CHAPTER V. Of the fubject matter of Leafes. SECTION I. Of corporeal Hereditaments; wherein of SECTION II. Of incorporeal Hereditaments; wherein SECTION III. Of Rents. Bac. Abr. tit. Leafes (A.) A Ibid. SECTION 1. Of corporeal Hereditaments. FTER fuch time as leafes for years began to be looked upon as fixed and permanent interefts, and that the leffees were fufficiently provided to defend themselves and their poffeffions against the acts and incroachments, as well of the leffor as of ftrangers, men found it their intereft to improve and encourage this fort of property, and therefore extended it to all forts of interefts and poffeffions whatfoever, being led thereto by that known rule, that whatsoever may be granted or parted with for ever, may be granted or parted with for a time. Not only lands and houses, therefore, have been let for years, but also goods and chattels; though the interest of the leffee therein differs from the intereft he hath in lands or houfes fo let for years; for if one lease for years a flock of live cattle, fuch leafe is good, and the leffee hath the use and profits of them during the term; but yet the leffor hath not any reversion in them to grant over to another either during the term or after, till the leffee hath re-delivered them to him, as he would have of lands in case of such leafe for years; for the leffor hath only a poffibility of property in cafe they all outlive the term; for if any of them die during the term, the leffor cannot have them again after the term, and during the term he hath nothing to do with them, them, and confequently of such as die, the property refts abfolutely in the leffee. So, whether they live or die, yet all the young ones com- Ibid, ing of them, as lambs, calves, &c. belong abfolutely to the leffee as profits arifing and severed from the principal, fince otherwise the leffee would pay his rent for nothing; and therefore this differs from a leafe of other dead goods and chattels, for there, if any thing be added for the repairing, mending, or improving thereof, the leffor fhall have the improvements and additions together with the principal, after the lease ended, because they cannot be fevered without destroying or spoiling the principal: neither is the fucceffion of young ones, in cafe any of the old ones die, to be resembled to a corporation aggregate, whereof when any die, those that fucceed shall be said to be part of the fame corporation, for the corporation in its public capacity never dies; but this being a lease of such and such individual cattle, when any of them die, the poffibility of reverting pro perty, which was left in the leffor, is determined and at an end. But the leffee, in such case, cannot kill, destroy, fell, or give them away, during the term, without being subject to an action of trespass, as it should seem. Corporeal hereditaments confift wholly of fubflantial and 2 Bl. Com, 18. permanent objects; all which may be comprehended under the general denomination of land only; for land comprehends, in its legal fignification, any ground, foil, or earth whatsoever so the word "land" includes, not only the face of the earth, but every thing under it, or over it; and therefore, if a man grant all his lands, he grants thereby all his mines of metal and other foffils, his woods, his waters, and his houses, as well as his fields and meadows. Not but that the particular names of the things are equally fufficient to pass them, except in the inftance of water; by a grant of which, nothing paffes but a right of fishing, and to recover the land at the bottom of which, it must be called fo many "acres of land covered with water;" but the capital dif tinction is this; that by the name of a caftle, meffuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made ufe of, (though indeed, by the name of a castle, one or more manors Shep. Touch. 268. Ibid. 93. Ibid. 12, Ero. Jac. 643. Bae. Abr. tit. Cro. Car. 57. Ibid. 1. may be conveyed; and è converfo, by the name of a manor, a castle may pass ;) but by the name of land, which is nomen generaliffimum, every thing terreftrial will pafs. Leases for life, or years, or at will (now conftrued to be from year to year), may be made of any thing corporeal or incorporeal that lieth in livery or grant. A man therefore may demife his farm, which may comprehend a meffuage and much land, meadow, pasture, wood, c. thereunto belonging, or therewith ufed; for this word doth properly fignify a capital or principal meffuage, and a great quantity of demefnes thereunto appertaining. So, by the name of a meffuage, he may pass a house, a curtelage, a garden, an orchard, a dove-houfe, a fhop, or a mill, as parcel of the fame: the like of a cottage, a toft, a chamber, a cellar, &c. Yet these may pafs by their own fingle names alfo, as " of one meffuage, one curtelage, "&c." If A. lets a garden ground for years, and the leffee demifes part of the term to an under-tenant, who builds on it, by a grant of the garden ground the buildings thereon wil! pafs. So, a house; and in cafe of a lease of a house, together with goods, it is ufual to make a fchedule thereof, and affix it to the lease, and to have a covenant from the leffee to re-deliver them at the end of the term; for without fuch covenant the leffor could have no other remedy, but trover, or detinue for them after the lease ended. The demife of a house "with the appurtenances," will, Cro. Jac, 526. it feems, pafs the house, with the orchards, yards, and curtelage, and garden; but not the land; especially if it be at a distance, though occupied with the house; but if the lef for had built a conduit, though in another part of the land, yet the conduit would pafs with the house, because it is neceffary, et quafi, appendant thereto : yet if the leffee erect fuch a conduit, and afterwards the leffor, during the lease, fell the house to one, and the land wherein the conduit is to another, and afterwards the leafe determines, he who has the land wherein the conduit is may difturb the other in the ufing thereof, and may break it, because it was not erected by one who had a permanent eftate or inheritance, nor made one, one, by the occupation and usage of them together, by him who had the inheritance.