ambler f paget against gee in chancery mich Vac ante p rend pay to  remainderman by lessee of tenant in tail after her death order to be apportion  see Vernon v Vernon bro c c Hawkins v Kelly Ves Aynsley v Wordsworth v b and  see Mr Swanstons note to the case of ex part smith Swanst Mr pool ms bill by  representative of tenant in tail who have lease at pound per annum which  determine by his death against the remainderman to be pay a share of the last  halfyear rend proportionable c and find his claim on ox c and which it be  insist ought to have a liberal construction for if construe strict it may be  doubtful whether tenant in tail after possibility of issue extinct lease for  year determinable on his death or any other person beside a mere tenant for  life be within this act for defendant it be insist by the attorneygeneral Mr  fuel and other that the whole depend upon this general question whether a  lease for life by tenant in tail which by law determine at his death shall  notwithstanding by virtue of this act subsist for some purpose in the  apportionment of rend and contend it be not within the letter or meaning of  the act but suppose he to have such right he be by the act to recover it by  action against the undertenant and not from the remainderman or issue in tail  the statute that give the right point out the remedy if he can pursue the  remedy then he have no right the only foundation on which they can hope to  support this claim here be the defendant have receive that which the plaintiff  demand but if he have that can give the plaintiff no right to come hither if  he receive for the plaintiff the plaintiff may recover it at law if he receive  it without ambler right he be answerable to the tenant and the tenant pay it  to a person who have no right will not excuse he from pay it again to  plaintiff if he have a right whatever therefore he have this be plain he have  mistake his remedy but clear this 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 for some purpose so indeed be tenant in fee but then he be  more and not tenant for life only they say it be within the mischief of the  act we say not tenant for life can lease for long than his life and therefore  till this act it be not in his power to remedy the inconvenience which the act  remove but tenant in tail may observe the requisite lease to bind his issue or  suffer a recovery and lease as he please the legislature never mean to remedy  a inconvenience which it be in the party own power to remove at pleasure and  which can only happen from his negligence if then the tenant have pay what he  be not compellable to pay the court will not take it from the defendant to  give it to the plaintiff when of they have a right to it as to tenant in tail  apres c he be look on more as tenant for life than a tenant in tail though he  have some privilege of the latter estate as to tenant for year determinable c  he be substantial though not literal tenant for life the equity of the statute  ought to extend to whosoever be within the like disability and ought to go no  further the court desire to be inform whether the judge where a man have enjoy  land without any express lease or agreement in write have permit the executor  of the person by who permission he enjoy to maintain a action for the special  use and occupation see Powell v killick bull n p hill ms the whole bar agree  they have know no instance of such a action Mr solicitorgeneral in reply the  objection that we may have sue the tenant though the defendant have get the  money be quite new when the owner for his convenience receive the whole it be  very common for this court to compel he to account to the other representative  for his part and indeed it will be very unjust to compel the tenant to pay it  over ambler again if the person receive it be able v most clear defendant who  have receive half a year rend be entitle only to seven day of it andthat only  he can have recover in a action for the special occupancy defendant with  respect to the rest be to be consider here as the tenant and if the tenant  will so must the defendant be liable to our demand it be impossible for the  legislature to provide for or foresee every particular case therefore the rule  of construction be to consider all ambler er p case within a act that be  within the mischief of it and if they have be mention it be probable the  legislature will have provide the same remedy lease for year determinable c be  admit to be within the act because within the mischief though not within the  letter it be insist that to be within the act the lessor must have such a  estate as will not enable he to make a lease for any long time than his own  life and therefore as tenant in tail under the stat of h can make a lease for  a long term he be not within the mischief be the rule admit it will not make  for they in this case for against the remainder man which be the present case  the stat do not make it good then the rule will not hold with respect to the  issue in tail the lease unless the requisite of the statute be observe will  determine by his death and then either the rend must be lose for clear neither  issue in tail nor remainderman can be entitle to it or the tenant under this  act will be answerable to the representative of his lessor for what he have  enjoy Lord chancellor this be a new case and no case have be cite I be of  opinion the plaintiff equity be so strong that I will make a precedent his  equity be find on two point saint his legal or equitable right under the stat  dly the tenant have submit to pay what in case the plaintiff have no right  under the stat he be not by law compellable to pay and the defendant have  receive it of he as if he have be entitle though clear he have no right the  construction of the act I will consider in two light first the legal and  second the equitable 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 on the day before the rend become due  nobody be entitle to it though the tenant have enjoy all the time the  representative can not be ambler or a action for use and occupation have not  it seem be allow to executor beside if they can bring such action whenever a  lease be produce that put a end to the action for they can not support a  action on the lease because it be not within the term of the reddendum nor can  the remainderman claim the rend for he be entitle to no more than incur during  his time to remedy this be the design of the act the person who make this  lease be not to be sure a mere tenant for life only which the preamble 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 plaintiff counsel that tenant  in tail apres c be within the act he have be so far consider as tenant for  life that in freeman report vol there be a case where Lord Nottingham restrain  he by injunction from cut down tree which be plant for the shade and ornament  of a mansionhouse though he admit he may commit common waste this be cite to I  in the case of Garth v cotton atk 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 do it know what judge at commonlaw may say as to tenant for year  determinable c for they have determine that a lease for ninetynine year  determinable on three life be not within the power of lease for three life  give to the tenant in tail by the stat of h though it be coextensive in point  of duration and not so beneficial to the lessee as lease for life see  churchman v Harvey Amb post I and therefore for the same reason they may think  so in this case but in this court I real have no doubt of determine he within  the act then as to tenant in tail the instant of his death he have only a  estate for life for then his estate determine where feme take a estate tail ex  provision man I think that a case within the stat though it may not be  maintainable at commonlaw equitas sequitur law see p W can t Talb Sch Lef Sch  Lef ante when the 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 ambler I  during the argument the statute 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 he a injunction to quiet the possession of such a estate as he  have then and three year before see highs v Morden Ves but it will seem that  the practice of obtain relief in equity in such case have fall into disuse in  England see Eden on injunction ambler er p I will not however absolute  determine the first point though I incline strong in favour of plaintiff as to  that but will reserve it for future consideration in case such bill shall be  bring I will ground my decree on the other point of the equity of this case  for the defendant admit the tenant have submit and have actual pay he half  ayears rend be it reasonable then that the defendant shall be permit to detain  this money against conscience which the tenant have submit thus conscientious  to pay he put the case of trade suppose a trader pay money from principle of  conscience to one partner or factor sure such person can retain it but will be  answerable over just as he will have be have the debtor be real liable to a  action for the recovery of it see Featherstonhaugh v Fenwick Ves there be a  case of this kind in Lord macclesfield time before this act tenant for life  die the day before the day of payment here be no ground of right for his  representative to recover but the under tenant have submit to pay the rend  Lord Macclesfield 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 Mr Wilbraham mention a case mill v Webber in  chancery Meeler v Webber Eq can Abr and see Aynsley v Wordsworth v and b where  distribution have be decree of composition money for tithe between the  representative and the successor Lord chancellor there be another case in this  court where the lessor die in the morning of the day of ambler payment Lord  Macclesfield earl Strafford v lady Wentworth Prec in Ch p W Swanst by the  advice of I Tracey hold the rend due because it be make 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 it be not due during the term  this be a nice distinction but be agreeable to Lord hobart expression who say  the judge ought to be as ready to do justice such I think be the present case  and therefore I decree the defendant to pay plaintiff his share of this money  and let the master settle the proportion to No cost to this time reserve the  consideration of subsequent cost