1799. any difcretion. With respect to the length of time which has elapfed, I think that there is a great difference between an VAN BRAAM annuity which is paid quarterly, and a debt of which the party never thinks till he is called upon to pay. ข. ISAACS. ROOKE J. I think the Court have no difcretion, but are bound to fet afide the annuity. Cur.adv. vult. The cafe having stood over until this day, Le Blanc now mentioned it to the Court, and informed them, that in the course of laft term and the prefent, two annuities granted by the fame perfon had been fet afide in the Court of King's Bench notwithstanding the fame length of time had been suffered to elapfe. On hearing this, the Court made The rule absolute. June 3d. The Court will not put off a trial on account of the abfence of a ma terial witness, if by his evidence the defence of flavery is in. tended to be established. ROBINSON V. SMYTH. SHEPHERD Serjt. moved to put off the trial in this cafe on account of the abfence of a material witnefs. He ftated that the action was brought for wages fuppofed to be due to the Plaintiff as a feaman, upon a voyage from the West Indies to London, and that the defence to be eftablished by the evidence of the abfent witnefs, was that the Plaintiff was flave to the Defendant who had paid a valuable confideration for him. Sed per Curiam. This is an odious defence, to which the Court will give no affiftance. If the Defendant were to offer to put it on the record, we fhould not give him a day's time. It is as much a denial of juftice as the plea of alien enemy, which is always difcouraged by the Court. Shepherd took nothing by his motion. 1799. SCUDAMORE and Others v. STRATTON and Others, June 3d. Executors of T. ROTHLEY. years determina A. and A. covenant to ufe his utmolt endeavours, as whole lives the renew the fame fee a new life in the room of fuch as fhall fail, it is covenant, if, upon one of the lives failing he no breach of the newal upon his Performance pleaded other own life. Cov OVENANT. The declaration ftated" that one Margaret If a lease for 99 Gardner was poffeffed of certain premises for the refidue of ble on 3 lives be a term of ninety-nine years determinable on the deaths of certain conveyed in truft perfons then living, and being fo poffeffed, by indenture dated for 4. for life, the 7th of September 1770 between the faid M. Gardner of the firft part T. Rothley of the second part and the Plaintiffs of the often as any of third part reciting that M. Gardner was poffeffed of a leafe of the perfons on parcel of the faid premises determinable on the deaths of Anne premises are Foy and J. Chandler and of a lease of certain other parts deter- held, shall die, to minable on the deaths of Anne Gardner the faid M. Gardner by purchafing of and Seymour Love that a marriage was agreed upon between the lord of the the faid M. Gardner and T. Rothley and that the faid leafes fhould be affigned to trustees upon truft, it was witneffed that the faid M. Gardner with the confent of T. Rothley affigned the faid leafes to the Plaintiffs in truft among other things for the faid T. Rothley for his life; that T. Rothley covenanted with the Plaintiffs that as often as any of the perfons on whofe lives the premises were then held or should be held from the time being fhould die, he would forthwith ufe his utmoft endeavours to renew the fame premises.refpectively with the lords of the fees terms of the cothereof by purchafing of them new lives or a new life therein respectively and fuch further terms eftates and intereft therein as before mentioned determinable on fome other new lives or a new life in the room of fuch lives or life as fhould so happen to die as aforefaid, and to procure new leafes to be granted thereof by the faid lords refpectively to the faid Plaintiffs upon the trufts in the indenture mentioned and that he would pay the fines or confideration money of the renewals and the expences of the leafes and other charges; that the marriage took effect; that M. Rothley formerly M. Gardner died in 1772 and that T. Rothley furvived her." Firft breach" that the faid T. Rothley did not after the death of the said M. Rothley his wife fhe being one of the perfons on whofe lives the premises were held forthwith and as foon as he reasonably might and ought to have done or at any time afterwards ufe his utmost or any endeavours to renew the fame premises respectively with the lords GG 4 wife than in the venant, is bad, even on general demurrer. 1799. SCUDAMORE ข. STRATTON. lords of the fees thereof by purchafing of them a new life therein refpectively or fuch further terms eftates and interefts as in the indenture mentioned determinable on fome other new life in the room of the faid M. Rothley his wife fo deceased as aforefaid and procure new leafes to be granted thereof by the faid lords to the Plaintiffs upon the trufts in the indenture mentioned, although he might and could have renewed &c. and procure new leafes &c. but neglected &c." On the 2d, 3d, and 4th breaches iffues were joined. Fifth breach "that during the life of T. Rothley, M. Rothley Anne Gardner J. Chandler and S. Love died, yet T. Rothley did not after the deaths of them or any of them they being perfons on whofe lives the premises were held use his utmost endeavours to renew the premises by purchafing new lives &c. in the room of the faid M. Rothley Anne Gardner J. Chandler and S. Love according to the form and effect of his covenant although in his lifetime he might and could have so done, but on the contrary on the death of T. Rothley there remained and was one life and no more, for and during which was held any term eftate or interest whatsoever in the faid premifes, contrary to the form and effect of the covenant &c. Pleas. To the 1ft breach, "That T. Rothley did forthwith and as foon after the death of M. Rothley his wife as he reasonably could or ought to have done to wit on &c. ufe his utmoft endeavours to renew the faid premises respectively with the lords of the fees thereof, and did actually