Page:The English Reports v1 1900.pdf/749

John Tregagle, esq. as executor to the legatee of his grandfather, claimed a rent of £16 per ann. out of a tenement, called Trevanion, belonging to the defendant; and, intending to saddle him with the whole of that rent, though another tenement, called Treneage, the inheritance of Mr. Tregagle, was equally liable; he caused the plaintiffs, his servants, to distrain the defendant's cattle on Trevanion tenement, for an arrear of this rent.

The defendant thereupon brought his replevin; which, being removed into the Court of King's Bench, he declared therein against the plaintiffs, for taking his cattle, etc.

The plaintiffs, as bailiffs of Mr. Tregagle, made conusance of the taking, etc. For that John Carter, esq. and Richard Carter, his son, were seised in fee of both these tenements; and, being so seised, did, in the year 1645, demise the same to Mr. Tregagle's grandfather, for 500 years; who redemised the same to the two Carters, for 499 years three quarters two months and three weeks, at £16 per ann. rent, payable quarterly. And the plaintiffs derived the title to the reversion of the said term of 500 years, down to the present. Mr. Tregagle, the grandson; and, for three years and one quarter's rent, due to the 1st of February, 1696, they, as his bailiffs, made the distress.

To this the defendant pleaded in bar, a title under John Carter, prior to the 500 years lease; and having traversed the title set out by the plaintiffs, and offered a fair issue thereon, they thought proper (with leave, and on payment of costs) to waive their former conusance, and make conusance de novo; alledging generally, that Mr. Tregagle, the grandfather, was possessed of a term of 500 years in the premises; and being so possessed, demised the same to the two Carters, ut supra; and concluding, as in the former conusance.

Hereupon, the defendant demurred; and assigned for cause, that it was not set forth, how, or by whose demise, John Tregagle, the grandfather, became possessed of the said term of 500 years; nor any certain commencement or determination of the term. And, upon arguing this demurrer, in Easter term 1698, judgment was unanimously given for the defendant.

[526] But, to reverse this judgment, the plaintiffs brought a writ of error in Parliament; insisting (St. John Broderick), that if a lessee for years makes an under-lease for years, reserving rent; he, or his executors, may bring an action of debt against such under-lessee; setting forth no other title, than that he was possessed, at the time of making the under-lease, for a longer term of years, than that under-lease generally; and, being so possessed, lot to the defendant, reserving such a rent; for, that there was no reason, that the tenant should take the land from him, and enjoy it without interruption or eviction; and yet afterwards, contest his landlord's title, or even put him to the trouble of particularly disclosing it; when, by his possession, he had the full effect of his bargain. That there was no substantial difference between the case of bringing an action of debt for rent so reserved, and a replevin brought upon a distress taken for such rent, and the making an avowry for that rent, according to the lease, as in the present case;