"forth distraine for their and every of their rents, customs, duties "and services to them and every of them reserved or to be reserved, "or due and payable, and for which it is or shall be lawfull to dis"traine by the law of this realme, for, or out of any honours, castles, mannors, lands, tenements and hereditaments whatsoever; that it "shall and may be lawfull for all and every the said person and persons, bodies politique and corporate, and to the said grantee or grantees, his and their heires, successors and assigns, to impound, "apprayse, sell and otherwise to use, dispose of and convert to his or their use the said distresses to be taken as aforesaid, as in case "between very lord and very tenant should be lawfull, either by the "statute before mentioned, or by any other law or statute what"soever." 66 Through the whole series of the statutes relating to distresses and ejectments, I think we may observe many expressions indicating that the landlord spoken of in them is the ordinary landlord having a reversion. The 9th Anne, c. 8, s. 7, gives the right of distraining only to such a person:— "Whereas also lessees for life or lives, or "for years, or at will, frequently hold over the said lands and tene"ments demised after the determination of such leases; and whereas "after the determination of such leases, or any other leases, no "distress can by law be made for any arrears of rent that grew due "on such respective leases before the determination thereof: be it "hereby further enacted, that from and after the twenty-ninth day "of September one thousand seven hundred and ten, it shall and 'may be lawful for any person or persons having any rent in arrear, or due upon any lease for life or lives, or for years, or at will, "ended or determined, to distrain for such arrears after the deter"mination of the said respective leases, in the same manner as they "might have done if such lease or leases had not been ended or "determined; provided that such distress be made within the space "of six calendar months after the determination of such lease, and during the continuance of such landlord's title or interest, and "during the possession of the tenant, or those claiming under him "from whom such arrears became due." 66 I have already alluded to the 11 Anne, c. 2, s. 1, as expressly alluding to the case of a lease on which a reversion has been reserved; and the second section of the same Act is the first of the Ejectment Code. This section expressly declares its enactments to be made for all cases between landlord and tenant; and in no subsequent Act is there any express extension made of these enactments to other cases: and the use of the word "landlord" or "lessor" affords, I apprehend, no ground for any distinction, if there be in T. T. 1844. Lessee PORTER บ. FRENCH. T. T. 1844. truth any sound one in the legal acceptation of those terms; for they Exch.of Pleas. occur in the recital of the section before the enactment, which speaks of all cases between landlord and tenant. Lessee PORTER V. FRENCH. The fourth section of the 5th G. 2, c. 4, affords ground of observation on this part of the case, as to the meaning of the word "lease,” as used in those Acts; it is the section which provides for the renewal of leases without the surrender of under-leases: and it plainly contemplates, by the word "lease," only such a demise as leaves a reversion in the lessor, because it speaks of the difficulty in renewing the head lease, arising from the circumstance that it could not be renewed without a surrender of the under-leases. Now, a surrender is always to some person having an estate in remainder or reversion in the lands; and consequently, the leases here spoken of must be leases on which a reversion is reserved. The 15 G. 2, c. 8, s. 1, uses language expressly denoting the legal distinctions between the classes of persons holding land liable to rent, and shows that these Acts were framed by persons familiar with these distinctions, and cautious in the use of appropriate language to describe them. It speaks of the tenant or tenants, any person or persons paying any rent-charge or rent-charges, fee-farm or fee-farms, lessor or lessors for life or lives, term of years, &c., of any lands, &c., upon the grant, demise, or holding whereof any rent is or shall be reserved, due or made payable. And the same distinctions are observed in several succeeding sections of that Act. The seventh section of it regards attornment by tenants, which can only mean tenants to persons having a reversion. I have already alluded to the provisions of the 11 Anne, c. 2, and G. 2, as to overholding tenants. The fourth section of this Act is that on which the House of Lords decided the case of Pluck v. Digges, holding that it did not comprise cases like the present; and when we are considering the effect of that decision in the case before us, it is important to see that the language of that section is in many particulars indentical with that used in the second and third sections of the same Act relating to ejectments; and that the descriptions in the second and third sections are incorporated by reference with the fourth, making the whole in fact but one enactment. The fifth section of this Act is deserving of notice, as distinguishing expressly between rents-service and rent-charges, &c. The words are:-" And whereas the manner in which distresses taken "for rent-services, fee-farm rents, or rent-charges, have been often disposed of, have occasioned troublesome and vexatious suits; be it enacted," &c. Lessee PORTER บ. FRENCH. It is proper now to advert to the cases and authorities immediately T. T. 1844. Exch.of Pleas. conversant with the point before us. They are not numerous, nor of a very early date. I think we may safely say that no decision on this particular question was had for many years after the statutes were passed; because we find, in the year 1794, in the case of Lessee of Walker v. Williamson (a), it was argued at the Bar entirely on principle, and very much upon the grounds taken in later cases. It was not decided in that case, nor is any mention made by the Bar or the Bench of any prior decision on it either way, or even of the existence of any prevalent professional opinion. The next case reported, in point of time, is that of Lessee Greene v. Keller (b). That was a case in the Court of Common Pleas, and it was for some time considered to have been a decision on this very point in support of the ejectment, and was so acted on by the Court of King's Bench in the case of Jack v. Little (1817), reported in the same book, p. 439; but this was a misapprehension of the case, as we understand, from what Bushe, C. J., says in Hughes v. Hart (c), on the authority of Burton, J. In that case the Court in truth held there was a reversion, from its not appearing on the bill of exceptions that, in fact, the lives were the same. I pass over the case of Lessee of Bond