cattle are excluded, cattle commoned during that season may be distrained (j). In distraining cattle put on a common in excess of a stinted number, the last put on must be taken as being those wrongfully upon the common; unless they were all put on together, in which case so many may be taken as are in excess of the number (). These rules apply to common pur cause de ricinage as well as to common appurtenant (7). against lord. Similar remedies apply by a commoner in the waste of a Remedies manor against the lord. Where the lord surcharges or otherwise uses the waste without leaving sufficient pasture for the commoners, the latter may proceed against the lord by action. Where by custom the lord is excluded from the waste, or is stinted to a certain number and kind and puts on cattle beyond his stint, the commoner may distrain his cattle damage feasant (m). common. A commoner is entitled to remove any obstructions, such Abatement of as hedges or fences of unlawful inclosures, whether erected nuisance to by a stranger or by the lord of the soil; as being nuisances which a private person may himself abate. "If the lord of a manor approve part of the waste and leave not sufficient common in the residue, the commoner may break down the whole inclosure, because it standeth upon the ground which is his common" ("). "Where a fence has been erected upon a common, inclosing and separating parts of that common from the residue, and thereby interfering with the rights of the commoners, the latter are not by law restrained, in the exercise of those rights, to pulling down so much of that fence as it may be necessary for them to remove for the purpose of enabling their cattle (j) Mary's Case, 9 Co. 112; Hall v. Harding, 4 Burr. 2426. (k) Ellis v. Rowles, Willes, 638. (1) Cape v. Scott, L. R. 9 Q. B. 269; 43 L. J. Q. B. 65. (m) Hoddesdon v. Gresil, Yelv. 104; Cro. Jac. 195; Kenrick v. L. Pargiter, Yelv. 129; Cro. Jac. 208; (n) 2 Co. Inst. 88; Mason v. BB Nuisance created by lord. Bill of peace. a to enter and feed upon the residue of the common, but they are entitled to consider the whole of that fence so erected upon the common as a nuisance and to remove it accordingly" (o). A commoner may pull down dwelling-house that is wrongfully built upon the common; but not while persons are dwelling in it, on account of the risk of causing a breach of the peace (p); at least, not without first giving them notice of his intention and requesting them to leave (q). If the lord of a manor plants trees upon a common, he is presumptively acting within his right as owner of the soil, and the trees are regarded as part of the soil; consequently it is held that the commoners have no right to cut them down as a nuisance, but they must proceed by action to prove that the trees are in excess and injurious to their common rights (r). So, where the lord turned out rabbits on the common it was held that they were not injurious, unless in excess; and that a commoner was not justified in killing the rabbits, but must proceed by action to prove that they had become a nuisance to the common ($). At common law where title to common was in question involving the rights of numerous commoners, an action decided the question only between the plaintiff and defendant, without binding any other persons interested, each of whom might litigate it separately. Therefore to avoid multiplicity of actions the Court of Chancery admitted a bill, commonly called a "bill of peace," to be brought by a lord against his tenants, or by tenants against the lord, or by tenants between themselves, concerning rights of (0) Bayley, J., Arlett v. Ellis, 7 B. & C. 362. (p) Perry v. Fitzhowe, 8 Q. B. 757. (1) Davies v. Williams, 16 Q. B. 516; 20 L. J. Q. B. 330. (r) Sadgrove v. Kirby, 6 T. R. 483; 1 B. & P. 13; Bayley, J., Arlett v. Ellis, 7 B. & C. 362. (s) Anon., 2 Leon. 201; Bellew v. Langdon, Cro. Eliz. 876; Hadesdon v. Grissell, Cro. Jac. 195; Yelv. 104; Cooper v. Marshall, 1 Burr. 259; Cope v. Marshall, 2 Wils. 51. common; and it is no objection to such bill that the defendants may each be entitled to make a separate defence, provided there be one general question to be settled which pervades the whole (t). The lord may bring a suit against one or more of the tenants on behalf of all, to be quieted in the possession of an approvement or inclosure against the rights of common of all (u). And a tenant on behalf of himself and all other tenants, whether freeholders or copyholders or both, may sue the lord for the establishment of the rights of common over waste inclosed by the lord (r).