of the land or thing itself; (95) wherein it differs from an exception in the grant, which is always of part of the thing granted. (u) It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrein. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like. (w) But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt:(x) though it doth not affect the inheritance, and is no legal rent in contemplation of law. (96) There are at common law(y) three manner of rents, rent-service, *42] rent-charge, and rent-seck. Rent-service is so called *because it hath some corporeal service incident to it, as at the least fealty or the feodal oath of fidelity.(z) (97) For, if a tenant holds his land by fealty, and ten shillings rent, or by the service of ploughing the lord's land, and five shillings rent, these pecuniary rents, being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress; (98) provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired. (a)(99) A rent-charge is where the owner of the rent hath no future interest, or reversion expectant in the land:(100) as where a man by deed maketh over to others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed; (101) and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it. (b)(102) Rent-seck, reditus (u) Plowd. 13. 8 Rep. (w) Co. Litt. 144. (x) Ibid. 47. (y) Litt. @ 213. (2) Co. Litt. 142. (95) 1 Pingrey on Real Property, 128 (1895). Farley v. Craig, 3 Green N. J. Law, 191, 219 (1836). (96) There can be no doubt but the lessee of tithes, an advowson, or any incorporeal hereditament, would be liable to an action of debt for the rent agreed upon. Woodd. 69, where this passage is taken notice of.-CHRISTIAN. See 2 (97) The Statute Quia Emptores abolished all terms between grantors and grantees of a fee, so that at present a rent service cannot be reserved out of a fee. But this tenure does not exist between reversioner or remainder-man, and the tenant of a term of years, and therefore a rent service may be reserved in a lease. Tiedeman on Real Property, sect. 642 (2 ed. 1892). (98) Van Rensselaer v. Bradley, 3 Denio, 135, 141 (N. Y. 1846). Pluck v. Diggs, 2 Hurd. & Br. 1, 58 (Irish K. B. 1828). (99) Cooke v. Wise, and Newton v. Wilson, 3 Hen. & M. 483, 484 (Va. 1809). (100) People v. Haskins, 7 Wend. 463, 467 (N. Y. 1831). Pluck v. Diggs, 2 Hurd. & Br. 1, 58 (Irish K. B. 1828). In New York, a rent reserved upon a conveyance in fee is a rent charge and not a rent service. 2 Washburn on Real Property, 286 (5 ed. 1887). (101) Van Rensselaer v. Hays, 19 N. J. 68, 76 (1859). Farley v. Craig. 6 Hals. (N. J. Law) 262, 276 (1830). Tiedeman on Real Property, sect. 643 (2 ed. 1892). (102) State Morris Canal etc. Co. v. Haight, 6 Vroom, 182 (N. J. 1871). Miner's Bank v. Heilner, 47 Pa. 452, 457 (1864). 2 Washburn on Real Property, 286, 290 (2 ed. 1887). A clear rent-charge must be free from the land-tax. Bradbury v. Wright, Doug. 625.— CHRISTIAN. If land on which a rent-charge is granted is afterwards sold in parcels, and the grantee levies the whole rent on one purchaser, the court of chancery will relieve him by a contribution from the rest of the purchasers, and restrain the grantee from levying upon him only. Cary, 2, 92.—CHITTY. The description of a rent-charge is correct as applied to England, where the statute of quia emptores forbade subinfeudation; for there is therefore no connection of tenure between the grantor and grantee. In Pennsylvania, however, this statute was never in siccus, or barren-rent, is, in effect, nothing more than a rent reserved by deed, but without any clause of distress. (103) There are also other species of rents, which are reducible to these three. Rents of assize are the certain established rents of the freeholders and ancient copyholders of a manor, (c) which cannot be departed from or varied. Those of the freeholders are frequently called chief-rents, reditus capitales; and both sorts are indifferently denominated quit-rents, quieti reditus; because thereby the tenant goes quit and free of all other services. (104) When these payments were reserved in silver or white money, they were anciently called white-rents, blanch-farms, reditus albi, (d) in contradistinction to rents reserved in work, grain, or baser money, which were called *reditus nigri, or black mail. (e) Rack-rent is only a rent of the full value of the tenement, or