remembered that it only applies where one of the executors refuses to join; and even where that is the case, a cautious purchaser will not accept a conveyance from one, because the other may have previously sold to some other person. Whether the receipt of the acting executor will be a good discharge under the usual power to give receipts, see Treat. of Purch. p. 387. s. 17." And the following is the result of Mr. Sugden's examination of the cases respecting powers that do or do not survive. Treatise on Powers, ch. 3. s. 2. pa. 140. "Îst. That where the power is given to two or more by their proper names, who are not made executors, it will not survive without express words. 2d. That where it is given to three or more, generally, as, to my Trustees, my Sons, &c. and not by their proper names, the authority will survive whilst the plural number remains. 3d. That where the authority is given to Executors, and the will does not expressly point to a joint exercise of it, even a single surviving executor may execute it. But 4th. That where it is given to them nominatim, although in the character of executors, yet it is at least doubtful whether it will survive." [ No. XII. ] 21 Henry VIII. c. 15.-Fermors shall enjoy their Leases against Recoveries by feigned Titles, &c. WHERE afore this time divers persons have made leases of their ma- 21 Hen. VIII. nors lands tenements and other hereditaments, sometime by their c. 15. indentures, and sometime without writings, to other persons for term of 13 Co. 6. 'years, taking of them great fines for the incomes of the same leases; 1 Roll. 443. and after the same leasors their heirs or assigns have caused and suffered Recoveries to be had against them in the Court of our Sovereign Lord the King, and in other lords' courts, upon feigned and untrue titles, by 3 Bulst. 245. 'craft or covin to put the same termers from their said terms; and after 248. 'such Recoveries had, the same Recoverees,* by reason of such Recoveries and judgments, have entered into the same manors lands tenements and other hereditaments so to ferm letten, and thereof have ex'pulsed the said Fermers, contrary to their said leases covenants and agreements; and because it was doubted to some persons whether the 'said termers might falsify such Recoveries, or not :' very had against him in the c. 11. II. Be it therefore enacted by the King our Sovereign Lord, by the 11 Co. 33. assent of the Lords Spiritual and Temporal and the Commons in this 2 Leon. 65. present Parliament assembled, and by the authority of the same, That all Tenant for such termers shall and may falsify for his term only such Recoveries, as Term of Years well heretofore had as hereafter to be had, in such wise and form as a may falsify a tenant of a freehold shall and may do by the course of the common law, feigned Recowhere such tenant of freehold was neither privy nor party to the same Recovery. III. And that the same termers their executors and assigns, notwithstanding such recoveries so had, shall retain hold and enjoy their said terms, according to their said leases against all such Recoverees their heirs and assigns, as they should or might have done against the said The remedy lessors if such Recovery had not been had ne suffered; and that the said of the Recoverors against Recoverees* their heirs and assigns, after such Recovery so had, shall have Tenant for years like remedy against the said termers their executors or assigns, by avowry for Rent or or action of debt, for the rents and services reserved upon the same Waste. leases, being due after the same recoveries; and also like actions against them for waste done after the same recoveries so had ; in like manner and form as the said leasors should or might have had if the same recoveries had never been had. IV. And also be it further enacted, by the authority aforesaid, That no No Statute or manner of statute of the staple statute merchant nor execution by elegit, Execution by be hereafter avoided, or in any wise made frustrate, by means of any such Elegit shall be feigned recovery; but that all persons having any lands tenements or avoided by a other hereditaments in execution, or being intitled to have execution feigned Recoof any manors lands or tenements by any such means, shall have by force very. of this statute like remedy to avoid and falsify the same recoveries as be- Co. Lit. 104. b. fore is ordained and provided for the lease for term of years. [So in the authoritative copy, and in Ruffhead. The Commissioners notice in the former, that the word is Recoverers in the printed copies. A. H.] [ No. XIII. ] 32 Henry VIII. c. 33.