The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Anonymus.

DOwer, The Tenant pleads, That a Lease was made by the Husband for 99 years, before any title of Dower did accrue, which Lease was yet in being, and shews, that the Lessor afterwards granted the Reversion to J. S. and died, and that J. S. devised to the Tenant for Life.

The Demandant replies, That the Lessor made a Feoffment in Fee, absque hoc, that the Reversion was granted prout, &c.

The Tenant Demurrs.

Newdigate Serjeant, for the Demandant, argued, That the Plea was not good, to which he tooke several Execeptions.

1. Except. The Tenant by his Plea confesseth, That the De∣mandant ought to have Iudgment of the Reversion expectant upon the Lease for 99 years, de tertia, but doth not say, parte.

2. Except. Here is the Grant of a Reversion pleaded, and 'tis not hic in Curia prolat'.

Then for the Matter, as 'tis pleaded, 'tis not good: He agreed, if Dower be brought against Lessee for years, he may discharge himself, by pleading the continuance of his Lease, during which time, the Demandant can have no Execution; but here the Te∣nant is no ways concerned in the Lease; 'tis Littleton's Case, None shall take advantage of a Release, but he who is party or privy, and therefore the Lessee in this Case, being party, might have pleaded this, but the Tenant is altogether a Stran∣ger.

Before the Statute of Gloucester, cap 11. If the Demand∣ant had recovered, in a real Action against the Tenant, the Termor had been bound, because, at the Common Law, no body could falsifie the Recovery of a Free-hold, but he who had a Free-hold himself; this Statute prevents that Mischief, and Enacts, That the Termor shall be received before Judgment, to defend the Right of his Term, upon the default of the Tenant, and though the Iudgment cannot be hindred thereby, yet Exe∣cution shall be suspended, during the Term; and therefore in Dyer 263. b. The Lady Arundel brought Dower against the Earl of Pembroke, who made default, and before Iudgment the Termor prays to be received upon this Statute, and pleads a Lease made by the Husband, after Coverture, which was as∣signed to him, and that Dower de tertia parte, of the Rent of this Lease, was assigned to the Demandant, by the Court of Augmentations, which was afterwards confirmed by Letters Patents; that she accepted it, and concludes, That the Plea of the Tenant was by Collusion, between him and her, to make him lose his Term; And this was held ill, for the Reason given by my Lord Hobart, That it is absurd to admit two Per∣sons to dispute the Interest of a third Man.

But whether the Traverse is good or not, if the Plea is naught, Iudgment ought to be given for the Demandant.

Jones Serjeant contra: The Pleading is well enough.

1. The Tenant confesseth, That the Demandant ought to have Iudgment of the Reversion de tertia, which is well enough, omitting the word (parte) because he claims a third part of such Tenements; and the Tenant confesses she ought to have Iudg∣ment, which is full enough, if the words de tertia parte were wholly omitted.

2. He agreed, That whoever Claims under a Deed, must shew it; but the Tenant, in this Case, did not defend himself

by any Title from the Deed, for the substance of the Plea, which secured him, was, That a Lease of 99 years was in being, and by his alledging the Devise of an Estate to him for Life, made by the Grantee of the Reversion, he did but allow the De∣mandant's Writ to be true, which mentions him as Tenant of the Free-hold.

Then for the Matter of the Plea, he says it was good, and that the Tenant might well plead the Lease for years.

By the Statute of Merton, Damages are given in Dower, where the Husband died seised, which he did in this Case; but yet no Damages ought to be paid here, but for the third part of the Rent, and the third part of the Reversion, and therefore to acquit himself thereof, he may well plead, as here, for which there is a President in Hern's Pleader 335.

Then he said, That the Traverse was ill, for the principal Point in the Plea which he ought to have traversed, was the continuance of the Term; and 'tis not material who granted the Reversion, or to whom it was granted; for if there is a Lease in being, the Demandant cannot have Execution.

The Court were all of Opinion, That the substance of the Plea was good, because there was a privity in the Grantee, and it was for his benefit to avoid the Demandants Seisin, he being thereby entituled to the Rent, and he may plead this Plea, to save himself from Damages given by the Statute of Merton: But as to the Traverse,

North Chief Iustice, and Wyndham Iustice, inclined, That the Traverse was well taken; for if a Disseisor pleads the like Plea, as here, 'tis not good, and therefore when the Tenant alledges a Grant of the Reversion, the Demandant may well traverse it.

But Iustice Ellis and Atkyns were of Opinion, That the Tra∣verse was immaterial, for it was the Lease and not the Grant that was traversable.

But because it was alledged by the Demandants (who of∣fered to refer it to the Council on the other side) that this Lease so pleaded, was an old Mortgage, long since satisfied; it was referred accordingly.

Notes

• Hob 316. Not for that reason, but be∣cause that Court could not assign Dower, and so the Let∣ters Patents of Confirmation could not make that good which was void be∣fore.
• 3 Inst. 32. b.