All that meffuage or tenement, with wash-house, and stable, or carpenters work-fhop, then occupied by the faid G. G. in Perkin's Rent, and all that other meffuage or tenement beforementioned to be in the tenure or occupation of in Pye-ftreet, Westminster,

in Com. Middlefex,

To the ufe and behoof of the faid G. G. his heirs and affigns for ever, and for no other ufe, intent, or purpose whatsoever.

Nota, The other houses devised by 7. S.'s will are by this deed fettled to the ufe of S. B. and Mary his wife, and the said Sarah W. with the ufual covenants, and the faid G. G. covenants with the faid S. B. and S. W. as follows:

That he the faid G. G. will, within one month after the death of the faid Mary W. and Elizabeth S. pay to the faid S. B. the fum of Il. and to faid Sarah W. 217. the faid B. covenants with the faid G. G. that in cafe the faid Mary W. fhould happen to furvive the faid Elizabeth S. that he will, during the natural life of the faid Mary W. pay him 27. 8 s. vearly, by quarterly payments; the fame covenant to G. G. by Sarab W. for payment of 11. 8 s. executed by all the parties thereto, and the confent of Mary W. and Elizabeth S. to the making this deed indorsed.

Note, A fine was levied according to the ufes in the before-abstracted deed.

The faid Hannah, wife of G. G. died in the life-time of the faid Elizabeth S. and before the became poffeffed of the faid premises so devised to her by the will of 7. S. and left iffue at her death, viz. Mary and Elizabeth. The faid Mary died about twelve years ago, and the faid Hannah has fince intermarried with one W. N.

The faid G. G. keeps poffeffion of the above-mentioned premises, devised to his wife as aforefaid, under a pretence that she had an abfolute right to convey or fell the fame, though not poffeffed thereof at the time of her death, and that by the above abftracted deed of partition, the faid premifes are now abfolutely vefted in him, and that he has a right to fell and difpofe of the fame as he pleases; and at other times he pretends that he has a life eftate therein by the courtesy of England, as having iffue born alive of his faid wife.

Query. Had the faid Hannah G. his wife any right to fettle the fame on him, as fhe was not poffeffed of or entitled to the faid premises at the time she made fuch deed, nor at the time of her death; or do the fame devolve to Hannah her daughter, now Hannah N. or hath the faid G. G. a right to the fame for his life by the courtesy of England, as having a child born alive by her at her death, though fhe was not poffeffed of or entitled to the fame at the time she died?

Opinion:

Opinion. If the facts fet forth in the recitals of the deed of partition are true, it plainly appears that G. G. hath an abfolute title to the freehold and inheritance in fee-fimple of the premises limited to him by the ufe of the fine, and may fell or difpofe thereof as he pleafes, and his daughter Elizabeth N. hath not the leaft pretence or fhadow of title thereto. W. Rivet.

12th September, 1763.

1ft September, BY

1769.

CASE.

OY indenture of this date T. C. demifed to W. W. all that meffuage or tenement fituate &c. to hold to the faid W. W. his executors &c. for the term of eleven the yearly rent of 30 l. payable quarterly.

years, at 11th October, 1771, A commiffion of bankruptcy was awarded against the said W. W. the leffee under the faid recited leafe, and the commiffioners acting under the faid commiffion affigned over his effects to T. S. and J. B. who were chosen affignees under the fame.

The faid T. S. and 7. B. the affignees, among the other effects of the faid bankrupt, put up the above recited indenture of leafe to fale by public auction; but it appearing not to be a beneficial leafe, they could not difpofe of it, and therefore are defirous of delivering poffeffion, and furrendering the leafe to the leffor.

The leffor now infifts that the affignees, by putting the faid leafe up to public fale, have made the fame their own, and are therefore obliged to pay the rent for the refidue of the faid term.

Query. Are the affignees, by this ftep taken by them, liable to pay the rent to the leffor during the refidue of the term of the faid leafe, or may they notwithstanding deliver up the leafe to the leffor, and thereby discharge themfelves therefrom?

