Reports of that grave and learned judge, Sir John Bridgman, knight, serjeant at law, sometime chief justice of Chester to which are added two exact tables, the one of the cases, and the other of the principal matters therein contained.

Michaelmas, 13 Jacob. Smalman, Plaintiff, against John Agborrow and Edmund Agborrow, De∣fendants.

IN an Action of Trespass; for that the Defendants, the 13 Maii, 13 Iacob. six Heifers of the Plaintiff of the price of 20 l. at Dodenham, in a place called Well-Marsh, did take, chase, and drive away, to the damage of 10 l. &c.

The Defendants to all, except the chasing, did plead Not guilty.

And as to the chasing, they said that the place where, &c. is, and at the time wherein, &c. was the Freehold of one Francis Agborrow, and so did justifie as his servants, for damage feasant, &c.

The Plaintiff replyed, that before the said Francis Agborrow had any thing, &c. the Dean and Chapter of the Cathedral of St. Mary the Virgin, in Worcester, were seised in fee of the Mannor of Aukerden and Dodenham, whereof the place where, &c. is, and at the time whereof, &c. was parcel, &c. And that the 25 of Novem∣ber, 10 Elizab. the said Dean and Chapter, by their Indenture, did Demise the said Mannor to William Agborrow, and Jane his Wife, and to the said Francis Agborrow for their lives: And that the 20 Febru. 39 Elizab. William Agborrow dyed seised:

and that the 21. of Decemb. 39. Eliz. Jane did marry with Robert Haw∣kins? And that the 25. Febr. 40. Eliz. Robert Hawkins,, and the said Jane by their Indenture did demise the said Mannor to William Hawkins and William Heaven for sixty years from the date, &c. if the said Jane and Francis Agborrow or either of them should so long live, rendring twenty pounds rent, and that the 25. of Mar. 13. Jac. William Hawkins and Wil∣liam Heaven did grant their Estate to the Plaintiff, whereby he was possessed and put in his Cattel there to grase, which were there untill the Defendant took them away, &c. And did aver the life of Francis Ag∣borrow.

The Defendants rejoyn and say, that the said Jane did die the 14. of Mar. 12. Jac. and that Francis Agborrow did hold himself in, &c. Per jus accresendi.

Vpon which the Plaintiff demurred in Law.

A man and a woman are Ioynt-tenants for life, the woman marries, the Husband and Wife by Indenture do let their moyety for years, ren∣dring Rent, and after the woman dies.

And the question was, whether the surviving Ioynt-tenant could a∣void this Lease.

And I conceive he cannot.

And for the Argument of this Case, I shall observe these two things thereof.

That if the woman who made this Lease had been sole at the time of [ I] the making, this Lease had been good during her life, and the life of her Companion the other Ioynt-tenant.

That this Lease being made by the Husband and Wife, is not void, [ II] but voidable.

And as to the first Point, Littleton fol. 63. and 64. saies, that if two [Part. 1] Ioynt-tenants in Fee be, and one grants a Rent-charge and dies, the Survivor shall hold the Land discharged; but if one makes a Lease for years and dies, the Lease is good against the Survivor: and in Hales Case in the Comment, If two Ioynt-tenants be for years, and one of them does grant to I.S. that if he payes twenty pounds at Michaelmas, he shall have his moyety, and the Grantor dies, and I. S. does pay the mo∣ney, yet shall not he have the Land, because the Condition precedes the Estate, but if he make a Lease for yeares to commence at a day to come, and dies before the day, yet is the Lease good against the Survivor: and so in Trin. 37. Eli. Harbury and Bartons Case. Two Ioynt-tenants are for life, and one lets his moyety for years to commence after his death, and dies, and agreed to be a good Lease against the Survivor: for as Lit∣ton saith, every Ioynt-tenant is seised Per my & per tout, and hath an Estate in one moyety not only for his own life, or his own time, but al∣so for the time and life of his Companion, and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues, but a Rent-charge shall not bind his Com∣panion, because he claimes by the first Conveyance which is above his Companions Estate.

And as to the second point, it is cleer that when Husband and Wife [Part. 2] make a Feoffment in Fee, or a Lease for years of the Land of the Wife rendring Rent, the Wife after the death of her Husband may accept the Rent, and make the Lease good; as in 26 H. 8. 2. the case of the Feoffment is agreed, and if a Woman after the death of her Husband does accept the Rent, she shall be barred in a Cui in vita, 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years

by Indenture, and the Husband dies, and she accepts the Rent, she shall be bound thereby and shall not avoid the Lease.

Vpon which two things being (as I conceive) unquestionable, it follows that this Lease at the time of the making thereof, is not void but voidable. And therefore the sole question will be, how this Lease is voidable, and if it may be avoided by the surviving Ioynt-tenant, or not?

And I conceive that it is avoidable by the Wife only, if she survive her Husband, and not by the other Ioynt-tenant, and that for two reasons.

First, Because the Survivor comes in above the Lease, and there∣fore cannot take advantage of any imperfection or defect to avoid the Lease, 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two, and one dies, the other may plead the Estate to be made to him only, for he is not in by him that is dead, but by the Feoffor or Lessor,: and Dy∣er 187. a. Two Ioynt-tenants for life, one makes a Lease for yeares rendring Rent, and dies, the Survivor shall not have the Rent. And if Tenant for life makes a Lease for years rendring Rent, and surren∣ders to the Lessor, the Lessor shall not have the Rent, for he is in by his Reversion which is above the Lease for years: and 28. H. 8. 96. a. An Executor had Iudgment to r••cover a Debt, and died intestate, where∣upon Administration is committed to another, he shall not have a Scire facias upon this Iudgment, because that he being Administrator imme∣diately to the Testator is above the recovery.

