A release of part of the

land charged.

'Such a case as the above varies altogether from the case of a demise wherein the lessor has a reversion, and reserves rent, which is a rent-service. When a person grants his whole estate, leaving in himself no reversion, if he reserve rent, it will not, by reason of the Statute Quia Emptores (a), operate as a reservation of rent service for which distress may be had of common right; but it may operate as a grant of a rent-charge, which will be a rent-seck, unless a power of distress be given (b). A rent-charge may also be created by express grant; as when A. grants lands in fee to B., and B. grants to A., in the same conveyance, a rent-charge out of the lands or where, as the first and only transaction, B., the owner of lands, should grant a rent-charge. It may also be created by conveyance under the Statute of Uses; as if A., seized in fee should grant to B. and his heirs, to the use and intent that A., and his heirs may, out of the lands conveyed, receive a rent-charge; to which is further, sometimes, added further uses, as that on non payment, A. and his heirs may distrain, or re-enter and hold till payment, &c.; the Statute (ss. 4 & 5) enacts that when any person shall stand seized of any lands, in fee simple or otherwise, to the use and intent that some other shall have yearly to them and their heirs or their assigns, any annual rent, the persons that have such use to have the rent, shall be adjudged and deemed in possession and seisin of it, of the same estate as they had in the use of it, and may distrain. This Statute we shall hereafter consider at length.'

'By R. S. O. c. 95, s. 1, a release from the charge of part of the property shall not extinguish the whole charge, but operate only to bar the right to recover any part of the charge out of the property released, but without prejudice to the rights of all interested in the property unreleased and not concurring in or confirming the release.'

'If the owner of the rent released part of the land from the charge, the whole rent was discharged, for the charge is entire, and issues out of and is charged on every part of the land, and is also against what is termed common right (a). So also, if the owner of the rent purchased, or took by devise (b), part of the lands charged, the whole charge was released by operation of law; and it would seem, as hereafter explained, that the Act will not prevent a release when it takes place by operation of law. But if part of the lands be acquired by descent, or by title paramount (c), no release would take place. The owner of the rent could always release part of it to an owner of the land.'

apply to a re

as on purchase of part of the land?

'It may perhaps be contended that the Act does not apply Does the Act to prevent a release where it takes place by operation of law, lease by operas on purchase or taking by devise of part of the lands. ation of law, The expression, that the release "shall operate only to bar the right to recover any part of the rent-charge out of the hereditaments released," implies the existence of some one owning the part released, other than the releasor, against whom the releasor was to be barred of right to recover; such expression would not be applicable where the lands released became the property of the owner of the charge, who cannot be supposed to have required legislation to bar his right to recover out of his own lands. Moreover, the Act contemplates a concurrence in, or confirmation of the release, and it may be said this would not apply when the release is the mere result, by operation of law, of acquiring the lands, and is not a release in deed.'

tribution of

In regard to the latter part of the above section, it must Right of conbe borne in mind that if an owner of part of the land charged, any one of sebe forced to pay the whole charge, he has a right of contribu- paying the tion against owners of the other part (d).'

(a) Co. Lit. 148; see also generally, notes to Cluns case, Tud. Lg. Ca. 3 ed.,

331; 2 Jar. & By. Conv. by Sweet, 60.

(b) Dennett v. Pass, 1 B. N. C. 388.

(d) Hunter v. Hunt, 1 C. B. 300.

(c) Co. Lit. 148 b.

veral owners

whole charge.

Release from

a judgment or

execution of

part of the land bound.

Rent-seck.

The English Act from which the Act revised is taken, makes as to release from a judgment the same provision as above, in regard to rent-charges. Assuming that since the Act of 24 Vic. c. 1, s. 10, a judgment is not a lien on lands (a), even against the heir, still as an execution is, it is not clear that a release in deed, or by operation of law, from an execution, of part of the lands bound, would not release the residue (b), especially if since delivery of the writ to the sheriff the residue had passed into the hands of a purchaser.

A rent-charge may be granted in fee simple, or for a less estate; of course it cannot last longer than the estate of the grantor; thus, if the grantor have only a life estate, his grant will be commensurate with his estate.'

Rent-seck, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause of distress. It must be understood, however, that by the deed no reversion is left in the grantor but that he makes over his whole estate (c), for if a reversion be left in him the rent will be rent-service. And it would seem that, strictly speaking, there can be no reservation, quâ reservation, of a rent-seck; for, if the whole estate of the grantor be made over by deed, the rent-seck reserved or made payable will not enure by way of reservation, but by way of re-grant of the rent; and if the whole estate be not made over, the rent will not be rent-seck but rent-service (d). A rent seck may arise also on grant of a rent without a clause of distress to a person having no estate or interest in the land; or, as before mentioned (e), by grant by a lessor or owner of rent-service of future rent only without the reversion (f) but it would seem, as before stated, rent-service actually payable and overdue is not assignable unless perhaps under the R. S. O. c. 116.'

(a) See Leith Real Prop. Stats. 312, n, a, and Boice v. O'Loane 3 App. R. 169. (b) Hele v. Lord Bexley, 17 Bea. 14; Hancock v. Hancock, 1 Ir. Ch. Rep. 444.

(c) Watkin's Com., 9 ed. 286.

(e) Ante p. 67, notes a & d.

(d) Watkin's Com., 9 ed. 288, note. (f) Hope v. White, ante p. 67.

'By the Act of 5 Geo. II., ch. 28, the like remedy by dis- Remedy for tress is given to recover rent-seck as exists in case of rentservice reserved in a lease to a reversionor.

ment.

Rent is apportionable in like manner, as before explained Apportionin regard to annuities, by R. S. O., c. 136; and also on the death of lessor, tenant for life, by 11 Geo. II., ch. 19, s. 15, as hereafter mentioned (a).'

Rack-rent is only a rent of the full value of the tenement, Rack-rent, or near it.

Franchises are another species of incorporeal heredita- Franchises. ment. Their definition is a royal privilege, or branch of the Sovereign's prerogative subsisting in the hands of a subject. Being therefore derived from the Crown, they must arise from the grant of the Sovereign. They are of various kinds. It is a franchise for a number of persons to be incorporated and subsist as a body politic. (In this case the assent of the Sovereign is given by the Act of Incorporation.) Among other franchises are those to have waifs, wrecks, estrays, treasure-trove, royal fish, and forfeitures.

(a) Post, s. 123.

A general acquaintance with the na

trine of feuds

necessary.

CHAPTER V.

OF THE FEODAL SYSTEM.

It is impossible to understand, with any degree of accuracy either the civil constitution of this kingdom, or the ture and doc laws which regulate its landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law: a system so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelman does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this enquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientific manner, without having recourse to the ancient. Nor will these researches be altogether void of rational entertainment as well as use; as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendour.

Its origin.

* S. 45.

* The constitution of feuds had its original from the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who, all migrating from the same officina gentium, as Crag very justly entitles it, poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman