Whether that to such tenancies without rent. The sect. 8 may be thought to embrace those cases section extends only where the tenancy is at a rent, and not those where the tenancy is without any rent, or anything in the nature of a rent, in respect of it. The terms of the section contemplate, in every case, two things, the tenancy itself, and a rent in respect of it, and then makes the right first to accrue on whichever of two events shall last happen. But in the case of a tenancy without any rent, or anything in the nature of a rent, if within the section, the right must first accrue, not as in the former case, but on the determination of the first period of the tenancy alone, or not at all, and therefore that such tenancies are not within this section. On the other hand it may be urged that as rent may be in the delivery of a profit that lieth in render, office, attendance, and such like (z), and for the nonperformance of a rent service a distress may be made (a), and on a tenancy without rent the lessor has fealty (b), which is an inseparable incident to the reversion (c), indeed, to every tenure, except frankalmoigne and at will(d), and still remains (e), and although the fealty in the case supposed, when not expressly reserved, arises by law, and not by, yet out of, the contract of the parties and from the tenure, and the time when such service was last rendered may be uncertain or difficult to ascertain, yet that such tenancies are within this section. If not, the right will first accrue when, upon the determination of the tenancy in the usual course of law, the reversion comes into possession. When a yearly tenancy may be created by a cestui que trust. A cestui que trust, not in the actual possession of the land, or receipt of the rent (f), but acting merely as the agent or bailiff of the trustee (g), in the receipt of (z) Co. Litt. 98 a, b, 142 a; (a) Co. Litt. 142 a. (b) Litt. s. 132. (c) Co. Litt. 23 a, 93 a, b, 143 a, 150 b, 151 b. (d) Litt. sects. 131, 132. (e) Vide ante, p. 348. (f) Garrard v. Tuck, 8 C. B. 251. (g) See Pope v. Biggs, 9 B. & C. 245. the profits from the actual holders, and managing the property (h), may create a tenancy from year to year; and in that case the right, not only of the cestui que trust, but of the trustee also (i), first accrues at the end of the first year of the tenancy, or on the last payment of rent, although such payment was more than twenty years before the passing of the act (k). It is apprehended that a cestui que trust, becoming a Whether he tenant from year to year or other definite period, may, under that can acquire, under this sect. 8, acquire an absolute title at law against section, a title his trustee. against the There is no express exclusion of such a trustee. tenancy between such parties, as of a tenancy at will, from the sect. 7, and the tenancy from year to year, or other definite period, arises by the contract of the parties, whilst a tenancy at will is created, by construction of law, from the mere relation of the parties (7). under leases in rent of 208. and upwards. writing at a In the case of a tenancy of land, or of a rent under Tenancies a lease in writing, reserving a rent amounting to the yearly sum of 20s. or upwards, which is received by some person wrongfully claiming the land, or the rent, in reversion immediately expectant on the determination of the lease, and no payment of the rent reserved is afterwards made to the person rightfully entitled thereto, the right of the person entitled to the land, or the rent, subject to the lease, on its determination, first accrues when the rent reserved by the lease was first so received by the person so wrongfully claiming; and the right, which before this statute would accrue on the determination of the lease, notwithstanding such receipt (m), is expressly excluded (n). The nature of the lease, -and the rent reserved. The lease must be one which passes an interest and not a mere agreement for a lease, or an instrument merely showing the conditions of the holding (o), and be by deed (p). In this provision the term rent is used three times in the sense of rent within the sect. 1, and four times in the sense of a rent reserved on a common demise (q), and then of a pecuniary nature only; for so reserved it is to amount to the yearly sum of 20s. and upwards, and to be received and paid. Therefore, if so, a lease reserving a rent in money's worth only (r), as in a lease of mines reserving part of the produce in a manufactured state (s), or other profit lying in render, office, attendance and such like (t), which cannot, in some cases at least, as for instance, fealty, be estimated in money value, is not within this section, and the profit, if rendered to a third person claiming wrongfully, the mines or other property to which the profit is incident would not affect the right of the lessor to enter on them on the expiration of the lease. If such a lease be within the section, his right would first accrue on the