the obligee was made executor to one of the obligors, and in an action by him against the other where the matter was pleaded the plea was held to be nought, because he did not fhew to what value the affeta were that he administered; but if the defendant had fhewn that he adminiftered goods to the value of the debt in demand, it had been a good plea.

t 2 Lev. 73. Cock v. Crois, S. C. adjudged.

adjudged for the plaintiff.

"3 Keb. 116. pl. 24. Croffe v. Cork, S. C.

Ch. J.

2. If the obligee dies inteftate, and adminiftration of the goods of S. C. cited the obligee is committed by the ordinary to the obligor, yet this does not extinguish the debt, but the debt remains, notwithstanding this. 1 Salk. 306. Refolved. 8 Rep. 136. SIR JOHN NEEDHAM'S CASE.]

and fays, that the

[3. If obligee makes the obligor his executor, this is a release and realon of extinguishment of the debt. 8 Rep. 136. SIR JOHN NEEDHAM's the diverCASE. Pl. C. 184. WOODWARD.]

fity between

an executor

obligor and an administrator obligor is, because the adminiftrator is made by act of law, but the execu tor is made by the act of the testator, and for that reafon it is no extinguishment; but if the adminiftrator having no affets pays a debt of the inteftate to the value of the bond with his own money, that will be a releafe; though, he faid, he did not know that it had been adjudged fo.A debtor made executor fhall not extinguish his debt, but the fame shall be taken to be part of the teftator's perfonal eftate. Chan. Rep. 138. 15 Car. Afkwith v. Chamberlain. Ibid. Marg. fays it fhall be aflets [to pay other debts] and not extinct.. Toth. 115. S. C. and that it shall go to the

citate.

[4. If feme obligee takes obligor, or one it is an extinguithment of the debt. NEEDHAM.]

to baron, A. makes

of the obligors,
8 Rep. 136. SIR JOHN

an obligation to B. to the use of C.-A.feals

it; A., B., and C. being at the time of fealing it at one place; A. puts the obligation into the hands of C. and fays this will ferve; this is good delivery; and though C. afterwards marries A. yet the obligation remains, and is neither extinguished nor fufpended. Adjudged and affirmed in error. Jenk. 221. pl. 75.

Fol. 935

S. P. ad

judged that by the intermarriage the debt was

[5. If feme executrix of the obligee takes the debtor to baron, this is not any release in law, because that he has the debt en auter droit, and if this fhall amount to a release in law, it will amount to a devaftavit, * which is a tort, which the law will not fuffer. 8 Rep. 136. SIR JOHN NEEDHAM'S CASE, cites Mich. 30 & 31 El. B. R. adjudged.] not extinguished but only fufpended, and the action was revived against the executors of the hufband." Cro. E. 114. pl. 12. Le. Mich. 31 & 32 Eliz. B. R. Crofsman v. Read.. -Mo. 256. pl. 368. S. C. adjudged.. -320. pl. 448. S. C. accordingly.. --Co. Litt. 264. b. S. P. and in Marg. cites S. C.-S. P. admitted by Holt Ch. J. Ld. Raym. Rep. 520. Hill. 11 W. 3. for if it should be an extinguishment it would be a wrong to creditors, and amount to a devaftavit, which an act in law will not do, and cites S. C. of 8 Rep. 136. a. And things fhall be extinguished between the parties which yet fhall remain and have exiftence as to ftrangers; as if a tenant for life grants a rent charge and then furrenders to the reverfioner, or if a man who has a rent in fee acknowledges a statute and then releases to the tertenant; the eftate for life in the one cafe will continue as to the grantee of the rent, and the rent in the other cafe as to the conufee.- Where a man is indebted and marries with the executrix, and the executrix dies, this is no devaftavit; for the husband has been charged; cited by Coke to have been adjudged. Gouldfb. 181. in pl. 117. +[445]

[6. If A. and B. are bound in an obligation jointly and severally to Hob. 19. C. and C. makes D. the wife of A. bis executrix, and dies, D. ad- pl.20. S. C. --Mo. 855. minifters, and after A. the baron of D. makes D. his executrix, and pl. 1174. dies, leaving fufficient affets to pay the debt, and after D. dies, and S. C. ad. E. takes adminiftration of the goods of C. the obligee unadininistered, Brown 76. yet he cannot have any action upon the obligation against B. S. c. ad. the other obligor, becaufe when the obligor made the executrix judged.of the obligee his executrix, and left affets, the debt was immedi

judged..

