"a cafe as this fhould not be confidered as much an " eviction, as if it had been an eviction by title: for "the deftruction of the house is the deftruction of "the thing. Though this covenant does not extend "to oblige the defendant to re-build, yet when an "action is brought for rent, after the house is burned "down, there is a good ground of equity for an in"junction, till the house is re-built." § 12. In a fubfequent case of this nature Lord Chancellor ApЛley is reported to have decided, that though the landlord was not bound to re-build, yet the tenant was neither obliged to re-build, nor to pay rent, till the premises were re-built. § 13. With respect to the discharge of a rentcharge, it is laid down by Littleton, § 222. that, if a man hath a rent-charge to him and his heirs, iffuing out of certain land, if he purchase any parcel of this to him and to his heirs, all the rent-charge is extinct. Steele v. Difcharge of § 14. Lord Coke fays, the reason of this extinguish- 1 Inft. 147 b. ment is, because the rent is entire and against common right, and issuing out of every part of the land; and therefore, by purchase of part, it is extinct in the whole. S 15. Lord Chief Baron Gilbert obferves, that the Rents, 152. reafon of the difference between this cafe, and that of the purchase of part of the lands, out of which a rent-service iffues, is, becaufe, in the cafe of a rentcharge, there is no connexion of tenure between the VOL. III. grantor A a Idem. 2 Roll, Ab 414. grantor and grantee, as there is in the cafe of a rent. fervice. And, as grants of rent-charges were of no benefit to the public, and afforded no additional ftrength or protection to the kingdom, the law carried them into execution only fo far as they could take effect according to their original intention: and, therefore, where the grantee by his own act prevented the operation of the grant, according to its original intention, the whole grant determined. § 16. Lord Coke alfo fays, that, if the grantee of a rent-charge purchases parcel of the land, and the grantor by his deed, reciting the faid purchase of part, granteth that he may diftrain for the fame rent in the refidue of the land, this amounteth to a new grant. § 17. If a perfon have a rent-charge, iffuing out of twenty acres of land, and he releases all his right in one acre, this will extinguish the whole rentcharge. § 18. It frequently happens in practice, that a perfon entitled to a rent-charge is difpofed to exonerate part of the lands from the payment of it; but, in confequence of the above doctrine, difficulties have arifen in fettling the mode of effecting fuch exoneration, without rifking the entire extinguishment of the rent-charge. The common mode has been, for the grantee of the rent-charge to join in the conveyance of the lands; which operates as a release of the lands conveyed from payment of the rent-charge, and to infert a provifo in the deed, that the other lands fhall continue continue fubject to the rent-charge and it is held upon the authority of Lord Coke, that this provifo will operate as a new grant of the rent-charge, To this mode there is a material objection: for fuch new grant would be fubject to any incumbrances, created fubfequently to the grant of the original rentcharge, but prior to the conveyance of part of the lands. § 19. Another mode is fometimes adopted; namely, to obtain a covenant from the grantee of the rentcharge, that he will not distrain or enter upon the premises conveyed, for the recovery of his rentcharge. But there is a cafe in which one of the judges held, that fuch a covenant would operate as a release of the whole rent-charge, though Anderfon was of a different opinion. S 20. It is now a common practice, where a perfon entitled to a rent-charge is difpofed to exonerate a part of the lands charged with it, to have a separate agree ment between the proprietor of the rent-charge and the purchaser; by which it is ftipulated, that the proprietor of the rent-charge fhall execute fuch a conveyance as shall be deemed necessary for the purpose of discharging the lands purchafed from the payment of the rent-charge. Provided, that fuch conveyance shall not bar the proprietor of the rent from levying it out of the other lands, whereon it is charged; with an agreement, that the proprietor of the rent fhall not in the mean time diftrain, or enter upon the lands purchased, A a 2 Butler v. Apportion ment of a purchased, for the purpose of compelling payment of the rent. Such an agreement, not being a deed, cannot be pleaded as a release in a court of law: and, in equity, the purchaser might obtain upon it an injunction, to reftrain the proprietor of the rent-charge from claiming it out of the lands purchased. § 21. There are many cafes, in which rents may be Rent-charge. apportioned, as well by the act of the party, as by act of law. Gilb. 163. Idem. Thus, where the grantee of a rent-charge releases part of the rent to the tenant, fuch release will not extinguish the whole rent; but the part not released will still continue. S 22. So, if the grantee of a rent-charge conveys part of it to a stranger, and the tenant of the land attorns, fuch grant will not extinguish the refidue, which was not parted with; because fuch release or difpofition makes no alteration in the original grant; nor does it defeat the intention of it, as the purchase of part of the land does: for the whole rent is still iffuable out of the whole land, and charged according to the original intention of the grant. Befides, fince the law allowed of fuch grants, and thereby established this kind of property, it would have been unreasonable and fevere, to hinder the proprietors of rent-charges from dividing them, for the promotion of their children. S 23. Lord § 23. Lord Chief Baron Gilbert obferves, that the objection, which has been made against this kind of apportionment of rent-charges, is this ;-that the tenant would be thereby exposed to several suits and diftreffes for a thing, which in its original creation was entire, and recoverable upon one avowry; but the anfwer is obvious, that it is in the tenant's choice, whether he will submit himself to this inconvenience, by his attornment to the grant of a part of the rentcharge. § 24. Since Lord Chief Baron Gilbert wrote, the neceffity of an attornment is taken away; but still a divifion or apportionment of a rent-charge, by a conveyance of part of it to a stranger, is held good. Rents, 164. Cro. Eliz. 742. Wotton v. Shirt, § 25. A rent-charge may be divided, and apportioned by act in law for a part of a rent-charge may be extended by a fcire facias; and, though the tenant is thereby without his attornment made liable to feveral fuits and diftreffes; yet it is an inconvenience, which he may avoid by a punctual payment of his Gilb. 165. rent. § 26. If part of the lands, fubject to a rent-charge, Gilb. 156. defcend to the grantee of the rent-charge, it fhall be Lit. f. 224. apportioned according to the value of the land: for, in this cafe, the grantee is perfectly paffive, and concurs not by any act of his to defeat the intention of the grant. § 27. With refpect to the apportionment of rent- Apportionfervice, it has been stated, that, where a perfon hav ment of Rent. service. |