any such person, he or she, and his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, pensions, dividends, moduses, compositions, and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions, and other payments being made."

Three questions suggest themselves on the construction of this section. 1st, What are the "other means," besides death, which terminates the interest, on the determination of which the apportionment is to take place? 2dly, When the determination is by death, does apportionment take place in regard to rents due to a feesimple proprietor, between his heir and executor? 3dly, What is the "instrument" under which the payment is said to be "made payable," or to "come due?"

1. The first question, as to the "other means," besides death, for the termination of the interest, has not been elucidated by any decision, so far as we know. There is one case, which shows what does not fall within this part of the statute. A party was hired, by a deed, to undertake the offices of auditor and superintending manager" of the estate of another person, at a salary of L.1800, payable half yearly, on the 7th July and the 7th January in every year. The employer revoked the appointment in the middle of a current year. It was held that the manager could not recover, under the statute, a proportionate part of the salary, in respect of that portion of the year during which he held the offices. The Court were of opinion that the statute applied only to cases where payment for the whole year must be paid some person, and did not include a payment under contract between employer and employed for services performed, where the payment entirely ceased upon the determination of the claimant's right to receive it.-Lowndes v. Stamford and Warrington (Earl), 16 Jur., 903; 21 L. J., Q. B., 371.

There is no other decision, except this one, having reference to the words "other means," and it goes but a little way to explain what the author of the statute meant, if, indeed, he had any meaning at all.

2. As regards the second question, we must also look to England for the interpretation of the statute; and, certainly, if the decisions there be adopted in Scotland, the daily practice of professional men, in this country, at the present moment, is entirely erroneous. We have little doubt, that many questions will yet arise out of this section of the statute.

In the case of Browne v. Amyot, 22d March 1844-(3 Hare, Chancery Cases, p. 173)-Vice-Chancellor Wigram decided, that the statute "does not apply to the case of a tenant in fee, or provide

VOL. I.-NO. I. JANUARY 1857.

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for apportionment of rent between the real and personal representative of such person, whose interest is not terminated at his death.” The circumstances of the case were, that a person, being seised in fee-simple, "and entitled, according to the custom of the manor, to an estate of inheritance on a certain freehold and copyhold farm," devised it to her grandson, by her will, when he should attain the age of 21 years. The trustees under the will let the farm. The grandson attained the age of 21, and was seised in the farm. He "demised" the property to other persons, and died intestate. His next of kin claimed a distributive share of " a proportion of the rents, according to the time which elapsed from" the last term of payment of rent, to the date of the intestate's death. His heiress-at-law refused to pay this share, and claimed the whole rents, from the last term of payment; and the Vice-Chancellor decided in her favour. He said

The question is, whether the Act applies to any cases, except those on which the interest of the party entitled to the rents, annuities, or other periodical payments, determines, by death, or some other means. The sole question is, whether the death of the person interested in the rent, or other payment-the event on which the apportionment is to take place-must not be understood as a death occasioning the determination of the interest-whether that is not the necessary effect of the immediate context, 'determination by any other means.' I am of opinion, that it must be so understood. I notice, indeed, that, in the succeeding part of the section, after enacting that the executor shall be entitled to a proportion of such rents,' and other payments, according to the time which shall have elapsed from the commencement, or last period of payment thereof, respectively (as the case may be) including the day of the death of such person, or of the determination of his or her interest,' the word 'other' does not occur; but, I think that part of the section must receive its construction from what precedes it. And, upon that preceding part, my opinion is clear, both on the words of the Act and the reason of the thing, which was well explained in Mr Rolt's argument."

