OF A FARM.

What trees are included in an exception of trees.

Property in

trees not excepted.

willows, alders, sallows, thorns, and bushes, which, during the term hereby granted, shall be in or upon the said

690; Pincomb v. Thomas, Cro. Jac. 524; Goodright d. Peters v. Vivian, 8 East, 190). A reservation of a right of entry to cut wood, does not, of course, amount to an exception of the soil; and where there was an exception of saleable underwood, with a reservation of a right of entry for the purpose of felling and carrying away the timber, it was held that the soil was not excepted. (Pincomb v. Thomas, Cro. Jac. 524).

An exception of trees generally does not include fruit trees; (Wyndham v. Way, 4 Taunt. 316, 318); and even where the exception in a lease of lands, in a cider county, was of "all timber trees, and other trees, but not the annual fruit thereof," it was held that apple trees were not included in the exception, for fruit, in legal language, applies to the produce of all trees, and not merely to the produce of what are usually termed fruit trees. (Bullen v. Denning, 5 B. C. 842; S. C. 8 Dow. & Ry. 657). "Other trees," means trees of the descriptions previously mentioned, as in Bullen v. Denning, and in Lord Zouch v. Moore, (2 Roll. Rep. 274, 335, 358), where an exception of apple and other trees, was held to include all other fruit trees. Timber trees are oak, ash, and elm, of not less than twenty years' growth, (Foster v. Leonard, Cro. Eliz. 1; Aubrey v. Fisher, 10 East, 446); and such other trees, as, according to the custom of the county, are considered timber; (see 1 Cru. Dig. by White, p. 116; Rabbet v. Raikes, Woodf. L. & T. 224); but it would seem that no tree can be deemed timber unless it be of the age of twenty years or upwards. (Aubrey v. Fisher, ubi supra). As to what may be deemed underwood, or saleable underwood, see The King v. Ferrybridge, 1 B. & C. 375; The Queen v. The Inhabitants of Narberth, 1 Per. & Dav. 590.

If the trees be not excepted, the lessee has an interest in their fruit and shade, and the lessor cannot fell them. (Herlakenden's case, 4 Rep. 62; 1 Ld. Raym. 552). The property, however, of the trees is in the lessor, and if they be blown down or cut by the lessee, the lessor is entitled to them. (Ib.; and Evans v. Evans, 2 Camp. 491; Berriman v. Peacock, 9 B. & C. 384; Ward v. Andrews, 2 Chit. 636; Wyndham v. Way, 4 Taunt. 316). But it seems that the hedges and bushes belong to the tenant. (Berriman v. Peacock, ubi supra). With respect to the right to decayed trees, or trees which are fit only for firewood, see Herlakenden's case, 4 Co. Rep. 62; Liford's case, 11 Co. Rep. 49 b; Co. Litt. 53. a. ; Perrot v. Perrot, 3 Atk. 94; Whitfield v. Bewit, 2 P. Wms. 240; S. C. 3 Id. 266; Wickham v. Wickham, 19 Ves. 419; Channon v. Patch, 5 B. & C. 897; S. C. nom. Chapman v. Patch, 8 Dow. & Ry. 658; Simmons v. Norton, 7 Bing. 640; S. C. 5 Moo. & Pay. 645.

OF A FARM.

with right

of entry to cut

sporting pur

premises, WITH LIBERTY of ingress, egress, and regress, to and for the said A. B. and his assigns, to dig, cut, fell, top, stub up, convert, and carry away the said brick earth, clay, fish, timber and other trees, wood, underwood, &c., and to inalders, willows, sallows, thorns, and bushes, and to plant spect condition; all sorts of trees in the several banks or hedgerows of the said demised premises, and to view the condition thereof, and to bring materials thereon, and to repair or renew the same; AND for him the said A. B., and his assigns, friends, and for companions, and game-keepers, agents and servants, at all seasonable times in the year, to hunt, shoot, course, fish, fowl, and sport, in, over, and upon the said demised and for gepremises, and for all other reasonable purposes: To HAVE AND TO HOLD the said messuage, tenement, farm, lands, and hereditaments, and all and singular other the premises hereinbefore demised, or expressed and intended so to be, unto the said C. D., his executors, administrators, and assigns, from the day of for the term of

poses;

neral purposes. Habendum for

a term deter

life of lessor.