near it. A fee-farm rent is a rent-charge issuing out of an estate in fee, of at least one-fourth of the value of the lands, at the time of its reservation:(ƒ) for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee-simple, instead of the usual methods for life or years. (105) (c) 2 Inst. 19. (d) In Scotland this kind of small payment is called blanch-holding, or reditus albæ firmæ. (e) 2 Inst. 19. [*43 force; and although the connection of tenure is merely nominal,-although the whole possibility of reverter upon failure of heirs is now vested in the commonwealth,-yet that mere transfer has not altered the character of the estate or the legal incidents thereto annexed. In Pennsylvania, therefore, a rent-service is not only where there is a reversion in the owner of the rent, as where a man grants an estate for life or years, reserving a rent, but also where he parts with the whole fee-simple, reserving a rent. Distress is incident thereto of common right. A rent-charge is confined to the cases where the owner of land grants a rent thereout to a stranger, and by a special clause grants him also a right to distrain for the rent if it should be in arrear: without such a clause it would be a rent-seck. Ingersoll v. Sergeant, 1 Whart. 337. Franciscus v. Reigart, 4 Watts, 98. Kenege v. Elliott, 9 Watts, 262.-SHARSWOOD. A grant by A to B of all his interest in certain grounds, reserving an annual rent payable to A, his heirs and assigns, with a proviso therein that if B shall pay to A a certain gross sum by instalments, then the rents should cease, and a covenant on the part of B to pay the said gross sum, wears every feature of a rent charge until the money is paid in extinguishment thereof. Hurst v. Lithgrow, 2 Yeates, 24, 25 (Pa. 1795). (103) Tiedeman on Real 286 (5 ed. 1887). Property, sec. 643 (2 ed. 1892). 2 Washburn on Real Property, Rent-seck is, in effect, nothing more than a rent for the recovery of which no power of distress is given, either by the rules of the common law or the agreement of the parties. 1 Pingrey on Real Property, 132 (1895). (104) Williams on Real Property, 124 (5 Am. ed. 1879). Goodeve's Modern Law of Real Property, 347 (1891). The grants of lands in New York, made by the crown governors, after 1685, usually reserved certain quit rents. Fowler's History of the Law of Real Property, 35 (1895). To constitute a quit-rent in fee there must have been composition, and the rent must be payable to the lord in his seignoral character. The rents of five shillings sterling, reserved by Lord Fairfax, upon lots in the town of Winchester, Va., were not quitrents, but rents charge. Marshall v. Conrad, 5 Call. 364, 398 (Va. 1805). The incidents necessary to a quit-rent were feudal in their origin, and no longer exist in our law. State v. Haught, 6 Vroom, 178, 182 (N. J. 1871). (105) De Peyster v. Michael, 2 Seld. 467, 497 (N. Y. 1852). Mr. Hargrave is of opinion that the quantum of the rent is not essential to create a feefarm, (Co. Litt. 144, n. 5,) where he differs from Mr. Douglas, who had thought that a fee-farm was not necessarily a rent-charge, but might also be a rent-seck. Doug. 627, n. 1. -CHRISTIAN. A fee-farm rent is not necessarily a rent-charge. Mr. Hargrave indeed thought that it could only be a rent-service, and that the quantum of the rent was immaterial. Co. Litt. 143, n. 235. But in the case of Bradbury v. Wright, Douglas Rep. 4 ed. 627, are notes by the reporter himself and the late learned editor, which explain the mistake both of Blackstone and Hargrave, and show, I think, satisfactorily, that the former is correct in his account of the rent, except in calling it a rent-charge, which it may, but need not necessarily, be.-COLERIDGE. These are the general divisions of rents; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seck, rents of assize, and chief-rents, as in case of rents reserved upon lease. (g) (106) Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation:(h) but in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country. (i) And strictly the rent is demandable and payable before the time of sunset of the day whereon it is reserved;(k) though perhaps not absolutely due till midnight.(/)(107) With regard to the original of rents, something will be said in the next chapter; and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed. (g) Stat. 4 Geo. II. c. 28. (h) Co. Litt. 201. (i) 4 Rep. 73. (k) Co. Litt. 302. 