S. C. cit4 per Curian

ately as adjudged.

To. 345. jl. 3.

Hob. 216. pl. 280.

S. C. ad

judged against the

ately fatisfied by way of retainer, and then by confequence no new action may be had for this debt. Hob. Rep. between FRYER AND GILDRIDGE, 14. adjudged. Intratur Hill. 11 Jac. B. Rot. 1990.]

[7. If A. promifes B. a feme, that if he will marry him he will leave her worth 100l. at his death, and after they intermarry, yet this does not discharge the promife which is to be performed after this is ended. Hob. Rep. 279. between SMITH AND STAFFORD.] -Brownl. 18, 19. S. C. held accordingly by three judges contra.-Noy, 26. S. C. fays, that judgment was ready to be given for the plaintiff, but it was compounded in court. - S. C. cited Ld. Raym. Rep. 521, 522. and agreed thereto; though otherwife in cafe of a bond, according to Noy's report of the fame cafe.

opinion of Hobart.

8. A. and B. were indebted to C. by contract, and C. accepts a fiatute of A. and brought debt against B. It was ruled that the acceptance of the ftatute was an extinguishment of the debt. Litt. Rep. 17. Hill. 2 Car. C. B. cites the cafe of Baffet v. Wood.

9. If I enfeoff J. S. with a provifo contained in the deed, that it fhall be lawful for me to revoke the feoffment, and afterwards I levy a fine to 7.S. of the fame land, this is an extinguishment of the power of revocation; by Roll Ch. J. Sty. 389. Mich. 1653. Bird v. Christopher.

(C) In what Cafes there fhall be Extinguishment by Unity of Poffeffion.

By Act of the Party.

[1. IF the tenant enfeoffs the lord and two others, this doth not extinguifh the feigniory, for this fhall be revived if the others

furvive. 7 H. 6. 3.]

Rolf. Br. Extinguishment, pl. 17. cites S. C.

Br. Surren

der, pl. 11. cites S. C.

·8 Rep. 79.

contia.

[2. So if leffee for life grants his eflate to leffor and two others, (admitting that it is not a furrender for a third part, as WISCOT'S CASE, 2 Rep. is,) if the others furvive the leffor, the rent fhall be revived, and therefore not extinguished. 7 H. 6. 2. b.]

[3. If he who has common appendant purchases the land, out of which it iflues in fee, the common is extinct by it. 7 H. 6. 3. 18 E. 3. 30. b. 24 E. 3. 25. per WILBY, dubitatur 20 E. 3. Admeasurement, 8.]

[446] [4. See 5 Aff. 8. that the lord may have common in his own wafies appendant to certain land.]

[5. If he, who has common in grefs, purchases the land out of which it iffues, the common is extinct. 7 H. 6. 3.]

[6. Shack common or mutual common, in regard that I have common in your ground that you fhall have in my land, fhall not be extinguished by unity of poffeflion for the neceflity of the public good to ufe without inclofure. P. 12 Ja. B. per Cuг. THE BISHOP OF LONDON'S CASE.]

[7. If the manor of S. be within the purlieu of the chace of D. and S. C. cited after the king comes to both, this unity of poffeflion of the chace and Arg. Poph. manor fhall not extinguith the liberty of hunting in S. as a purlieu. D. 17 El. 327. 3.]

167.

S. C. re

ports it to

is be adjudg

[8. Unity of pofleflion of the land to which a way is appurtenant Ow. 121. by prefeription, and of the land over which the way is, will extinguith the way; for the prefcription is gone, and the way is against common right. Hill. 4 Jac. B. R. between * JORDAN ed again AND ATWOOD, adjudged per three justices against two. Contra, and 11 H. 7. 25. b. per Vavafor.]

E.

the plain

that the

way was not extinguished.

3. Nui

ment, pl. 15. cites

[9. Unity of poffeffion of a mill and pool to which a way is ap- ↑ Br. Expendant with the land over which the way is, will extinguish the tinguishway. 21 E. 3. 2. b. 21 Aff. pl. 1. admitted. 19 fance, 3. admitted; for there, upon partition between the daugh- S. C. and ters, the mill and way were affigned to one, and this was as a new grant. Contra, 20 E. 3. Admeasurement, 8, ‡ 11 H. 4. 5.]

Brook fays, it feems that it is a new

way.

