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not say during the term, by this it seems the executor or administrator of the lessor shall not be charged (a).

If the lessor covenant with the lessee to make him a new lease at the end of his term, and the lessee die, his executor may have covenant on this, though not named (3).

Executors or administrators who come to any term of lands or tenements, as such, are bound by the covenants which run with the estate, as belonging to the personal property of the testator or intestate (c).

Where lands come to an executor or administrator, he may be charged for a breach in his own time, as for non-payment of rent, or with an action of covenant, either in that right or as assignee; but there is this difference (d). If declared against as assignee, he is chargeable as ter-tenant, or one who hath the actual possession of the land, and the judgment is de bonis propriis (e). But if the action be brought against him as executor or administrator, the judgment shall be de bonis testaioris, even where the breach has been committed in his own time, as for repairs, &c. for it is the testator's covenant which binds the executor, as representing him, and he therefore must be sued by that name (f).

Covenant lies by the lessor against the administrator of the assignee of the lessee, against whom he may declare as assignee, for breach of a covenant that runs with the land (g).

If a covenant by two lessees be joint and several, it shall bind the executors of the deceased lessee, even though he died before the term commenced, and the whole term, interest and benefit survive to the other lessee (h).

If a man covenant for himself only to pay money, build a house, for quiet enjoying, or the like, and he doth not say in the covenant "his executors and administrators," yet hereby his executors and administrators are bound and shall be charged (i).

Yet if a lessee for years covenant for himself to repair the houses demised, omitting other words, it seems in this case he is bound to repair only during his life, and the executors and administrators are not bound (i).

But upon a covenant implied, an action of covenant (it is said) will not lie against an executor (i).

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CHAPTER XIII. v jb> Remedies Jar and against Landlord and Tenant.

First. Of Remedies for Landlord for Recovery of Rent

Section I. By Distress; wherein of Pound-Breach and Rescue.

Section It. Action of Debt; where the lease is by Deed.

Section III. Covenant; wliere the Lease is by Deed.

Section IV. Debt, or Assumpsit; for Use and Occupation.

Section I. Landlord's Remedy for Rent by Distress.

OF the various remedies which the law affords to the landlord for the recovery of rent from his tenants, that by distress, as being the most ancient, and one most summary in its nature, and therefore most commonly resorted to, first claims our consideration.—It is recom mended, in preference to others, by Lord Coke, as the most plain and certain; and the statute 2 W. 3. tess. 1. c. 5. recognizes it as «the most ordinary and ready way for recovery of arrears of rent" (a).

IXsra** W£m£.—A distress, distrutio, is the taking of a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed. The thing itself taken by this process is also frequently called a distress ^V

Ijcsfir «pcur,—A distress is not an action, but a remedy without wit, &c. and was a remedy given to the lord, to recover the rent or services which the tenant had obliged himself by his feudal contract to p»y by way of retribution for his farm; for rent is considered as a retribution for the land, and is therefore payable to those who would otherwise have had the land (c).

For all services a distress may be made of common right; for distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges also, but not to rent-seek, till the stat. 4 G. a. c. 28. extended the same remedy to all rents

{O ClkUiUV I (t) Gilb. L. of Dis. l. Co. Lit. a. 1.

alike, and thereby in effect abolished all material distinction between them (a).

So that now we may lay it down as an universal principle, that a distress may be taken for any kind of rent in arrear; the detention whereof beyond the day of payment is an injury to him that is entitled to receive it (b).

The common injunction to stay proceedings at law does not extend to distress for rent (c).

By whom Distress may be made.—Therefore, if a person seised in fee grant out a lesser estate, saving the reversion of rent, or other services, the law gives him, without any express provision, remedy for such rent or services by distress (d).

But for a rent which issues out of an incorporeal inheritance, the reversioner cannot distrain; as if I have a right of common in another man's soil, and I grant it to A. reserving rent, if the rent be behind, I cannot distrain the beasts of A. because that the right of common, which every man has, runs through the whole common.—The king however is an exception to this rule, for he by his prerogative can distrain upon all the lands of his lessee.

So, a man cannot distrain for rent issuing out of tithes, because there is no place where the distress can be taken.

A person who has not the reversion cannot distrain of common right; but he may reserve to himself a power of distraining, or the reservation may be good to bind the lessee by way of contract, for the performance whereof the lessor may have an action of debt (d).

Thus, if the assignee of a term surrender to the original lessor, though he reserve a sum in gross to be paid annually, he cannot distrain for that or the original rent, but he may have an action of assumpsit for such sum in gross (e).

So, if a lessee for years assign his term rendering-rent, he cannot distrain for it without a particular clause for that purpose, because he has no reversionary interest; the only remedy that the assignor has, is by an. action on his contract.

If under an agreement for a lease at a certain rent the tenant be let into possession before the lease is executed, the lessor cannot, during the first year, distrain for rent; for there is no demise express or implied (/).

A devisee may distrain for rent devised to him out of the lands, if the land be charged with a distress, and not otherwise.

