(f) 10 E. 3. 26. 34 Ass. 15. 23 E. 3. Dower 130. (7 Co. 8 b.) mined), now is the lease, as to the tenant in dower (who is in of the state of her husband) (ƒ), revived again as against her, for as to her the estate tail continueth, for she shall be attendant for the third part of the rent services, and yet they were extinct by act in law. So it is if tenant in tail make a lease for years ut supra, and dieth without issue, his wife enseint with a son, he in the reversion enter, against him the lease is void, but after the son be born the lease is (5) 32 H. 8. cap. 28. good, if it be made according to the (g) statute, and otherwise is voidable. The king made a gift in tail of the manor of Eastfarleigh, in Kent, to W. to hold by knight's service; W. made a lease to A. for thirty-six years, reserving thirteen pound rent; W. died, his son and heir of full age. All this was found by office. As to the king, this lease is not of force, for he shall have his primer seisin, as of lands in possession, but, after livery, the lessee may enter; and if the issue in tail accept the rent, the lease shall bind him, for the king's primer seisin shall not take away the election of the issue in tail, for it may be that the rent was better than the land: (h) and so it was adjudged in Austen's case, as I had it of the report of master the Exchequer against Edmond Plowden, a grave and learned apprentice of law. (1 Rol. Abr. 842.) (h) Pasch. 2 & 3 Ph. & Mar, in an information of Intrusion in Austen. Vid. Dier. Pasch. 2 & 3 Ph. & Mar. 115. 13 Eliz. cap. 10. (i) 6 E. 6. Dier 72. (Cro. Car. 552.) 17 E. 3. 52. 17 Ass. p. 17. 2 R. 3. 20. If tenant in fee take wife, and make a lease for years, and dieth, the wife is endowed, she shall avoid the lease, but after her deccase the lease shall be in force again. But if the patron grant the next avoidance, and after parson, patron, and ordinary, before the statute, (i) had made a lease of the glebe for years, and after the parson dieth, and the grantee of the next avoidance had presented a clerk to the church, who is admitted, instituted, and inducted, and dieth within the term; the patron presents a new clerk, and he is admitted, instituted, and inducted, albeit he cometh in under the patron that was party to the lease, yet because the last incumbent, who had the whole state in him, avoided the lease, it shall not revive again, no more than if a feme covert levy a fine alone, if the husband enter and avoid the fine, and die, the whole estate (Hob. 225. 10 Co. 43.) is so avoided, as it shall not bind the wife after his death (2). (2) "Adjudged accordingly Cro. Cha. Plowden v. Oldford, 582. But in Hill. 10 Eliz. C.B. E. 233, adjudg ed that the lease revived. Polydore Virgil's case." Hal. MSS.-[Hargr. u.7.40 a.] *If a woman be endowed of an advowson which is appropriated, and she present, and her incumbent is admitted, instituted, and inducted, albeit the incumbent die, yet is the appropriation wholly dissolved, because the incumbent, which came in by presentation, had the whole state in him (c); and so it was adjudged, as the case is to be intended (3). Tenant in tail make a lease for forty years, reserving a rent, to commence ten years after; tenant in tail die; the issue enter, and enfeoff A.; ten years expire, the lessee enter: if A. accept the rent, the lease is good, for he shall have the same election, that the issue in tail had, either to make it good, or to avoid it, so as it could not be precisely affirmed, whether by the entry of the issue this executory lease was avoided, but it dependeth uncertainly upon the will of the feoffee (4). But now I know you are desirous to hear Littleton, who is speaking to you. Touching the time of the beginning of a lease for years, it is to be observed, that if a lease be made by indenture, bearing date 26 Maii, &c. to have and to hold for twenty-one years, from the date, or from the day of the date (5), it shall begin on the twenty-seventh day of May (6). (3) "Vid. 21 E. 3. Grants, 58. Appropriation without licence, and câ de causâ it seems a disappropriation." Hal. MSS.-[Hargr. n. 1. 