—An Act that wrongful Disseisin is no Descent in Law. WHERE divers persons of their insatiable minds have heretofore by strength and without title, entered into manors lands tenements and other hereditaments, and wrongfully disseised the rightful owners and possessors thereof, and so being seised by disseisin, have thereof died seised, by reason of which dying seised the disseisee, or such other persons as before such descent might have lawfully entered into the said manors lands and tenements were and be thereby clearly ex'cluded of their entry into the said manors lands and tenements, and put to their action for their remedy and recovery therein, to their great ' costs and charges;' for reformation whereof, be it enacted by the authority of this present Parliament, That the dying seised hereafter of any such disseisor, of or in any manors lands tenements or other hereditaments having no right or title therein, shall not be taken or deemed from henceforth any such descent in the law, for to toll or take away the entry of any such person or persons or their heirs, which at the time of the same descent had good and lawful title of entry into the said manors lands tenements or hereditaments, except that such disseisor hath had the peaceable possession of such manors lands tenements or hereditaments, whereof he shall so die seised, by the space of five years next after the disseisin therein by him committed, without entry or continual claim by or of such person or persons as have lawful title thereunto. [No. XIV. ] 32 Henry VIII. c. 34.-Concerning Grantees of Reversions to take Advantage of the Conditions to be performed by the Lessees. WHERE before this time divers as well temporal as ecclesiastical and religious persons have made sundry leases demises and grants to divers other persons of sundry manors lordships ferms meases lands ' tenements meadows pastures or other hereditaments, for term of life or lives or for term of years, by writing under their seal or seals containing certain conditions covenants and agreements to be performed as well on the part and behalf of the said lessees and grantees their executors and assigns as on the behalf of the said lessors and grantors their heirs and successors; and forasmuch as by the common law of this realm no stranger to any covenant action or condition shall take any advantage or benefit of the same by any means or ways in the law, but only such as be parties or privies thereunto, by the reason whereof as well all grantees of reversions as also all grantees and paten'tees of the King our Soverign Lord, of sundry manors lordships granges ferms meases lands tenements meadows pastures or other hereditaments late belonging to monasteries and other religious and ecclesiastical houses dissolved suppressed renounced relinquished forfeited given up, or by other means come to the hands and possession of the King's Majesty since the fourth day of February, the seven and twentieth year of his most noble reign, be excluded to have any entry or action against the said lessees and grantees their executors or assigns, which the lessors before that time might by the law have had against the same. lessees for the breach of any condition covenant or agreenient comprised in the indentures of their said leases demises and grants: Be it therefore enacted by the King our Sovereign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, and by authority of the same, That as well all and every persons and bodies politick their heirs successors and assigns, which have or shall have any gift or grant of our said Sovereign Lord by his letters patents of any lordships manors lands tenements rents parsonages tithes portions or any other hereditaments, or of any reversion or reversions of the same, which did belong or appertain to any of the said monasteries and other c. 34. Grantees of Reversions may take advantage other religious and ecclesiastical houses, dissolved suppressed relin- No. XIV. quished forfeited or by any other means come to the king's hands, since the said fourth day of February the seven and twentieth year of 32 H. VIII. his most noble reign, or which at any time heretofore did belong or appertain to any other person or persons, and after came to the hands of our said Sovereign Lord, as also all other persons being grantees or assignees to or by our said Sovereign Lord the King, or to or by any person or persons than the King's Highness and the heirs executors successors and assigns of every of them, shall and may have and enjoy like of Conditions advantages against the lessees their executors administrators and assigns and Covenants by entry for non-payment of the rent, or for doing of waste or other for- against the Lesfeiture; and also shall and may have and enjoy all and every such like sees of the same and the same advantage benefit and remedies by action only, for not Lands. performing of other conditions covenants or agreements contained and Moor 876. expressed in the indentures of their said leases demises or grants, against pl. 1228. all and every the said lessees and farmers and grantees their executors Goldsb. 