to the lessor of the plaintiff, who, on the 20th of March 1813, gave notice to the defendant of her intention to determine the lease at Lady-day 1814, and after the expiration of that time brought this ejectment. The defendant rested his defence upon the last memorandum, contending 1st, that it operated as a dispensation by the lessor of the proviso contained in the first memorandum for determining the lease by the lessor, (which it was admitted was to be taken as part of the lease); or 2dly, that it amounted to a new lease to the defendant. The learned Judge ruled upon both points against the defendant; upon the 1st, because otherwise the last memorandum, which was not under seal, would have the effect of a release of that which was under seal, which it could not have; upon the 2d, because it could only be a new lease by operating as a surrender of the former lease, which seemed plainly against the intention of the parties, that a lease without any rent or covenants should be substituted for a lease which contained both. So there was a verdict for the plaintiff.

A rule nisi having been obtained in last Michaelmas term for entering a nonsuit, or for a new trial upon these points,

Burrough and Casberd now shewed cause, and denied that the memorandum had any force whatever. For considering it as a lease for a farther term, which it purports to be on the face of it, it is absolutely void, because it is a grant of a reversion; and a reversion cannot be granted to pass without deed; for a deed is of the very essence of the grant of a reversion. Therefore the utmost that it can amount to is an agreement which may be operative in a court of equity.

Gifford,

1815.

31

GOODRIGHT

d. NICHOLLS

against MARK.

1815.

GOODRIGHT

d. NICHOLLS against MARK

Gifford contrà, argued that it was plainly the intention of the parties to the memorandum to give to the lessee an absolute interest in the term, instead of an interest determinable by the lessor, that is, to discharge the power of the lessor to determine it. And though covenant cannot be discharged but by an instrument under seal, yet it is otherwise with a condition, which the proviso in this case, that the lessor may determine the lease, is. For as conditions may be made and annexed to any estate of a thing grantable without deed, which this term was, without any writing at all (a), so may they be discharged without writing; and therefore a condition broken may be discharged by an act in pais. In like manner the lessor in this case may dispense with the condition in his favour for determining the lease, by an agreement not under seal. But granting that for want of a seal it cannot operate as a discharge, yet if the Court see a plain intention, they will give effect to it in such manner as by law they may. And therefore the agreement shall operate as a demise; the words, " fhall not dispossess or cause to be dispossessed, but to have it for 21 years," being sufficient words of demise; and then the taking such new lease will no doubt be a surrender of the former lease, albeit the second lease be by word only, and the first lease be by deed (b). And in that case, the tenant will not hold under the second lease discharged from the rent and covenants, because the tenancy under the second lease will impliedly be subject to the same rent and covenants as in the first.

(a) Sheph. Touch. 116, 4th edit.

(b) Sheph. Touch. 300. 3 Bac, Abr. Leases, (S.) 3. Dyer, 140. 2 Roll. Abr. 496. pl. 1.

The

The only difference will be, that the form of remedy will be altered.

The Court considered, that whatever might have been the effect of the memorandum to operate as a surrender of the first lease, if the intention of the parties had been plainly to make a new lease, there was nothing from which such an intention could be collected; on the contrary, the intention was to take away from the lessor the power of determining the first lease, which the parties had not effectually done.

Rule discharged.

1815.

GOODRIGHT d. NICHOLLS against MARK.

WILKINSON and Others against THORLEY and Tuesday,

Another.

SCIRE facias against the defendants to have execution upon a recognizance of bail, for 4491. 10s. damages and costs, recovered against Joseph Blount, sued with George Kirkham, by reason of the not performing certain promises made by the said J.B. and G.K. to the plaintiffs, and the recognizance set forth was a recog nizance in 772l., in case the said J. B. and G. K. should happen to be condemned in the plea aforesaid at the suit of the said plaintiffs, and if the said J. B. and G. K. should not pay and satisfy unto the plaintiffs all such damages, costs, &c. as should be adjudged to the plaintiffs in the plea aforesaid, or render themselves to the custody of the marshal, &c., and then the plaintiffs allege that J. B. and G. K. have not paid, &c. nor ren

April 18th.

In scire facias tion for da mages and costs recovered against J. B. upon a recognizance of bail, condition

to have execu

ed in case the

said J. B. and condemned that

G. K. should be

B and G. K.

should pay, &c. or render themselves, the

plaintiffs allege

that J. B. and

G. K. bave not paid, c. or ren

dered themselves,

according to effect of the recognizance: Held on 'special

the form and

demurrer that the breach was ill assigned; for non constat but that J. B., who was condemned, has paid or rendered.

VOL. IV.

D

dered,

1815.

WILKINSON against THORLEY.

dered, &c. according to the form and effect of the said recognizance, &c.

Demurrer, assigning for cause, 1st, that although by the scire facias it appears that the said J. B., against whom the said judgment is therein stated to have been obtained, was sued jointly with G. K., yet it doth not appear by the same why judgment was given separately against the said J. B. only; nor is any cause assigned for the said judgment not being. against the said J. B. and G. K. jointly; 2dly, That although by the scire facias it appears that the defendants did by the recognizance bind themselves, in case the said J. B. and G. K. should happen to be condemned in the plea therein aforesaid at the suit of the plaintiffs, and if the said J. B. and G. K. should not pay and satisfy unto the plaintiffs all such damages and costs, &c. as should be adjudged to the plaintiffs in the plea aforesaid, or render themselves to the custody of the marshal, &c.; yet it does not appear by the scire facias that the said J. B. and G. K. were condemned in the said plea; but, on the contrary, it appears that judgment in the said plea was given against the said J. B. only, and not against the said J. B. and G. K. jointly, aocording to the said recognizance, and no cause is assigned why judgment was not also given against the said G. K. Joinder.

Holroyd, who was in support of the demurrer, admitted that cases might be supposed in which, though J. B. and G. K. were sued jointly, judgment might be had against one only, as in the instance of the other having become bankrupt and obtained his certificate: wherefore he abandoned the first cause of demurrer. But upon the 2d he argued that the plaintiffs had not

shewn

shewn any breach of the recognizance; for the condition being in case both should be condemned, and there being no joint condemnation, but a condemnation against one only, conscquently the recognizance was not broken. And supposing the condition of the recognizance could be taken as several, that is, "in case either should be condemned," yet the breach was ill assigned, for then it should have been shewn that J. B. had not paid or rendered, for if he has so done, the recognizance will be satisfied.

Marryat, contrà., said that the proposition contended for in support of the demurrer, viz. that this recognizance is not forfeited because judgment has passed against one of the principals only, was no less than this, that in all cases a recognizance of bail entered into on behalf of more than one person, is discharged by the death, or bankruptcy and certificate of any one of them; or, in other words, that by whatever means judgment against all may happen to be intercepted, the bail shall be exonerated. But the meaning of such a recognizance is that all such as shall be condemned shall pay or render; but not that all shall be condemned if it be impossible to condemn all. And though the breach is assigned generally that J. B. and G. K. have not paid nor rendered, it is well enough, because it is in the words of the condition; and there is not any precedent for assigning it in the alternative; but as J.B. has only been condemned, it was open to the defendants to have pleaded that he had paid or rendered, and that would have been an answer to the breach that both have not paid or rendered according to the form and effect of the recognizance, if the meaning of the recog.

D 2

1815..

WILKINSON

against THORLEY.