46 b. (27.5).] (4) But if it was lease in præsenti by tenant in tail, and the issue before entry levies fines, the conusee shall not avoid the lease, for the lease was only voidable, and the land passes in degree of reversion. Vid. Dy. 51. 7 Rep. 9. Earl of Bedford's case." Hal. MSS.[Hargr. n. 2. 46 b. (378).] (5) Vid. for date and day of the date hic fol. 6 a. and the note there." Hal.MSS.-In fol. 6a. Lord Hale gives the following note:"Date and day of the date the same in point of computation. 5 Rep. But in point of interest date is taken inclusive, day of the date exclusive in many cases. T. 9 Jac. B. R. Bulstr. n. 177. A. on the second of August, 1 Jam. makes an obligation to B. and afterwards on the same day B. releases all actions usque datum scripti: the obligation (6)" Vid. for commencement of (C) And the fee, being once discharged, cannot be charged again withent a new grant. Hawk. Abr. 71. Aute, vol. 1. p. 224. n. (M).—[Ed.] 12 Eliz. Dyer 286. (2 Rol. Abr. 520. Cro. Jac. 135. Post, 255 a.) 14 El. Dy. 307. 5 El. Dy. 218. (1 Rol. Abr. 849, 850. Cro. Cha, 78.) Lease to hold, from the making hereof, or from henceforth, begins from the delivery. So where no time of commencement is mentioned; or when it bears a void or when it refers to a If the lease bear date the twenty-sixth day of May, &c. to have and to hold from the making hereof, or from hence forth, it shall begin on the day on which it is delivered; for the words of the indenture are not of any effect till the delivery, and thereby from the making, or from henceforth, take their first effect. But if it be a die confectionis, then it shall begin on the next day after the delivery (D). If the habendum be for the term of twenty-one years, without mentioning when it shall begin, it shall begin from the delivery, for there the words take effect, as is aforesaid. If an indenture of lease bear date which is void or impossible, as the thirtieth day of February, or the fortieth of March, if in this case the term be limited to begin from the date, it shall begin from the delivery, as if there had been no date at all (E). (k) And so it is, if a man by indenture of lease, either re case, 32. Moor and Musgrave. A. In Cawsey. Lease by indenture of 25 March 15 Car. to have and to hold from and after the day of the date of these presents for the term and time of seven years from henceforth next immediately ensuing, shall commence in computation from the delivery, and in point of interest from the date." Stiles, 118. Hal. MSS.-[Hargr. n. 9. 46 b. (282).] (D) This distinction between a lease "from the day of making," and one "from the making thereof," has been denied; and it has been held, that the word "from" may, in the strictest propriety of language, be taken either inclusive or exclusive: and where the lease can only be sup ported by construing the word "from" inclusive (as in the case of a lease under a power to grant leases in possession, but not in reversion), a court of justice ought to give it that sense. Freeman v. West, 2 Wils. 165. Pugh v. Duke of Leeds, Cowp. 714. So also a lease for lives, to commence "from the date," shall be construed to include the day of the date; for otherwise the freehold would be conveyed to commence in futuro, which cannot be. Hatter v. Ash, 1 Ld. Raym. 4th edit. 84. And see the authorities there cited by the learned editor, who observes, that the words " from the date,” when used to pass an interest, include the day; aliter when used by way of computation in matters of account. See also Powell. Pow. 504–510. Bellusis v. Hester, 1 Ld. Raym. 280. The King v. Adderley, 2 Dougl. 465. Supra, n. (5) and n. (6).—[Ed.] (E) But there is a difference, in this respect, between a lease which bears an impossible date, and one which has an uncertain date; for where the time when a lease is to commence is uncertain, as where a lease was made habendum from the 20th of November, without saying what No vember, the uncertainty will render the lease void, because it was part of the agreement, that the lease should commence from the 20th of some November or other; but it not appearing to the court what November was intended, they cannot determine it for the parties, and therefore the lease is void. Anon, 1 Mod. 180. 