Darell v. Bridge,

1 Black. R. 46.

went to the sheriff's tourn, and paid head silver there. Upon which Mr. Attorney observed, that Mr. Tottersall could have no leet, for all leets were drawn out of the sheriff's tourn, which was the leet in the King's hands, and head silver was certum late, and no man should be subject to two leets: therefore there could be no allowance of the leet, unless the King should be put out of that which (for aught he knew) he had ever had. So judgement was given against him for the leet.

96. Upon a motion for an information in the nature of a quo warranto, against one Bridge, for holding a court leet, it appeared that in 14 Ja. I. the Crown granted to R. Miller, his heirs and assigns, the privilege of holding courts leet. No mesne conveyance appeared till 1702, when, and in 1708, 19, and 21, there were conveyances of the manor, with all courts thereunto belonging, to those under whom the defendant claimed. In the deed of conveyance to him in 1739, courts leet were expressly conveyed. In 1740 the defendant held a court leet, the first within the memory of any one living, though courts baron had been frequently held.

It was argued that the defendant could not deduce any title under the original grant; or if he could, yet that non-user was a disclaimer, and a forfeiture of such a franchise. On the other side it was contended, that the possession of the grant, together with the land, was an evidence of right; and that it would be of very pernicious consequence to grant these informations, whenever a lord could not deduce a title by mesne conveyances.

The Court said, that as there appeared no exercise of the grant till 1740, there was strong suspicion of some defect in the title: therefore it must go to be

tried by a jury. The rule for an information was made absolute.

97. Free chace and warren may, I presume, like other franchises, be lost by non-user, when claimed by prescription, or even by an express grant; as the non-user creates a presumption that the franchise had been surrendered. It is therefore necessary, where a claim of this kind is made, to prove a continued ex-.. ercise of the right; though formerly it may have been Cro. Ja, 155. held differently.

TITLE XXVIII.

RENTS.

CHAP. I.

Of the Origin and Nature of Rents.

CHAP. II.

Of the Estate which may be had in a Rent, and its

Incidents.

CHAP. III.

Of the Discharge and Apportionment of Rents.

Origin of
Rents.

Tit. 8. c. 1.

§ 2.

IT

49. At what Time payable.

59. When it goes to the Executor, and when to the Heir.

67. Remedies for the Recovery of Rents.

68. Distress.

71. Clause of Re-entry.

75. Right of Entry by way of

Use.

76. Ejectment.

78. Actions of Debt and Covenant. 79. Courts of Equity.

SECTION 1.

T has been stated, that when the great lords enfranchised their villeins, they still employed them in the cultivation of their estates, which they granted either from year to year, or for a certain number of

years; reserving to themselves an annual return from the tenant, of corn or other provisions; hence the lands thus granted were called farms, from the Saxon word feorm, which signifies provisions.

2. This compensation or return for the use of the land thus let, acquired the name of redditus, rent.

It is defined by Lord C. B. Gilbert, to be an annual Rents, 9. return made by the tenant, either in labour, money, or provisions, in retribution for the land that passes. 3. It follows that though rent must be a profit, yet there is no occasion that it should consist of money. For capons, spurs, horses, and other things of that nature, may be reserved by way of rent; it may also 1 Inst. 142 a. consist of services or manual labour, as to plough a

certain number of acres of land, &c.

4. The profit reserved as rent must be certain, or Id. that which may be reduced to a certainty by either party. It must also be payable yearly, though it need not be reserved in every successive year, but will be good if reserved in every second or third year.

5. A rent must issue out of the thing granted, and Id. not be a part of the thing itself; for Lord Coke says, a man cannot reserve a part of the annual profits, as the vesture or herbage of land.

6. There are three kinds of rent; namely, rent Rent Service, service, rent charge, and rent seck. Where a tenant Lit. § 213. holds his land by fealty and certain rent, it is a rent service; this was the only kind of rent originally; known to the common law. A right of distress was inseparably incident to it, as long as it was payable, to the lord who was entitled to the fealty of the tenant. And it was called a rent service, because it was given as a compensation for the services to which the land was originally liable.

Tit. 2. c. 1. § 19, 20.

Lit. § 215.

7. We have seen that in consequence of the statute quia emptores, if a person makes a feoffment in fee, or gift in tail, with a limitation over in fee, the feoffee or donee will hold of the superior lord, by the same services which the feoffor was bound to perform to him. It follows, that upon a conveyance of this kind, no rent service can be reserved to the feoffor or donor, because he has no reversion left in him; and as the feoffee or donee does not hold of him, he is not bound to do him fealty. But if upon a conveyance in tail, or for life, the donor keeps the reversion, and reserves to himself a rent, it will be a rent service; because fealty and a power of distress are incident to such reversion.

Rent Charge. 8. Where a rent was granted out of lands by deed, 1 Inst. 143 b. the grantee had no power to distrain for it, because there was no fealty annexed to such a grant. To remedy this inconvenience, an express power of distress was inserted in the grant, in consequence of which it was called a rent charge, because the lands were charged with a distress.

9. Rent charges are of great antiquity, and were probably first granted for the purpose of providing for younger children. They were however considered as contrary to the policy of the common law; for the tenant was thereby less able to perform the military services to which he was bound by his tenure, and the grantee of a rent charge was under no feudal obligations; for which reason a rent charge was said to be against common right.

10. A rent charge may now be created either by grant, or by the operation of the statute of uses. Tit. 11. c. 3. For it is enacted by that statute, § 4 & 5, that where divers persons stood and were seised of and in any