175. administrators and assigns, as the said lessors or grantors themselves or pl. 109. their heirs or successors ought should or might have had and enjoyed at Plowd. f. 175. any time or times, in like manner and form as if the reversion of such Dyer, f. 68, lands tenements or hereditaments had not come to the hands of our said 131, 309. Sovereign Lord his heirs and successors, should or might have had and Co. 62. enjoyed in certain cases by virtue of the Act made at the first Session of Bro. Entre conthis present Parliament, if no such grant by letters patents had been geable 139. made by his Highness. Cro. El. 600, 863. Cro. Jac. 305. Cro. Car. 24, 44, 137. 3 5 Co. 112. the Reversions which they might have had against their Grantors. II. Moreover be it enacted by the authority aforesaid, That all farmers Lessees may lessees and grantees of lordships manors lands tenements rents par- have the like sonages tithes portions or any other hereditaments for term of years life remedy against or lives, their executors administrators and assigns, shall and may have the Grantees of like action advantage and remedy against all and every person and persons and bodies politick their heirs successors and assigns which have or shall have any gift or grant of the King our Sovereign Lord, or of any other person or persons, of the reversion of the same manors lands tenements and other hereditaments so letten, or any parcel thereof, for any condition covenant or agreement contained or expressed in the indentures of their lease and leases, as the same lessees or any of them might and should have had against the said lessors and grantors their heirs and successors; all benefits and advantages of recoveries in value by reason of any warranty in deed or in law by voucher or otherwise only excepted. Dyer, f. 2 3 Co. 63. 5 Co. III. Provided always, That this Act, nor any thing or things therein contained, shall extend to hinder or charge any person or persons for the breach of any covenant or condition comprised in any such writing as is aforesaid, but for such covenants and conditions as shall be broken or not performed after the first day of September next coming, and not before; any thing before in this Act contained to the contrary thereof notwith. Co. Lit. 215. standing. (1) 7. By act in law a condition may be apportioned in the case of a common person; as if a lease for years be made of two acres, one of the nature of Borough English, the other at the Common Law, and the lessor having issue two sons dieth, each of them shall enter for the condition broken, and likewise a condition shall be apportioned by the act and wrong of the lessee, as hath been said in the chapter of rents. 8. If a lease for life be made, reserving a rent upon condition, &c. the lessor levies a fine of the reversion, he is grantee or assignee of the reversion; but without attournment he shall not take advantage of the condition, for the makers of the statute intended to have all necessary incidents observed, otherwise it might be mischievous to the lessee.* 9. There is a diversity between a condition that is compulsory, and a power of revocation that is voluntary; for a man that hath a power of revocation may by his own act extinguish his power of revocation in part, as by levying of a fine of part; and yet the power shall remain for the residue, because it is in the nature of a limitation, and not of a condition; and so it was resolved in the Earl of Shrewsbury's case in the Court of Wards. Pasch. 39 Eliz. and Mich. 40 and 41 Eliz. 10. If the lessor bargain and sell the reversion by deed indented and inrolled, the bargainee is not in the per by the bargainor, and yet he is an assignee within the statute. So if the lessor grants the reversion in fee to the use of A and his heirs, A is a sufficient assignee within the statute, because he comes in by the act and limitation of the party, albeit he is in the post, and the words of the statute be, to or by, and they be assignees to him, although they be not by him; but such as come in merely by act in law, as the Lord of the Villiene, the Lord by Escheat, the Lord that entereth or claimeth by Mortmain, or the like, shall not take benefit of this statute. 11. If the lessor in the case before, bargain and sell the reversion by deed indented and inrolled, or if the lessor make a feoffment in fee, and the lessee re-enter, the grantee or feoffee shall not take any advantage of any condition without making notice to the lessee. 