renew the fame by purchafing a new life, that is to fay the life of him felf the faid T. Rothley therein in the room of the life of the faid M. Rothley his wife, and although T.Rothley in his lifetime did not thereupon procure new leases to be granted to the plaintiffs, but procured them to be granted to himself, yet that the Defendants as his executors after his death offered to affign the leafes to the Plaintiffs, but that the Plaintiffs refufed to accept them or any affignment of them, and that the Defendants are ftill ready and willing to affign them &c. And this &c. Wherefore &c." To the 5th breach, "That T. Rothley did forthwith and as foon after the death of M. Rothley his wife as he reasonably could or ought to have done to wit on &c. ufe his utmost endeavours to renew the faid premises refpectively with the lords of the fees thereof and did actually renew the fame by purchafing a new life that is to say the life of the faid T. Rothley therein in the room of the life of the faid M. Rothley his wife, and that the faid T. Rothley 12 T. Rothley in his lifetime forthwith and as foon after the death of the faid Anne Gardner &c. did use his utmost endeavours &c. and did renew by purchafing a new life that is to fay the life of one W. Haynes in the room of the life of the said Anne Gardner. And that the faid T. Rothley in his lifetime forthwith and as foon after the deaths of the faid J. Chandler and S. Love &c. did ufe his utmost endeavours to renew the faid premises held during the lives of the faid J. Chandler and S. Love with the lords of the fees thereof, and did make application to the said lords to permit him to renew the said premises by purchafing of them new lives refpectively, or fuch further terms eftates and intereft therein as in the faid indenture mentioned determinable on fome other new lives, in the room of the faid J. Chandler and S. Love; but the faid lords wholly refused to permit the faid T. Rothley to renew the fame by purchafing any new life or lives or any further term eftate or intereft in the premises, and from thence continually till the death of the faid T. Rothley did refufe fo to do. Wherefore on the death of the faid T. Rothley there remained and was one life and no more for and during which was held any term eftate or intereft in any of the premises aforefaid And this &c. Wherefore &c. To these two pleas there were general demurrers, and joinders therein. Shepherd Serjt. in support of the demurrer to the 1ft plea contended, that according to the fpirit of the covenant T. Rothley was bound to leave the estate at his death in as good a condition as he received it, viz. with three ceftuy que vies living; that a covenant to renew as often as any of the perfons on whofe lives the premises were held should die, there being three fuch perfons, amounted to a covenant to keep up three lives: and that T. Rothley by having put in his own life in the room of that of his wife, had, left the eftate at the time of his death in the fame fituation as if he had not renewed at all. He referred to Cooke v. Booth, Cowp. 819., to fhew that the Court would extend covenants for renewal beyond the ftrict letter of the covenants if it appeared confiftent with the intention of the parties. He added, that no offer by the Defendants as executors of T. Rothley to affign the leases made out to him, which ought to have been made out to the Plaintiffs, could be deemed a performance of T. Rothley's covenant. 1799. SCUDAMORE V. STRATTON. The Court, after inquiring if there was any authority to fhew [458] that under fuch a covenant as the present a party is reftricted from putting 1799. SCUDAMORE ข. STRATTON. putting in his own life, and no fuch cafe being produced, faid; As it was in the power of the parties to provide against what has been done by inferting a covenant, that T. Rothley fhould leave the eftate with as many lives as he received it, and they omitted to do fo, there was fair ground for T. Rothley to put in his own life, that he might avoid the burden of again renewing on the death of the perfon he fhould put in. It was natural for T. Rothley who had the beneficial intereft to renew with his own life; and to conftrue the covenant in the way contended for by the Plaintiffs, would be introducing a reftriction which the parties themselves did not conceive neceffary. However as it is very clear that the Defendants' offer to affign the leafes does not amount to a performance of T. Rothley's covenant, there must be judgment for the Plaintiff. Le Blanc Serjt., who was for the Defendants, infifted, that they were entitled to judgment on the 2d plea, the only remaining objection to which was, that it did not aver performance in the terms of the covenant, which being a point of form could not be taken advantage of on a general demurrer. But the Court were of opinion that the omiffion was matter of fubftance. June 38. 12 Eaf, 64. Judgment for the Plaintiff. WYBURD V. TUCK. Idem v. DYSON. Idem v. SMITH. Idem v. HOLBROOK. If a compofition D for tithes is made by A. as pro prietor and he EBT for not fetting out tithes under the 2 & 3 Ed. 6. c. 13. At the trial of these four actions before EYRE Ch. J., the evilease them to B., dence on which feveral objections to the Plaintiff's recovery were whose interest is afterwards put an end to by A. before any alteration is made in the compofition, A. cannot determine it without a fix months notice. If A. execute a leafe of tithes to B. on a day fubfequent to their feverance, but previous to their being carried away by the landholder, B. cannot maintain an action on 2 & 3 Ed. 6. c. 13., as the right to the tithe vested in A. immediately on feverance. Evidence that the parishioners have treated with the proprietor for a compofition is not alone fufficient to establish his poffeffion of the tithes in an action on the Statute. Quare, Whether if one only of two joint-tenants execute an affignment of a leafe of tithes, the perfon claiming under that leafe can fupport an action for not fetting them out? founded, |