4 Bac. Abr. 168. tit. Leases (L).-[Ed.] cite a lease which is not, or is void, or mis-recite a lease in point material which is in esse, to have and to hold from the ending of the former lease, this lease shall begin in course of time from the delivery thereof (7) (F). (7) "For misrecital a lease shail commence immediately. 6 Rep. Bishop of Bath's case. The Earl of Oxford, by deed, dated 10 Feb. 27 H. 8. demises to A. for 21 years; and afterwards by indenture reciting that he by indenture, dated 10 Feb. 28 H. 8. had demised to A. for 21 years, demises the same land to B. habendum for 31 years from and after the expiration, surrender, or forfeiture of the said lease. It was ruled, that B.'s lease should commence in computation immediately, because A.'s lease was misrecited. H. 10 Car. B. R. Crook, n. 8. Miller and Manwaringe. But if in case of such a misrecital, the habendum be from and after the demise aud indenture made to A. and it is not said the said demise, then the second lease shall commence after the true lease, notwithstanding the misrecital. M. 1 & 2 P. & M. Rot. 648. Mount and Hodgken, Bendl. n. 71." Hal. MSS.See Cro. Cha. 397, and N. Bendi. 38. See further as to the commencement of leases and the effect of misrecitals in that respect, Sheph. Touch. 272. New Abr. Leases, L. and Vin. Abr. Estate, Z. a. and Grant, R. 4.-[Hargr. n. 10. 46 b. (283).] (F) It may be further observed, that in every lease for years there are four times to be considered: 1st. The time of computation; 2dly. The time of commencement in interest; 3dly. The time of continuance; and 4thly. The time of determination in point of limitation. The time of computation marks the period or event from which the calculation of the time of continuance is to be taken, to ascertain the time of the determination of the estate in point of limitation; which is a consequence of the time of continuance. The time of commencement marks the period at which the owner of the term is to have the enjoyment of the land under the lease or limitation. The time of computation and the time of commencement may be different. 4 Bac. Abr. 170. tit. Leases (L). Enysv. Donnithorne, 2 Burr.1192. The computation of time may be from a day that is past, while the time of commencement is from a day to come: or they may be from the same period as a lease to hold for twenty-one years, from next Lady Day thenceforth for the term of twenty-one years. With respect to the time of computation it may be either, 1st. from a day past; 2dly. the present time; 3dly. a day to come; 4thly, an event which is to arise; and 5thly. it may be referred to a third person to name the time. 4 Bac. Abr. 176-183. tit. Leases (L). But with regard to the time of commencement, no estate can entitle the person to whom it is made, for time which is past. It is true, that it frequently happens that the person to whom an estate is made, is, by the express agreement of the parties, to have the rent from a day that is past; and it may be said, that rent is not due till the day of payment; and to what becomes due on that day, the owner of the estate in reversion, to which the rent is incident, will be entitled: but no agreement can entitle him, in point of estate, for any period prior to the time when he acquired his estate. Prest. Est. 620, 621. 2 Prest. Conv. 161. The time of commencement in interest may be either, 1st. from the present time; 2dly. a future day in particular; or 3dly. a particular event. The time of computation and the time of determination necessarily mark the time of continuance. As to the time of the end, this must be certain, or, in other words, the lease must be for a given space which is certain as to the quantity of time which it comprises, as a year, and is to be computed from a particular day, or from a particular event, so that it can be said with certainty on what day, from the day or time of computation, let it happen whensoever it will, that the term will expire by effluxion of time. But so long as the continuance is marked with certainty in the clause of limitation, by an enumeration of years or some other stated period, the continuance of that time may be made uncertain by a collateral determination (as in the case of a lease of the glebe by a parson for twenty-one years, if he shall continue parson so long, ante, 45 b. vol. 1. p. 633.), or by condition. 