1796. Doɛ dem. V. ARCHER. was, then the verdict to ftand, and judgment to be entered thereon for him; but if the Court should be of opinion that the Plaintiff was not entitled to recover, then a nonfuit to be entered. Heywood Serjt. for the Plaintiffs. It has been repeatedly decided, that where tenant for life leafes for a term, the leafe expires with his life. Doe v. Butcher, Doug. 51. Roe v. Ward, 1 H. Bl.97. If the Defendants mean to rely on the recitals in the indentures, the cafe in Bendloe's Reports (a), pl. 13. may be referred to, where it was held, that a leafe which had been forfeited to the crown, could not be fet up by a reference to such leafe, in another leafe from the crown, to a third perfon, to commence from the expiration of the term of years for which the forfeited leafe was granted. Williams Serjt. for the Defendants. I admit the doctrine laid down in the cafes cited from Douglas and 1 H. Blackstone, but I contend, that it is not neceffary to the creation of a leafe, that the leffee should be a party to the inftrument by which it is created. If one grant a leafe to A. by deed poll, A. will not be a party to the deed. The release of November 1792 amounts to a new grant; for after reciting the fale of the premises, and the refervation of the fee-farm rent, it witnesses that in confideration of the purchase money, the vendor conveyed fubject to the leafe of the Defendant. The leafe therefore is not merely mentioned in the recital, but in the operative part of the deed: and the party by the exprefs terms of it took a new leafe, to run from the date of the deed to Michaelmas 1805. The vendor and vendee both meant the leafe to have exiftence, and the latter taking, fubject to the lease, paid for the premises accordingly. If this was the intent, the words amount to a new grant. Befides, Potter has concluded himself from entering upon Archer by his acceptance of the deed, and if he cannot enter he can maintain no ejectment. Now if Potter can maintain no ejectment, neither can the mortgagees, for the mortgage deed alfo notices the lease. In Goodright v. Strathan, Doug. 54. note [17] and Corp. 201. S. C. a leafe void in its commencement, was held to be fet up as a new leafe by fubfequent circumstances. The Court were of opinion, that the Plaintiff was entitled to recover, and Buller J. observed, that although a perfon might take a future intereft as remainder-man, under a claufe contained in an (a) The cafe is to be found in that part of Beadloe's Reports which follows fome cafes reported by Justice Dallison, and alfe in N. Bendlae, pl. 150. p. 38. 12 indenture indenture to which he was no party, yet that it did not follow that a prefent interest could be fo taken. (a) Per Curiam, (a) In Co. Litt. 231. a. is the following paffage to the fame effect. "And albeit, he in the remainder be no party to the "indenture (the parties thereunto only be"ing the leffor and the tenant for life) yet "when he in the remainder entereth and agreeth to have the lands by force of the indenture, he is bound to perform the "conditions contained in the indentute. "And here is also a diverfitie to be under"stood, that any eftranger to the indenture may take by way of remainder, but he cannot in this cafe take any prefent estate 66 Judgment for the Plaintiff. "in poffeffion, because he is an estranger to 1796. Doɛ dem. v. ARCHER. THE BLYTH V. HARRISON. June 4th. cuftody on meine procefs, is fuperfedable, unless a copy of the decla ration be deliver ed of before the end the Term after the process is returnable. Defendant in this action was arrefted by the Sheriff of A prifoner in Lincolnshire on a writ returnable in Hilary Term 1796, and detained in cuftody; on the 20th of April in Easter Term, a declaration was entered in the Prothonotary's Office, and a rule to plead given, but no copy of the declaration was delivered either to the prifoner or his gaoler till the 10th of May, which was the day after Eafter Term expired. The Defendant conceiving that the Plaintiff was bound not only to enter the declaration, but to deliver a copy of it within the Term, and that without fuch delivery, he could not be faid to have declared, took out a fummons for a Superfedeas before Buller J., who directed him to make his application to the Court. Accordingly a rule Nifi having been obtained for his discharge: Le Blanc Serjt. now fhewed cause, and contended that though by the rule of this Court, E. 5 W.& M. Reg. 3. a prisoner be entitled to his fuperfedeas unless the declaration be entered in the office before the end of the Term next after that in which the procefs is returnable, yet that the copy of the declaration is not required by that or any other rule to be delivered to the prifoner within the Term; that the 6th fection of the rule allows the Plaintiff ten days after Eafter, and twenty days after every other Term, to file his affidavit of the delivery of the copy, either of which periods is more than fufficient for the purpose of filing the affidavit, and was therefore certainly allowed that the Plaintiff 1796. BLYTH V. HARRISON. might have time to deliver the copy of the declaration after the expiration of the Term; that if this application fhould be granted, a Plaintiff might be obliged to declare fome time before the fecond Term is expired (till the laft hour of which he is entitled to delay his declaration), for wherever the prifoner should be in the cuftody of a fheriff of a diftant county, it would be neceffary that the declaration fhould be filed fome days before, in order that the copy might be fent into the country and delivered in due time. He trufted therefore, that the Court would not abridge the Plaintiff of any portion of his privilege. Runnington Serjt. in support of the rule, relied upon the established practice of the Court, and upon the ftatute 4 & 5 W. &M. c. 21. f. 2. which he contended was compulfory on the Plaintiff as to the delivery of the copy of the declaration within the fecond Term, that being the time appointed not only for declaring, but also for delivering the copy, according to the true conftruction of the ftatute: that if it were otherwife, great inconvenience would enfue, no other time being limited for the delivery of the copy, at least till the ten days allowed for filing the affidavit had elapfed: That the prifoner had no other means of knowing that the declaration had been entered at the office, and could therefore take no fteps to obtain his fuperfedeas, even where the Plaintiff had neglected to declare within the Term· He urged alfo, that the delivery of the declaration was the moft effential part of declaring, Strickland v. Hodgson, Cooke's Caf. Prac. 114., and that the Defendant could not otherwife know what to plead. The Court entertaining fome doubt on the effect of the rule of E. 5 W.