[Matter of law, refulting from facts, traverfable.] this court to prefume that they have acted by wrong or right? Surely by right, and by agreement of the parties; the long acquiefcence is evidence of an agreement to prefent in the order and rotation alledged in the count. We are of opinion, the defendant, the incumbent, has not made out any title to himself by his plea. We are now laftly to confider the plaintiff's replication, and the demurrer thereto; it is a general rule, that whoever makes the firft fault in pleading, fhall have judgment against him; we think the defendant Backhoufe has made out no title in his plea, and therefore judgment must be for the plaintiffs; we think the plaintiffs have done right, in not fetting out in the declaration the refpective yearly values of the endowments of the three churches, and have also done right in alledging that the third turn belongs to them. As to the traverse, we think matters of law, or rather matter of right (as is this) refulting from facts, are traverfable: whether one obtained a church by fimony, is traversable, Raft. Ent. 532. a. Whether one is feifed in fee, or in tail, is traversable; Yelv. 140. Ewer verfus Moile. It is the common averment in a quare impedit, that it belonged to A. B. to present to the church when the fame became vacant;" which may or rather muft depend upon both law and facts, and the fame is traversable. Judgment for the plaintiffs, and a writ to the bishop to admit the plaintiffs' clerk, per totam curiam. Nota. Accordingly, the reverend William Sclater, D. D. rector of Loughton in Effex, was inducted to the united churches of Saint Mary le Bow, Saint Pancras Soper-lane, and Allhallows Honey-lane, on Tuesday June the 25th, 1771, on the presentation of the Company of Grocers, London. 2 Black. Rep. Crufoe of the demife of Blencowe Efq. verfus Bugby. C. B. 766. S. C. years, cove nants not to affign, &c. he makes an Leffee for 21JECTMENT. The plaintiff declares, that Blencowe, on the first day of November 1770, demifed to him one messuage, and one mill in D. in the county of Effex, to hold from the 30th day of October then laft paft for five years, by virtue of which demife, the plaintiff entered and was poffeffed until the defendant ejected him to his damage, &c. upon not this is not a guilty pleaded, this caufe came on to be tried at the last affizes breach of the for the county of Effex, when a verdict was given for the plaintiff, with s. damages, and 40s. costs, subject to the opi under leafe. for part of the term, covenant. nion of this court, that if the court fhould be of opinion for the defendant, the verdict fhould be void, and judgment of nonfuit be entered for the defendant, if for the plaintiff that he should have the poftea, and judgment upon the verdict; upon the fol- . lowing cafe, (viz.) Henry Blencowe Efq. and Mary his wife, being feifed in fee of the premises in queftion, by indenture of leafe of the fecond day of March 1763, demifed the fame to one William Alder, his executors and adminiftrators, to hold the fame to him, his executors and administrators, from Christmas-day then last past, for the term of one and twenty years, under the yearly rent of ten pounds, payable by equal half-yearly payments, with a provifo for re-entering upon default of payment, or breach of any of the covenants in the leafe; and then follows this covenant (viz.) "And alfo he the faid William Alder, his executors or admini"ftrators fhall not, or will at any time or times during this demife, affign, transfer or fet over, or otherwife do or put away not demife, in "this present indenture of demise, or the premises hereby de- this covenant. "mifed, or any part thereof, to any perfon or perfons whom"foever, without the licence and confent of the faid Henry "Blencowe and Mary his wife, their heirs or affigns, in writing, "under his, her, or their hands and feals, firft had and obtained "for doing thereof." 66 Henry Blencowe died in May 1765, and Mary his wife died feifed of the reverfion the 20th of October 1770; the leffor of the plaintiff is their fon and heir. William Alder, the leffee of the faid term of 21 years, by indenture of leafe, dated the 25th day of August 1769, without any previous licence, demifed the premises to the defendant John Bugby, his executors and adminiftrators, for a fhorter term, viz. for fourteen years, to hold from Michaelmas day then next enfuing the date of the fame indenture; and by virtue of this fubdemife, the defendant Bugby claims to be poffeffed of the premifes for the term to him demised. The queftion for the opinion of the court is, whether the leffor of the plaintiff is intitled to re-enter by virtue of the covenant and provifo above ftated. This cafe was argued by Serjeant Leigh for the plaintiff, and Serjeant Whitaker for the defendant in this prefent term. It was argued for the plaintiff, that the under leafe made by Alder to the defendant Bugby for fourteen years, part of the N. B. there are not the words ball the term of twenty-one years, without licence, was fuch a breach of the provifo and covenant above stated, as gave the lessor of the plaintiff a right of re-entry; and it was faid, that although this under leafe was not an affignment of the remainder of the term of twenty-one years then to come, yet that it was a tranf ferring, felting