2 Prest. Conv. 162. And in all modern leases there is a proviso, that if the rent is not paid, and no sufficient distress is found on the premises, the lessor may re-enter and enjoy the lands as in his former estate. See Prest. Est. 615-655. 4 Bac. Abr. tit. Leases (L).—[Ed.] LITTLETON. How the reservation of rent is to be made :In respect of the things out of which it may be made. TENANT for term of years is where a man letteth [Sect. 58.43 b.] lands or tenements to another for term of certain years, after the number of years that is accorded between the lessor and the lessee. And when the lessee entereth by force of the lease, then is he tenant for term of years; and if the lessor in such case reserve to him a yearly rent upon such lease, he may choose for to distrain for the rent in the tenements letten, or else he may have an action of debt for the arrearages against the lessee. But in such case it behoveth, that the lessor be seised in the same tenements at the time of his lease; for it is a good plea for the lessee to say, that the lessor had nothing in the tenements at the time of the lease, except the lease be made by deed indented, in which case such plea lieth not for the lessee to plead. *47 a. Must be out of lands or tenements, whereon a distress may be had: (1) 7 Co. 23. But's case. 10 Co. 59, 60. *Reserve to him a yearly rent, &c." First, it appeareth (7) here by Littleton, that a rent must be reserved out of lands or tenements, whereunto the lessor may have resort or recourse to distrain, as Littleton here also saith, and therefore (Cro. Ja. 173. Ante, a rent cannot be reserved by a common person (8) out of any 142 a. 144 a. 5 Co. 3. Abr. 446. 5 Co. Mountjoy's case. Noy. 60.) (m) 30 Ass. p. 5. 2 Saund. 303. 2 Rol. incorporeal inheritance, as advowsons, commons, offices, corody, mulcture of a mill, tithes, fairs, markets, liberties, privileges, franchises, and the like. (m) But if the lease be 12 Ass. 20. 20 H. 4. made of them by deed (9) for years, it may be good by way of contract to have an action of debt, but distrain the lessor cannot. Neither shall it pass with the grant of the reversion, for that it is no rent incident to the reversion (10). But if any 10. 1 H. 4. 1, 2, 3. 11 H. 4. 82. 19 E. 2. Fines 126. 44 E. 3. 45. 9 Ass. 24. 26 Ass. 60. 14 E. 3. Scir. fac. 122. 5 E. 3. 68. 17 E. 3. 75. 11 H. 4. 10 H. 6. 12. 21 H. 6. 377. rent be reserved in such case upon a lease for life, it is utterly void, for that in that case no action of debt doth lie (11). (8) Lord Coke confines the rule to common persons, because the king may reserve rent out of an incorporeal inheritance; the reason of which is, that he by his prerogative can distrain on all the lands of his lessee. 4 New Abr. 192 & 339.-[Hargr. n. 1. 47 a. (284).] (9) The case of a lease by deed is put, because in general things incorporeal will not pass without deed. Ante, 48 a. (p. 334.), 49 a. (p. 353.), 169 a. (vol. 1. p. 704.), and 9 a. (p. 333.).-[Hargr. n. 2. 47 a. (285).] (10) "12 H. 4. 17. Vid. infra, fol. 44 b. the case of the precentor of Paul's, according to which rent on lease for years of tithes is incident to the reversion." Hal. MSS. See post, 44 b. n. 30.-[Hargr.n. 3. 47 a. (236).] (11) That the common law did not allow debt for rent on freehold leases whilst they continued is certain, though the reason is not quite so clear. See 3 Blackst. 233. It has been accounted for by suggesting, that the remedies by cessarit and distress were deemed sufficient securities for the rent and services. See Gilb. on Rents, 93. and Gilb. on the Action of Debt in his Cas. in L. and Eq. 370. But it may be proper to observe, that the cessarit seems to have been first given by the 6 E. 1. c. 4. though the lord's right of seizing the land for substraction of services, which continued till it was taken away by the |