v. The Trustees of Sterne's Charities (d), because that was the case of a fee-farm grant; and so is distinguishable from the case before us. But the next case in which the question has been decided in the Court of Queen's Bench, is that of Lessee of Fawcett v. Hall (e), which that Court decided on the authority of Pluck v. Digges, and in which they held that the ejectment could not be maintained. That case was thus decided on a bill of exceptions, and no writ of error was ever brought against the judgment; it is therefore a very strong authority on the question. This Court has, however, in a later case, when the question arose only on a motion for a new trial, declined to be bound by it; I allude to the case of Lessee of Walsh v. Feely (f). A former case also is reported in this Court in 1827, Lessee of Coyne v. Smith (g), in which the Court is stated to have said that it had been ruled before, and that the objection was not valid, and they would not again suffer it to be argued on a point saved. The question now coming before us on the record, we have been called on, and are bound, to enter at large into the consideration of T. T. 1844. it; and the result of that consideration has been, that in our opinion Each of Pleas. this ejectment cannot be sustained. I have stated already many of Lessee PORTER บ. FRENCH. the grounds which have led my own judgment to that conclusion-I may say, independently of the authority of the case of Pluck v. Digges: and with reference to that case itself, I may add, that I am not alone in the Court when I state that no satisfactory distinction can be taken between that case and the present; and that in this respect the case of Lessee Fawcett v. Hall has been rightly decided. A distinction, however, was strongly relied on in the case of Lessee Walsh v. Feely, to which I have already referred; and the grounds of that distinction are stated in the judgment intended to have been pronounced by Joy, C. B., in that case. On one part of that judgment or opinion-namely, that relating to the light in which these statutes are to be regarded-I have already observed. It is proper now to advert to the other branches of it, as containing the arguments on which it is suggested that a distinction exists between Pluck v. Digges, and that before us. Joy, C. B., notices the fact, that the Counsel for the appellant rested his case on the Statute of Quia Emptores, and that Lord Tenterden adopted that argument: and he proceeds to show, and that very clearly, that if the case rested on this conclusion, from the words of that statute it must have proceeded on erroneous grounds. He observes also, that the case of Pluck v. Digges is a case of distress for a rent-service, in which a reversion was necessary; whereas the case of Walsh v. Feely is that of an entry for condition broken, which might exist without any reversion in the grantor. He proceeds, however, to the further branch of the proposition, which it is incumbent on those concerned for the lessor of the plaintiffs to sustain-viz., that before the Statute of Quia Emptores, the legal relation of landlord and tenant could exist on a grant for his entire estate by a tenant for life without a reversion, and without the ordinary incident of tenure-viz., fealty or escheat. I might concur in the observations made by him on this subject that escheat was not a reversion, or in the nature of a reversion, and that it could not have been on that ground that a reversion in the case of a grant in fee-simple was not necessary at common law, to tenure or rent-service. It may not be necessary to enter into some of the points he has stated respecting fealty; but I apprehend there must be some mistake in that part of the judgment (p. 239), where it is said that fealty might be released by the lord: the contrary is expressly laid down by Sir Martin Wright in his Treatise on Tenures (p. 138); Co. Litt. 131: "So, as to every "tenure, at the least, fealty is an inseparable incident so long as the "term remains; and all other services except fealty are separable." Homage, that is, the actual taking of the oath of fealty, might be released, but the service and duty of fealty could not: Craig, 62, pl. 23. That the alienation of their estates by tenants for life was not affected by the Statute of Quia Emptores, is plain enough on the very words of the Act; but the difficulty still remains (and it is one which I cannot find removed by any thing stated in the case of Walsh v. Feely) to discover what was, before that statute, the effect of such alienation in reference to the doctrine of tenure. I have taken some pains to discover any case or dictum on the subject; I have been unable to do so; the industry of the Bar has not furnished us with any; the text-books, ancient and modern, are silent on the subject; and without the sanction of some such evidence it is difficult to conceive that so important a proposition was ever established as that contended for-namely, that in estates for life, a sub-tenure could be created by the common or feudal law, without any reversion or any right to escheat or fealty. I find myself obliged to say with Burton, J., in the opinion appended to the case of Fawcett v. Hall, that I do not think there is a trace of a tenant for life being entitled to fealty or any of the fruits or consequences of tenure on a conveyance for his entire estate made by himself, without being joined by the owner of the fee. It is a maxim in law, that he which hath an estate but for term of life, shall neither do homage nor take homage: Litt. s. 90. A fortiori, it would seem he could not create a tenure under himself, importing either homage or fealty. A passage has been found in the Treatise on Writs of Subpoena, published in Hargrave's Law Tracts, p. 335, which it is argued shows that at common law, where tenant for life demised for the same life, the lessee held of the lessor-[His Lordship here read from Hudson's Landlord and Tenant, p. 359.] I draw from this passage the opposite conclusion: I read the sentence relied on as applying to both the cases put before-viz., that of an alienation in fee, and that for life; and stating that in the one case the lands cannot be holden of the grantor, because of the statute; and in the other, they cannot be holden because he has no reversion implying that the doctrine of tenure which the Statute of Quia Emptores is designed to apply to, only existed in cases of feesimple estates. But whatever may have been the case in the period before the Statute of Quia Emptores, I think the course of opinion and decision ever since has been, to hold, that to constitute tenurein other words, to create the relation of landlord and tenant-a reversion is necessary in all cases. This is the principle of the case from the Year Book of Hen. 5, on the doctrine of attornment, to which I have already referred; it is the principle of the passage T. T. 1844. Lessee PORTER v. FRENCH. |