For a rent granted for equality of partition by one coparcener to another, or for a rent granted to a widow out of lands whereof she

(a) Com. Dig. tit. Distress. (A. i.) i (d) Gilb.L, of Dist.»8.

{i) 4 Bl. Com. 6. (,) Smith v. Mapleback. I T. R. 441.

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is downble in lieu of dower, or for a rent granted in lieu of lands upon an exchange, the grantee may distrain without any provision of the parties, though he have no reversion; the law giving him a distress in these cases, lest the grantee should be without remedy.

But if a man grant rent over to another, after arrearages incurred, he cannot distrain for such arrearages; because they are by the grant divided from the freehold of the rent.

If a person enter upon certain premises subject to the approbation of the landlord, who afterwards does not approve; but upon an agreement that the tenant will pay an advanced rent as well for the time he had been in possession, as for the future, the landlord was willing to let him continue in possession: in such case, the landlord may distrain for the advanced rent accrued before the agreement as well as for what accrues afterwards, such agreement giving him the same power by relation to his tenant's first entry into possession, as it did to recover his rent in future.

So, a mortgagee, after giving notice of the mortgage to the tenant in possession, under a lease prior to the mortgage, may distrain for the rent in arrear at the time of the notice, (although he was not in the actual seisin of the premises, or in the receipt of the rents and profits at the time it became due) as well as for rent which may accrue after such notice; the legal title to the rent being in the mortgagee.

A receiver appointed by the Court of Chancery may distrain for rent, where he sees it necessary, and need not apply first to that court for a particular order for the purpose; because, as that court never makes an immediate order, but appoints a future day for a tenant to pay, it might be an injury to the estate to wait till that time, as it would give the tenant an opportunity to convey his goods off the premises in the mean time.—If, however, there be any doubt who has the legal right to the rent, then the receiver should make an application to that court for an order; as he must distrain in the name of the person who has that right.

One joint-tenant may distrain alone; but then he must avow in his own right and as bailifFto the other (a).

One tenant in common may distrain for his share of the rent upon the terre-tenant holding under him and another tenant in common, where such terre-tenant has paid the whole rent to the other tenant in common after notice not so to pay it (b).

One of several co-heirs in gavel kind may distrain for rent due to him and his companions, without an actual authority from his companions (f).

A man may distrain cattle without any express authority, and if he

(a) Pullen v. Palmer. 5 Mod. 73. et 150. I (J) Harrison v. Bamby. 5 T. R. 146. S. C. 3 Salk. 307. J (f) Leigh v. Shepherd. * B. & B. tfS

obtain the assent of the person in whose right he did distrain, his assent will be as effectual as his command could have been; for such assent shall have relation to the time of the distress taken (a).

By the common law the executors or administrators of a man seised of a rent-service, rent charge, rent-seek, or a fee-farm, in feesimple, or fee-tail, could not distrain for the arrearages incurred in the lifetime of the owner of such rents.

It was, therefore, enacted by stat. 32 H. 8. c. 37. /. 1. That the executors and administrators of tenants in fee, fee-tail, or for term of life, for rent-services, rent-charges, rent-seek, and fee-farms, may distrain upon the lands chargeable with the payment thereof, so long as such lands remain in the possession of the tenant who ought to have paid such rent or fee-farm, or of any other person claiming under him by purchase, gift, or descent.

By section 3. of the same statute it is enacted, That if a man have in right of his wife any estate in fee-simple, fee-tail, or for term of life, or of, or in any rents or fee-farms, and the same rents or feefarms shall be due and unpaid at the death of his wife, such husband may distrain for the said arrearages in the same manner as if his wife had been living.

By section 4. it is enacted, That if any person have such rents or fee-farms for term of life or lives of other persons, he, his executors or administrators, may distrain for arrearages of such rent incurred at the death of the cestui que vie, in the same manner as if such cestui que vie had been still living.

This statute is a remedial law, and extends to the executors of all tenants for life, as well to those executors who before the statute were entitled to an action of debt, as to those who had no remedy whatever (b); so that Lord Coke's idea that the preamble concerning the executors and administrators of tenant for life is to be intended of tenant per auter vie so long as cestui que vie lives, seems to be too narrow (c).

But where a tenant for life of a rent-charge confessed a judgment which was extended by elegit, and the tenant for life dying, the conusee distrained, and in replevin avowed for the arrears incurred in the lifetime of the tenant for life, upon demurrer the distress was holden to be bad and not warranted by the statute: first, because the case of the conusee is not enumerated in it; secondly, because he comes in in the post, and not under the tenant for life (d).

Neither is the executor of a grantee of a rent-charge for divers years, if he so long live, within the statute (e).

Lord Coke says, if a man make a lease for life, or a gift in tail

O) Gilb.L. ofDist.3*. 1 (0 Co.Lit. 164. b.

(i) Howell v. Bell. I M. Raym. 171. (<0 Bull. N. P. 56. S. C. 3Salk. 136. I (0 Ibid. $7

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