Secondly, There is no privity between the surviving Ioynt-tenant and the Lessor, to make him avoid the Lease which is voidable, as in 8. Rep. Whittinghams case, Privies in blood, as Heir generall or speciall shall avoid a voidable estate made by the Ancestor, as if an Infant make a Feoffment in Fee, his Heir may well enter and avoid the Feoffment: but Privies in Law, as Lord by escheat, Lord of a Villain, or Lord who enters for Mortmain, shall never take benefit of the Infancy, be∣cause they are but strangers. And therefore if an Infant make a Feoff∣ment in Fee, and dies without Heir, the Feoffment is unavoidable, 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate, as Ioynt-tenants, Husband and Wife, Donor, in Tail, and Donee, Les∣sor and Lessee, it is there also resolved, that they shall not take advan∣tage of Infancy, unle••••e it be in some speciall cases. And therefore if Tenant in Tail within age makes a Feoffment in Fee, and dies with∣out Issue, the Donor shall not enter, contrary to the opinion of Rick and Frisby, 6. H. 4. & 3. because that here is only a Privity in Estate between them, and no right does accrue to the Donor by the death of the Donee: So if two Ioynt-tenants in Fee be, and one of them being within age makes a Feoffment in Fee, and dies, the Survivor shall not enter; but if two Ioynt-tenants within age do make a Feoffment, one joynt Right remains in them, and therefore if one dies, the Right will survive, and the Survivor may enter in all, and the same Law of Covertue, or non sanae memoriae, as it is said also in Whittinghams case: and in Fitzherb. N. B. 192. K. If two Ioynt-tenants within age do alien in Fee, they must sue severall Writs of Dum fuit infra aetatem, because that the cause of their Action is their nonage, which is severall, for the nonage of the one is not the nonage of the other. But if Husband and Wife within age, do make a Feoffment of the Wifes land, and the Husband dye, the Wife shall have a Dum fuit infra aetatem, 14. Ed. 3. Dum fuit infra ae∣tatem, 6. and 12. H. 7. 18. B. Kelloway: In a Formedon by the Lord Brook against the Lord Latimer, if an Infant does make a Feoffment,

none shall avoid this but the Infant himself and his Heirs, and no stran∣ger, and the same Law of a Feme Covert.

And as to the case of Harvey and Thomas, 33. Eliz. cited in the Lord Cromwells case, Where the Husband made a Lease of his Wifes Land for years, and then he and his Wife aliened by Fine, and the Husband dies, the Conusee shall avoid this Lease, which I agree to: for the Lease being made by the Husband only, is utterly void against the Wife, and cannot be made good by any Act done by the Wife, and the Land pas∣seth all from the woman by the Fine, and therefore the Lease cannot bind the Conusee.

The Survivor in one case cannot make the Lease good by the accep∣tance [ 3] of the Rent, because that the Rent does not belong unto him, and therefore he shall not be received to avoid this Lease, as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his An∣cestor, for he shall not have the Rent or the arrearages incurred in the life of his Ancestors, and the reason is as I conceive, because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages, the which cannot be to the Lord, because that the Rent is not due to him, and therefore the Lord shall lose his acti∣on rather then the Tenant shall be deprived of his advantage of saving the land by his tender: And by this case also, the Aunt and the Neice shall not joyne in a Cessavit, for a ceasing made before the Title of the Neice accrued, but in Nat. F.B. 139. it is otherwise there of joynt-te∣nants, as I conceive, the reason whereof is, because, as I conceive, the Survivor shall have all the Rent, and therefore the tender may be made to him, 13. H. 4. 17. B. If one makes a Feoffment in Fee rendring Rent upon condition to re-enter for non-payment, and dies, the Rent being arrear, the Heir cannot demand the Rent or enter for non-payment, be∣cause that the Rent is not due to him, and as he cannot dispence with the Condition for acceptance of the Rent, so cannot he enter for non-pay∣ment thereof.

And I argued this Case again on Fryday, being the first day of Tri∣nity Term, 14. Jac. 31. Maii, at which day, Daston did also argue for the Defendant, but the Court did not then give any direct Opinion, but seemed to incline very much for the Plaintiff. And Hil. 14. Jac. the case was argued by Chilborne Serjeant, for the Plaintiff, and Davenport for the Defendant; at which time all did agree, that the Lease continued: But Davenp. took exceptions to the replication, For he said, that the mar∣riage of Jane with Rob. Hawkins is alledged to be 21. of No. 39. Eli. and the death of William Agborrow her first Husband, the 20. of Febr. 39. E∣liz. which is after the marriage; but that was held not materiall, for it is said, that William Agborrow died the twentieth of Febr. 39. Elizab. and that atferwards, viz. the one and twentieth of Novemb. 39. Eliz. Jane did marry Thomas Hawkins, so that the [afterward] is sufficient, Trin. 37. Eliz. Rot. 206. Butler against Wallis: In a Trespasse the Defendant justified by vertue of an Extent upon a Statute, and did shew the Ex∣tent, and that the 28. of Febr. a Liberate was awarded by vertue where∣of the Sheriff the 27. of Octob. delivered the land to him, &c. yet ad∣judged sufficient, for when he said Virtute brevis, the mistake of the day afterward is not materiall.

And at last in the said Term of S. Hillary, all the Court agreed that the Lease continued good against the Survivor, and cannot be avoided by him, and that the acception to the pleading was not materiall: And thereupon Iudgment was given for the Plaintiff.

Notes

• Rot. 609.
• Replication.
• Rejoynder,
• The Case.
• Judgment.