an action of debt against the lessee is given for the
recovery of such rent. It is perfectly clear that, in point of law, tithes,
being an incorporeal hereditament, cannot pass by parol, but by deed only
(Gardiner v. Williamson, 2 B. & Ad. 336).

By stat. 32 Hen. 8, c. 2, s. 4 (10 Car. 1, sess. 2, c. 6, Irish), no person should make any avowry or cognizance for any rent, suit, or service, and allege any seisin of any rent, suit, or service in the same avowry or cognizance, in the possession of his or their ancestors or predecessors, or in his own possession, or in the possession of any other whose estates he shall pretend or claim to have above fifty years next before the making of the said avowry or cognizance. This provision was held to apply only where it was necessary to allege seisin, and not where rent was expressly created by deed, the commencement whereof could be shown (Co. Litt. 115a; 8 Rep. 64), or by act of parliament (Faulkner v. Bellingham, Cro. Car. 80), or by will (Collins v. Goodall, 2 Vern. 235), as to which there was no prescribed period of limitation, either at law or in equity (Cupit v. Jackson, M'Clel. 495; 13 Price, 721; see White v. James, 4 Jur. N. S. 1214; and Stackhouse v. Barnston, 10 Ves. 467; Foster's case, 8 Rep. 128; De Beauvoir v. Owen, 19 L. J. Exch. 182). So that arrears for any number of years might have been recovered unless there was evidence to raise a presumption of payment (10 Ves. 467). But mere length of time, short of fifty years, the period fixed by the stat. 32 Hen. 8, c. 2, and unaccompanied with other circumstances, was not of itself sufficient ground to presume a release or extinguishment of a quit rent (Eldridge v. Knott, Cowp. 214, cited 10 Ves. 467, 468).

As to the use of the word "rent" in this statute, see Doe v. Angell, 9 Q. B. 328, quoted in note to sect. 9, post.

(g) An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded; a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor (2 Bl. Comm. 40). The material distinction between an annuity and a rent is, that the former is a charge on the personal estate only, and the latter on the real (Co. Litt. 2 a; 114 b, 20 a).

An annuity charged upon land is by this clause included in the word "rent" as used in the act. An annuity charged by will on lands, with a power of distress in default of payment after twenty days, was held to be extinguished by sect. 2, twenty years after the first right to distrain accrued after the testator's death (James v. Salter, 3 Bing. N. C. 544). Six years' arrears only of such an annuity can be recovered under sect. 42, in proceedings other than an action on a specialty (Francis v. Grover, 5 Hare, 39). Where such an annuity was secured by specialty, twenty years' arrears could formerly be recovered under 3 & 4 Will. 4, c. 42, s. 3, in an action on the specialty (Strachan v. Thomas, 12 Ad. & El. 536). See now 37 & 38 Vict. c. 57, s. 8, p. 198, post. As to the right of distress for an annuity charged on land, see ante, p. 107.

An annuity given by will and not charged upon land, is within the provision as to legacies in sect. 40 (Ashwell's Will, Johns. 112). Lord

c. 27, s. 1.

St. Leonards seems to have been of opinion that such an annuity would 3 & 4 Will. 4,
be extinguished if no payment were made for twenty years (R. P. Stat.
138, 2nd ed.) But it has been suggested that time must be reckoned
separately with regard to each payment, and that the annuity would not
be extinguished by non-payment for the statutory period (Darb. & Bos.
Stat. Lim. 126). Such an annuity has been decided not to be within
sect. 42 (Roch v. Callen, 6 Hare, 531). If such an annuity be secured by
bond or covenant, the non-payment of each instalment is a distinct breach,
and time runs, under 3 & 4 Will. 4, c. 42, s. 3, against each as it becomes
due (Amott v. Holden, 18 Q. B. 593). A terminable annuity for ten or
twenty years is within 3 & 4 Will. 4, c. 27 (Uppington v. Tarrant, 12 Ir.
Ch. R. 269). A gross sum of money charged upon lands, to be paid by
yearly instalments, and secured by power of distress, is within sections 40
and 42 (Ib. 262). Payments for tithe imposed in London by 37 Hen. 8,
c. 12, are within the words "annuities or periodical sums of money
charged upon land" (Payne v. Esdaile, 13 App. Cas. 613).

The "compositions" excepted from the definition of rent were composi- Compositions. tions real (Per Lord Selborne, Irish Land Commission v. Grant, 10 App.

Cas. 31).

As to the meaning and operation of the words "issue in tail" in this Person clause, see Abergavenny v. Brace, L. R. 7 Ex. 152, post, p. 114.

through

(h) An escheat was in its nature feodal. A feud was the right which whom another the tenant had to enjoy lands, rendering to the lord the duties and services claims. reserved to him by contract. After a grant made, a right remained in Escheat. the lords, called a seignory, consisting of services to be performed by the tenant, and a right to have the land returned on the expiration of the grant as a reversion, called an escheat (Burgess v. Wheate, 1 Eden, 191). Escheat is founded on the principle that the blood of the person last seised in fee is by some means utterly extinct and gone; and since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence that the inheritance must fail (2 Inst. 64; Wright's Ten. 115). Escheat may happen from default of heirs, as where the tenant dies without any relations on the part of any of his ancestors, or where he dies without any relations on the part of those ancestors from whom the estate descended, or where, until the stat. 3 & 4 Will. 4, c. 106, s. 9 (see post), he died without any relations of the whole blood. An escheat also arose from the corruption of the tenant's blood, consequent upon an attainder for treason or felony, by which he became incapable of inheriting, and of transmitting anything by heirship (See 3 & 4 Will. 4, c. 106, s. 10, and note, post). On the subject of escheat, see 2 Bl. Comm. 241-257; Cruise's Dig. tit. XXX.; Harg. Co. Litt. 18 b, n. (2); Henchman v. A. G. (2 Sim. & Stu. 498; 3 M. & K. 492); and the note to A. G. v. Sands (Tudor, L. C. Conv. 760, 3rd ed.); 47 & 48 Vict. c. 71, s. 4.

(i) The poor of a parish are a class of persons within the meaning of Persons. the word "persons" in this section, in a case where the rents of property are applicable for the benefit of such poor (Magdalen College v. A. G., 6 H. L. C. 189). The Att. Gen., whether suing ex officio, or at the relation of others, is not a "person" having a right to bring an action or suit in equity to recover land, within the meaning of this act; he is only part of the machinery by which the rights of others are sought to be enforced (Ib.; see A. G. v. Magdalen College, 18 Beav. 223; sect. 24, post).

The king having the prerogative of not being included within the words Crown, when "person or persons, bodies politic or corporate," used in an act of parlia- bound by acts ment, whether affirmatively or negatively (11 Rep. 68), is not bound in of parliament. his public capacity by the general words of an act of parliament, unless named (7 Rep. 32; 11 Rep. 68; Plowd. 240; 1 Str. 516; 1 Show. 464; Show. P. C. 185; Hall v. Maule, 4 Ad. & Ell. 284; R. v. Wright, 1 Ad. & Ell. 434; Re Cuckfield Board, 19 Beav. 153, and the cases cited in the note thereto; Re Bevan, 14 W. R., 147; Re Henley, 9 Ch. Div. 481; see Perry v. Eames, 1891, 1 Ch. 668) except where an act of parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, when the king is bound, though not