No. 4. Smith v. Mapleback, 1 Term Reports, 445, 446.

opinion that the £8 10s. at all events was reserved annually, and not by way of rent; but was intended to be a payment of a sum in gross. For the plaintiff was to hold on the terms mentioned in the lease, and to pay £8 10s. over and above the rent annually reserved towards the good-will; that in my apprehension does not mean a sum to be paid as a rent, but a sum in gross.

But even if it were reserved as rent, yet it is reserved annually; therefore it could not be due till the end of the year, and the defendant had no right to distrain till that time. Then the year

not being at an end, only a proportion of it could be due.

* The plaintiff in his plea in bar says the rent was not [* 446] in arrear; and it was not so; because if the original lessor were tenant to the lessee under this agreement, yet as having an interest in the premises, Sellon was to pay rent to the plaintiff. The consequence is, that the plaintiff has a rent in his own hands; that balances the rent claimed; and then there was nothing in

arrear.

BULLER, J. I am satisfied that this was intended to be a surrender of the whole term. The lease came into the hands of Sellon by assignment, and Smith wished to have it again. And there is no colour to say that Smith only wanted it for a particular period of the term; for when the agreement says he shall have it on the terms of the original lease, it means for the whole term. Then as to the £8 10s., that is the consideration on which the surrender is made, to be paid towards the good-will. Sellon had paid a sum of money in gross in order to get the assignment of the lease. Instead of taking back that sum which he had paid, he agreed that he would receive it back again by annual payments. As it is not expressed on the face of the agreement from what time the payment of the £8 10s. was to commence, it must be taken to mean from the time when the agreement was made. Supposing it paid in the middle of a quarter, it cannot be applied to rent; because it was to be paid for the good-will from the time of the agreement. In doubtful cases where the parties express themselves inaccurately, the Courts will expound their contracts according to their intention. And it is a maxim in law so to judge of contracts as to prevent a multiplicity of actions; therefore this must be taken to be a surrender, in order to prevent two actions. instead of one. For if Sellon were to recover against Smith, the latter might recover upon the lease against the former, which

No. 4.

-

-Smith v. Mapleback, 1 Term Reports, 446. Notes.

would be absurd. And it is on that ground that the Courts have construed express words of covenant into a release. As supposing the obligee of a bond covenanted that he would not sue on it, the Courts say that shall operate as a release; for if it operated only as a covenant, it would produce two actions. So here, it being clear that Smith was to have the lease back again, it operates as a surrender; and Sellon cannot recover any more than the £8 10s. which is to be paid annually as a sum in gross; and therefore he is entitled to an action of assumpsit to recover that sum. Postea to the Plaintiff.

ENGLISH NOTES.

The principle of the ruling case was applied in Parmenter v. Webber (1818), 8 Taunt. 593, 20 R. R. 575, in which it was held that an underlease of the whole term operated as an assignment. See also Beardman v. Wilson (1868), L. R., 4 C. P. 57, 38 L. J. C. P. 91, 19 L. T. 282, 17 W. R. 54. It has long been settled law that where a lessee for years assigns his term he cannot distrain for the rent due by the assignee. Anon. v. Cooper (1768), 2 Wils. 375; Preece v. Corrie (1828), 5 Bing. 24, 2 Moore & Payne, 57, 6 L. J. (O. S). C. P. 205; Pascoe v. Pascoe (1837), 3 Bing. (N. C.) 898. The principle is that the right of distress is by common law incident to the reversion. Where there is no reversion there is no such right. So a termor who lets to an undertenant cannot, after his own term has expired, enforce payment of rent by distress, although the undertenant still retains possession. Burne v. Richardson (1813), 4 Taunt. 720, 14 R. R. 647.

The effect by the common law of merger or surrender as regards the person entitled to the ulterior reversion is altered by 8 & 9 Vict. c. 109, s. 9, which preserves for the benefit of the next ulterior reversion all rights which but for the surrender, &c., would have subsisted. And by 4 Geo. II. c. 28, s. 6, where a new lease is granted on the surrender of an old one, the remedies for the recovery of rent under the old lease are preserved so far as the rent under the new lease does not exceed the former rent. So that in such a case the right to distrain on previous subtenants is preserved.

AMERICAN NOTES.

This case is cited in 2 Taylor on Landlord and Tenant, sects. 510, 516, 560, and in 1 Wood on Landlord and Tenant, sects. 98.

There must be a reversionary interest in the fee to justify distress, and a lease in fee, reserving rent, destroys that remedy. Prescott v. De Forest, 16 Johnson (New York), 159; Woodhull v. Rosenthal, 61 New York, 382.

Nos. 5, 6. Pullen v. Palmer, 3 Salkeld, 207.

Assignment by lessee to lessor as security for a debt does not operate as a surrender of the lease. Breese v. Bange, 2 F. D. Smith (New York Com. Pl.), 474; and so where the tenant having abandoned, the landlord relets at request of a surety of the tenant. McKensie v. Farrell, 4 Bosworth (New York Super. Ct.), 197. But otherwise where by a sealed writing the parties agree to a surrender and a submission to arbitration concerning the amount of compensation to be paid by the lessee, although no award was made or the submission was revoked. Harris v. Hiscock, 91 New York, 340.