;

Opinion. If the affignees have never entered on or occupied the premises, I think they are not liable to the payment of any part of the rent, notwithstanding the attempt they have made to fell the fame for till they endeavoured to fell it, they might not have an opportunity of knowing what it was really worth; even though they should have occupied the house for any time, yet I think they would not be liable to pay more rent than the premises are really worth; as is the cafe of an executor, who may by plea fhew, that the premises are not worth fo much as the rent referved, and if he has not affets, by that means discharge himself from the payment of more; therefore I am of opinion the affignees may now deliver up the lease to the landlord, and discharge themselves of it.

Middle-Temple, 21st June, 1771.

F. Buller.

CASE

CASE.

Giving a promiffory note to B. for payment of 100%. to him or •his order, three months after date, B. applied to C. to get it discounted, and C. applied to D. for that purpofe, who agreed to do it at 20 per cent. provided C. and E. who were friends of B. would indorfe it as his further fecurity. They accordingly did fo, and D. advanced the money, and received the discount.

When the three months were elapfed, R. applied to D. to forbear calling in the 100l. and made him a prefent of feveral guineas for continuing it several months after fuch further prefent made, and after the note had been due. D. applied to A. to let him know the note was not taken up, whereupon A. replied, he was furprized at it, but as he had none of the money, he would never pay it, and therefore told D. he muft look to B. as his paymafter, and advised him to do it forthwith.

B. after this requested D. to allow him further time for payment of the note, and in confideration thereof B. agreed to allow D. one guinea per month, and has actually paid one guinea per month for near three years; but nevertheless D. feveral times after fuch new agreement acquainted the faid A. C. and E. that the note was not taken up, and they always defired he would oblige B. to do it.

About fix months fince D. paid away the note to 7. husband to D.'s daughter, as part of her fortune, but he afterwards paid it to D. his

father.

Since which G. who acts as attorney for D. pretends he has bought the note of D. and has brought an attachment of privilege against A. the drawer, and all the indorfees, except D. himself, and has actually arrefted A. thereon.

Query. Therefore as D. took B. for his paymafter, by continuing to indulge him for three years and a half, after the note become due, at his inftance and requeft, (tho' often preffed by the other party to fue him) in confideration of one guinea per month premium, Can he recover against A. the drawer, or the other indorfers at law and if fo, will not equity relieve him?

Opinion. am of opinion, That as A. was the original debtor by his promiffory note, and the money is not paid, he is ftill liable to pay it, notwithstanding D.'s continuing the money at B.'s request, and for a premium given by B. I think, he cannot defend himfelf against the payment of it, either in law or equity, though D.'s agreement for the continuance of fo extravagant a premiums, and accepting it accordingly, does, I think, subject him to the penalty for ufury, by the ftatute of 12 Ann c. 16. being treble the value; but if A. really never had the tool. it is probable that he may be relieved on payment of 100l. and intereft, only deducting the premiums by a bill in equity, with proper fuggeftions contrived to it, for a difcovery of thefe premiums and discounts,

E

discounts, but so as to avoid the plea of it subjecting D. to a penalty; but this is upon fuppofition that G. has not paid a valuable confideration for it, and is only a trustee for D.

Query. Will B.'s and the other indorfors, being included in the attachment, prevent their giving evidence for D. in the caufe against him, especially as B. by being fo, does not benefit himfelf, but, on the contrary, takes the debt upon himself?

Opinion. I think this will not take off the indorfor's evidence, unlefs they fhould be joined in the declaration, which I don't fee how can be.

Query. As the note is not indorfed by F. fon-in-law to D. nor the note given to G. for fees, is not the attachment an improper writ, and can we not plead the want of fuch indorsement, or the defectiveness of the writ in abatement to the action?

Opinion. If G. has not a legal title to the note by an indorsement, he cannot fue at all, and then he will be nonfuited upon the trial; but if it fhould appear to be indorsed at the trial, that will be fufficient; but this is a defence to the merits, but not a proper plea for the writ.