render to such person, independent of the time of the sale of the produce of the mine (u). The reservation in such a lease of a part of the produce of the mines not in a manufactured state is not however properly a rent, or in the nature of a rent, but an exception of part of the mine or land itself (x); and a sum in gross re Doe d. Angell v. Angell, 9 Q. B., (p) 8 & 9 Vict. c. 106, s. 3. (r) See Cumberland v. Kelly, 3 B. & Ad. 602. (8) Co. Litt. 142 a. See Denys v. Shuckburgh, 4 You. & C., Ex. 42; 5 Jur. 21, S. C. (t) Co. Litt. 142a; Doe d. Edney v. Benham, 7 Q. B., N. S. 976; Doe d. Edney v. Billett, Ib. 983; Doe d. Robinson v. Hinde, 2 Moo. & R. 441. (u) Denys v. Shuckburgh, sup. (x) Co. Litt. 42 a. served and made payable in such a lease, by instalments, is not necessarily a rent (y). reserved, The rent must be also expressly reserved. If there- Rent must be fore, a service, when so reserved, be a rent within this expressly provision, a service merely incident to the tenure by law, as fealty (z), must, as it may (a), be expressly reserved. If not so reserved, and the lease do not reserve any money rent, the lease is not-as a tenancy under sect. 8 with such a service may be within that section (b)— within this sect. 9. If such service, when expressly reserved, be rent reserved within the meaning of the sect. 9, and be performed for more than twenty years to a person wrongfully, and not within that period rendered to the person rightfully, claiming the land, the latter person will be barred of his reversion on the determination of the lease. But the service itself, arising on such a tenancy, is not within the statute (c). rent. As under the sect. 8, so under the sect. 9, the pay--and quà ment and receipt of the rent must be for rent, quà rent, and not otherwise (d). of it. If arrears accrue which are afterwards paid up, pay- What a conment of rent continued to the person so wrongfully tinued receipt claiming the land would be a continued receipt for the purposes of the statute (e). than 208., or without rent. As the case of a tenancy from year to year, without Such tenancies a lease in writing, and without rent, may not be within at a rent less the sect. 8 (f); so the case of a tenancy under a lease in writing, at a rent less than 20s. yearly, or without any rent, may not be within this sect. 9 (g). The right under this sect. 9 accrues on the first payment of the rent reserved by the lease, being to a third person wrongfully claiming the demised premises, and (y) Lord Hatherstone v. Bradburne, 13 Sim. 599. (2) Vide supra, p. 348. (a) Bevil's case, 4 Rep. 8. (b) Vide supra, p. 481. (c) Grant v. Ellis, 9 M. & W. 127. See also 16 Ib. 566, (d) Vide supra, p. 481. (ƒ) Vide supra, p. 482. (g) See 3 Ir. L. R. 458; Crosbie v. Sugrue, 9 Ib. 17; Ex parte Jones, 4 You. & Coll, 466. would not accrue on mere attornment (h) to such person (i), which, however, might operate a disclaimer of the lessor's title, and a forfeiture of the lease, and thus give to him, on having notice of the attornment (j), an immediate right of entry, although he might decline to exercise it, and wait until the expiration of the lease by effluxion of time (k), and unless the rent be so paid the right to the reversion, and to the rent as incident to it, remain unaffected (7); although, if the lessee be in possession for twenty years or upwards without paying any rent to either the lessor or any other person, the lessor cannot maintain ejectment against the lessee for nonpayment of rent (m); and yet on the expiration of the lease without any such payment, or within twenty years after such expiration, the lessor may recover the demised premises (n). Lord Abinger, C. B., seems to have thought otherwise (o). In Doe v. Oxenham, the rent reserved by the lease had been paid for some years. But in Doe v. Bingham no payment of rent by the lessee to any one was proved. The lease was made in 1796, and at the trial the lessee claimed under a conveyance made to and accepted by him in 1805, which was a forfeiture of his lease (p), and available for the lessor, after notice of it, although not bound to enforce it, or to enter until the expiration (h) 11 Geo. 2, c. 19. (i) 9 H. L. C. 381. (j) See Hovenden v. Lord Annesley, 2 Sch. & L. 624; Meredith v. Gilpin, 6 Pri. 146. () Vide ante, pp. 452, 453,454. (1) See Grant v. Ellis, 9 M. & W. 127; Doe d. Dary v. Oxenham, 7 Ib. 131; Doe d. Newman v. Gopsall, 4 Q. B., N. S. 603, n.; 5 Jur. 170, S. C.; Crosbie v. Sugrue, 9 Ir. L. R. 17; Fulton v. Creagh, 3 J. & L. 329; Archbold V. Scully, 9 H. L. C. 360; Kennedy v. Woods, Ir. Rep., 1 C. L. (m) Doe d. Mannion v. Bingham, 3 Ir. L. R. 456. On this case vide ante, pp. 462, 463. (n) Doe d. Davy v. Oxenham, 7 M. & W. 131. (0) Ex parte Jones, 4 You. & C. 466. (p) See Com. Dig., tit. Forfeiture, A. 4, 5; Co. Litt. 252 a; 9 Rep. 106 b; Doe d. Gray v. Stanion, 1 M. & W. 695; Doe d. Williams v.Cooper, 1 Scott, N. R. 36; Jones v. Mills, 10 C. B., N. S. 788; Doe d. Ellerbrock v. Flynn, 4 Tyr. 619. |