II. WAIVER

PENNANT'S CASE.

(Court of Queen's Bench, 1596. 3 Coke, 64a.)

In an ejectione firma, between Harvey, plaintiff, and Oswald, defendant, on a demise made 37 Eliz. by John Pennant to the plaintiff, of certain land in Ardeley, in the county of Essex, for three years, from the feast of All Saints, ann. 37. The defendant pleaded, that the said John Pennant was seised of the said land in fee, and anno 35, demised it to the defendant for ten years, yielding the yearly rent of £33 10s. at the feast of St. Michael, and the Annunciation of our Lady; and that he was possessed, till Pennant ousted him, and demised to the plaintiff, and he re-entered, &c. The plaintiff replied, and confessed the said lease, but further said, that the said lease was on condition, that if the defendant, his executors or administrators, at any time without the assent of the said John Pennant, his heirs or assigns, did grant, alien, or assign the said land or any part thereof, that then it should be lawful for the said Pennant and his heirs to re-enter: and that the defendant, anno 35, granted to one Taylor parcel of the said land for six years, without the assent of Pennant, for which he re-entered, and made the lease to the plaintiff, prout, &c.

The defendant, by way of rejoinder, said, that before the re-entry Pennant accepted the rent due at the feast of the Annunciation of our Lady, after the assignment by the hands of the defendant Walter Oswald. To which the plaintiff, by way of surrejoinder, said that Pennant before the receipt of the rent had no notice of the said demise to Taylor, on which plea the defendant did demur in law: and Trin. 39 Eliz. it was adjudged for the plaintiff. And in this case these points were resolved:

1st. That the condition being collateral, the breach of it might be so secretly contrived, as to be impossible for the lessor to come to the knowledge of it, and therefore notice in this case is material and issuable, for otherwise the lessee would take advantage of his own fraud, for he might make the grant or demise so secretly, and so near the day on which the rent is to be paid, as to be impossible for the lessor to have notice of it: but if a man makes a lease for years rendering rent, on condition that if the rent be behind, that it shall be lawful for him to re-enter; in that case, if the lessor demands the rent, and it is not paid, and afterwards he accepts the rent, (before the re-entry made) at a day after, he hath dispensed with the condition,16

16 Accord: Goodright v. Davids, Cowp. 803 (1778). So a right of entry for breach of condition is waived by the lessor bringing an action for rent ac

for there the condition being annexed to the rent, and he having made a demand for the rent, he well knew that the condition was broke: but although in such a case he accepts the rent (due at the day for which the demand was made) yet he may re-enter,1 for as well before as after his re-entry, he may have an action of debt for the rent, on the contract between the lessor and lessee,18 and that was the first difference between a collateral condition and a condition annexed to rent. Vide 45 Ass. 5.

The second difference was, that in case of a condition annexed to rent, if the lessor distrains for the same rent for which the demand was made, he hath thereby also affirmed the lease, for his distress for the rent received; for after the lease determined he cannot distrain for the rent. 14 Ass. 11. Accord.

The third was, that as well in case of a condition annexed to rent, as in case of a condition annexed to any collateral act, if the conclusion of the condition be, that then the lease for years shall be void; there, no acceptance of rent due at any day after the breach of the condition will make the void lease good. And so a difference between a lease which is ipso facto void without any re-entry, and a lease which is voidable by re-entry; for a lease which is ipso facto void by the breach of the condition cannot be made good by any acceptance afterwards. Plow. Com. in Browning and Beston's Case, 133. The fourth was, as the affirmation of a voidable lease by parol for money (or other consideration) will not avail the lessee; so the acceptance of a rent, which is not in esse, nor due to him who accepts it, will not bind him: as if land be given to husband and wife, and to the heirs of the body of the husband, the husband makes a lease for forty years and dies, the issue in tail accepts the rent in the life of the wife, and afterward the wife dies; yet the issue shall avoid the lease; for at the time of the acceptance no rent was in esse, or due to him. Vide 32 H. 8, Br. Acceptance.

The fifth was between a lease for life and a lease for years, for in the case of a lease for life, if the conclusion of a condition annexed to the rent (or other collateral act) be, that then the lease shall be void, there (because an estate of freehold created by livery, cannot be determined before entry) in such case acceptance of rent due at a day after shall bar the lessor of his re-entry, for this voidable lease may well be affirmed by acceptance of rent: and therefore, if a man makes

eruing subsequent to the breach with knowledge of its existence. Dendy v. Nicholl, 4 C. B. N. S. 376.

