No. 4. Smith v. Mapleback, 1 Term Reports, 441.

already paid by such assignee," such agreement operates as a surrender of the whole term. The sum in the agreement is considered as a sum to be paid annually in gross, not as rent. And the assignee cannot distrain either for that or for the original rent; but he has a remedy by assumpsit for the sum reserved for the good-will.

This was an action of replevin. The defendant in his first cognizance, as bailiff of William Marmaduke Sellon, acknowledged the taking, &c.; stating that the plaintiff, on the 8th of January, 1786, and for one half year then last past, &c., held and enjoyed the said dwelling-house, in which, &c., as tenant thereof to William M. Sellon, under a demise to him thereof made, at the yearly rent of £40 payable quarterly, to wit on the 8th of October, 1785, the 8th of January, 1786, the 8th of April, 1786, and the 8th of July, 1786.

And, because £20 for half a year, ending on the 8th of January, 1786, were in arrear and unpaid from the plaintiff to William Marmaduke Sellon, the defendant, as bailiff, &c., acknowledged the taking, &c., for and in the name of a distress, &c.

The second cognizance stated that the plaintiff held under a like demise, as stated in the first count, at the yearly rent of £31 10s. payable quarterly as aforesaid, and because £15 15s. for half a year ending on the 8th of January, 1786, were in arrear, &c.

The third stated that the plaintiff held under a like demise, at the yearly rent of £40 payable quarterly on the four most usual quarterly days of payment, to wit, Michaelmas-day, 1785, Christmas-day, 1785, Lady-day, 1786, and Midsummer-day, 1786; and because £19 3s. 4d. for one quarter of a year, and the part of another quarter of a year, ending on the 25th of December, 1785, (the residue of the rent for the said last quarter having been before paid and satisfied to the said William Marmaduke Sellon) were in arrear, &c.

The fourth stated that the plaintiff held under a like demise, at the yearly rent of £31 10s. payable quarterly (as in the third cognizance); and because £15 1s. 6d. for one quarter and part of another were in arrear, &c.

The fifth, that the plaintiff held under a like demise, at the yearly rent of £31 10s. payable quarterly, at the four most usual days of payment; and because £7 4s. for part of one quarter of a year, ending on Michaelmas-day, 1785, were in arrear, The sixth, that the plaintiff on the 8th of January, 1786, and

&c.

for one quarter of a year then last past and more, held the said premises as tenant as aforesaid, by virtue of a certain.

*

demise to him thereof made, at the yearly rent of £31 [* 442] 10s. payable on the four most usual days of payment; and because £7 17s. 6d. for one quarter of a year, ending on the 25th of December, 1785, were due and in arrear, &c.

Plea in bar, that the plaintiff did not enjoy the said dwellinghouse, &c., under any such demise thereof made to him as the defendant in his first cognizance alleged; and that the sum of £20 in the first cognizance mentioned, was not, nor was any part thereof, in arrear. The like pleas to the second, third, fourth,

fifth, and last, cognizance.

On the trial of this cause a case was reserved for the opinion of this Court.

The plaintiff, William Smith, being possessed of the premises for a long term of years, by indenture of lease dated the 25th March, 1783, demised unto Robert Swin all that messuage or tenement, &c., (the premises mentioned in the pleadings) from the day of the date of the said indenture for the term of eight years, at the yearly rent of £31 10s. payable quarterly on the four usual quarter days. Robert Swin entered and took possession of the premises under the said lease. By indenture dated 12th of April, 1785, Robert Swin, in consideration of £145 13s., assigned the premises to William Swin for the remainder of the term; who, afterwards, by indenture dated 6th July, 1785, assigned over to the said William Marmaduke Sellon. Sellon entered and took possession under that assignment. The plaintiff, William Smith, afterwards applied to Sellon to take the said premises; and the following agreement was entered into between William Sellon and Ann Smith, as agent for her husband the plaintiff. "Agreement

between Mr. Smith and Mr. Sellon for The Three Jolly Sailors at Rotherhithe; Mr. Smith to have the house on the terms as mentioned in the lease, and to pay £8 10s. over and above the rent annually, towards the good-will, already paid by Mr. Sellon."

The plaintiff Smith took possession of the premises under the said agreement; and the premises described as The Three Jolly Sailors in the agreement, are the same premises demised by the lease of the 25th March, 1783, of which the plaintiff, William Smith, at the time of the agreement aforesaid had the reversion. The defendant as bailiff of William Sellon on the 14th of January, 1786, took the distress for one quarter's rent.

No. 4. Smith v. Mapleback, 1 Term Reports, 442, 443.

The question for the opinion of the Court is, whether the defendant as bailiff to William Marmaduke Sellon had a right to distrain for any and for what rent? *Rous for the plaintiff.

[* 443]

The question turns on the effect of this agreement; whether it operates as a surrender of the term, or whether it is to be considered as an under-lease? This distress was illegal, because Sellon had no interest in the land at the time of making it. And it is perfectly clear that a lessor cannot justify taking a distress, unless he has some interest in the land at the time; for the title to distrain arises from the privity of estate, and ceases with it. It is an indulgence which the law allows to the owner of the land to compel payment of rent by the lessee during that time. So that even where a rent is reserved eo nomine during a term, no distress could at common law be taken after the expiration of that term. Co. Lit. 47; 1 Ro. Abr. 672. This doctrine is recognized by the Legislature in the statute 8 Ann. c. 14, which allows a distress to be taken within six months after the expiration of the term, provided the same tenant continues in possession. By the agreement entered into between the plaintiff and Sellon, the former was to have the pos session of the premises; but with respect to the terms of that possession, they are to be collected only by a reference to the original lease, one of which is that the possession shall continue for eight years; then there is no interest remaining in Sellon which could entitle him to make this distress.