1 Anders. 253. (7) 1 Saund. 287. Prec. Chanc. 555. Salk. 578. Mr. Goodeve maintains that the true meaning of "fee-farm" seems to be a perpetual farm or rent, the name being founded on the perpetuity of the rent, and not on the quantum. See Goodeve's Modern Law of Real Property, 348 (3 ed. 1891). (106) Herr v. Johnson, 11 Colo. 643, 668 (1888). 2 Washburn on Real Property, 286 (5 ed. 1887). Distress, in the most general sense, is anything which is taken and distrained for rent behind or in arrear. Binn's Justice, 72 (10 ed. Brightly, 1895). A rent reserved in grain may be distrained for as well as rent payable in money. Van Rensselaer v. Jones, 2 Barb. 643, 668 (N. Y. 1848). But things annexed to the freehold cannot be distrained. Vausse v. Russell, 2 McCord, 330 (S. C. 1823). The assignee of a rent-seck can make distress for it. Hope v. White, 17 U. C. C. P. 52, 60 (Canada, 1866). The right of making distress in case of rent charge existed in New York until 1846. when it was abolished by statute. It never existed in the New England States. But the common law right of distress as modified by the statute 4 Geo. II. c. 28, has been adopted as the law in many of the states. Those enumerated by Judge Kent are New Jersey, Pennsylvania, Delaware, Indiana, Illinois, Maryland, Virginia, Kentucky, Mississippi, South Carolina and Georgia; while in North Carolina and Alabama it has been directly or indirectly abolished by legislation, and does not exist in Tennessee or Ohio. It exists in Wisconsin, and in Iowa a statute creates a lien for rent in favor of a landlord upon the crops and other personal property upon the premises. So it is stated in the note to Morris's edition of Smith's Landlord and Tenant, that the common law upon the subject of distresses for rent has been adopted very generally in the United States. 2 Washburn on Real Property, 290, 291 (5 ed. 1887). Tiedeman on Real Property, sec. 640 (2 ed. 1892). After a grant of the reversion, the grantor retains his right of action against a tenant for rent accrued due, but the remedy by distress is determined, for this is incident to the reversion. Broom's Parties to Actions, 22, 23 and note (1843). (107) If the landlord dies before the rent becomes due, it goes to the heir, as incident to the reversion. Fay v. Halloran, 35 Barb. 295, 296 (N. Y. 1861). In the case of leases made by tenants in fee, or under a power if the lessor dies on the day of payment, but before midnight, the rent will go along with the land to the heir, or the person in remainder or reversion; because the lessee has till the last instant to pay his rent; and, consequently, the lessor dying before it was completely due, his personal representative can make no title to it. I Lomax's Digest of the Laws of Real Property, pp. 546, 547 ; (1839). This is true only in case the rent is unpaid at the time of the lessor's death. CHAPTER IV. OF THE FEODAL SYSTEM. It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the 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 (a) does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. 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, scientifical 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 splendor. *The constitution of feuds(b) had its original from the military [*45 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, (1) as Crag very justly entitles it, (c) poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions: and to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers. (d) These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern language(e) signifies a conditional stipend or reward. (f) Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given; for which purpose he took the juramentum fidelitatis, or oath of fealty: (g)(2) (1) [Storehouse of nations.] udal right in Finland, etc. See Mac Doual, Inst. part 2. Now, the transposition of these northern syllables, allodh, (3) will give us the true etymology of the allodium, or absolute property of the feudists; as, by a similar combination of the latter syllable with the word fee, (which signifies, we have seen, a conditional reward or stipend,) fecodh or feodum will denote stipendiary property. (g) See this oath explained at large in Feud. l. 2, t. 7. (2) Fealty, the essential feudal