Imatges de pàgina
PDF
EPUB

he introduce new covenants, the person to whom it is made over may sue the original lessor, or his assignees, of the reversion, or be sued by them as assignee of the term, on the respective covenants in the original lease.(p) The assignee of a lease is not liable to the original lessor for a breach of a covenant not running with the land, unless he be expressly named in the lease as a covenantor.(g) A covenant by lessor to pay for all trees planted by lessee does not run with the land. (r)

or independ

ent cove

Where a covenant is part only of the consideration Dependent on one side, it is an independent covenant, and not a condition precedent. (s) In an agreement enuring nants. as a lease, it was stipulated and conditioned "that the lessee shall not underlet;"-held that these words created a condition upon a breach of which the lessor might maintain ejectment, without an express clause of entry.(t) In a lease for seven years containing the usual covenants that the lessee should pay the rent, keep the premises in repair, &c., there was a proviso that the lessee might determine the term at the end of the first three or five years, giving six months' previous notice, and that then, and from, and after, the expiration of such notice, and payment of all rents and duties to be paid by the lessee, and performance of all his covenants until the end of the three or five years, the indenture should cease, and be utterly void;-held that the payment of the rent and performance of the other covenants were conditions precedent to the lessee's determining the term at the end of the first three years, and that his merely giving six months' notice, expiring with the first three years, was not sufficient for that purpose.(u) A covenant by a lessee to leave at the end of his term compost, &c., he having the yard, barn, and a room to lodge

(p) Palmer v. Edwards, 1 Doug. 187, (n.)

(9) Grey v. Cuthbertson, 2 Chit. 482. 1 Selw. N. P. 498. 4 Doug. 351. (r) Id.

(s) Carpenter v. Creswell, 4 Bing. 409. 1 M. & P. 66.

Doe d. Henniker v. Watt, 1 M. & R. 694. 8 B. & C. 308.
Porter v. Shepherd, (in error,) 6 T. R. 665.

covenant.

in, and dress and diet, is a mutual covenant, and not a conditional covenant.(v) Covenant to repair generally, and to repair within three months after notice in writing, are independent covenants. (w) Where a lessee covenanted to leave premises in repair at the expiration of the term, and also that the lessors might direct the lessee to complete the repair by giving six months' notice in writing;-held that these were two distinct and separate covenants, the former of which was not qualified by the latter.(x) A covenant to build a house for B., and finish it on or before a certain day, in consideration of a sum of money which B. covenants to pay A. by instalments as the building shall proceed. The finishing the house is not a condition precedent to the payment of the money, but the covenants are independent. A. therefore, may maintain an action of debt against B. for the whole sum, though the building be not finished at the time appointed. (y) Where anything is to be done by a plaintiff before his right of action accrues on the defendant's covenant, it should be averred in the declaration that the thing was done.(z)

Discharge of If tenant for a term of years lease for a less term and assign his reversion, and the assignee take a conveyance of the fee by which his former reversionary interest is merged, the covenants incident to that reversion are thereby extinguished. (a)

There is a distinction between satisfaction and performance of a covenant. (b)

All actions of covenant must be brought within ten years after the end of the session of 1833, or within twenty years after the cause of action accrued. (c)

(v) Dodd v. Innes, Lofft. 56.

(w) Doe d. Morecraft v. Meux, 7 D. & R. 98. 4 B. & C. 606, 1 C. & P. 346.

(x) Wood v. Day, 1 Moore, 389. 7 Taunt, 646.

(y) Terry v. Duntze, 2 H. B. 389.

(z) Campbell v. Jones, 6 T. R. 571. But it is otherwise when the covenants are independent of each other.-Id.

(a) Webb v. Russell, 3 T. R. 393.

(b) Goldsmid v. Goldsmid, 1 Swans. 211.
(c) 3 and 4 Wil. IV., c. 42, s. 3.

DISTRESS FOR RENT.

distress how

THE power of distraining was originally given to Power of the lord (in lieu of the forfeiture of the land) for originally the purpose of enforcing the tenant to perform given. those services which were the consideration of his enjoyment of the land. Hence the distress was considered merely as a pledge, and the detention thereof was justifiable only so long as the duties incident to the tenure remained undischarged. If the tenant offered gages and pledges for the performance of the services, and the lord after such offer persisted in detaining the distress, the tenant might sue out a writ of replevin, the tenor of which was that the defendant had taken and unjustly detained the goods "against gages and pledges." This form is still preserved in the proceedings in replevin; but the offer of gages and pledges have fallen into disuse. There are several sorts of distresses, (that is to say,) at the common law, (d) by prescription, (e) and by the statute.