If one has a way or common appendant in another's land, and purchases the fame land, and after parts with the land, yet the way or common is extinct for ever. Br. Extinguishment, pl. 11. cites 11 H. 4. 5. -Fitzh. Extinguishment, pl. 4. cites S. C.

[10. If a vill has a way to a church, and one of the vill purchases the land out of which, &c. and after aliens it, yet this unity does Fol. 936. not extinguish his way, because it is a thing of neceffity. Hill. 4 Jac. B. R. agreed in JORDAN AND ATWOOD'S CASE.]

[11. If the custom of London be, that where two tenements are adjoining, and the one has a gutter running by the tenement of the other, that he cannot flop it, unity of poffeffion doth not extinguish this custom, but that it thall be revived after that they are fevered; for the custom of London extends to all gutters which are in the land of another, and fo the cuftom is revived. 11 H. 7. 25. b. Hill. 4 Jac. B. R. agreed in JORDAN AND ATWOOD'S CASE.]

fhall be cx

[12. If he who has White-acre ought to inclofe by prefeription against A fence Black-acre, unity of poffeffion of both by purchafe doth not ex- tinct because tinguish this prefcription. Pafch. 7 Jac. B. between INGRAM AND it is not of BARTLET; per three juftices against one.]

neceflity;

for at the

beginning there were no fences. Per Doderidge J. Lat. 154. cites 11 H. 7. 25. and 4 Rep. Terringham's cafe; and 22 E. 2. Br. Extinguishment, and D. 295.

§ [447 ]

Shewry v.

refolved per tot. Cur.

that the wa.

ter-courfe

was not ex

[13. If there hath been used, time out of mind, &c. a water-courfe Jo. 145. to run from a river over a clofe called the Hop-yard, to a watering- Pigot, S.C. place for the watering of the cattle of the occupiers of a rectory, and for other neceffaries of the faid occupiers, and after there is an unity of poffeffion in fee of the place from which, and of the hopground over which, and of the rectory and watering-place to which, in king H. 8. and after by him fevered again, this watering- tinct-—-—place fhall be revived, because it is a thing of neceffity, and also the water-courfe is natural. Mich. 2 Car. between SUREY plaintiff, and PIGOT and others defendants, adjudged upon demurrer.] from fuch a place to fuch a place, and fo to the plaintiff's yard to supply a pond with water for water

A watercourfe

which used

to save its Current

ing his cattle, is not extinct by unity of poffeffion. 3 Bulf. 339. Pafch. 2 Car. B. R. Sutry *. Piggot. Because it has existence notwithstanding the unity. Arg. Lat. 153. cites 12 H. 7. 4+ And it is a thing diftinct from the land, and also a thing of neceffity, as in 12 H. 7. the cafe of a gutter. Arg. Lat. 153, 154.

14. A rent issuing out of lands in fee was granted to tenant by the curtefy in fee; it fhall not be taken as extinct, but the rent will go to his heirs, although he himself could not have it; Arg. Godb. 128. cites 5 E. 3.

15. If he who has a rent-charge comes to the land by tort, and after renders it to him who right has, by this his rent is extinguished; quære. Br. Extinguifhment, pl. 31. cites 34 Aff. 15. per Belk.

16. But if the other recovers the land against him by the law, the rent is revived. Ibid.

17. Unity of poffeffion of a manor, which is within the cinque ports, which comes to the king as efcheat as parcel of the honour of E. and the king grants it over, this is no extinguishment of the franchife; therefore it seems that this goes with the land, and not with the feigniory, as in the cafe of Gloucefter-fee. Br. Extinguishment, pl. 9. cites 49 E. 3. 24.

18. Annuity by a prior against a parfon of a church, and counted by prescription; it is a good plea to fay that A. B. was feifed of the advowfon tempore H. 3. and gave the advowfon to the predeceffor of the plaintiff in fee, who purchased it to hold in proper ufe, fo that the parfonage was appropriated in fee, for the unity of poffeffion determines the annuity. Br. Extinguifhment, pl. 36. cites 2 H. 4. 19.

19. Where lands of an abbot, charged with tithe, come to lay hands, and after return to the hands of the abbot, yet it shall be discharged of the tithes; per Thirn; and therefore it feems that he shall pay to the tithe again. Br. Extinguishment, pl. 12. cites 11 H. 4. 34, 35

20. An executor, to whom the teftator was indebted, may pay himfelf; per Hill; but Brook fays, the law feems to be contra; for if he adminifters as executor, the debt is determined. Br.Executor, pl. 59. cites 12 H. 4.21.

