Imatges de pàgina
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CHAP. VI.

SEC. I.

Parcels.

Where there is contiguous or intermixed property of the lessee, the parcels should be carefully described in the following, or some such terms (that is to say), “ All "that messuage or dwelling house, situate in the township of S, in the said county, with the barns, byers, "stables and other out-houses, and the orchard and "garden to the same belonging, and now in the occu

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pation of A. B, as tenant or farmer thereof, to or "under the said [lessor], and all those several closes or parcels of ground, situate in the township of S, "aforesaid, to the said messuage or dwelling-house 66 belonging, or therewith occupied, commonly called or "known by the several names, and containing, by esti

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mation, the respective quantities hereinafter men"tioned (that is to say),-Eastfield, containing, &c. All "which said closes or parcels of land are now also in "the occupation of the said A. B, Together with all

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ways, rights and appurtenances whatsoever to the "said demised premises belonging." Where a detached farm is to be leased, it may be sufficient to describe it thus:-"All that messuage or dwelling"house and farm, and the closes or parcels of ground "to the same belonging, or therewith occupied, situate "in the township of S, in the said county, containing, "by estimation, acres, &c., and now in the "occupation of the said together with all buildings, ways, rights and appurtenances to the same "premises belonging." The words "be the same more

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or less," should always be added to the specification of the quantity, for a lessee would be entitled to recover damages if he paid rent at so much per acre, and it should turn out, at any subsequent period, that the number was overstated.

CHAP. VI.

SEC. I.

If any plantations, grounds or ways, are to be reserved to the lessor, they should be excepted immediately after Exception of the general words "together with, &c." at the end of plantations, &c. the parcels; but care must be taken that any particular field or building, intended to be wholly excepted, be not expressly granted; for if any thing wholly granted be afterwards wholly excepted, the exception is void.As, if a man grant his house and shop (excepting the shop), the exception is void, the shop having been expressly granted; but if a man grant his house (excepting the shop), the exception is good, for the shop, in that case, passed as part of the house, and an exception out of the generality of the grant is good. The Right of huntrights of hunting and shooting are sometimes reserved ing, immediately after the parcels, but it seems more proper to secure them by a covenant from the lessee, that the lessor shall be permitted to enter upon the premises for these purposes. If there were no exception or covenant to this effect, the lessee might bring an action against his landlord, if he entered in order to sport; but a jury would give nominal damages only, in case no injury was done to the crops; such nominal damages, however, would carry costs. A right of way may also be Right of way. reserved to the lessor, by the tenant's covenant, in the

latter part of the lease, which seems to be the better
way; but if the lessor wishes to reserve to himself the
soil and property of the way, that he may repair it
himself, the land, and not the right of way only, should
be excepted out of the demise. In such a case, the
exception may be in these words,-" except, and always
"reserved out of these presents, and the demise hereby
"made, so much and such part of the said close and
"field, called
is now used as a road from

as

CHAP. VI.
SEC. 1.

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to

and the soil and ground of "the said road, with full and free liberty, from time to time, and at all times, to do every necessary act for "repairing and preserving the said road in good order " and repair.”

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If a road have not been already formed, then except the part through which the road is intended to lead, in some such words as these,-" except and always "reserved out of these presents, &c. all that piece of ground, situate at or near the middle of the field, "called which is now marked out and distinguished from the residue by stakes, which said "excepted ground extends the whole length of the said field, from east to west, and contains, in breadth, "twenty feet at the east end thereof for the length of "two hundred feet, and twenty-five feet in breadth for "the residue thereof,"-adapting the description, of course, in every instance, to the circumstances of the case. It will be proper to make holes where the stakes are placed, when the ground for the road is set out, and to cause the workmen and agents to pay particular attention to these boundaries, in order, if they should be destroyed or effaced by the tenant, that there may be evidence to ascertain the excepted quantity. If no boundary stakes or stones be placed, the exception may be in these terms,-" except and always reserved, &c. twenty feet at the middle part, or as near the middle "part as may be, of the said close called

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"for the whole length thereof, from east to west, for "the purpose of forming a carriage road, to lead from "the mansion-house of the lessor, with such right of "passage to and for the said

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as well on foot "and on horseback, as with carts, carriages and horses, "in, to, through, over and along every part of the same

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field, as shall be necessary or convenient for making

" and perfecting the said road."

CHAP. VI.

dum.

SEC. I.

The reddendum, in all cases where the lessor has an The reddenestate in fee-simple, must be to him, "his heirs and "assigns," because the rent is incident to, and passes with the reversion, which, if not aliened in his lifetime, must pass to his heir or devisee. If the lessor have an estate per autre vie, the rent may be reserved to him, "his heirs and assigns," such an estate being devisable and descendible, like a fee-simple; but where the lessor has only an estate for years, the reservation must be to him, his executors, administrators and assigns, because he himself has only a chattel interest in the thing demised, and nothing that the heir can have any concern with. Where, however, there is any doubt as to whom the reversion belongs, the best way is to let the reservation be general, as the law, in such a case, will provide for the rent being paid

to the proper person.

dum.

The habendum should be to the lessee, "his executors The habenand administrators" only, and not to his " assigns," in order to prevent any doubt arising, whether it was intended that he should have a power of assigning the lease.

term at diffe

as

to the different

The habendum should have a different commencement Commenceas to different portions of the land (that is),—as to the ment of the arable land on the [first] day of [February], that the rent times entering tenant may plough the tillage land as soon as parts of the the season permits,-as to the ground that has been farm. depastured with cattle the preceding summer, on the [fifth] day of [April],—and as to the ground which has been in hay the preceding summer, and also as to the houses and buildings, and the rest of the demised pre-. mises, on the [twelfth] day of [May].

M

CHAP. VI.
SEC. I.

Days for pay

ment of rent.

In some leases, the term, in the whole, is made to commence, and, consequently, must expire, on the [twelfth] of May, and the lessee covenants that he will permit the succeeding tenant to enter upon the different quantities of the land at the above-mentioned periods respectively; but it seems better to have a separate commencement of the term for each species of land, because an ejectment may, in that case, be brought for not giving up the arable land on the day specified for that purpose.

In counties, where the assizes are held twice a year, it would be proper to make the commencement of the lease, as to the arable land, on the first, or, at all events, about the middle of January, and then (Hilary term being an issuable one) a declaration declaration in ejectment may be served upon the tenant, which must be done before the essoign day of the term, (the 20th January); and, if he should resist, a verdict may be obtained against him at the next assizes, which could not be done if there were only one commencement.

It is not usual to insert powers of distress, save where lands and tithes are demised in the same lease, under separate rents, in which case it is proper to give a power of distress upon the land for the tithe-rent, as it cannot, from the nature of the property, be destrained for upon the subject in respect of which the rent is reserved; but if one rent be reserved for both land and tithes, then, as it issues out of the whole and every part of the thing demised, it may be destrained for upon the ' land.

All the rents are usually reserved half-yearly, from the commencement of the lease, or the usual time of a tenant's entering; in some cases, at Michaelmas

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