But there can be no waiver by receipt of rent or by distress of a cause of forfeiture where the forfeiture has been perfected before the rent was received or the distress levied. Jones v. Carter, 15 M. & W. 718; Tolman v. Portbury, L. R. 6 Q. B. 245; L. R. 7 Q. B. 344; Grimwood v. Moss, L. R. 7 C. P.

360.

17Accord: Green's Case, Cro. Eliz. 3 (1582); Price v. Worwood, 4 H. & N. 512.

18 Hartshorne v. Watson, 4 Bing. N. C. 178.

a lease for years, on condition that if the lessee do not go to Rome, or any other collateral condition, with conclusion that the lease shall be void, in that case, if the lessor grants over the reversion, and afterwards the condition is broke, the grantee shall take benefit thereof; for the lease is void, and not voidable by re-entry; and therefore the grantee who is a stranger, may take benefit thereof; but if the lease be made for life with such condition, there the grantee shall never take benefit of it, for the estate for life doth not determine before entry, and entry or re-entry in no case (by the common law) can be given to a stranger, 11 H. 7, 17 a, Br. Cond. 245; 10 E. 3, 52, per Stone; 21 H. 7, 12 a. So if a parson, vicar, or prebend, makes a lease for years, rendering rent, and dies, the successor accepts the rent, it is nothing worth, for the lease was void by his death, otherwise is it of a lease for life: but if a bishop, abbot, prior or such like, makes a lease for years and dies, if the successor accepts the rent, he shall never avoid the lease, for the lease was only voidable, 11 E. 3, Abbot, 9; 8 H. 5, 19; 37 H. 6b; 24 H. 8, Br. Leases, 19; F. N. B. 50 C.

But note, reader, I conceive that in the case of a lease for life, if the lessor accepts the same rent which was demanded, he hath affirmed the lease, for he cannot receive it as due on any contract, as in the case of a lease for years, but he ought to receive it as his rent, and then he doth affirm the lease to continue; for when he accepted the rent, he could not have an action of debt for it, but his remedy then was by assize, if he had seisin, or by distress. And therefore I conceive in such case, the acceptance of the rent shall bar him of his re-entry; and it appears by Littleton, cap. Conditions, fol. 79 a, that in such case, if the lessor brings an assize for the rent, he relinquishes, and waives the benefit of his re-entry, although it be for the rent due at the same day; but if he re-enters first, then he may have an action of debt for the rent behind, 17 E. 3, 73; 18 E. 3, 10; 30 E. 3, 7; 38 E. 3, 10. And afterwards Mich. 39 and 40 Eliz. in the Common Pleas, which plea began Hil. 38 Eliz. Rot. 1302, in trespass between March and Curtis, for land in Essex, the like judgment was given by Anderson, Chief Justice, there, Walmsley, Justice, and the whole court, where a lease for years was made, rendering rent, and with condition that if the lessee should assign his term, that the lessor might re-enter, and the lessee assigned his term, that although the lessor had accepted the rent by the hands of the lessee, yet, forasmuch as the lessor had not notice of the assignment, the acceptance of the rent did not conclude him of his entry; so this point hath been adjudged by both courts. See for the said differences (which lie obscurely in our books) 45 Ass. 5, the Case of Waste, 22 H. 6, 57; 6 H. 7, 3 b; F. N. B. 120, 122; Plow. Com. Browning and Beston's Case, 133, 545; 14 Ass. 11; 40 E. 3, Entry Congeable, 41; 11 H. 7, 17; 10 E. 3, 52; 21 H. 7, 12; 21 H. 6, 24; 39 H. 6, 27; 26 H. 8.

And in these two cases many good cases and differences were taken, when acceptance of rent (or other things) shall bar him who accepts it of the arrearages of the rent, of re-entry, of action, or of execution, and the reason of the old books briefly reported, and in an obscure manner, well explained. If he who hath a rent-service or a rent-charge, accept the rent due at the last day, and thereof makes an acquittance, all the arrearages due before are thereby discharged: and so was it adjudged between Hopkins and Morton in the Common Pleas, Hil. Rot. 950, vide 10 Eliz. Dyer, 271, but there the case is left. at large; and therewith agrees 11 H. 4, 24, and 1 H. 5, 7 b. But note, it appears by the said record of 10 El. that the bar to the avowry ought to be in such case, with conclusion of judgment, if against this deed of acquittance he ought to make avowry; so that it appears that the acquittance is the cause of the bar of estoppel in such case. For it appears by 8 Ass. pl. ult.: 9 E. 3, 9; 29 E. 3, 34, that if a man makes a lease for life rendering rent, or if there be lord and tenant by fealty and rent, and the rent is behind for two years; and afterwards the lessor, or the lord, disseises the ter-tenant, and afterwards the tenant recovers against him in assize, and the rent, which incurred during the disseisin is recouped in damages, yet the lord or lessor shall recover in the assize, the arrearages before the disseisin; and the bar of the latter years is no bar of the arrearages before. Vide 39 H. 6; Bar. 79, where the principal case of annuity may be good law, either because there the defendant pleaded the acquittance for the last day, and demanded judgment of action, where he ought to have relied upon the acquittance. Or because, in the case of annuity, he is not bound to pay the annuity without acquittance; but in the case of rent-service, or rent-charge, he who receives it is not compellable to make an acquittance, but the making thereof is his voluntary act, to which the law doth not compel him.