-The practice is now sanctioned generally in all Divisions of the High Court by Order XVI. r. 9: "Where there are numerous parties having the same interest in one action, one or more of such parties may sue or be sued, or may be authorized by the Court to defend in such action, on behalf or for the benefit of all parties so interested." (t) Per cur. Powell v. Powis, 1 Y. & J. 165; Hardwicke, L. C., York v. Pilkington, 1 Atk. 282; Tenham v. Herbert, 2 Atk. 483. (u) Eldon, L. C., Hanson v. Gardiner, 7 Ves. 309; Sewers Commiss. v. Glasse, L. R. 7 Ch. 456; 41 L. J. C. 409. (v) Powell v. Powis, supra; Smith v. Brownlow, L. R. 9 Eq. 241; 39 L. J. C. 636 (1); Warrick v. Queen's Coll., L. R. 6 Ch. 716; 40 L. J. C. 780; Betts v. Thompson, L. R. 6 Ch. 732. See post, p. 570. CHAPTER III. RENTS. Section I. Creation of rents. II. Extinction and apportionment of rents. SECTION I. CREATION OF RENTS. § 1. Rent service.-§ 2. Rent charge and annuity.-§ 3. Tithe rent charge. $1.-RENT SERVICE. Rent-rent service-distress-rent charge-rent seck-distress by. statute. Reservation of rent service-by deed or will-reservation to stranger. Reservation of rent upon grant in fee simple-upon grant of particular estate-upon lease for years-tenancy at will-tenancy under agreement for lease. Attornment of mortgagor as tenant to mortgagee-lease by mortgagor in possession. Limitations of rent service-construction of limitations. Rent of incorporeal hereditaments-rent of personal chattels. Fee farm rents-rents of assize-quit rents-apportionment-redemption. Rent is a profit issuing out of land, which is rendered or paid periodically by the tenant. It is said therefore to lie in render, in distinction to a profit à prendre which is taken from the land without the intervention of the tenant (a). The term "render" seems appropriate to profits rendered in kind, and "payment" to rent in money; thus the rendering of a peppercorn rent was held not to be a "pay (a) Ante, p. 186; Co. Lit. 142 a; 10 Co. 128 a, Clun's case. ment of rent" within the Conveyancing Act, 1881, s. 3, (4) (). A rent of a silver penny was held to be a rent "having no money value" in the meaning of the same Act, s. 65 (c). At common law rents are distinguished as of three kinds: Rent service. rent service; rent charge; and rent seck (d).-Rent service is the rent rendered for the tenure of land. The services of tenure consisted at common law in rendering to the lord profits of the land in money or in kind, or in performing for him work and labour or other duties which were equivalent to profits; but in process of time nearly all services became commuted, by agreement or usage, into fixed money payments, or rents in the ordinary meaning of the term (e).-Rent service was attended at common law with Distress. the remedy of distress; by which if the rent were in arrear and unpaid, or the services unperformed, the lord might enter upon the land during the tenancy, and seize any personal chattels there found, and detain them as a pledge for the payment of the arrears of rent or for the performance of the services (f). Rent may be payable out of land independently of Rent charge. tenure. The owner of land, whether in fee or for life or for a term of years, may grant or assign the whole of his estate and interest in the land, leaving in himself no reversion, but reserving a rent; or he may grant to another a rent out of the land, reserving to himself the estate and possession. In such cases the rent has no connection with tenure and is not rent service, nor has it at common law the incidental remedy of distress. But a power of distress may be given or reserved by an express clause in the deed of grant or conveyance, with the effect of charging the land with the rent, which is then called a rent-charge (g). A rent service may become disconnected with tenure by Rent seck. (b) Re Moody and Yates, L. R. 30 C. D. 346; 54 L. J. C. 887. (c) Re Chapman and Hobbs, L. R. 29 C. D. 1007; 54 L. J. C. 810. (d) Lit. s. 213. (e) See ante, Vol. I. Chap. I. "Tenure." (f) Lit. s. 213; Co. Lit. 142 a ; Bullen on Distress, 21; post, p. 422. (y) See post, p. 385. |