The argument of Mr Rolt, which is thus adopted by the ViceChancellor, states the point so clearly, that we repeat it. “The law of apportionment of rent may be considered with reference to three cases-1. Where a tenant in fee dies, and neither his interest, nor the interest of the lessee terminates on that event, but the question of the title to the rent, from the time of his death to the ensuing day of payment, is raised between his real and personal representative. 2. Where the interest of the party entitled to receive the rent (as the tenant for life of the estate), determines on his death, but the interest of the lessee is not terminated by that event; as, for example, where the tenant for life has taken the estate, subject to a lease which outlives his life-interest, and had been created by the previous owner, in fee-simple. 3. Where the interest of the party entitled to receive the rents, and the lessee a

party bound to pay them, determines by the same event-as in the case of a lease created by a tenant for life, beyond, or without a power for that purpose. In the first of these cases, the common law, according to which the heir-at-law takes the rent, as inseparable from the reversion, is not affected by either of the statutes 11 Geo. II., or 4 and 5 Will. IV. In the second case, the rent being incident to this reversion, became, after the death of the tenant for life, without any doubt or question, the right of the reversioner, until the statute of the 4 and 5 Will. IV., c. 22. In the third case, it was equally clear, that the interest both of the party to receive, and the party to pay rent, determining by the same event, the latter altogether escaped from the payment of rent. This was the mischief against which the statute 11 Geo. II., c. 19, sect. 15, was designed to provide.

"The preamble of the statute 4 and 5 Will. IV., c. 22, mentions doubts, which are to be removed by declaration, and inconveniences, which are to be removed by enactment. As to the first class of cases, there was no doubt-it was always clear that the heir, and not the executor, took the rent. There was neither inconvenience nor evil in his doing so; it was the law of inheritance-it was no more an evil than are the laws which govern the descent of real and personal property. It was in the dominion of the tenant in feesimple to deal with his estate as he will. In the second class of cases, there were no doubts to be removed, but there was much of inconvenience. A tenant for life, as the statute expresses it, 'whose income was wholly or principally derived from rents,' and other periodical payments, lived almost up to the day when the payment became due-relied upon that source of maintenance, when, by the accident of his death, the operation of the law was to take from him that inchoate right which he had acquired, and wholly deprive him of his income from the last rent-day. In the third class of cases, there was both doubt and inconvenience, to which the statutes properly apply.

"The tenant in fee-simple,' mentioned in the second section, refers to the person by whom the lease is made-not the person who has the interest referred to. The words, the death of any person interested in any such rents,' do not suitably describe the estate or interest of the tenant in fee. The 'death' of the person interested is assumed to be one means of determining the interest; the determination by any other means,' of such interest, which may be by the death of the cestui que vie, equally assumes that it is to be a case where the interest does in some way determine; and, therefore, cannot apply to the case of the absolute owner, or tenant in fee, whose interest does not determine by his death.

Browne v. Amyot therefore determined, that the next of kin of a tenant-in-fee simple (whatever that means) was not entitled to claim the benefit of the Act.

The point came again to be discussed in the case of Beer v. Beer

Feb. 5, 1852, 12 Scott's New Reports, p. 60. The marginal reading of this case is in these terms:- "The statute of apportionment, 4 Wm. IV., c. 22, does not apply as between the personal representative and the heir of a tenant-in-fee." Mr Justice Maule said, "The whole scope and object of the 4 and 5 Wm. IV., c. 22, seems quite beside any dealing or interference with the rights of the tenant-in-fee, as between him and the personal representative of his ancestor. That struck me as the proper view when I first read the statute; and I am confirmed in that impression, by the decision of Sir James Wigram, Vice-Chancellor, in Browne v. Amyot, 3 Hare, 173, of the soundness of which I cannot entertain a doubt. I therefore think there could be no apportionment, and that the plaintiff, if entitled to anything, was entitled to the moiety of that half-year's rent.”

On the other hand, it was determined, in Locke v. De Burgh (20 Law Journal Reports, Chancery, 384), that where real estates settled upon a party for life, with remainders over, the Act applied.