minable with

of a certain

years thence next ensuing, if the said A. B. shall so long live, YIELDING AND PAYING therefore, yearly and every Reddendum year during the said term hereby granted, unto the said yearly rent; A. B., his executors, administrators, and assigns, the yearly rent or sum of £—, clear of all existing and future taxes and deductions whatsoever, except the land tax, by equal payments, on the 6th day of January, the 6th day of April, the 6th day of July, and the 11th day of October in each year, the first payment thereof to be made on the day of next, and the last payment thereof on the day of preceding the end of the said term, in case the same term shall end by effluxion of time, and not be determined by the death of the said A. B. (c): AND

An executor of a lessor may sue a lessee for injuring trees in the lessor's lifetime. (Raymond v. Fitch, 2 Cro., Mee. & Ros. 588).

and of an ad

ditional rent for ploughing

(c) Rent reserved on a lease may be made payable at such times At what times as the parties appoint, and in modern leases it is generally made rent is payable. payable in equal half-yearly or quarterly payments. If it be reserved generally, it is payable at the end of the year. (3 Bulst. 329;

1 T. R. 425; see, too, Carter v. Pryke, Peake, 95). If, in a lease, the rent be made payable at Michaelmas and Lady-day, during the

OF A FARM.

ALSO YIELDING AND PAYING unto the said A. B., his

pasture, or mis- executors, administrators, and assigns, over and above the

using arable

land.

At what times it should be

term, though there be no words referring to a yearly payment, yet the payment will be deemed to be yearly during the term. (2 Roll. Abr. 449). If the rent be made payable at the two most usual feasts, Lady-day and Michaelmas will be understood, and the rent will be payable in equal portions. (Harrington v. Wise, 2 Roll. Abr. 450). But if the lease be made on a day not one of the usual feasts, and the rent be made payable half-yearly or quarterly, the payment will be in equal portions on the half-yearly and quarterly days computed from the date of the lease. (Id.) If the rent be made payable at certain days, or within a specified time after such days, it will not be payable till the end of the specified time, for that is evidently most for the advantage of the lessee. (Clun's case, 10 Rep. 127; Glover v. Archer, 2 Leon. 427).

In such a case, however, if the lease end on one of the days of payment, the last payment of rent becomes due on the last day of the term; for, as the rent could not be reserved to be payable after the end of the term, the law will reject the extended time, so far as relates to the last payment. (Barwick v. Foster, Cro. Jac. 233, 310; Biggin v. Bridge, 3 Leon. 211; 3 Keb. 534). If the rent be made payable on certain days, and the day first named be not that on which the first payment of rent ought to be made, still the first payment will become due on that day. (Co. Litt. 217. b.; Hill v. Grange, Plowd. 171).

In framing leases, the rent ought always to be reserved yearly, during the term, and to be made payable on stated days of the made payable. month, (not on stated feast days), half-yearly or quarterly, as may be agreed on. In the absence of instruction on the point, the rent should be made payable half-yearly. The first day on which payment is to be made should always be stated; and it is apprehended that in a lease for a term determinable with a life, (as in the case in the text), the first payment should be made contingent on the cestui que vie being then living; and that there should be a separate reddendum of a proportionate part of the rent to be paid on the day of the lessee's death, if the lessee should die before the first day of payment, or on any day not being a day of payment. (See infra, Precedent VIII.).

The object of making the last payment of rent payable on a day before the expiration of the term is, that the lessee may have the opportunity of distraining for it before the lessee's goods be removed. For, if the first payment do not become due till the last day of the term, the lessee cannot distrain for it till the last minute of the day, and then the goods will have been removed. (Duppa v. Mayo, 1 Saund. 287). The clause in the text is not, however, always,

added.

OF A FARM.

certain yearly rent hereinbefore reserved, and by like quarterly payments, the further yearly rent or sum of £for every acre, and so in proportion for a less quantity than an acre, of the meadow or pasture, or heath lands hereby demised, which shall during the said term be ploughed or converted into tillage, and the further yearly rent or sum of £ for every acre, and so in proportion for a less quantity than an acre, of the arable land hereby demised, which shall during the said term be over cropped, or used contrary to the course of husbandry hereinafter prescribed; the first payment of the said yearly rents or sums lastly hereinbefore reserved to be made on such of the said days of payment as shall first happen, after any such ploughing, conversion into tillage, over cropping, or misusuage, (as the case may be), and to continue during the residue then to come of the said term (d); AND THE Covenants by

