Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Trinity Term 35 Eliz. Hughes versus Robotham.

1. MEredith Hughes brought an Action upon the Case against William Robotham Executor to Ja. Robotham, for that the Plaintiff in the life time of the sayd Testator, to wit, the 12th. of Ap••il, 28 E∣liz. at London, in such a Parish and Ward, was possessed of a Messuage, with the Appurtenances, in the same Parish and Ward, for divers years then to come; And whereas also the said Testator was then possessed of the reversion therof after divers years then also to come, and so possessed the said Testator the said 12th. day of April, at London, in the Parish and Ward a∣foresaid, in consideration that the Plaintiff at the instance and request of the Testator in his life time would surrender all his Estate and Term of years which he then had to come in the said Messuage, with the Appurtenances, and procure one Thomas Thornell to give to the said Testator a 100. marks for a Lease therof to be made by the said Testator to the said Thornell, he as∣sumed and promised to pay to the Plaintiff 30 l. of the said 100. marks, when he should be therunto required by the Plaintiff.

And the Plaintiff alledged in facto, that he at the instance and request of the said Testator in his life time afterwards, to wit, the 20th. day of April, 28 Eliz. at London, in the Parish and Ward aforesaid, surrendred to the said Testator all the Estate and term of years which he then had to come in the said Messuage, &c. and that he, the same 20th. day of April, in the same Pa∣rish and Ward, procured the sayd Thornell to give to the said Testator 100. marks for a Lease of the said Messuage, &c. by the Testator to the said Thornell, then and there made for 19 years, from the Feast of the Annuncia∣tion of our Lady then last past, and that yet the said Testator in his life time, nor the said Defendant after his death, have not paid to him the said 30 l. al∣beit the said Testator in his life time, to wit, the 24. day of April aforesaid, at London, in the Parish and Ward aforesaid, as therunto required by the said Plaintiff, and albeit the Defendant after the death of the said Testator, to wit, the 10th. day of April, 32 Eliz. in the Parish and Ward aforesaid, was

also therunto required by the said Plaintiff: And albeit there were suffici∣ent Goods and Chattels of the said Testator at the time of his death, to pay as well the said 30 l. as all other Debts of the said Testator, and also to dis∣charge the Funerals of the said Testator, which Goods and Chattels came to the said hand of the said Defendant, &c.

And after Non assumpsit pleaded, and a Verdict for the Plaintiff, excepti∣on was taken in arrest of Iudgment, that the Declaration was not good.

1. Because it is, that the Plaintiff the 20th. day of April, 28 Eliz. surren∣dred all the Estate and term which he had then to come, and this (for any thing shewn) may be another Term then he had the 12th. day before, for it is not said, and so being possessed the 20th. day he surrendred, but generally as before.

And further the consideration was, that he ought to surrender all the Term which he had the 12th. day of April, which cannot be made the 20th. day, for in the mean time, part of the Term is incurred, and therfore the pur∣pose was that the surrender should have been made immediatly as soon as might be, so as by the delay therof the ••••d Robotham should not loose any part of the Term to come.

And it was further alledged, that a term for years cannot be surrendred to another Termer for years.

Gawdy, The consideration is, that the Plaintiff at the request of the Te∣stator in his life time should surrender, so that it is not to be done untill he be required by the Testator, and not instantly at his perill without request precedent; and here it is alledged that the Plaintiff at the request of the said Testator, the 20th. day of April surrendred, which is well done, and accord∣ing to the agreement, and albeit it had been more formall to have said that the said Plaintiff so being possessed afterwards, to wit, the 20th. day of April, surrendres, &c. yet it shall not be intended that he had any other term then that which he had before, if it be not shewn on the other side in his Bar, and especially here, where the Action is not grounded upon the Term, but up∣on the Assumpsit, and the consideration is nothing but an inducement to the Assumption, which is not so formall to be made as if the Action had been grounded upon the Term it self. And therfore in an Action upon the case upon an Assumpsit, it sufficeth to say, that wheras the Defendant was indebt∣ed to the Plaintiff in divers summs of money amounting in all to a 100 l. the Defendant assumed to pay him the 100 l. at such a day, without saying, how or in what manner these Debts accrued, or when, because the Action is nor meerly founded upon the Debt but upon the promise, and the Debts are but inducements to it: But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof, to wit, when, and how it comes.

