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any discretion. With respect to the length of time which has elapsed, I think that there is a great difference between an annuity which is paid quarterly, and a debt of which the party never thinks till he is called upon
ROOKE J. I think the Court have no discretion, but are bound to set aside the annuity.
Cur. adv. vult.
The case having stood over until this day, Le Blanc now mentioned it to the Court, and informed them, that in the course of last term and the present, two annuities granted by the fame person had been set aside in the Court of King's Bench notwithstanding the same length of time had been suffered to elapfe. On hearing this, the Court made
The rule absolute.
on account of the
ROBINSON V. SMYTH. not put off a trial SHEPHERD Serjt
. moved to put off the trial in this case on
account of the absence of a material witness. He stated that absence of a ma- the action was brought for wages fupposed to be due to the by his evidence Plaintiff as a seaman, upon a voyage from the West Indies to the defence of
London, and that the defence to be established by the evidence Slavery is in
of the absent witness, was that the Plaintiff was slave to the established.
Defendant who had paid a valuable consideration for him.
Sed per Curiam. This is an odious defence, to which the Court will give no assistance. If the Defendant were to offer to put it on the record, we should not give him a day's time. It is as much a denial of justice as the plea of alien enemy, which is always discouraged by the Court.
Shepherd took nothing by his motion.
tended to be
SCUDAMORE and Others v. Stratton and Others, June 3d.
Executors of T. ROTHLEY.
whole lives the
The declaration stated “ that one Margaret If a lease for 99 Gardner was possessed of certain premises for the residue of years determinaa term of ninety-nine years determinable on the deaths of certain conveyed in trust persons then living, and being so poffeffed, by indenture dated and A. covenant the 7th of September 1770 between the said M. Gardner of the to ute his utmost first part T. Rothley of the second part and the Plaintiffs of the often as any of third part reciting that M. Gardner was poffefsed of a lease of the persons 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, thall die, to minable on the deaths of Anne Gardner the faid M. Gardner by purchasing 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 said leases the room of such should be assigned to trustees upon truft, it was witnessed that as shall fail, it is
no breach of the the faid M. Gardner with the consent of T. Rothley afsigned the
covenant, if, said leases to the Plaintiffs in trust among other things for the upon one of the said T. Rothley for his life; that T. Rothley covenanted with the procure a rePlaintiffs that as often as any of the persons on whose lives the newal upon his premises were then held or should be held from the time being Performance should die, he would forthwith use his utmost endeavours to pleaded otherrenew the fame premises.respectively with the lords of the fees terms of the cothereof by purchasing of them new lives or a new life therein venant, is bad,
even on general respectively and fuch further terms estates and interest therein demurrer. as before mentioned determinable on some other new lives or a new life in the room of such lives or life as should so happen to die as aforesaid, and to procure new leases to be granted thereof by the said lords respectively to the said 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 leases and other charges; that the marriage took effect; that M. Rothley formerly M. Gardner died in 1772 and that T. Rothley survived her.” First breach “ that the said T. Rothley did not after the death of the said M. Rothley his wife she being one of the persons on whose lives the premises were held forthwith and as soon as he reasonably migtt and ought to have done or at any time afterwards use his utmost or any endeavours to renew the same premises respectively with the
wife than in the 1799.
lords of the fees thereof by purchasing of them a new life therein respectively or such further terms eftates and interests as in the indenture mentioned determinable on some other new life in the room of the said M. Rothley his wife fo deceased as aforesaid and procure new leases to be granted thereof by the said lords to the Plaintiffs upon thetrusts 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 issues 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 persons on whose lives the premises were held use his utmoft endeavours to renew the premises by purchasing new lives &c. in the room of the said 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. Rothlcy there remained and was one life and no more, for and during which was held any term estate or interest whatsoever in the said premises, contrary to the form and effect of the covenant &c.
Pleas. To the 1st breach, “That T. Rothley did forthwith and as soon after the death of M. Rothley his wife as he reasonably could or ought to have done to wit on &c. use his utmoft endeavours to renew the faid premises respectively with the lords of the fees thereof, and did actually renew the same by purchasing a new life, that is to say the life of himself the said T. Rothley therein in the room of the life of the said 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 assign the leases to the Plaintiffs, but that the Plaintiffs refused to accept them or any allignment of them, and that the Defendants are still ready and willing to assign them fc. And this 8c. Wherefore &c.”
Wherefore &c.” To the 5th breach, “ That T. Rothley did forthwith and as soon after the death of M. Rothley his wife as he reasonably could or ought to have done to wit on 8c. use his utmost endeavours to renew the said premises respectively with the lords of the fees thereof and did actually renew the fame by purchasing a new life that is to say the life of the said T. Rothley therein in the room of the life of the said M. Rothley his wife, and that the said
T. Rothley in his lifetime forthwith and as foon after the death 1799. of the faid Anne Gardner &c. did use his utmost endeavours &c. and did renew by purchasing a new life that is to say the life of one W. Haynes in the room of the life of the said Anne Gardner. STRATton. And that the said T. Rothley in his lifetime forthwith and as foon after the deaths of the said J. Chandler and S. Love &c. did use his utmoft endeavours to renew the said premises held during the lives of the said 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 respectively, or such further terms eftates and intereft therein as in the said indenture mentioned determinable on some other new lives, in the room of the faid J. Chandler and S. Love ; but the faid lords wholly refused to permit the said T. Rothley to renew the same by purchasing any new life or lives or any further term eftate or interest in the premises, and from thence continually till the death of the said T. Rothley did refuse 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 estate or intereft in any of the premises aforesaid 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 ift plea contended, that according to the spirit 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 celuy que vies living ; that a covenant to renew as often as any of the persons on whose lives the premises were held should die, there being three such persons, 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 ettate at the time of his death in the same situation as if he had not renewed at all. He referred to Cooke v. Booth, Cowp. 819., to Thew that the Court would extend covenants for renewal beyond the strict 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 assign 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.
The Court, after inquiring if there was any authority to thew [ 458 ] that under such a covenant as the present a party is restricted from
putting in his own life, and no such case being produced, faid;
As it was in the power of the parties to provide against what has SCUDAMORE been done by inserting a covenant, that T. Rothley should leave STRATTON. the estate with as many lives as he received it, and they omitted
to do so, 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 person he should put in. It was natural for T. Rothley who had the beneficial interest to renew with his own life; and to conftrue the covenant in the way contended for by the Plaintiffs, would be introducing a restriction which the parties themselves did not conceive necessary. However as it is very clear that the Defendants' offer to aflign the leases 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 omission was matter of substance.
Judgment for the Plaintiff.
WYBURD V. Tuck.
If a compofitior. D'
EBT for not setting out tithes under the 2 & 3 Ed. 6. C. 13for tithes is made
Plea, General issue. by A. as proprietor and he At the trial of these four actions before EYRE Ch.J., the evilease them to B., dence on which several objections to the Plaintiff's recovery were whose interest is afterwards put an end to by A. before any alteration is made in the composition, A. cannot determine it without a fix months notice.
If A. execute a lease of tithes to B. on a day subsequent to their severance, 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 lithe vefted in A. immediately on severance.
Evidence that the parishioners have created wi'h the proprietor for a composition is not alone fuficient to eliablim his pofiestion of the tithes in an action on the Siatute.
Quare, Wheiher if one only of two joint-tenan:s execute an assignment of a kase of tithes, the person claiming under that lease can support an action for not letting them out ?