If a tenant-in-fee, according to the law of England, be the same as a fee-simple proprietor in Scotland, then the statute has no application to the class of cases to which it is daily applied in Scotlandnamely, the division of rents between the heir and executor of a feesimple proprietor. Now, is not the following definition by Coke, of a tenant in fee-simple, the definition which a Scotch lawyer would give of a fee-simple proprietor" Tenant in fee-simple is he which hath lands or tenements to hold to him and his heires for ever; and it is called in Latin feodum simplex; for feodum is the same that inheritance is, and simplex is as much as to say lawfull or free; and so feodum simplex signifies a lawfull or free inheritance." So far, Coke. Littleton thus comments :-" He is called a tenant or holder, because all the lands and tenants in England, in the hands of subjects, are holden mediately or immediately of the King." And as regards "fec-simple," the commentary is, "Fee commeth of the French fief, i.e., prædium beneficiarium, and, legally, signifieth inheritance, as our author himselfe hereafter expoundeth it, and simple is added, for that it is descendable to his heires generally; that is, simply, without restraint to the heires of his body, or the like."(Coke-Litt., chap. I., sec. 1, vol. i., p. 1, 2.)

The question has never been raised in Scotland. When the above cases of Campbell and Blaikie were decided, the decision of ViceChancellor Wigrain, in Browne v. Amyot, had been pronounced, and appears to have been quoted to the Court, as various references are made to it in the opinions delivered. The question raised in these cases, referred to the division of rents between the heir and the executors—not of a fee-simple, but of a proprietor of an entailed estateand therefore the question now hinted at, could not have received a decision, even though it had been raised. At the same time, the point might have been pleaded, upon the ground that an entailed proprietor is still, according to the feudal law of Scotland, proprietor of

the estate. He, no doubt, is proprietor under restrictions; but still, it is contrary to all the notions of feudal law, to consider his right similar to that of an annuitant or other party having a determinable interest. The judgment of the Court, in the two cases of Campbell and Blaikie, was, that the statute applied to the division of rents between the heir and executor of the proprietor of an entailed

estate.

These judgments did not satisfy the profession. The point suggested by Browne v. Amyot, not having been distinctly raised, was considered to have been unsatisfactorily disposed of, and therefore it was determined to obtain a direct decision upon it. The question was therefore raised in the next case of Baillie v. Lockhart; but, as the Court of Session had, in the two previous cases, however unsatisfactorily,-pronounced judgment upon the point, it was considered the most respectful course not to offer any argument to the Court. The judgment was taken pro forma, and is not reported. It found that an apportionment of the rents must be made between the heir and the executors of the proprietor of an entailed estate; and the argument was reserved for the House of Lords, where it was decided, on 23d April 1855.-(2 Macqueen's Appeals, p. 258.) The argument for the heir was, that "the Act does not apply to the case of rents payable to an heir of entail, for such heir is fiar, not liferenter." The answer was,-not that Browne v. Amyot was erroneously decided, but "that a Scotch tenant in tail, though called a fiar, has no jus disponendi. This question is not one of feudalities. -(Sic.) The question is, what was in the contemplation of the Legislature, when it passed this Act." The judgment of the Lord Chancellor (Cranworth) was this: "I have no doubt that the statute applies to a tenant in tail. The evil, prior to the statute, was that if the tenant in tail died indebted, and the rents were nearly accruing due, all those accruing rents would go to the successor. To remedy that evil, the statute was passed. I cannot doubt, upon the construction of the statute, that the question here is really not a question of feudal law, but a question of the meaning of the Legislature."

The principle of this decision seems to be, that, whether the holder of an entailed estate be proprietor, in the sense of the feudal law, or not, yet, on account of the prohibitions by which he is fettered, his interest is truly that of the holder of an estate for life; an interest determinable by his death; and, therefore, falling within the meaning of the statute. In one respect, this decision is not to be regretted, as it gives an additional patrimony to the younger children of the holders of entailed estates, who are generally but scantily provided for. But, it is impossible to read the statute, in the light of these decisions, without seeing that it has been completely misapplied, and is daily misapplied in Scotland, in apportioning the rents of a deceased fee simple proprietor of heritage between his heir and executors. If this conclusion be right, every one of the settlements