Short Studies in the by Bracton in another place. After describ ing the rents which are services or servitudes (servitia), reduced to certainty either in money or in things like pounds of pepper or of wax, casks of wine, gloves, etc., he adds : — "There is, however, a certain kind of rent which is given by any one, to he received out of a cer tain thing, with or without the power of distraining for it, which is not called a service, but is as it were a freehold by feoffment, —■ quasi ex feoffamaito liberum tenementum, — to be treated of hereafter under assize."1 This, it will be seen, includes rent-seek as well as rent-charge, by the words " with or without the power of distraining." Indeed, there is ample proof that rent-seek shared fully what may be called the corporeal character of the other forms. For rent-seek, as of all other rents, one can have mordancestor, or writs of ayel or cosinage, and all other kinds of real actions (Litt. § 236). Novel disseisin would lie for it after seisin once had by receipt of rent (ib. 233), though Houard strangely enough interpolates a contrary statement in his translation of § 236. So far as the rent itself is concerned, there seems no difference between the three species. It was the reversion, the power to distrain, and the mode of creation that dis tinguished them. A rent-service could be changed into a rent-charge. A lord entitled to rent and fealty from his tenant grants the rent to another with clause of distress, and tenant attorns to grantee; thereupon it becomes a rent-charge.2 Or if he transfers without the reversion or clause of distress, it becomes a rent-seek, even though tenant may attorn.3 The transferee could not distrain; and even on a lease for years he could not sue in debt for the rent, not being privy to the contract.4 Hence remedy was given him in chancery, by requiring the tenant to give seisin of the 1 ' 8 4
Lib. ii. c. 16. § 6. fo. 35 b. Y. B. 1 Edw. III. 21, 27, 28. Litt. §§ 228, 235. Austin vs. Smith, Leon. 315 (1558).
rent, after which he had the assise.1 But by Stat. 4 Geo. II. c. 28, sec. 5, rent-seek was put on an equal footing as to distress with the others. The mere failure to pay rent or perform services, without a denial of the fight to them, would not warrant an assize. The lord was bound to dis train; and if he lacked the power, then to call upon the sheriff, as representing his su perior lord, to assist him.2 According to Britton, the judges in eyre may order the sheriff to assist him in distraining.3 If the tenant disavows the lord, the latter may bring the assize; though some say that he ought to claim the land in demesne. The rent was so identified with the land out of which it issued, that any peculiarity of tenure in the land attached also to it. For example, if the land svas partible, devisable, or in ancient demesne, the rent was of the same nature, although recently granted.4 So of gavelkind and borough-English; though a dictum of M. 30 E. III. is quoted, that where lord mesne and tenant were in that tenure, the mesne's rent and services would be at common law, unless shown to be of the • nature of the land. But the reporter adds a quere. Rent reserved to two parceners for equality of partition follows the nature of the estate, and there is no survivorship.5 Upon such rent distress was of common right, although it was not rent-service, but properly rent-charge; yet it was valid with out any writing.6 It appears to be the charge upon the land, not the person by whom the payment is to be made, in which the substance of the 1 Viner's Ab't Rent, C. 4; and fuller in M. 1 3,3 Ch. Cas. 92; Mo. 626, pi. 859. 1 Bracton. fo. 203 I should hardly think this worth quoting, if Twiss in the Index to vol. iii. of his edition had not stated it thus " An assize does not lie for a rentcharge, but it is matter of distress " (333). 8 Britton, lib. ii c. 18, § 10. 4 12 Ass. 78. Brook, Rents, 13. 5 15 Hen. VII. 14. Brook. Rents, 8. 6 Litt. §§ 251-253. Paston doubted that it was properly rent-charge. Brook, Rents, 6. 21 Hen. VI. 11. See Litt. §S 217, 218, as to the usual requirement of a deed in rentscharge.
