Nuisance created by lord.

Bill of peace.

to enter and feed upon the residue of the common, but they are entitled to consider the whole of that fence so erected upon the common as a nuisance and to remove it accordingly" (o). A commoner may pull down a dwelling-house that is wrongfully built upon the common; but not while persons are dwelling in it, on account of the risk of causing a breach of the peace (p); at least, not without first giving them notice of his intention and requesting them to leave (7).

If the lord of a manor plants trees upon a common, he is presumptively acting within his right as owner of the soil, and the trees are regarded as part of the soil; consequently it is held that the commoners have no right to cut them down as a nuisance, but they must proceed by action to prove that the trees are in excess and injurious to their common rights (r). So, where the lord turned out rabbits on the common it was held that they were not injurious, unless in excess; and that a commoner was not justified in killing the rabbits, but must proceed by action to prove that they had become a nuisance to the common (s).

At common law where title to common was in question involving the rights of numerous commoners, an action decided the question only between the plaintiff and defendant, without binding any other persons interested, each of whom might litigate it separately. Therefore to avoid multiplicity of actions the Court of Chancery admitted a bill, commonly called a "bill of peace," to be brought by a lord against his teuants, or by tenants against the lord, or by tenants between themselves, concerning rights of

(0) Bayley, J., Arlett v. Ellis, 7 B. & C. 362.

(p) Perry v. Fitzhowe, 8 Q. B.

757.

(4) Daries v. Williams, 16 Q. B. 546; 20 L. J. Q. B. 330.

(r) Sadgrove v. Kirby, 6 T. R.

483; 1 B. & P. 13; Bayley, J., Arlett v. Ellis, 7 B. & C. 362.

(s) Anon., 2 Leon. 201; Bellew v. Langdon, Cro. Eliz. 876; Hadesdon v. Grissell, Cro. Jac. 195; Yelv. 104; Cooper v. Marshall, 1 Burr. 259; Cope v. Marshall, 2 Wils. 51.

common; and it is no objection to such bill that the defendants may each be entitled to make a separate defence, provided there be one general question to be settled which pervades the whole (t). The lord may bring a suit against one or more of the tenants on behalf of all, to be quieted in the possession of an approvement or inelosure against the rights of common of all (u). And a tenant on behalf of himself and all other tenants, whether freeholders or copyholders or both, may sue the lord for the establishment of the rights of common over waste inclosed by the lord (e).-The practice is now sanctioned generally in all Divisions of the High Court by Order XVI. r. 9: “Where there are numerous parties having the same interest in one action, one or more of such parties may sue or be sued, or may be authorized by the Court to defend in such action, on behalf or for the benefit of all parties so interested."

(t) Per cur. Powell v. Powis, 1 Y. & J. 165; Hardwicke, L. C., York v. Pilkington, 1 Atk. 282; Tenham v. Herbert, 2 Atk. 483.

(u) Eldon, L. C., Hanson v. Gardiner, 7 Ves. 309; Sewers Commiss. v. Glasse, L. R. 7 Ch. 456; 41 L. J.

C. 409.

(v) Powell v. Powis, supra; Smith v. Brownlow, L. R. 9 Eq. 241; 39 L. J. C. 636 (1); Warrick v. Queen's Coll., L. R. 6 Ch. 716; 40 L. J. C. 780; Betts v. Thompson, L. R. 6 Ch. 732. See post, p. 570.

CHAPTER III

RENTS

Serum I Crescia fres

I Iman and apportionment of rents. 12. Remedies for rent.

SECTION L. CREATION OF RENTS.

|: Ba: termal-į 2 Rent charge and annuity.—§ 3. Tithe r.nt

charge.

$1.-RENT SERVICE.

Bent-rent service-distres-rent charge-rent seck-distress by

Reservation of rent service-by deed or will-reservation to stranger. Reservation of rent upon grant in fee simple-upon grant of particular

estate-upun lease for years-tenancy at will-tenancy under agreement for lease.

Attornment of mortgagor as tenant to mortgagee-lease by mortgagor in possession.

Limitations of reat service-construction of limitations.

Rent of incorporeal hereditaments-rent of personal chattels,

Fee farm rents-rents of assize-quit rents-apportionment-redemption.