If there be lord and tenant, and the rent is behind, and the tenant makes a feoffment in fee, if the lord accepts the rent or service of the feoffee, he shall lose the arrearages in the time of the feoffor, although he makes no acquittance; for after such acceptance he shall not avow on the feoffor at all, nor on the feoffee, but for the services which incurred in his time, as appears in 4 E. 3, 22; 7 E. 3, 8; 7 E. 4, 27; 29 H. 8, Br. Avowry, 111. But in such case, if the feoffor dies, although the lord accepts the rent or service by the hand of the feoffee, he shall not lose the arrearages, for now the lord cannot avow on other, but only on the feoffee: and that, to which the law compels a man, shall not prejudice him.

So, and for the same reason, if there be lord, mesne, and tenant, and the rent due by the mesne is behind, and afterwards the tenant doth forejudge the mesne, and the lord receives the services of the mesne, which now issue immediately out of the tenancy, yet he shall not KALES FUT.INT.-3

be barred of the arrearages which issue out of the mesnalty: so, if the rent be behind, and the tenant dies, the acceptance of the services by the hands of the heir shall not bar him of the arrearages; for in these cases, although the person be altered, yet the lord doth accept the rent and services of him who only ought to do them; and all this appears in 4 E. 3, 22; 7 E. 3, 4; 7 E. 4, 27; 29 H. 8, Avowry Br. 111. But acceptance of rent or services by the hands of the feoffee shall not bar the lord of the relief before due, for relief is no service, but a fruit and approvement of services; for if it were part of the services, then an action of debt would not lie for it so long as the rent continues, but it is as a blossom of fruit fallen from the tree; and for relief, it is not necessary to avow on any person certain; and the book in 4 E, 3, 22, is to be intended, that the father made a feoffment in fee by collusion and died: and there it is held, that if the lord had accepted the services by the hands of the feoffee in the life of the father, he should lose his relief.

But note, reader, relief was not taken within the equity of the Statute of Marlebridge, as it is adjudged in 17 [27] E. 3, 63; but now it is remedied by the Statute of 32 and 34 H. 8 of Wills. But in the case before, the lord (before acceptance of the rent or service by the hands of the feoffee) might have avowed on the feoffee for all the arrearages incurred, as well in the time of the feoffor, as in the time of the feoffee, as it is in 7 H. 4, 14; 19 E. 2, Avowry, 222. And by what hath been said it appears, that the acceptance of homage or any other service of the heir, shall not bar the lord of relief. Vid. temp. E. 1, Relief, 13; 15 E. 3 Ib. 5; 16 E. 3 Ib. 10; 3 E. 2 Avow. 190.

And it was further said, that if there be lord and tenant by knight's service, and the tenant enfeoffs his son and heir apparent within age by collusion, if the lord accepts the services by the hands of the feoffee, he shall lose the wardship; but against that it was objected

1st. That the feoffee might compel the lord to avow on him, by giving notice and tendering the arrearages, and that which the law compels one to do, shall not prejudice or estop him.

2d. That acceptance doth not conclude before title accrued, and no title of wardship in this case was accrued to the lord at the time of the acceptance, but it accrued after the death of the feoffor.

As to the first it was answered, that the feoffee by no tender that he could make, could compel the lord to avow on him: for the lord might show, that the feoffment was by collusion, against the Statute of Marlebridge, cap. 6, and therefore he might maintain his avowry on the feoffor; for the law will not compel him to avow on the feoffee to his prejudice.

As to the second, it was answered, that the Statute of Marlebridge hath made such feoffment, made by collusion, as void and of no effect as to the lord: and, therefore, if the lord will affirm the feoffment,