October 16, 1733

D. Ryder.

CASE.

IN

N 1731, W. P. being to be fworn in one of the officers for the county of Middlefex, W. S. and three other perfons gave a bond to S. R. and F. P. then sheriffs of Middlefex, dated 28th September, 1731, in the penalty of 2000 l. for performance of the covenants in certain indentures referred to by the condition of the faid bond; and 7. S. was appointed by the faid R. and P. their under fheriff for the faid year.

On the 5th of May, 1732, a warrant was made out by the sheriffs of Middlefex for arrefting one B. at the fuit of Mr. M. and was directto S. T. and the faid W. P. but was not delivered to T. and T. arrefted the defendant; but P. being at the door when T. arrefted him, T. prevailed on P. to take the prifoner to his house, till he could fend for bail, and P. did fo.

On Sunday evening the 9th of May, 1732, the prifoner forced open P.'s cellar window, and made his efcape againft P.'s confent and knowledge: upon this P. got the Lord Chief Juftice's warrant to retake him, and was at great expence for that purpofe; but not being able to retake him, and the fheriff being ferved with a rule, to bring in the body, W. P. in 1732, paid to one Mr. P. 2001. and he paid it over to the plaintiff's attorney, and thereupon plaintiff's attorney was satisfied, and staid all proceedings against the sheriff.

Soon

Soon after the payment of the 200 1. the plaintiff died, after which Mr. P. died, and on or about June laft, the defendant was taken on the escape warrant, and fent to Newgate, where he lately died.

That no proceedings have been had in the above affair fince the payment of the 200l. to plaintiff's attorney, now near five years ago, till Michaelmas laft paft, one 7. H. a pretended attorney, but not admitted, filed a bill in the Court of Common Pleas against S. in the name of the faid R. and P. fheriffs, for 2000 . the penalty of the bond, pretending Mr. P. paid 100l. part of the faid 200l. to the then plaintiff's attorney out of his own pocket, to make an end of the affair, and H. infifts, though S. was named and acted as under sheriff in every respect, yet he accounted with P. for the profits, and that P.'s executrix is entitled to have the benefit of the faid bond; whereas it is apprehended the plaintiff was really dead before any money was paid, and that thereby the caufe was abated; but if that fhould not happen to be the cafe, as the bond was given only to the high sheriff for performance of articles in a certain indenture mentioned in the condition of the faid bond, which indenture was only to indemnify the high sheriff from any escapes or damages, and as the plaintiff, as alfo Mr. P. and the defendant B. are all fince dead, and Mr. S. not P. was the person who acted as under fheriff, and confequently neither the high sheriff nor under sheriff fuffers, the widow and administratrix of P. has no right to fue Mr. S. on the faid bond, especially as by ant affidavit annexed it appears this action has been brought without the confent or direction of the faid R. and P. or S.

Opinion. The defendant is liable to forfeit the penalty of this bond on fuffering B. to efcape, and has no method at law to help himfelt, even although fatisfaction hath been made to plaintiff's attorney, but his relief muft be in equity.

R. Draper.

E.

CAS E.

C. widow and relict of T. C. and F. C. infant per prochein amy, W. B. R. L. and E. ux' R. L. jun. J. S. and M. L. infants, per prochein amy, P. R. and S. ux. W. P. F. 7. and M. R infant, plaintiffs, and A. C. widow, and executrix of W. C. J. C. W. C. infant, per guardian, defendants.

The bill fets forth, That teftator W. C. late father of faid T. C. and of plaintiffs of E. L. and S. R. and of defendant J. C. duly made his will, and afterwards a codicil, and having given feveral pecuniary legacies to his children, he devised to defendant A. C. all his. copyhold, freehold, and leafehold eftates for life, and gave to her as long as the fhould live, the ufe of all his other perfona eftate, chargeable with the payment of faid legacies; and atter her deceafe devifedall his freehold, copyhold, and leafehold eftates, to and amongst his several children, and the refidue of his perfonal. eftate, after his wife's death, he

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gave