CA P. LXII. Jointure. Vide title Dower and Jointure. CAP. LXIII. Judge. May the 12th, 1742. Ex parte Lingood. Vide title Bankrupt, under the divifion, Rule as to a Certificate from TH The bare entry his lord's con of itself, that and a tenant. HE plaintiff as affignee of a lease, being intitled, dur- Cafe 237. ing the remainder of a term therein, to a house in CoventGarden, with offices, and alfo to a ftable and coach-houfe, of a fteward in with a room over the fame, and to the use of the yard adjoin- tract book with ing to the coach-house, the defendant Smith, the late Duke of his tenants, is Bedford's fteward, and the plaintiff (who was defirous to con- not an evidence tinue in the houfe beyond the term in the said leafe) on the there is an agree 26th of May 1731 came to an agreement, that in confideration ment for a leafe of the plaintiff's furrendering the ftable and coach- houfe, with between the lord the room over the fame, and his right to the yard, in order to accommodate Mr. Rich, who was then building a new play-house, he fhould have 30l. allowed him for the then remainder of the term therein, and have the fame term in the refidue of the premiffes made up to him 21 years from that day at 60l. per ann. and that a leafe fhould be executed to the plaintiff accordingly, and for which he fhould pay the Duke 80l. which agreement he delivered Smith to be entered in his Grace's contract book with his tenants; that fome fhort time after, Mr. Rich entered VOL. I, K k into and poffeffed the ftables, coach-houfe, &c. and took down and demolished part thereof to build his playhouse. Smith, on the death of the late Duke, being continued steward, declared to the plaintiff that he muft ftand to the agreement, and fhould have a further leafe according to the terms of that agreement, on which the plaintiff began to repair and fit up the house, and laid out feveral hundred pounds in needful repairs, and alterations, beyond what he was obliged to by any covenants in the old leafe. At Lady Day 1736 the lease expired, and no new one hath been made to the plaintiff according to the agreement, though he has offered to pay the fine; but the defendant the Duke of Bedford doth not only refufe to make a new leafe to the plaintiff, but hath actually made a leafe of the faid premisses to the defendant Bever, and given the plaintiff notice to deliver the poffeffion, or to pay double rent. The bill therefore is brought to have fuch further leafe decreed him, and the fum of thirty pounds paid him, and that if the defendant Smith made the agreement without fufficient authority, that he may make fatisfaction to the plaintiff for the damages he may fuftain thereby. 66 The Duke of Bedford by his plea, which on arguing was ordered to ftand for an anfwer, infifted that by the ftatute of frauds and perjuries, "All leafes, &c. or term of years, or any un"certain intereft in any meffuage, lands &c. made by parol "and not put in writing, and figned by the parties fo making the "fame, or their agents, lawfully authorized by writing, fhall "have the force and effect of leafes at will only, and shall not, "either in law or equity, be deemed or taken to have any other or greater force or effect, any contract for making any fuch "leafe, or any former law to the contrary notwithstanding;" and avers that the pretended agreement for a lease to be made to the plaintiff of the premifles, was not put into writing and figned by the defendant; and doth also aver that the fame was not figned by his late brother in his life time, or by any agent of his brother, or himself, thereunto lawfully authorized by writing, and that if the agreement was made by Smith, the fame was never approved of by his brother, nor himself, nor did the plaintiff make any application for the leafe, till the defendant had directed a leafe to be made to Bever, and which he admitted he made in June 1733, to commence from the expiration of the former leafe at Lady-day laft, And the defendant, the present Duke, by his answer, insisted that the agreement, though reduced into writing, yet was made fubject to the late Duke's approbation, and had been never approved by him, or figned by him, or any agent of his lawfully authorized, nor by the plaintiff or the defendants. Lord Chief Baron Comyns fitting for Lord Chancellor : I cannot fee that this agreement fhould be carried into execution, though, to be fure, there are cafes where agreements have been carried carried into execution, which have not literally purfued the ftatutes of frauds and perjuries. In this cafe there does not appear to be any certain agreement between the parties, for the bare entry of a steward in his Lord's contract book with his tenants, is not an evidence of itself that there is an agreement for a lease between the Lord and one of his tenants, unless it is fupported by other proof. Where a plaintiff has brought a bill for a specifick performance of an agreement, and declines, as the prefent does, reading the answer of the defendant, it is a ftrong fufpicion that the answer does not come up to the cafe he would make by his bill. It does not appear whether this is a true copy of the writing that is entred in the contract book, but may be only heads for an agreement; and in cafe a leffor, by writing an agreement for a leafe in a book, fhould be faid to fubftantiate the leafe, it would be giving too large a power to him, and would intirely fruftrate the defign of the ftatute of frauds, &c. for it would be too great a temptation to perjury. It was urged by the plaintiff's counfel, that if an agreement