And further here, in as much as the Assumpsit is found for the Plaintiff, it shall be implyed that the consideration was duly performed, for without due proof of the consideration the Plaintiff hath failed of his assumption, and therfore also it shall be now taken that the Testator hath such a term of years in reversion, to which the term for years in possession may be surrendred, for he said, that he who hath ten years in possession may well surrender to him who hath more years, as twenty in reversion; for the lesser may sur∣render to the greater term. To all which Popham and Fennor agreed: And Popham said further, although it shall be taken most strongly against Hughes, to wit, that Robotham had a lesser term in the reversion then Hughes had in the possession, yet the surrender shall be good, for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession, then to have it to be in reversion: ••••nd by him, if a Lessee for twenty years make a Lease for ten years, then he w••ich makes the Lease for ten years hath a re∣version upon these ten years, so that if Rent be reserved upon it, he may di∣strain

for it and have Fealty of the Termor: And if he grant the Reversion over for ten years, with attornment of the Termor in possession, the Grantee hath the Reversion and shall have the Rent for the time, and yet the Remain∣der for years remains alwaies to the Grantor, and therfore before the Rever∣sion granted ever, the Termor for ten years in possession might have surren∣dred to his Lessor, and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years; And after the Reversion granted, he, which hath the ten years may surrender to the Grantee of ten years in Reversion, and there he shall have so many years in possession which were to come of his Reversion, Quod nota bene: And if he had had a lesser term in the Reversi••n then the Less••r himself had in the Possession, it shall go to the benefit of the first Termor for twenty years, who was his Grantor, for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the R••version therupon, ha∣ving regard to their Estate in the Reversion, and not otherwise; to all which Fennor agreed, wherupon Gawdy gave the rule that Iudgment shall be en∣tred for the Plaintiff: But Popham said, that if the consideration for the surrender had not been sufficiently alledged, that the Plaintiff sh••uld not be helped by the other consideration of 100. marks given by Thornel, for if such an Assumption as this is be founded upon two more considerations, and such which by possibility may be performed, then the party hath failed of his Suit: As if a man in consideration of 5 s. paid, and of other 5 s. to be paid at a day to come, assume to do a thing, or to pay money, if the one 5 s. be not paid, or if it be not averred that the other 5 s. was paid at the day limited for the pay∣ment of it, the party hath failed in his assumption in the one case, and the de∣claration is insufficient in the other case, for he hath made a departure from his consideration: But if one of the considerations be impossible, or against Law, there the other considerations which are possible, or stand with the Law suffice if they he well alledged. And he said, that the Executor shall be charged with the contract of the Testator by common course of the Court, which stands upon reason, for if an Action of Debt upon a bare contract be brought against an Executor, if he do not demur upon it but plead to the Pa••s, that he owes him nothing, and it is found against him, he shall be the•• by char∣ged of the Goods of the dead; and the cause why he may be helped by demur∣ring upon the declaration in that case, is, bec••use the Testator might have waged his Law in that case of debt, which the Executor could not do of other contracts, and therfore shall not be charged with it by such an act, if he will help himself by demurrer; but in ••he assumption of his Testator, he could not have waged his Law: and it is founded upon the death of the Testator, to wit, his debt, with which the Executor by a mean may be charged as be∣fore, and therfore the assumption in such a c••se maint••inable against the Exe∣cutor. But if the Testator upon good consideration assume to make assu∣rance of Land, or to do any other such collaterall thing which doth not sound in a duty of a thing payable, there the Executor sh••ll never be charged with such an assumption to render recompence for it. And to this agreed all the Iu∣stices •••• the common Bench, and Barons of the Exchequer; And such an as∣su••••••ion hath not been allowed in the Kings Bench but of late time, and th•••• but 〈…〉〈…〉 or two cases. But in the other case it hath been common and of 〈…〉〈…〉, and therfore now too late to be drawn in question; and if it should ••••, it may be maintained with good reason in this case of a duty of ••••ing payable, in as much as the Testator cannot wage his Law in the A∣ction, but in the other case there is no reason nor course of the Court to main∣tai•• it: But the Iudges in the Exchequer Chamber reversed all these Iud∣ments in both cases.

2. Nota, that this Term was adjourned to Octob. Trin. and because the Writ was, that Adjournment shall be made in Octob. Trin. of all cases, un∣till Tres Trinitat. the Adjournment was made in every of the Courts of Kings Bench, Common Bench, and the Exchequer, the very first day of Octob. Trin. then it was holden by the Iustices, that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis.

And because that the Writs were, that at the said Tres Tr. the Term shall be holden therafter, as if no Adjournment had been, the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term, and for all causes, as if no adjournment had been; and so they did accordingly, saving by assent some of the Iustices did not come thither by reason of their far distance from London, at the end of the Term upon the last Adjournment: But they held, that if it had not been for the especiall words in the Writ, which were, that it shall be then holden as if no Adjournment had been, the Ess••ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day, which was the last day of the Term, quod nota, and so it was of the Adjournment which hap∣ned first at Westminster, and afterwards at Hertford from Michaelmas Term now last past.