Prohibition. a non decimando for a thing certain, if the parson hath other CROUCHER sufficient maintenance (5). (4) And so in Gwill. 562. Anon. But the contrary was ruled in Gwill. 608. Smith v. Williams. It must, however, be observed, that no custom was there laid. See also Gwill. 671. Thompson v. Holt, where a custom was laid, and held good. And, upon the whole, the law seems to be, that wood used on the premises for repairs of husbandry buildings, for fuel, for fencing, or indeed for any husbandry purposes, whereby the tithes in general are increased, may be exempt from tithe by custom, but are not so of common right. (g) [But see 2 Jac. & Walk. 523. Puge v. Wilson. 1 Turn. & Russ. 249. Chichester v. Sheldon.] No prescription in non decimando is good, except for a COLLINS. (5) But there is this distinction, that in things titheable by custom only, and not de jure, a county or hundred may prescribe in non decimando generally; for it is but insisting upon the old right, against which the custom hath not prevailed; but for things which are titheable de jure a county or hundred cannot prescribe in non decimando, any more than a particular person. 2 Salk. 655, 656. Hick v. Woodson. 1 Ld. Raym. 137. Carth. 392. S. C. 3 Burn's Eccl. Law, 437, 4th ed. (y). known separate district a prescription for several adjoining parishes is bad. 3 Anstr. 702. Nagle v. Edwards. [2 Jac. & W. 513. 1 Turn. & Russ. 250.] WADE V. BACHE. WADE v. BACHE. 1 Saunders' Reports, 149 [abridged]. Surrender by Copyholder in Reversion expectant on Estate for Life. IF a copyholder in reversion or remainder expectant on an estate for life surrenders to the use of the tenant for his life, and afterwards to the use of himself and wife for their lives, &c., this enures to the husband and wife by way of a present estate, and not as a remainder (1). In this case the pleadings are set out at large, and it appears to have been stated in the replication that the copyholds of the manor in question were grantable in fee (2). The replication also stated a surrender by the remainderman (3). In the course (1) For it would be void at common law as a remainder, inasmuch as the limitation for the life of the tenant for life is void, and consequently the remainder would also be void; yet being in the nature of a limitation of an use, it is a present vested interest in the husband and wife to take effect in possession after the death of the copyholder for life. See 1 Ld. Raym. 626. 1 Bac. Abr. 478. (2) In which case it has been held that the custom will also warrant a grant to one for life, remainder in fee, as is done in this case; or remainder in tail, remainder in fee; Co. Litt. 52 b. Post, Potter v. North, n. (8); although there should be a custom, that it shall be granted solummodo (a) Cro. Eliz. 504. Gyppen v. Bunney. 1 Burr. 212. The Earl of Bath v. Abney; and no fine is payable by the remainder ea capienti extra manus domini; for a custom which restrains a fee from being limited by way of re-. mainder is void. Cro. Eliz. 373. Stanton v. Barnes. (3) It was admitted by the pleading in this case, agreeable to what had been decided before, that where there is tenant for life of a copyhold estate, remainder over to another in fee, or other estate, he in remainder may surrender his estate, if there be no custom to the contrary; for the estate of tenant for life, and him in the remainder, is but one estate, and the admittance of the particular tenant is the admittance of him in the remainder. 4 Leon. 9 pl. 38. Butler and Lightfoot's case (a). And it further appeared that man unless there be a special Forfeiture by Copyholder. of the argument it was laid down by Winnington, of counsel for the defendant, that if tenant for life of a copyhold commit a forfeiture of his estate, the lord of the manor shall take advantage of it, and not the person who has the remainder or reversion of the copyhold, as is adjudged in Margaret Podger's case (4). he in the remainder may accordingly be admitted to it by himself. S. P. 1 Lutw. 758. Norton v. Ladd. pl. 1. 2 Rol. Abr. 794, pl. 6. Sir W. Jones, 229. Kinge v. Loder. 3 Com. Dig. 208, 3rd ed. 1 Mod. 200. Keen v. Kirby. 2 Mod. 33. (4) So is 1 Rol. Abr. 509 (G.), See 3 T. R. 173. Doe v. Hellier. M VOL. I. ECCLESTON AND WIFE, Executors of Castle, v. CLIPSHAM. 1 Saunders' Reports, 153 [abridged]. 