288 DI^^TRrSS NOT LEGAL AFTER DETEUMIXATION OF TENANCY. 



the sheep, the Court of Exchequer hehl that the mcasinr of damafjcs ivcip: 

 the value of the shee^j {Keen v. Priest). 



Tithes are an incorpoi-eal hereditament, aud cau tlierefore only pass by 

 deed. It was held in Gardner v. Williamson, Avhere tlie tithes of a 

 parish and a homestead were let together by parol agreement, no dis- 

 tinct rent having been reserved for the homestead, for which there 

 might have been a distress that the distress for rent in arrear was alto- 

 gether unlawful. And per Parke J. : "It is impossible to say that all 

 the rent in this case is reserved in respect of the land only ; aud there 

 can be no distress for rent ensuing out of any incorporeal hereditament. 

 The rent is payable for, though it does not issue out of, the tithes." 



.1 distress cannot he made at common law after the tenancy has leen 

 determined hj notice to quit, though the rent may have become due lefore 

 such determination: aud an avowry for such a rent must therefore be 

 so framed as to bring it within the 8 Anne, c. 14, s. G {WiUiams v. 

 Stiren). Here the defendant gave the plaintiff a notice to quit expiring 

 on Feb. 2nd, 1844; and it was contended, on the authority of Jenncfr 

 V. Clegg, that the defendant having by his notice to quit treated the 

 plaintiff as a trespasser, could not afterwards treat him as a tenant. 

 Jenner v. Clegg, a case of replevin, where Parlte J. and Bolland B. 

 decided that a tenant holding over after notice to quit given by the 

 landlord, is not liable to a distress without some evidence of a renewal 

 of the tenancy,— was cited. The Court, however, held that this case 

 was not ai)plicable, as the rent there distrained for l)ecame due after the 

 determination of the tenancy by notice to quit from the landlord. And 

 per Patteson J., " All that Jetiner v. Clegg shows is that the tenancy is 

 at an end when the notice expires." A landlord having treated an 

 occupier of his land as a trespasser, by serving him with an ejectment, 

 cannot afterwards distrain on him for rent, though tlie ejectment is 

 directed against the claims of a third person, who comes in and defends 

 in lieu of the occupier, and the occupier is aware of that circumstance, 

 and is never turned out of possession (Bridges v. Smgih). 



In Bendy v. Kichol a tenant hroke a covenant not to underlet without 

 consent. After the breach, the plaintiff brought an action for the rent, 

 and subsequently obtained judgment and received the money. Before 

 he received the money he brought an action of ejectment. The Court 

 of Common Pleas held that the bringing of the action for the rent and 

 the subsequent recei pt of the money amounted to a waiver of the for- 

 feiture. Thus a right of re-entry for breach of covenant is waived by 

 the lessor bringing an action for rent accrued due subsequent to the 

 breach. 



One joint tenant of the reversion can, by severance, deprive the others 