12. Albeit the whole words of the statute be for non-payment of the rent, or for doing of waste or other forfeiture, yet the grantees or assignees shall not take benefit of every forfeiture by force of a condition, but only of such conditions as either are incident to the reversion, as rent, or for the benefit of the state, as for not doing of waste, for keeping the houses in reparations, for making of fences, scouring of ditches, for preserving of woods, or such like, and not for the payment of any sum in gross, delivery of corn wood or the like, so as other forfeiture shall be taken for other forfeitures like to those examples which were there put (viz.) of payment of rent, and not doing of waste which are for the benefit of the reversion." And see note ibid. in the c. 16. Attournment is taken away per 4 & 5 Anne, late editions of Co. Lit. from Lord Nottingham's MSS. The statute only gives a remedy for and against persons who by assignment become entitled to the reversion, the liability of the assignee of the term, and his right to maintain an action of covenant against the lessor and his heirs, is at Common Law. Such an action can only be maintained against the assignee of the entire legal interest of the whole or part of the premises demised-therefore it cannot be maintained against the grantee of a lessee for lives for 99 years, if the lives should so long live, in as full and ample a manner as the lessee held.-Earl of Derby v. Taylor, 1 East 502. In Eaton v. Jacques, Doug. 454, it was held that a mortgagee by assignment of the whole leasehold interest, who had not taken possession, was not liable in covenant; but this is very much questioned by Lord Kenyon, in Westerdell v. Dale, 7 Term Rep. 312. and Stone v. Evans, at N. P. cited 7 East 341. In Walker v. Reeves, Doug. 461, an averment that the assignee continued in possession was holden insufficient as a replication to a plea that he had assigned it over to another; but that case was decided by the same Judges, as Eaton and Jacques, and distinguished from it on the ground of the latter being a mortgage. Assignees under a commission of bankrupt having taken the property, as such are chargeable in covenant, and having once accepted the property they cannot afterwards reject it. But the merely offering it to sale is not such an assumption of the property as to charge them with the covenants. Turner v. Richardson, 7 East 335, and Browne v. Robinson, there cited. An executor or administrator upon whom a term devolves, is answerable de bonis propriis, as an assignee, Tilney v. Norris, 1 Salk. 309. Covenant will lie against an assignee of part of the estate, Cougham . King, Cro. Car. 222. Stevenson v. Lambard, 2 East 575, and in such an action there may be an apportionment of rent, although there cannot in the case of the immediate lessee. It is settled that an assignee can only be charged for breaches incurred during his having the estate in the premises, and that such liability is divested by an assignment to a beggar, or a person leaving the kingdom, or who does not take actual possession, or to a feme covert whose husband does not assent, or a prisoner for debt. Pitcher v. Tovey, 1 Salk. 31. Bamfather v. Jordan, Doug. 425. Lekeux . Nash, 2 Str. 1221. Taylor v. Sturm, 1 Bos. and Pull. 21. And notice of such assignment is not necessary. Pitcher v. Tovey, ub. supra. It is also settled that a lessee continues liable notwithstanding any assignment, and such lessee cannot plead his bankruptcy in bar. Auriol v. Mills, 4 T. R. 94. except by virtue of 49 Geo. III. c. 121. which releases the bankrupt in ease the assignees accept the lease and the benefit therefrom as a part of the estate. It is agreed that the statute relates only to assignees of a reversion expectant upon leases for life or years, and not to the assignees of grantees in fee or tail;-and it is also evident that none of the expressions in the Statute give a right of action to the second assignee of a term against the first assignor. And the recital of the Statute, that by the Common Law no stranger to any covenant shall take any benefit or advantage of the same, but only such as be parties or privies thereunto, with the necessity for such an enactment as constitutes the general purview of the Statute would seem to show, that where there is no reversion the assignee of a purchaser of an estate would have no remedy on the covenants of the original grantor, for between such grantor and the assignee there does not appear to be any actual privity. But the law seems to be, that such assignee is entitled to the benefit of covenants for title made with his assignor or any under whom he claims. In Middlemore v. Goodale, Rol. Abr. 521. (6 Viner 392) Cro. Car. 503-505. Sir William Jones, 406, the right to maintain such action upon a conveyance of the inheritance at common law is admitted by the Court as clear law, and the right of a sub-assignee of a term is also admitted both by the Court and Sir E. Coke as counsel for the defendant, in Andes v. Nokes, Moore, 419, Cro. Eliz. 373-436, and although in both these cases the judgment was given for the defendant on collateral grounds, and there does not appear to be any case in the books