bond, is so necessary to the very notion of a feud that it is a downright contradiction to suppose the most improper feud to subsist without it; but the other properties or obligations of an original feud may be qualified or varied by the tenor or express terms of the feudal donation. Wright, L. of Ten. 35. Fealty and homage are sometimes confounded; but they do not necessarily imply the same thing. Fealty was a solemn oath, made by the vassal, of fidelity and attachment to his lord. Homage was merely an acknowledgment of tenure, unless it was performed as homagium ligeum; that, indeed, did in strictness include allegiance as a subject, and could not be and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them.(h) Allotments, (3) thus acquired, mutually engaged such as accepted *46] them to defend them: and, as they all sprang from the same right of conquest, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to, and under the command of, his immediate benefactor or superior; and so upwards to the prince or general himself: and the several lords were also reciprocally bound, in their respective gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also in defence of the whole, and of every part of this their newly-acquired country;(i) the produce of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests.(4) renounced; but homagium non ligeum contained a saving or exception of faith due to other lords, and the homager might at any time free himself from feudal dependence by renouncing the land with which he had been invested. Du Fresne Gloss. voc. Hominium, Legius, et Fidelitas. Mr. Hargrave (in note I to Co. Litt. 68, a.) says, in some countries on the continent of Europe, homage and fealty are blended together, so as to form one engagement; and therefore foreign jurists frequently consider them as synonymous. But in our law, whilst both continued, they were in some respects distinct: fealty was sometimes done where homage was not due. And lord Coke himself tells us (I Inst. 151, a.) fealty may remain where homage is extinct. So Wright (L. of Ten. 55, in note) informs us that it appears not only from the concurrent testimony of all our most authentic ancient historians, (whom he cites,) but likewise from Britton, Bracton, The Mirror, and Fleta, that homage and fealty were really with us distinct, though (generally) concomitant, engagements; and that homage (he of course means homagium non ligeum) was merely a declaration of the homager's consent to become the military tenant of certain of the lord's lands or tenements. The short result appears to be that, whilst the tie of homage subsisted, fealty, though acknowledged by a distinct oath, was consequential thereto; but that the converse did not hold, as fealty might be due where homage was not. The manner of doing homage and fealty is prescribed by the act of 17 Edw. II. st. 3, which enactment abundantly proves the distinct nature of the two acknowledgments at that time.-CHITTY. (3) This is the same as all-hood in English, and is suggested as the derivation of allodium in Woll. Religion of Nat. del. p. 136. This unquestionably is the true etymology, though Dr. Robertson adopts the derivation of allodium from an and lot, or allotment,-the mode of dividing what was not granted as stipendiary property; and he relates the memorable story of the fierce soldier who refused to grant a sacred vase to his general, Clovis, the founder of the French monarchy, who wished to return it, at the request of the bishop, to the church from which it had been taken as spoil, by striking it violently with his battle-axe, and declaring that "you should have nothing but that to which the lot gives you a right.” Hist. of Ch. V., I vol. notes 7 and 8.-CHRISTIAN. (4) Mr. Hallam's account of the origin of the feudal system is different from that in the text. His idea is that the first division of lands was allodial; but that, the sovereign gradually granting out his lands as beneficia, with the mutual obligation of protection and defence, the allodial proprietor soon found his condition an insecure one in the state of society which then existed, and willingly came under the obligation of rendering feudal services in exchange for the powerful protection of the sovereign. "Mr. Hallam mentions a custom," says Mr. Justice Coleridge, "which, as occasioned by the same state |