21. Profit apprender is extinct by unity; Arg. 3 Bulft. 339. cites 14 H. 4. 7.

22. In aflife, if a man feifed in fee grants a rent-charge in fee, and gives the land in tail, and the tenant in tail aliens to the grantee in fee, and he aliens to another, and the tenant in tail has iffue and dies, and the iffue brings formedon and recovers, and the grantee diftrains, and the iffue fays that he purchased the fame land, and fo extin guished his rent, the grantee fhall fhew how after this the iffue brought formedon and recovered, this fhall not aid him to revive the rent. Br. Extinguifhment, pl. 18. cites 19 H. 6. 45.

23. If a man has warren in other land, and after purchases the land, the warren is not extinct; for it is not like to a rent or common. Br. Extinguifhment, pl. 5. cites 35 H. 6. 56.

24. In debt the abbot of D. granted to W. S. a corody, viz. so much of bread, and so of the refidue, &c. for term of his life, faciend talia fervic' prout J. N. & alii ufitat" fuer' facere, and after the grantee let the corody again to an abbot for ten years, rendering 31. per ann, and he brought debt of the 31. and the abbat faid that the grantee

did

*

did not do the fervice, and the grantee faid that he is not bound, for by the leafe the corody is fufpended; and per Catesby, the fervices ought to be done, for it is not fufpended by the fecond leafe, as it is in cafe of land leafed by the tenant to the lord; for there he cannot diftrain; but in this cafe the fervices are to be done by his perfon, by reafon of the grant of the corody, therefore he fhall do the fervices, as well during the leafe for years as before, for it is in effect a grant upon condition; and therefore, if he does not do the fervices, he shall lofe the thing granted; contra of a feigniory in land, for there he may diftrain, but here he has no other remedy for the nonfeafance, but to retain for the condition. Br. Extinguifhment, pl. 34. cites 20 E. 4. 12.

25. A man leafed land for years; the leffee leafes part of the term to the leffor, rendering rent, if he after furrenders to the first leffor, the rent referved upon the fecond leafe is determined. Br. Extinguish ment, pl. 34. cites 20 E. 4. 12. per Brian.

26. And if a man leafes lands to one for years, rendering rent, the leffor grants the rent to W. S. and after the tenant for years fur renders, the rent is not extinct. Ibid.

27. And if a man enfeoffs me upon condition to render to him vol. fuch a day, and after I leafe it to him for years, rendering certain rent, and at the day I do not pay the xol. now he fhall retain the land, and the rent referved by me upon the leafe is determined and extinct. Br. Extinguifhment, in pl. 34. cites 20 E. 4. 18.

28. If a man makes me his fieward of his manor, with a fee of 51. per ann. and a robe, and after I grant all this to an abbot for years, rendering rent; if the grantee does not hold the courts, he fhall not have the rent referved, quod Curia conceflit. Br. Extinguishment, pl. 34. cites 20 E. 4. 12. per Catesby.

a

29. If three coparceners are feised of a manor in fee, to which leet or law day is appendant, and the king purchases two parts of the fame manor with the appurtenances, yet the court leet by fuch purchafe is not extinct, but remains ftill appendant to the third part of the fame manor; and this was the opinion of the juftices of C. B. Bendl. 20. pl. 30. Hill. 28 H. 8. Anon. cites 33 H. 6. fol. 9. & 15 E. 4. fol. 5. Trin. 6 E. 3. Fitzh. Quare Impedit, 40. Trin, 28 H. 8. Dier, fol. 30. p. 209.

not all the leet in her by reason of the alienation aforefaid made by her two fifters, cites Hill, 28 H. 8. 30. Tythes are not extinguished by unity of poffeflion. Cro. Le. 248. S. E. 216. pl. 13. Hill. 33 Eliz. B. R. Wickham (Bp. of Lincoln) v. Cooper.

31. A farmer of the king of a capital meffuage makes a conduit to convey the water to his houfe, which he carries acrofs the land of a copyholder of the manor; after the king grants the capital meffuage to A. with the appurtenances, and the copyhold was granted to another perfon. The farmer, to amend the pipe, breaks the land of the copyholder; adjudged juftifiable, because terra tranfit cum onere. Mo. 644. pl. 889, Trin. 43 Eliz. B. R. Guy v. Brown.

VOL. XI.

Kk

32. Common

C.-Le.

300. Stile v. Miller.