STATUTES RELATING TO DISTRESS FOR RENT, AR-
RANGED UNDER THE HEADS TO WHICH THEY
RESPECTIVELY BELONG.

[blocks in formation]

to be made.

By the 3 and 4 W. IV., c. 27, s. 2, no distress Time when for rent can be made but within twenty years next 3 and 4 W. after the right to make the distress accrued; and IV., c. 27.

(d) At common law a distress may be taken for the non-performance of Distress at services, either certain, or such as may be reduced to a certainty, viz.: common heriot service, rent service, &c.-1 Roll. Abr. 665. 1, 47. Plowd. 96; and law. see Lit. sec. 213. And at common law goods or cattle, damage feasant, may be distrained.-1 Inst. 142, a. 161, a.

(e) By prescription, a distress may be taken for an amerciament in a By prescripcourt baron.-1 Roll. Abr. 666, 1, 6. For a penalty imposed for a breach tion. of a bye-law; for a toll in a fair.

Section 42. by section 42 of the same act, no more than six years' rent can be recovered by distress.

By executors, 32 H.

By 32 H. VIII., c. 37, executors and adminisVIII., c. 37. trators, tenants in fee, fee tail, or for life, of rents, services, rent charges, rent secks, and fee farms, unto whom any such rent or fee farm is unpaid at the time of death, may distrain upon the lands chargeable for arrears, so long as they continue in the possession of the tenant who ought to have been paid.

Upon lands

any term for

And by 3 and 4 W. IV., c. 42, s. 37, the execudemised for tors and administrators of any lessor or landlord arrearages. may distrain upon the lands demised for any term or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as he might have done in his lifetime.

Section 38.

Arrearages trained for may be dis

after term ended, if dis

And by section 38, such arrearages may be distrained for after the end or determination of such term or lease at will, in the same manner as if such term or lease had not been ended or determined; tress made provided such distress be made within six calendar within six months after the determination of such term or afterwards. lease, and during the continuance of the possession of the tenant from whom such arrears became due; and that all and every the powers and provisions in the several statutes made relating to distresses for rent, shall be applicable to distresses so made.

months

32 H. VIII., c. 37.

Husbands in right of their wives.

4 G. II., c. 28.

For what

By 32 H. VIII., c. 37, husbands seized in right of their wives may distrain after their death for arrears incurred in their lifetime. By section 4 of the same act, a similar remedy is given to tenants pur autre vie, after the death of the cestui que vie.

For what Rent a Distress may be made.

By 4 G. II., c. 28, s. 5, the same power is given by distress for the recovery of rent-seck, rents of rent a dis- assize, and chief rents, as in the case of rent retress may be served upon lease.

made.

What Property may be distrained.

By 2 W. and M., sess. 1, c. 5, s. 3, distress may be made of sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack, or rick, or otherwise upon any part of the land.

2 W. and M. sess. 1, c. 5.

Sheaves, &c.

Corn, grass,

And by 11 G. II., c. 19, s. 8., distress may be 11 G. II., c. made of all sorts of corn and grass, hops, roots, 49, s. 8. fruit, pulse, or other product whatsoever, which &c. shall be growing on any part of the estates demised or holden; and the same may be cut, gathered, made, used, carried, and laid up, when ripe, in the barns or other proper place on the premises; and if there shall be no barn or proper place on the premises, then in any other barn or proper place which the landlord shall hire, or otherwise procure, for that purpose, and as near as may be to the premises, and in convenient time appraised, sold, or otherwise disposed of, towards satisfaction of the arrears and charges of the distress, appraisement, and sale, in the usual manner; the appraisement to be taken when cut, gathered, cured, and made, and not before; AND by section 9, tenants are to have notice of the place where the distress is lodged or deposited within the week, and the distress is to cease if the rent and charges be paid before the crops are ripe. By 56 G. III., c. 50, s. 6., landlords are not to distrain for rent on purchasers of crops severed from the soil, or other things sold subject to husbandry agreements, nor on stock or implements employed under the provisions of the

act.

Chattels prohibited from being distrained.

8. 4.

51 H. III., s. 4, prohibits distresses to be made 51 H. III., of beasts of the plough or sheep, unless there is no other distress. (f)

(f) See 8 Anne, c. 14, for landlord's claim for a year's rent, when tenant's goods are taken in execution.

Chattels in use.

« AnteriorContinua »