The reports of that reverend and learned judge, Sir Richard Hutton Knight sometimes one of the judges of the common pleas : containing many choice cases, judgments, and resolutions in points of law in the severall raignes of King James and King Charles / being written in French in his owne hand, and now faithfully translated into English according to order.

Entred Pasch. 18 Jac. Rot. 650. Treherne versus Cleybrooke.

* 1.1IOhn Treherne brought an action of Debt against Cleybrooke, and count of a Lease made by John Treherne Grand-father to the Plain∣tiff, of Lands in S. Olives in Surrey, and intituled himself by the Will of the Grand-father, by which he devised the Lands to the Plaintiff in tail,* 1.2 the remainder over to Leonard. Vpon Nil debet pleaded, the Iu∣ry found specially, scilicet, the Devise of the Reversion in tail, the re∣mainder over to A. in tail, the remainder of one Moyety of the Land to one Daughter in tail, and the other Moyety to another, with Pro∣viso, that for the raising of a Stock for John Treherne the Grand-child, when he come to the age of one and twenty years, or if he dies, for the raising of a Stock for Leonard in like manner, he willed that Edward Griffin and Anne his Wife shall take the profits, and shall receive all the rent of the Land devised to John Treherne, to their own use, untill he come to the age of one and twenty years, upon Condition, and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obliga∣tion, with such penalty as the said Overseers shall think fit to pay to the said John, or if he dye without Issue to the said Leonard, within three months after he come of age, such a summ, the Condition to be drawn and devised by his Overseers: And if Edward Griffin and his Wife refuse, then the Overseers should receive the Rent and Profits to their proper use: (But the Condition appoint not to whom the Over∣seers shall be bound.) And made Edward Griffing and William Iremon∣ger his Executors, and I. and others Supervisors, and died; and that within fourteen daies after the death of the Testator, the Will was read to the said Overseers: And that they did not devise or draw (with∣in the time appointed) any Obligation, nor tendred any within that time, and that notice therof was given to the Defendant, and that the Rent was demanded, and the Reversion claimed by the Plaintiff, sed utrum, &c.

Vpon the Argument of Serjeant Harris which argued for the Plain∣tiff, and vouched 21 H. 6. 6. That when one made Executors, and also Coadjutors, the Coadjutors are not Executors, and that it is a Condi∣tion precedent, vide 14 H: 8. 22. Wheelers case, 46 E: 3. 5. Truels case,

Coke lib: 5. 127. Palmers case, 4 E: 3. 39. 11 H: 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit, they ought to require them to nominate the summ: But because it ap∣pears to the Court that this Action is founded upon a Contract in Law, therfore it ought to be brought in Surrey; as it was agreed in Ungle and Glovers case, An: 36 Eliz: vide Coke lib: 3. fol: 23. Nota, that the Iudgment is speciall for this cause, and no costs upon the Statute of 23 H: 8. for the Defendant, for the Statute saies, that upon a Contract made by the Plaintiff, the Defendant shall have costs, and yet upon this Statute if the Executor be non-suited, or Verdict given against him, he shall not pay costs,* 1.3 by common experience alwaies after the Statute; and yet he shall have costs if he recover. And in this case the Plaintiff shall have costs if he recover, and yet it seems upon this Iudgment the Defendant shall not have costs against him, and especi∣ally because that they are expresse words in the Statute, that the De∣fendant shall have costs after Non-suit, or lawfull tryall against the Plaintiff, and here is neither Non-suit nor lawfull tryall, vide Statute 4 Jac: cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit, or when the Verdict passe against him, the Defendant shall have costs, yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff him∣self, for Executors neither upon Verdict nor upon Non-suit shall pay any costs, because that their actions are brought upon Debts or Con∣tracts, not made between them and the Defendants, vide the Statute of Glocester, cap: 1. that where a man recover damages, there also he shall have costs.

Notes

• * 1.1

  Debt.
• * 1.2

  Devise.
• * 1.3

  Where costs shall not be a∣gainst Execu∣tors.