anonymous d do you rule if a commission issue in term time be make returnable  without delay it be returnable the first day of the next term if issue in the  vacation the last day of the next term a distinction be attempt between  commission in England and those to go Kenyon er p abroad which be say to be  otherwise but the court give no opinion as t this the motion go off on another  account Kenyon paget age gee Ub Dec a tenant in tail be tenant for life under  tlfe stat Geo c and his representative entitle to the proportion of half year  rend which have accrue under a lease make by he at the time of his death but  decree chief on account of the defendant have pay the whole rend to the  remainderman Ambl S c this be a bill bring by the representative of tenant in  tail who have lease a estate at a yearly rend of pound which determine on his  death against the remainderman to be pay a share of the last half year rend  proportion to that part of the half year which have run out in the lifetime of  tenant in tail which have be receive by the remainderman of the tenant the  plaintiff find his claim on the statute Geo ch S which it be insist ought to  have a liberal construction for that be it to be construe strict it will be  doubtful whether tenant in tail after possibility c lessee for year  determinable on his death or any other person beside a mere tenant for life be  within that Act for the defendant it be argue by Mr attorneygeneral Mr jewel  and other that the whole depend on this general question whether a lease for  life by tenant in tail which by law determine on his death shall  notwithstanding subsist by virtue of this Act to some purpose I e for the  apportionment of the rend between the remainderman and the representative of  the tenant in tail and they contend that this case be neither within the  letter nor the meaning of the Act but suppose the plaintiff to have a right to  a proportion of the rend he be direct by this statute to recover it against  the undertenant in a action at law the statute give he no right to recover it  from the remainderman nor from the issue in tail the statute which create the  right point out the remedy to be pursue for the recovery of it if the Kenyon  plaintiff in this case can pursue that remedy he have not that right for where  there be no remedy there be no right the only foundation on which they can  hope to support their claim here be that the defendant have receive that which  the plaintiff demand but if be have that can give he no right to come hither  if he receive it for the plaintiff he may recover it at law if be receive it  in his own wrong be be answerable for it to the tenant who pay it he and the  tenant have pay his rend to a person who have no right to receive it do not  exempt he from pay it to the plaintiff if he have the right whatever right  then the plaintiff have it be plain he have mistake his remedy but clear his  case be not within the view of the statute for that be express confine to  tenant for life only tenant in tail say they be tenant for life to some  purpose so indeed be tenant in feesimple he have to be sure a estate for life  but then he have more and be not a tenant for life only but say they it be  within the mischief of the Act we say it be not a tenant for life can make a  lease but what must determine on his death and therefore till this Act it be  not in his power to remedy the inconvenience which this Act be design to  binder but tenant in tail may remove the inconvenience himself he may make a  lease observe proper requisite which shall bind his issue in tail nay he can  go further he can suffer a recovery and make a lease for what term he please  why then shall it be suppose that the legislature intend to remove a  inconvenience which the party may have remove himself and which will not have  happen but through his own negligence the most reasonable construction be that  the legislature intend to remove such inconvenience only as the party can not  remove themselves and if the tenant have pay Kenyon what he be not compellable  to do the court will not therefore take it from the defendant to give it to  the plaintiff when neither have any right to it as to tenant three tail apres  c he be look on more as tenant for life than in tail though he have some  privilege of the latter estate as to tenant for year determinable c be be  substantial though not literal a tenant for life the equity of the statute  ought to extend to whosoever be within the like disability and ought to go no  further this person may have have a proper lease if he have do it be his own  fault the chancellor here desire to be inform whether the judge where a man  have enjoy land without any express lease or agreement in write have permit  Kenyon er p the executor of the person by who permission he enjoy to maintain  a action for the special use and occupation and the whole bar videlicet Mr  attorney solicitor clarke Henley Wilbraham c agree they have know no instance  of such a action Mr solicitor for the plaintiff in reply the objection that we  shall have sue the tenant though the defendant acknowledge he have receive the  money from he be quite new where the owner for his own convenience receive the  whole it be very common for this court to compel he to account with the  representative of tenant for life for his share and indeed it will be very  unjust to oblige the tenant to pay it over again if the person receive it be  capable most certain the defendant who receive the whole of this half year  rend have no right to any more than seven day and that Kenyon and that onl  that be can have recover from they by action for the special occupation the  defendant with respect to the rend be to be consider here as the tenant and if  the tenant will be liable to our demand the defendant must be so it be  impossible for the legislature to provide against or foresee every particular  case but the rule of construction be to consider all case as within a Act  which be within the same mischief and which have they mention it be probable  the legislature will have provide the same remedy for lease for year  determinable c be admit to be within this Act because within the mischief  though not within the letter of it I it be insist that to be within this Act  the lessor must have such a interest as will not enable he to make a lease for  any long term than for his own life and therefore as tenant in tail under the  