Rent is a profit issuing out of land, which is rendered or paid periodically by the tenant. It is said therefore to lie in render, in distinction to a profit à prendre which is taken from the land without the intervention of the tenant (a). The term "render" seems appropriate to profits rendered in kind, and "payment" to rent in money; thus the rendering of a peppercorn rent was held not to be a "pay

(a) Ante, p. 186; Co. Lit. 142 a; 10 Co. 128 a, Clun's case.

ment of rent" within the Conveyancing Act, 1881, s. 3, (4) (b). A rent of a silver penny was held to be a rent "having no money value" in the meaning of the same Act, s. 65 (c).

At common law rents are distinguished as of three kinds: Rent service. rent service; rent charge; and rent seck (d).-Rent service is the rent rendered for the tenure of land.

The services

of tenure consisted at common law in rendering to the lord profits of the land in money or in kind, or in performing for him work and labour or other duties which were equivalent to profits; but in process of time nearly all services became commuted, by agreement or usage, into fixed money payments, or rents in the ordinary meaning of the term (e).-Rent service was attended at common law with Distress. the remedy of distress; by which if the rent were in arrear and unpaid, or the services unperformed, the lord might enter upon the land during the tenancy, and seize any personal chattels there found, and detain them as a pledge for the payment of the arrears of rent or for the performance of the services (ƒ).

Rent may be payable out of land independently of Rent charge. tenure. The owner of land, whether in fee or for life or for a term of years, may grant or assign the whole of his estate and interest in the land, leaving in himself no reversion, but reserving a rent; or he may grant to another a rent out of the land, reserving to himself the estate and possession. In such cases the rent has no connection with tenure and is not rent service, nor has it at common law the incidental remedy of distress. But a power of distress may be given or reserved by an express clause in the deed of grant or conveyance, with the effect of charging the land with the rent, which is then called a rent-charge (g). A rent service may become disconnected with tenure by Rent seck.

(b) Re Moody and Yates, L. R. 30 C. D. 346; 54 L. J. C. 887.

(c) Re Chapman and Hobbs, L. R. 29 C. D. 1007; 54 L. J. C. 810. (d) Lit. s. 213.

(e) See ante, Vol. I. Chap. I. "Tenure."

(f) Lit. s. 213; Co. Lit. 142 a; Bullen on Distress, 21; post, p. 422. (g) See post, p. 385.

Distress by statute.

act of the reversioner, as if he conveys away the reversion to which the tenure is incident, but expressly reserves to himself the rent; or if he conveys away the rent separately, reserving the reversion and tenure. The rent is primá facie an incident of the reversion, and passes to a grantee of the reversion unless expressly reserved; but not the reversion with the rent. By severing the rent from the tenure, the remedy of distress, which was an incident of the tenure, is no longer available at common law (g). Rents deprived of the remedy of distress, whether originally so created, or becoming so by a subsequent act, were called rents seck (h).

But by the Statute 4 Geo. II. c. 28, s. 5, it was enacted that "all and every person or persons, bodies politic and corporate, shall and may have the like remedy by distress, and by impounding and selling the same in cases of rents seck, rents of assize and chief rents, which have been duly answered or paid for the space of three years, within the space of twenty years before the first day of this present session of Parliament, or shall be hereafter created, as in case of rent reserved upon lease" (i). Rents seck issuing out of or charged upon freehold interests in land without express power of distress are distrainable under this statute (j); but rent seck issuing out of a term of years or chattel interest seems to have been considered not to be within the statute ().-Now by the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 44, the remedy of distress is given, subject to the conditions of the Act, "where a person is entitled to receive out of any land, or out of the income of any land, any annual sum payable half yearly or otherwise, whether charged on the land or on the income of the land, and whether by way of rent-charge or other

(g) Lit. ss. 225, 229; Sheppard's Touchst. 89, 114.

(h) Lit. ss. 218, 226; Co. Lit. 150 b.

(i) See Musgrave v. Emmerson, 10 Q. B. 326. As to rents of assize and other kinds of rent, see post,

p. 383.

(j) Dodds v. Thompson, L. R. 1 C. P. 133; 35 L. J. C. P. 97. (k) Per cur. — v. Cooper, 2 Wils. 375; see Bullen on Distress, p. 54, App. (A).