& M. f.6. took time to confider: And on this day the unanimous opinion of the Court was delivered by EYRE Ch. J. This will be found to be a queftion upon the conftruction of the ftatute 4 & 5 W. & M. c. 21. rather than of the rule referred to. That act is entitled an act for delivering declarations to prifoners. It recites, that by the courfe of practice in the respective Courts at Westminster, after the Plaintiff in any writ had been at great charge to arrest a Defendant, which Defendant, for want of bail, had been committed to gaol, unless the Plaintiff fhould, before the end of two Terms next after the arreft, caufe the Defendant by writ of Habeas Corpus to be removed, to be charged in Court with a declaration, fuch prifoner should upon common bail or appearance, by attorney, be discharged. It therefore provides, that if a perfon be taken or charged in cuftody at the the fuit of another, upon any writ out of the Courts at Westminster, and imprisoned or detained in prifon for want of fureties for his appearance to the fame, the Plaintiff fhall and may by virtue of that act, before the end of the next Term after the writ fhall be returnable, declare against fuch prifoner in the court out of which the writ fhall iffue, and shall or may caufe a true copy thereof to be delivered to fuch prifoner or to the gaoler; to which declaration the prisoner fhall appear and plead, and if he does not, the Plaintiff shall have judgment in fuch manner as if the prisoner had appeared in the faid court, and refused to answer or plead to fuch declaration. Here is a new mode of declaring against a prifoner fubftituted in the room of the old course, which was to bring him up and charge him with a declaration. The new mode is declaring in court, and delivering a copy of the declaration to the prifoner or gaoler; as to the time, there is in effect no alteration. By the old courfe, they were to bring up the prifoner to charge him within two Terms; in the new mode they are to declare, &c. before the end of the next Term after the writ fhall be returnable. The ftatute goes no further than to direct in general terms, that the prisoner shall appear and plead to this declaration, and in default the Plaintiff is to have judgment as if the prifoner had appeared and had refused to answer or plead. The prifoner is to appear and plead according to the courfe of the court. The effect of this branch of the ftatute is fimply to eftablish, that in this form the Plaintiff is to declare, that this fhall be the declaration to which the prifoner fhall appear and plead. The courfe of the court, as to the prifoner appearing and pleading, is governed by practice, and by feveral rules, and amongst others, by a rule of Easter Term 5 W. & M. Reg. 3.; which (after providing that the copy of the declaration fhall not be delivered to the prisoner before the return of the procefs) provides that no rule fhall be given for the Defendant in cuftody to appear and plead to any declaration, until an affidavit be filed with the proper fecondary of the delivery of the copy of fuch declaration, and of the time when, and the perfon to whom the fame copy was delivered. The filing of this affidavit, and delivery of the copy, were firft introduced here for a purpose collateral to the mode of declaring. Then follows the rule, that if the declaration be not entered or left in the office before the end of the next Term after the writ be returnable, and affidavit made and filed in manner aforefaid, before the end of twenty days after fuch Term (Eafter Term excepted, and within 1796. BLYTH บ. HARRISON. 1796. BLYTH ย. HARRISON, within ten days after Eafter Term) the prifoner shall be dif charged upon the entering of his appearance with the proper officer, by writ of fuperfedeas, according to the ancient practice of this Court. This rule adds a new term to the rule for declaring as laid down by the ftatute: by the ftatute they were te declare and leave a copy before the end of the next Term, now they are alfo to file the affidavit of the delivery of the copy within a limited time. If they do not declare and leave a copy within the time limited, the prifoner is fuperfedable. In the prefent cafe the Plaintiff has declared in time, and has filed his affidavit in time, but he has not left a copy in time. The 8 & 9 Will. 3. c. 27.. 13. which refpects prifoners in the Fleet, was probably made in confequence of a doubt whether the former ftatute extended to them, and provides that it shall be lawful for any perfon after filing or entering a declaration with the proper officer, to deliver a copy of fuch declaration to the defendant, or to the officer of the Fleet, and, after rule given thereupon, to be out in eight days at moft after delivery of the copy, and affidavit made of the delivery, to fign judgment, as if the defendant had been actually charged at the bar with the action. Here filing and entering the declaration with the proper officer, and delivering the copy, is made fufficient, and from hence we may collect, that declaring in the ftatute 4 & 5 W. & M. and filing or entering the declaration with the proper officer in this ftatute mean the fame thing; and to both is fuperadded delivering a copy, as that which fhall be tantamount to the ancient mode of charging with a declaration. In the rule of Eafter, 8 Geo. 1. which refpects the declaring againft prifoners who have furrendered in difcharge of their bail, and provides that the Defendant shall be entitled to his fuperfedeas, unless the Plaintiff Shall declare againft the Defendant within two Terms after the render, the language is fimply, "fhall declare;" but this includes filing or entering the declaration and delivering the copy. This may be collected from the cafe of Clavey and Watts, 2 BI. 786. where the Court ordered a fuperfedeas, because the declaration was not delivered to the party himself or to the turnkey in time. That was a ftrong cafe, for the declaration had been delivered in time to the Defendant's attorney, the Defendant having put in fpecial bail by attorney, and afterwards furrendered. Refpecting detainers of prifoners in the Fleet, it is ordered by another rule, that no copy of a declaration delivered at the Fleet prifon against any perfon there fhall be a fufficient charge to hold fuch prifoner |