As to the rent; the plaintiff was to take the house by an express reference to the terms of the original lease, that is, by the payment of £31 10s. quarterly at the four usual days of payment; but the rent of £8 10s. for the good-will is to be paid annually at the expiration of each year, namely, on the 6th of July, and not by quarterly payments. Therefore the first payment of the £8 108. was due subsequent to the time of the distress; and the parties could not intend to unite these two sums which were to be paid at different times and for different considerations. But supposing it could be collected that the intention of the parties was to reserve £8 10s. as a rent, yet distress was not incident to it, if no interest remained in Sellon.

term.

This agreement therefore must operate as a surrender of the Lord COKE says that surrenders are favoured in law; and at common law a surrender of a lease by deed might be made by

No. 4. Smith v. Mapleback, 1 Term Reports, 443, 444.

parol. Co. Lit. 338, 2 Rol. Abr. 499, 1. 5. The only difference between a surrender by deed and by parol is occasioned by the statute of frauds.

It will be highly inconvenient and contrary to justice to allow the legality of this distress; because it will be to drive the lessor to his remedy over against the original lessee.

* Shepherd for the defendant contended that this agree- [* 444] ment did not amount to a surrender from Sellon to the plaintiff. Where there is any interest or even a possibility of interest reserved in the lessee, it cannot be taken to be a surrender. For where A., tenant for life, assigns to the reversioner for the life of the reversioner, he may distrain on him, on account of the possibility of his surviving the reversioner. So where a lessee either for life or years leases to the lessor reserving a day, it does not amount to a surrender. 1 Rol. Rep. 387. Where rent was reserved (though the whole interest passed from the lessee to the reversioner) that equally prevented its being considered as a surrender. Dyer, 251; 1 Vent. 272. A reservation may be good by contract though without deed. 1 Ventr. 242. He admitted that no particular words were essentially necessary to constitute a surrender; and that it may be collected from the intention of the parties appearing on the instrument executed by them. Sheph. Touchst. 305. In the present case, it is impossible to say that it was the intention of these parties, as it is to be collected from the agreement, that this should operate as a surrender. It is to be considered only as an under-lease; for the defendant is to hold on the terms of the original lease.

As to the rent of £8 10s. being payable at a different time from that of the £31 10s., if it appeared on this instrument that it was the intention of the parties that these rents should be consolidated, it must be considered as payable at the same time as the other sum. In 4 Bac. Abr. 343 it is said, "Though there be no particular days mentioned in the deed for the payment of the rent, yet if the manner of such appointment will not fully answer the design of the contract, the law in such case will alter or transpose the words of the deed; because it is the great end of the law to execute all contracts, however unwarily or inartificially framed, according to the purport and true intention of the parties upon the whole deed." Here the intention of the parties is evident, and the Court will supply their defects in point of form. 2 Rol. Rep. 213;

No. 4. Smith v. Mapleback, 1 Term Reports, 444, 445.

Plowd. 171; Moor. 459; Cro. Eliz. 486. Though from the words of this agreement the rent of £8 10s. is to be paid annually, yet it is evident that the parties did not mean one annual payment; but that sum was to be paid annually by quarterly payments at the same time that the rent was reserved by the original lease. And the agreement is to pay £8 10s. annually, over and above the rent of £31 10s., which indisputably proves that the lessee was to pay so much per annum at the same time that the original rent is payable.

[* 445]

*The cases which make a distinction between contracts by deed and by parol were before the statute 4 Geo. II. c. 28; because unless the lessor had a reversionary interest in him, he could not distrain; but the statute says that where there is a reservation of rent, the party, having a right by way of contract, has a remedy by way of distress. In Poultney v. Holmes, 1 Stra. 405, it is said, "Where the lessee demises all his interest, reserving rent, an action lies on the contract." That case was before the statute 4 Geo. II., by which distress is incident wherever a rent is reserved. Blackstone, J., in his Commentaries, 3 Bl. Com. 6, 7, says, the intention of the statute was to put all rents on the same footing.

As this agreement therefore was no surrender of the lease, because rent was reserved; as the rent of £8 10s. to be paid annually over and above the £31 10s. must mean so much to be paid per annum at the same times as the original rent was reserved; inasmuch too as an action would have lain on the contract before the statute 4 Geo. II., and since that time the party has a remedy by distress, Sellon had a right to distrain for the whole rent. But if the Court should be of a different opinion, at least he had a right to distrain for the rent in the original lease; there is an avowry for the quarter's rent; and the question reserved is, whether he is entitled on either of these avowries.

Rous in reply was stopped by the Court.

ASHHURST, J. It is not necessary to determine whether this agreement amounts to a surrender of the whole interest, or is to be considered as an under-lease only; though if it were necessary, I should say it was intended that the premises should be assigned for the whole term. But even supposing it is not so, and that it was only intended to be a demise from year to year, we must necessarily give judgment for the plaintiff: because first, I am of