A performance be made in part, and executed on one fide, that this is a foun- only of one fide dation for equity to eftablish the agreement, especially where fation of the ftais not a difpenthere has been an expence to one of the parties. tute of frauds and perjuries, but cafus omiffus, a But in all cafes where there is a performance only of one fide, that is not a difpenfation of the ftatute, but cafus omiffus, gainst which against which there is no provifion made. there is no pro The court declared that the plaintiff ought to be relieved vifion. against the payment of the double rent, and ordered the injunction granted for ftay of the defendant's proceeding at law for double rent to be continued; and that the plaintiff's bill, as to all other matters, be difmiffed without cofts, except as to the defendant Bever, and as to him with forty fhillings cofts. CA P. LXV. Lapfed Legacy. Vide title Conditions and Limitations. Vide title Jointenants and Tenants in Common. Kk 2 САР. CA P. LXVI. Leafe. Vide title Statute of Frauds and Perjuries. CA P. LXVIL Legacies. (A) Dk velked ôz läpled legacies being to be paid at a future time (D) Ademption of a legacy. P. 509. (E) Df a lapfed legacy, by legatees dying in the life-time of the teftato, and here in what cafes it shall be good, and best in another person to whom it is limited over. P. 510. 2 Tr. Atk. 41. (A) Df vetted or lapfed legacies being to be paid at a future pl. 29, 127, 128. 507. pl. 306. 3 Tr. Atk. 114. 219. pl. 77. 319. 320, 321. 504. pl. 175. 572. pl. 218. 581. pl. 227. 645. pl. 253. Bur. 227. Cafe 238. A A teftator de vifes to his daughter E. H. 2001. to be paid her at the time of mar riage, or within 3 months after, provided the marry with the approbation of his two fons. E. H. died a'ter twenty one, but without time, oz certain age, to which the legatees never arrived. Trinity Vacation, 1737 Atkins v. Hiccocks. Teftator devifes in thefe words, "I devife to my daugh"ter Elizabeth Hiccocks, the fum of 200l. to be paid her at the time of her marriage, or within three months after, provided the marry with the approbation of my two fons "William and Samuel Hiccocks, or the furvivor of them; and my will is, that my faid daughter Elizabeth fhall yearly receive, "and be paid, until fuch time as fhe fhall marry, the sum of "twelve pounds, free and clear of all taxes and impofitions whatsoever." And willed, that his leafehold estate called fhould ftand charged with the payment of the faid being married. Bill brought by her representative for the legacy. 12 1. per ann. and likewife with the payment of the 2001. when the same should become due, and devised the said leafehold premiffes, and his whole perfonal eftate, to his two fons, and made them his executors. Elizabeth died after 21, but without being married; and the prefent plaintiff, as her adminiftrator, brought a bill against the executors of Hiccocks for the 2001. The general question, Whether the legacy vested in Elizabeth, and whether it fo vefted as to be tranfmiffable to her adminiftrator? Lord Chanceller: I am of opinion this was not a vefted legacy; in the common cafes of legacies to be paid at the age of 21, there is a certain time fixed, not to the thing itself, but to the execution of it, and the time being fo fixed, muft neceffarily come: but when the time annexed to the payment is merely eventual, and may or may not come, and the perfon dies before the contingency happens, I can find no inftance in this court, where it has been held that the legacy at all events should be paid. The rule as to the vesting is founded upon another rule, certum eft quod certum reddi poteft, and it is plain that the teftator did not regard the point of time, but the fact that was to happen, the marriage, which makes it a legacy on a condition, and cannot be demanded till the condition be fatisfied. It has been argued by Mr. Attorney general, that this bequeft differs not from a legacy given to be paid at 21, which vefts immediately, and the time of payment only is poftponed. But it has been always held, with regard to fuch a limitation of payment at 21, that it is debitum in præfenti, folvendum in futuro, and the payment poftponed merely on account of the legatee's legal incapacity of managing his own affairs till that age; and this has been the established rule of this court ever fince Cloberie's cafe, 2 Ventris 342. In the Digeft, lib. 35. tit. 1. lex 75. de conditionibus, &c. it is held that dies incertus conditionem in teftamento facit, and thefe are the words of the text, and not of the commentator; fo that a time abfolutely uncertain is put on the fame footing as a condition; but as the civil law is no further of authority than as it has been received in England, let us fee what our own authors fay. Swinbourn, part 4. fec. 17. page 267. old edition, makes a difference between a certain and an uncertain time, and lays it down, that if a legacy is given to be paid at the day of marriage, and the legatee die before, the legacy is loft. God. Orp. Leg. 452. is to the fame effect. It has been infifted, that the testator's giving 121. per ann. to Elizabeth till the contingency of her marriage,, is in the nature of intereft for the 2007. and that from thence it appears to be his intention, that the legacy fhould veft in the mean time; but whenever this doctrine has been allowed, the payment of the principal hath been certain, and fo not fimilar to the prefent cafe, because here this is not meant as intereft, for it is an annuity of 12. per ann. charged upon, and iffing out of an estate. Kk 3 The |