(d) If an additional rent be reserved for the land which the tenant shall plough, or shall cultivate otherwise than in a prescribed manner, that rent is not in the nature of a penalty, but of liquidated damages, and is therefore to be paid exactly as reserved. (Aylet v. Dodd, 2 Atk. 238; 3 Atk. 396; Farrant v. Olmius, 3 B. & Ald. 692). And where the lessee covenants not to plough, and if he does to pay an additional rent, the construction is the same. (Rolfe v. Peterson, 2 Bro. P. C. 436). And there is no relief in equity against such a covenant. (Rolfe v. Peterson; Aylet v. Dodd, ubi supra; Woodward v. Gyles, 2 Vern. 119). And where a lessee covenanted to crop and manage a farm in a specified manner, and in default of so doing to make additional yearly payments of rent, it was held, that on a bill filed by the lessor, for discovery of breaches of the covenants in aid of an action at law, a plea by the tenant, that the discovery might subject him to penalties, could not be sustained. (Jones v. Green, 3 You. & Jer. 298). It is said, however, that if there be a covenant not to plough, and a penal rent for ploughing, a court of equity will relieve against the penalty on compensation for the damage-per Lord Mansfield, 4 Burr. 2229; this, however, may be doubted; see Woodward v. Gyles, ubi supra.

Where the reservation was of an additional rent, during the last twenty years of a term, for every acre of meadow which should be ploughed, broken up, or converted into tillage, during the said last twenty years of the term; it was held, that the rent was due in the last twenty years if the land was then ploughed, whether it was first ploughed in the twenty years or before; and that the rent continued payable during the twenty years, though the land was

OF A FARM.

SAID C. D. doth hereby for himself, his heirs, executors, lessee for pay- administrators, and assigns, covenant with the said A. B.,

ment of rent;

Not waived by acceptance of original rent.

Equitable aid and relief.

As to changing

the nature of the land when

there is no express stipulation on the subject.

again laid down to permanent grass. (Birch v. Stephenson, 3 Taunt. 469). As to what is permanent grass, see the same case.

Lands ploughed shortly before the commencement of the term, are not rendered pasture so as to prevent the tenant from breaking them up by his having for thirty years of the term allowed them to continue pasture. (Goring v. Goring, 3 Swanst. 661). But it seems that if lands are described as meadow in the lease, that is sufficient primâ facie, and perhaps conclusive, evidence of their being of that nature. (Birch v. Stephenson, ubi supra). It is apprehended that if the lands had shortly before the commencement of the term been ploughed, but before the commencement had been restored to permanent grass, and been so described in the lease, the tenant would be precluded from breaking them up.

As to a penal rent becoming payable on the tenant suffering any part of the land to be occupied by others, see Greenslade v, Tapscott, 1 C., M. & R. 55; S. C. 4 Tyr. 566.

Where the lessee has broken the stipulation, the lessor does not waive his right to the additional rent by having knowledge of the breach, and subsequently accepting the original rent; for a sum due in respect of liquidated damages cannot be waived like a forfeiture. (Denton v. Richmond, 1 Cro, & Mee. 734),

If there be a penal rent reserved on certain acts done, a court of equity will not grant an injunction to restrain the tenant from doing those acts, because the parties themselves have set a price on the damage. (Woodward v. Gyles, 2 Vern. 119.) But if, in addition to the penalty, the act done be attended by forfeiture of the lease, an injunction will be granted. (Barret v. Blagrave, 5 Ves. 555). If there be a covenant simply not to do the act, an injunction will be granted. (Lord Grey de Wilton v. Saxon, 6 Ves. 106). And if there be a covenant to manage pasture in a husbandlike manner, an injunction will be granted against breaking it up, (Drury v. Molins, 6 Ves, 328), It may be observed, that, in the absence of special stipulation, it is waste for a tenant for years to plough up pasture, or otherwise change one kind of land into another. (Co. Litt, 53, b.; Dyer, 37 a ; Gunning v. Gunning, 2 Show. 8; Simmons v. Norton, 7 Bing. 640); and so for a tenant for life, (Worsley v. Stewart, 4 Bro. P. C. 377), or a guardian. (Clark v. Thorp, 2 Ves. Sen. 232). And it is no defence that such change is for the benefit of the land, or according to the custom of the country. (Simmons v. Norton; Clark v. Thorp, ubi supra). A court of equity will grant an injunction against such waste in a tenant for life; (Worsley v. Stewart, ubi supra; Goring v. Goring, 3 Swanst. 661); or in a tenant for years. (Cope v. Smith, 1 C. P. Cooper, 110, 113; see, too, Pratt v, Brett, 2 Madd, 62),