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To CORRESPONDENTS AND READERS. An article on the Subject of Distress for Rent in Virginia, is necessarily postponed to our next number.
We intend to make up, in the next Jurist, for our delinquency in furnishing abstracts of Southern and Western reports, unless we shall be disappointed in the receipt of copies of the Reports.
We have not intentionally omitted to notice particularly Chancellor Kent's last volumes of Commentaries, and Mr. Angell's Work on Limitations, but have been disappointed in our arrangements and expectations in this respect
The Abstracts of Legislation, have been crowded out of the present number by other matter, and we intend that they shall occupy a proportionally larger space in the next.
ART. I.-DISTRESS FOR RENT IN VIRGINIA. In Virginia, on the conveyance of Land in Fee Simple, reserving
Rent, has the Feoffor, without an express stipulation to that effect, a Right of Distress ?
On resorting to the common law authorities, for the cases wherein the right of distress existed without an express stipulation, or, in technical language, of common right, we find three: 1. Rent service. (Litt. 9 213.) 2. Rent grapted for equality of partition. (Ib. 3 252.) 3. Rent accruing from the lord to the mesne, in consequence of the purchase, by the former, of the under-tenancy. (Co. Litt. 153 a.)
If these be the only denominations of rent to which distress was incident of common right, our question resolves itself into the following: Is the rent now under consideration, of either of these denominations?
Of the two last, it obviously is not. Is it then of the first ? This leads to an inquiry into the precise signification of the term rent-service.
Littleton commences his 12th chapter with a division of rents, as follows: 1. Rent-service; 2. Rent-charge; 3. Rentseck; comprising, as we see, the class which constitutes the subject of our present-inquiry. The first step is to understand this classification to acquire a clear and precise knowledge of the difference whereon it is founded. This once attained, our task will be but slight. We shall have nothing to do but
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ascertain the mere fact whether the rent in question be, or be not, possessed of that peculiarity in reference to which certain rents have been termed rents-service. If it be, then is it another mere matter of fact, that our rent is a rent-service; and that we possess, of common right, the right of distress. If it be not, then is it just as mere matter of fact,(a) that our rent is not of this class; and that supposing the foregoing enumeration of cases to be a complete one, -we are destitute of this remedy.
To proceed, therefore, in search of the characteristic of the class rent-service. In the same section of Littleton, (213) there is a designation of the rents comprised in this class. From it we gather, that every 'certain rent' to which is conjoined “fealty,' or “homage and fealty,' or 'other services,' is a rent-service. Here then, so far as we annex clear ideas to the words 'certain rent,' fealty,' &c. we possess a distinct designation of rents-service. The next question is, whether this characteristic,-having some service' annexed to themby means of which they are designated by our author, be merely an accidental particular in which, at the time he wrote, they happened to coincide; or whether it be the very particular in reference to which they are thus classed. The importance of this point will be at once felt: if the latter be the case, then
(a) We lay this stress on the word fact, in reference to the notion that, from the nature of questions of this sort, they do not admit of an absolutely certain determination. To our mind, this idea, however prevalent, is entirely gratuitvus and erroneous; and moreover, practically mischievous in a high degree inasmuch as it leads us to rest satisfied with the vague impressions arising from a loose train of thought, instead of advancing, by vigorous reasoning, to that certainty, at which it is possible to arrive. Is this animal a quadruped ? How is this question to be determined ? By ascertaining first, what is the particular in reference to which certain animals have been termed quadrupeds-what is the characteristic of this class ; and, secondly, whether the animal in question be possessed of this characteristic. This is a question which, according to the general notion, admits of certainty. Now, in what does it differ from the question, Is this rent a rent-service? To be sure, a rent is not an animal ; nor a rent-service, a quadruped. But what is there in the constitution of the human mind, or in the nature of the objects signified by these words, to make it impossible for us to annex just as precise ideas to the one as to the other? It is true that the requisite evidence may be wanting ; but so may the want of evidence leave us in total ignorance, or partial uncertainty, as to the meaning of the term quadruped, and as to the possession by the animal presented to us of the characteristic of quadrupeds. But, with the requisite evidence, what is there to prevent our ascertaining, with just the same precision and certainty, what thing is meant hy rent-service, as what thing is meant by quadruped ? And having acquired a precise idea of the characteristic of rentservice ; what is there to prevent our ascertaining whether the rent in question be possessed of this characteristic ? Is this not just as much a question of fact, as whether the animal be possessed of the characteristic of quadrupeds ?
no rent, unless accompanied by some service,' is a rentservice; if the former, then a rent, although unaccompanied by any service, may, nevertheless, still be a rent-service. The accident, once common to all the individuals of the class; and for that reason, once constituting a different mark to recognise them by—may have become separated from some of those individuals; and nevertheless, lest them in possession of that peculiarity to which reference was really had in their arrangement.