7. Joint Covenants-Several Covenants. ECCLESTON THOUGH a covenant be joint and several in the terms of it, CLIPSHAM. yet if the interest and cause of action be joint, the action must be brought by all the covenantees. And, on the other hand, if the interest and cause of action be several, the action may be brought by one only (1). (1) So though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, (a) 8 Taunt. 245. James v. Emery and another. S. P. 2 B. Moore, 195. S. C. 5 Price, 529. S. C. [3 B. & C. 254. Withers v. Bircham. 3 D. & R. 106. S. C.; in which last case the court said, that the general rule, established by the authorities cited in the above note, is that wherever the interest of the covenantees is joint, although the covenant be in terms joint and several, the action follows the nature of the interest, and must be brought in the name of all the covenantees; but where the interest of the covenantees is several, they may maintain separate actions, though the language of the notwithstanding the words of the covenant are joint. 5 Rep. 8 a. Windham's case. Dyer, 337 b. Wotton v. Cooke. 2 Mod. 82. Wilkinson v. Lloyd. 3 Mod. 263. Tippet v. Hawkey. Bull. N. P. 157 (). But where two persons Covenant jointly and severally covenant be joint. See also 1 Cr. M. & R. 599. Lane v. Drinkwater. 5 Tyrw. 48. S. C. 4 Bing. N. C. 426. Place v. Delegal. 6 Scott, 249. S. C. 6 Bing. N. C. 123, 129. Story v. Richardson. 8 Scott, 291. S. C. 6 M. & W. 835. Poole v. Hill. 4 Scott, N. R. 743. Palmer v. Sparshott. 4 M. & Gr. 137. S. C. 3 C. B. N. S. 3. Pugh v. Stringfield. 4 C. B. N. S. 364. S. C. 11 Q. B. 147, 163. Harrold V. Whitaker. 12 C. B. 60. Beer v. Beer. Accord. But it has been lately considered that this statement of the rule requires some qualification. See Sorsbie v. Park, and Foley v. Adden Joint Covenants-Several Covenants. In the course of the argument, Saunders, of counsel for the ECCLESTON defendant, cited Slingsby's case, 5 Rep. 18b, where there was a CLIPSHAM, with another, the covenantee may bring an action against one of the covenantors only, though their interest in the subject-matter of the covenant be joint; as where A. lets lands to B. and C. and they covenant jointly and severally with the lessor to pay the rent or the like, he may bring an action brooke, infra, p. 165, n. (c).] Where the plaintiff, the defendant, and twelve others, tenants in common of certain lands, entered into a deed, and each one for himself only, and not for the others, covenanted to abide by the award of A., it was objected that all the parties, except the defendant, ought to have been made plaintiffs, for that each man's covenant was made with all the rest but the court held, that the action was well brought, as each party had a separate interest. Willes, 154. Johnson v. Wilson. So, where part-owners of a ship agreed, "each and every of them "with the others, and each and every of them," that the ship should be under the management of one of them as husband, and that on her return an account should be taken, and the neat. profits divided rateably, it was held, that one part-owner might sue the ship's husband without joining the other part-owners. 13 2. against either of the covenantors, because they are sureties for each other for the due performance of the covenants; and it is as competent for each of them to covenant for the other, as it is for a stranger to covenant for both, which is a usual thing. 2 Burr. 1190. Enys v. Donnithorne. 1 Str. 553. Lilley East, 538. Ouston v. Ogle. [See also 10 B. & C. 410. Servante v. James. 5 Mann. & R. 299. S. C. Accord.] But where one of two covenantees has no beneficial interest whatever, there the action. must be joint; therefore, if a man covenant with A. and also with B. to pay an annuity to A., his executors and administrators, during the life of B., this is a joint covenant, and upon 4.'s death his executor cannot maintain an action. but the right of action survives to B. For though the covenant be separate, the legal interest is joint. 1 East, 497. Anderson v. Martindale. So, 3 Taunt. 78. Southcote v. Hoare, was decided on the same principle, and 1 Bos. & Pull. 67. Scott v Godwin. Where a deed is inter partes, the party who has the legal interest in a covenant must always sue, although the beneficial interest may be in another. 2 Brod. & Bing. 333. Barford v. Stuckey. See also 3 M. & S. 308. Storer v.Gordon. [4 M. & W. 295. |