ONE joint tenant may distrain alone; but he must avow or justify such distress in his own right and as bailiff for the others.

But tenants in common must avow separately; and each may distrain for his own share.

One joint-tenant may distrain, but cannot avow for whole rent in his own [207] right.

In replevin for taking several cattle, the defendant avowed in his own right, for that W. R. was seised in fee of, &c., and granted a rent-charge to A., B., and C., and ten more, who granted to the defendant and to twelve more; and that four of the said thirteen are since dead, and nine alive, of whom he is one; and that for one year's rent, due at such a time, he distrained. Upon a demurrer to this plea it was objected, that the defendant ought not only to justify in his own right, but that he ought likewise to make conusance as bailiff to the rest, who are living. Et per HOLT, Ch. J. One joint-tenant may distrain, but he cannot avow solely, and therefore this avowry must abate, because it is always upon the right, and the right of this rent is in all of

them; and therefore the Court cannot adjudge the right of the retorn. habend. to one alone; for which he (the defendant) ought to have made conusance, as bailiff to the rest; and this is like a repleader, where the defendant may avow de novo. Tenants in common may join or sever in debt, but they must sever in avowry, for the reason before mentioned, (viz.) because it goes to the realty; and therefore, if three tenants in common distrain thirty beasts, one of them must avow for ten, the other for ten, and the third for ten more. But per curiam, The husband may distrain for rent due to his wife, and avow for it alone, because the right of the rent due is in him alone.

The essential difference between tenants in common and joint tenants is, that tenants in common held their lands either by several titles or several rights, but joint tenants hold them by one title and by one right; but there is no difference between them as to the possession, and the manner of taking the profits.

Tenants in common were not compellable at common law, before the statute, to make partition, no more than joint tenants; and per HOLT, Ch. J., in suing out a writ of partition, the party never shows whether he is a tenant in common or joint tenant.

[107]

Land was demised by four persons (whose original title did not appear), at one entire rent, to be divided, and paid separately, in equal portions; and one of the four distrained upon the tenant for her own share of the rent. While her bailiff was in possession, the defendant, a churchwarden and overseer of the poor, having notice of the existing distress, distrained for a poor's rate, carried away, and sold, within four days, part of the property distrained upon, not leaving sufficient to satisfy the first distrainer's demand. This was done by the defendant under color of a warrant of magistrates commanding him to make a distress upon the goods of the tenant, and to sell the same, unless the rate and charges were paid within four days. Held, 1st, that the first distress was regular, for whatever might have been the interest of the landlords as between themselves, as between them and the terre-tenant they were tenants in common, and entitled each to a separate distress. 2dly. That the defendant was not within the protection of the 24 Geo. II. c. 44, s. 6, which requires a previous demand of the perusal and copy of the warrant, for although the strict right of property of the terre-tenant, in the goods, had not been altered by the first distress, and, there fore, the mere seizure of them was in obedience to the warrant, yet that seizure

No. 6. Whitley v. Roberts, McCleland & Younge, 107-109.

should have been made, subject to the pre-existing burthen upon the goods; but not having been so made, all the overseer's subsequent acts exceeded his authority; and, therefore, an action on the case was maintainable by the landlady to recover from him the portion of rent left unsatisfied.

Case. The first count of the declaration stated that plaintiff, to wit, on &c., had, by J. Williams, her bailiff, seized and taken, as a distress for £17 11s. 9d. arrears of rent then due to her from E. Jones, for premises demised to him, divers, to wit, fifty acres of wheat, growing upon five closes, part of the said demised premises, and afterwards cut and gathered the [*108] wheat, it being then ripe, and kept and retained it in her possession as such distress, &c. Yet that defendant rescued, seized, took, and carried away the said wheat, whereby plaintiff has been greatly delayed in the recovery of the rent, and deprived of the means of obtaining satisfaction thereof, and of the costs, and is likely to lose the same. The second count stated that plaintiff had made the distress by J. W., according to the form of the statute, yet, &c. The third count stated that plaintiff impounded the wheat upon the closes where it had grown, yet that defendant broke the pound, &c. There was a fourth count in trover for one hundred cart-loads of wheat, in the straw, value £30. The defendant pleaded, 1st, the general issue; 2nd, a justification, viz., that defendant as one of the churchwardens, and, as such, one of the overseers of the poor of the parish of St. Asaph, (in which the premises were situate), seized, took, and carried away the said wheat, and wheat in the straw, by, and under the authority of one Act of Parliament, made in the reign of Queen Elizabeth, 43 Eliz. c. 2, for the relief of the poor, according to the tenor and purport of the said act. 3d, That defendant was a churchwarden, and as such, an overseer, &c., and as such, did the several acts, &c., concluding as the second. The plaintiff took issue on the first plea; replication as to the second and third, de injuria, &c., and issue thereon. The cause was tried at the Summer Great Sessions, of 1824, for Flintshire, before C. WARREN, Esq., C. J. It was proved that the premises demised belonged to the plaintiff, and three other persons. They were let by parol agreement to E. Jones, the tenant, by a Mr. Brown, one of those persons, at one entire rent of £94 per annum; but the rent was to be divided, and paid to the four landlords separately, in equal portions. Two distresses had been made on [*109]

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