In his comment on this section, Lord Coke tells us it is called rent-service, because it hath some corporal service incident to it;' in other words, that the having some corporal service annexed, is the peculiarity which constitutes the object of our search: a passage which, if his dictum were beyond question, would cut short this inquiry. But there are two considerations from which to derive boldness to push forward : the obiter complexion of this assertion; and, if it were ever so deliberate, the shallowness of the researches of this otherwise profoundly learned lawyer, into feudal points of law—a shallowness as generally charged on him, as it is generally deplored;(a) and which, whenever the subject is rooted in feudal institutions, justly subjects his opinions to distrust.
Still doubting, therefore, whether the peculiarity thus thrust upon us by Coke, be truly the one we are in quest of, we shall pursue our search by examining, somewhat minutely, some of the individuals embraced under the general term Rents.
The object originally signified by this word, was, a periodical return,(b) to the person who created an estate, or interest, in lands, &c. from him to whom the estate was given. This fact we are led to, by the general tone of writers, and by the following circumstance: a definition corresponding with the foregoing is constantly given by authors(c) who wrote long after it had ceased to be correct, long after the signification of this term had been extended beyond its original limits, and made to embrace objects which are not returns in retribution for land.(d) Accordingly, on consulting Reeves, we find this fact
(a) See Hargrave & Butler's notes, passim.
(b) The term Rent, subsequently restricted to returns of a particular kind, was originally common to all returns or renders ; whether in military attendance, labor, provisions, &c. (See among others, Thomas's Co. Litt. III. 253, n. A.)
(c) Among others, Coke, Gilbert, Blackstone.
(d) This is one of the numberless instances of inadvertence to those mutations, which, from the nature of language in general, the signification of expressly averred.fa) From this author and others,(6) we learn also, that, the right to these returns being a thing of
the technical terms of the common law has been constantly and unavoidably undergoing, from the days of Alfred, down to our own ; an oversight which is at the bottom of one half the difficulties by which the student is obstructed, and of the unsettled disputes by which its professors are distracted. To those who have not made the experiment, it is inconceivable how much confusion and perplexity may be avoided by the single caution of constantly keeping in view the simple fact, that, from the natural tendency to use, as the sign of an object to which no name has been yet assigned, the established name of some object between which and the former there is some faint resemblance-the signification of words is constantly changing. The name, for example, originally adopted to signify a single individual, soon becomes common to a number of individuals; this number is daily on the increase ; and thus the signification of the word is daily contracting, while its application is, in a corresponding degree, becoming extended. To instance a single case—the difficulties, otherwise insuperable, and the doubts, otherwise never to be settled, connected with the contradictory definitions of the word fee, and the inconsistent classifications of fees; subjects on which much discussion has been expended, vanish at the touch of this wand. It shows the inconsistency, however real it might have appeared to the writers themselves, to have been apparent only. It is indispensable, also, that this vigilance be extended to the ambiguity of words ; to the double, treble, &c. distinct meanings, not unfrequently connected with a word, at one and the same point of time. This, however, is a totally different thing from the changes of meaning which they are constantly experiencing.
As one of a thousand instances of the effects of overlooking, or not practically applying, this simple fact, we may quote the objection made by Somner to Littleton's etymology of the word socage.* (See Harg. & But. notes, 86, a.). He objects that it is not large enough to comprehend all the services of the tenure by socage, which may be, and sometimes are, totally unconnected with the plough. Now, whatever may be the merits of the etymology, in other respects, an advertence to the mutability of the meaning of words, would, on the one hand, have prevented its being objected to on the ground that it did not accord with the then (in all probability enlarged) signification of the term; and, on the other, have enabled those who were unsatisfied with the objection, to show precisely wherein it is defective. However,' says Hargrave, “Sir Martin Wright, though he confesses the ingenuity of Mr. Somner's derivation, endeavors to justify Littleton's, and thinks that the objection to it is obviated, when it is considered, that in the case of socage tenures, plough-service was the most ancient and usual reservation ; to which observation one may add, that the propriety [particularly, he should have added, the present propriety] of a denomination is not always the proper testt of etymologies.' But why is it not? Had Har
* 'Tis not unworthy of a passing remark, that the use of terms expressive of the nature of the service, for the purpose of particularizing the meaning of the general word tenure, gives support to the views elsewhere presented concerning its proper import.
+ The reason is obvious. Certain circumstances lead to the establishment of a particular compound word, as the sign of a particular individual or class. This sign, once established, it becomes at once subject to the operation of the principle above adverted to; by being applied to new objects, its signification gradually changes. It comes to be the sign of objects which, though they possess some feature in common with the objects of which it was first estab
(a) Reeves' Hist. E. L. v. 3, p. 316. (b) See id. and Bac. Abr. Rent.