in which judgment was actually given for the assignee in an action upon such covenants, I apprehend that the right of maintaining such action may be regarded as a settled point. A warranty extends to assigns if named, but otherwise not. Co. Lit. 384-6. With respect to covenants for the payment of a rent charge issuing out of land, the principal question in Brewster v. Kitchin, 1 Lord Ram. 317, was upon the construction of a covenant for the payment of a rent charge without deducting taxes, and the application of such a covenant to taxes newly imposed, upon which Hol. C. J. delivered the opinion of the court in favour of the plaintiff;" but then," says the Reporter," he made another question, which was not observed at the bar nor by any other of the other judges, viz. whether the terre tenant is liable to an action upon this covenant, and he was of opinion that he was not. For by him, if tenant in fee grants a rent charge out of lands and covenants to pay it, without deduction for himself and his heirs, you may maintain covenant against the grantor and his heirs, but not against the assignee, for it is a mere personal covenant and cannot run with the land; and for a case in point, he cited Hardres, 87 pl. 5. Cook and the Earl of Arundel,' ******* Therefore since it doth not appear that the defendant is bound by this covenant, for this reason he was of opinion that judgment ought to be given for the defendant. But the other three. judges seemed to be in a surprise, and not in truth to comprehend this objection, and therefore they persisted in their former opinion, talking of agreements, intent of the party, binding the land, and I know not what. They gave judgment for the plaintiff against the opinion of Holt Ch. J. for the reason aforesaid. Although in the preceding case the decision was in favour of the plaintiff, the eminence not only of the dissentient judge, but of the reporter, who intimates his opinion in such striking terms, might probably afford sufficient ground for considering the question referred to as open to further enquiry-but in Roach v. Wadham, 6 East 289, which involved the same point, the opinion of the court was in favour of the defendant upon another ground, and no question was made as to the liability of the defendant supposing him to stand in the character of assignee. Mr. Sugden in his Treatise on Powers, p. 237, animadverts with much particularity upon the ground of the decision, without touching upon the point in question, or rather taking it for granted;—but I should conceive that the mere negative argument of the point not having engaged the attention of the eminent persons who decided that case cannot be regarded as decisive, if upon examination a different conclusion should be found more consonant to law. And no instance can better exemplify the weakness of such a negative argument in general, than that of Brewster v. Kitchin, in which the point occurred only to the Chief Justice, whose name is at least an indisputable authority for its being a question entitled to considerable attention. The case above referred to by C. J. Holt, of Cook v. Earl of Arundel, Hardres 87, was a suit in equity to make the defendant's lands subject to a fee-farm rent, and to charge them with it, for that the Duke of Norfolk, who had in his hands both the plaintiff's and defendant's lands subject to this rent, had granted the plaintiff's lands to one under whom the plaintiff claimed, and covenanted that they should be discharged from this rent, upon which covenant the plaintiff sought relief, and would have taken it to be a real covenant which should run with the land, and charge the other lands with the whole rent; but the Court was clear of opinion that it was no more than an ordinary and personal covenant which must charge the heir only in respect of assets and not otherwise. In the Year Book, 42 Ed. 3.-3. a case is cited and admitted of an action by an assignee upon a covenant by one parcener upon a partition to ac quit the other of suit-as a covenant running with the land-and the case is cited as undis puted law in Spencer's case, 5 Co. 18. 1 Inst. 385. There are also two cases in the Year Books, 42 Ed. 3.—3. 2 H. 4.-9. of covenants by a Friar with the consent of his convent to find a Priest to officiate in the chapel of the covenantee, and the intimations of the Court were, that such covenant might run with the land in favour of the alienee-neither of the cases was actually decided, but the doctrine is cited as good law by Lord Coke in the passages last referred to. It seems however to deserve consideration, whether the doctrine could be applied to the case of an individual entering into any covenant in respect of the land of a stranger with which he had no concern, so as to maintain an action on the covenant by an alienee of the land. In Holmes v. Buckley, Prec. Ch. 39, 1 Eq. |