-So, the demife of a houfe," and Cro. Car. 17. "the appurtenances," will not pass an adjoining building not accounted parcel of the houfe, although held with it for thirty years. But in one cafe, it was held that a grant from Iid. 169. the crown, of a house cum pertinentiis would pass land that was occupied with the houfe: in this cafe however it fhould not be overlooked, that the point arose on a special verdict, in which the house and land were found to be all one. Whether the thing claimed as appurtenant be accounted Ibid. 17. parcel or not, and the intention of the parties, are the rules by which to judge in thefe cafes. The demife of premiffes in Westminster late in the occupa- 1 T. R. 701. tion of A. (particularly defcribing them,) part of which was a yard, does not pass a cellar situate under that yard, which was then occupied by B. another tenant of the leffor. The respective apartments of a house may be, and frequently are, let to feveral and distinct individuals; which tenancies are termed lodgings, and the tenants thereof lodgers: respecting which fee more at large hereafter. SECTION II. Of incorporeal Hereditaments. An incorporeal hereditament is a right iffuing out of a Co. Lit. 19, 20. thing corporate, (whether real or perfonal) or concerning, or annexed to, or exercifeable within the fame; and incorporeal hereditaments are principally thefe, viz. advowsons, tithes, tolls, eftovers, commons, ways, offices, franchises, corrodies or penfions, annuities, and rents. An advowfon is the right of presentation to a church or Advowsons. benefice, and is either appendant to a manor, lands, &c. or Ibid. 121, 122. in grofs, that is, fubfifting by itfelf, belonging to a perfon, not to a manor, lands, &c. It is a valuable right and pro- 2 B1. R. 1053. perly the object of fale; it is therefore real affets in the hands of the heir: but as the exercife of this right is a public truft, it cannot, it ought not, to produce any profit.Therefore, though an advow fon may be granted, either by a grant by deed or will, of the manor, &c. to which it is appendant, without any exception of the advowfon, in which cafe it will pafs, (for it is parcel of the manor, except in the cafe of the king) or by grant of the advowfon alone, and fuch 13 grant Tithes. Shep. Touch. 241. Tolls. 2 T. R. 169. Eftovers. Shep. Touch. 222. Bac. Abr. tit. Leafes (A) Commons, grant may be either in fee, or for the right of one or more turns, or for as many as shall happen within a time limited, yet it cannot properly be the subject of a demise, for as no profit is permitted to accrue, no rent can be referved, nor any fervices performed to the proprietor. Sed vide poft. p. 122. Tithes have been defined to be, a tenth part of the increase, yearly arifing and renewing from the profits of lands, the flock upon lands, and the perfonal induftry of the inhabitants; and are an ecclefiaftical inheritance, collateral to the land, and properly due to an ecclefiaftical perfon. A parfon of a church may grant his tithes for years, and yet they are not in him. By the ftatute 5 G. 3. c. 17. entitled "An act to confirm "all leafes already made by archbishops and bishops, and "other ecclefiaftical perfons, of tithes and other incorpo"real hereditaments, for one, two, or three life or lives, or "twenty-one years; and to enable them to grant fuch leases, "and to bring actions of debt for the recovery of rents re"ferved and in arrear on leafes for life or lives," any other person or perfons, having any spiritual or ecclefiaftical promotions, are enabled to grant fuch leases of tithes, tolls, or other incorporeal inheritances, "which shall be as good and "effectual in law against fuch archbishop, bishop, mafters " and fellows, or other heads and members of colleges or "halls, deans and chapters, precentors, prebendaries, maf"ters and guardians of hofpitals, and other perfons fo granting the fame, and their fucceffors, and every of them, "to all intents and purposes, as any leafe or leafes already "made, or to be made by any fuch archbishop, &c." by virtue of the ftat. 32 H. 8. c. 28. or any other ftatute then in being; and action of debt may be brought by fuch leffors for rent in arrear, as in the case of any other landlord or leffor. Tolls alfo, may be lett or mortgaged. So, eftovers (of which more hereafter) may be leafed; the grantee, therefore, of house-bote, or hay-bote, may let it to another. With respect to commons, the ftat. 13 G. 3. c. 81. s. 15. empowers the lord of any manor with the confent of three-fourths of the perfons having right of common upon the waftes and commons within the manor, at any time to |