statute of h can make a long lease he be not within the mischief be that rule  admit it will make nothing for they here for against remainderman which be the  present case the statute do not enable tenant in tail to make a lease for long  duration than his own life but I submit the rule will not hold for even with  respect to the issue in tail the lease of tenant in tail unless the requisite  prescribe by that statute be adhere to will determine by his death and then  either the rend must be entire lose for clear neither issue in tail nor  remainderman can be entitle to it or the tenant will under this Act be  answerable to the representative of his lessor for the use of what he have  enjoy Lord chancellor though this be a new case and no precedent have be cite  I be of opinion the plaintiff equity be so strong that I shall make a  precedent his equity be Kenyon find on two point saint on a right legal or  equitable under the statute dly upon the tenant have submit to pay what in  case the plaintiff have no right under the statute they be not compellable by  law to pay and the defendant have receive it of they as if he have be entitle  though very clear he have no right to it the construction of this Act I will  consider in two light saint the legal construction dly the equitable first  then consider how the case stand at commonlaw very inconvenient real injustice  arise from it if a person have such a estate as must determine on his death if  he die but a day before the rend become due nobody be entitle to that rend  though the tenant have enjoy the estate all that time the representative can  not for a action for use and occupation have not it seem be allow to executor  but if they can bring such a action wherever a lease be produce that put a end  to this action nor can they support a action on the lease for it be not within  the term of the reddendum nor can the remainderman claim this rend for he have  no right to more than what incur in his own time to remedy this mischief be  the design of the Act the person who make the present lease be not to be sure  a mere tenant for life only which the preamble of the Act seem to require but  the word in the enact clause be not so strict as those in the preamble for  here it be any tenant for life which will admit of more latitude of  construction I be therefore of opinion with the plaintiff counsel that tenant  in tail apres c be to be consider as tenant for life under this Act he have be  so far consider as tenant for life that in freeman report there be a case  wherein my Lord Nottingham restrain he by injunction from cut down tree which  be plant for shelter and ornament of a mansionhouse though be admit Kenyon be  may commit common waste this be cite to I in the case of Gartk v hind cotton  and I think it right and whatever the judge at commonlaw may do I shall  without scruple consider he as tenant for life in this case I Ves dick r S c  and Fearne Kenyon er p I do not know what judge at law may say as to tenant  for year determinable c for they have determine that a lease for ninetynine  year determinable orf three life be not within the power of lease for three  life give to tenant in tail by statute h c though such a lease for year  determinable be coextensive in point of duration and not so beneficial to the  lessee as a lease for life and therefore for the same reason they may think so  in this case but in this court I shall have no doubt about determine he to be  within this Act then as to tenant in tail at the instant of his death he have  but a estate for life for his estate determine on his death where a woman take  a estate tail ex provision man I think that a case within this statute though  I doubt it will not be maintainable at commonlaw zEquitas sequitur law and  therefore wherever this court find the rule of law right it will follow they  but then it will likewise go beyond they one case of that kind occur to I  during the argument the statute of forcible entry only provide for remove the  force but what say this court even where a man have not a legal but only a  equitable estate or be it one or the other we will here not only remove the  force but grant a injUllCtion to quiet he in the possession of such estate as  he have then and three year before I will not however absolute determine the  first point though I incline strong in favour of the plaintiffon that Kenyon  point but I will reserve it to future consideration in case such a bill shall  be bring hereafter and I will ground my decree on the other part of the equity  of this case for the defendant admit that the tenant have submit to pay and  have actual pay he the half year rend be it reasonable then that the defendant  shall be admit to retain money against conscience which the tenant have  conscientious submit to pay he put the case of trader suppose a trader pay  money which he be not compellable to pay from a principle of conscience to one  partner or to a factor sure such a person shall not retain it but shall be  answerable over just as he will have be have the debtor be real liable to a  action for the recovery of it there be a case of this kind before this Act in  my Lord macclesfield time tenant for life die the day before the day of  payment of rend from his undertenant there be then no ground of right to  recover the money but my Lord Macclesfield the undertenant have submit to pay  the rend decree a distribution between the several party in the proportion to  which they be several entitle presume it pay by the tenant from a principle of  conscience here Mr Wilbrabam mention a case wherein a distribution have be  decree of composition money for tithe between the representative of a parson  and his successor the chancellor proceed there be another case in this court  where the lessor die in the morning of the day of payment Lord Macclesfield by  the advice of justice Tracy hold the rend due because it be Payable on such  day during the term and therefore the beginning of the day be during the term  and if it be not due till the whole day be expire Kenyon then it be not due  during the term this be a nice distinction but it be a reeable to Lord hobart  expression who say judge ought to be astute to do justice such I think be the  present case and therefore I decree the defendant to pay the plaintiff his  share of this money and let the master settle the proportion No cost to this  time refer the consideration of subsequent cost