Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

Hillary Term in 21 year Iac. C. P. Trehern against Claybrook.

TRehern brought an action of debt against Claybrook upon a lease for years, and upon nihil debet pleaded, and a special verdict, the case was to this effect; the Grandfather of the Plantiff was seised of lands in Southwark, and he made a lease for years of that to the Defendant at London rendring 45. l. rent, and after he devised the reversion to the Plantiff in fee, and in his will he set forth that his intent was, that his Executors shall have the reversion during the Term, upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term; and he further devised, that this bond shall be made by the ad∣vise of his overseers, and he limitted all this to be done within 6. moneths after his decease, and if his Executors refuse, his will was, that his overseers shall take the profits upon the same condition; and appointed that both obligations be made to the Plantiff, and the devisor died, and the Executors within 3. moneths shew∣ed the will to the overseers, but no obligation was offered to be made within the 6. moneths, and the Plantiff required the Executors to enter into the obligation, and to pay the rent, which was not done, and he claimed the reversion, and brought his action afterwards in London where the lease was made, and not in Southwark where the land did lie, and this case was twice argued by Councel at the barre; and now it was argued by the 3. Iustices. Hobert being absent.

And Iones Iustice moved a point, which was not moved at the barre viz. that the Plantiff is devisee of the reversion, and so is privie in estate only, and for that reason the action ought to be brought in Southwark where the land lies: and not in London where the contract was made; but the lessor himself had liberty to bring the action where he pleased, in regard of the privitie of estate and contract: and so was it adjudged in the Kings Bench, between Glover and Humble: and here though this be after verdict, and no exception taken by the Defendant; yet we as Iudges of the case may take notice of that ex officio, and give judgement a∣gainst the Plantiff: and the 3. Iustices agreed, that here is a condition, by which the reversion is vested in them, but it is in the Plantiff till performance of that, which not being performed by them within the time limitted, the Plantiff ought to have the rent: and though the Will is, that it shall be with the advise of the overseers, and no advise is found; yet that is at the peril of the Executors, who ought to give notice of that to the overseers, being to their advantage: and for that see 21. H. 6. 67. 46. E. 3. 5. 18. E. 3. 27. 11. H. 4. 13. which cases were cited by Serjeant Harris at the barre; and they agreed, that the overseers shall not have the reversion, for though it was devised to them; yet that was upon the refusal of the Executors, and no refusal is found, but only a non performance of the condition: and also the devise is tied to them upon condition, to do that with∣in 6. moneths, which ought to be performed in convenient time at the least, though it be in case of a Will: and so they concluded, that the Plantiff had right as to the matter in Law; but that judgement shall be given against him upon the matter supra; and it was resolved, that this was not aided by any Statute of Ieofailes, for this is a mistrial: but another point was moved, whether the Plantiff shall pay costs, within the Statute of the 23. H. 8 or 4. Iac. the words of the Statute are, if the Plantiff be nonsuite, or verdict given against him upon a lawful trial; but here it was resolved, that he should not pay costs, for no verdict is found a∣gainst the Plantiff; but rather for him: and judgement is given against him, be∣cause he mistook his action, and in Bishops case Coo. 5. judgement was given against the Plantiff, upon a material variance in the verdict, and no costs was gi∣ven: and it is not only out of the letter of the Statute, but also out of the intent, for it may not be imagined, that the Plantiff had stirrd an unlawful suite, when the

matter which he declares is found for him: and that Statute is not taken by equi∣ty, as Hutton said, for it hath been agreed here, that if Executors are nonsuite, or judgement given against them upon a verdict, they shall not pay costs, within the Statute of the 23. H. 8. or 4. Iac. and so is the constant practise, for the Sta∣tute speaks of any contract or specialty made with the Plantiff, or between the Plantiff and Defendant: and the Executor brings an action upon the contract of another: and in the principal case, judgement was entered, that the Defen∣dant should go without day: and that he shall not have costs against the Plantiff.