over, doing, or putting away the premises, or part thereof, to the defendant Bugby, contrary to the covenant or condition, Serjeant Whitaker for the defendant infifted, that this underleafe for part of the original term, was not an affignment, and faid, that it had been fo determined in a cafe of Jollibert verfus the Duke of Chandos. That the covenant that William Alder fhall not, during the faid term of twenty-one years, affign, transfer or fet over, or otherwife do or put away, &c. cannot mean that he fhall not demife: that the demife for twenty-one years, with regard to the first leffor, ftill fubfifts; for the firft leffee Alder is ftill in poffeffion; the leflor of the plaintiff has a double remedy. There is no privity of contract between the original leffor and Bugby the under leffee; Mr. Blencowe may diftrain upon the land, and may also have an action of debt for rent against Alder the first leffee, and concluded that this was an under-lease, and not an affignment, and fo was no breach of the covenant, and the leffor of the plaintiff is not intitled to re-enter; he cited Stra. 405, Poultney verfus Holmes, where if the original leffee referves the rent to himself, on granting over, it is an under-leafe, and not an affignment, though he parts with the whole term. And alfa Style 483. Fox and Swan, where it is faid, that if leffee for years doth covenant with the leffor, not to aflign over his term, without the leffor's confent in writing, and doth afterwards, without fuch confent, devife the term to 7. S. this is not a breach of covenant. 66 Serjeant Leigh in reply, admitted the cafe in 1 Stran. 405. for good law, but faid it was not to the point in question; he alfo admitted the cafe in Style 483. and faid that it would be abfurd to fay a devife was within a covenant not to affign; but he laid great ftrefs upon thefe words in the covenant, •Shall not "fet over, or otherwife do away, &c." and very ftrongly insisted, that the making this under-leafe for fourteen years, was contrary to these words; and admitted, that the privity of contract was not deftroyed between the original leffor and leffee (Alder) and that Alder might have devifed the term, or it might go to his adminiftrator, or might be taken in execution, and concluded by praying judgment for the plaintiff. The The court took two or three days' time to confider, and there upon gave judgment for the defendant that this under-leafe for fourteen years was not a breach of the covenant, or condition; they faid the courts of Westminster have always looked nearly into thefe conditions, covenants or provifoes; that the devising a term was a doing or putting it away, that the leffee becoming a bankrupt was a putting or doing it away, that a dying inteftate, was a putting it away; fo, being in debt by confeffing a judgment and having the term taken in execution, was the like; but none of these amounted to an affignment, or to a breach of the covenant or condition. Judgment for the defendant, per totam curiam. Doe, on the demife of Elizabeth Brown, Widow, ver- EJECTMENT, for four meffuages, four cottages, four 2 Black. Rep. barns, four ftables, four gardens, four orchards, one fulling- 777. 5. c. mill, one water corn-mill, one malt kiln, two hundred acres of [See post. p. 241.] land, two hundred acres of meadow, and two hundred acres of pafture, with the appurtenances, in Applethwaite and Troutbeck, in the parish of Windermere, in the county of Westmorland; the defendants pleaded not guilty, whereupon iffue was joined, and tried before Mr. Baron Perrot, at the last affizes held for that county, when a verdict was found for the plaintiff, fubject to the opinion of this court, upon a cafe ftated in the words following; (viz.) That James Longmire, being feifed in fee of the premises in The cafe for queftion, being part freehold, and part cuftomary lands, made the opinion of and duly executed his laft will and teftament, of the date, and the court. in the words and figures following: (that is to fay) In the name of God, amen. I James Longmire, of Linefoot in Applethwaite, in the parish of Windermere, in the county of Westmoreland, yeoman, confidering the uncertainty of this mortal life, and being of found, perfect and difpofing mind and memory, (bleffed be Almighty God for the fame) do make and publifh this my last will and teftament, in manner and form following; (that is to fay) First, I give, grant and devise unto my fon James Longmire, from and after the death or viduity of my now wife Dorothy Longmire, all my lands and tenements, houfes, buildings and appurtenances belonging to the fame, of the yearly customary rents of 2l. 185. or thereabouts, with a fulling-mill of the free yearly rent of 25. fituate, lying and being in Applethwaite aforelaid, together with all my lands and tenements, and the appurtenances thereof, known by the name of Flood-yeates, of the yearly cuftomary rent of 45. 4d. fituate, lying and being within Troutbeck, in the parish of Windermere aforefaid, with impeachment of wafte, for and during the term of his natural life; and from and after his decease, I give, grant and devife, all and fingular the premises aforefaid, unto the heirs male or female, lawfully to be begotten of the body of my faid fon James Longmire, for ever, they paying out of the fame the fum of four hundred pounds, in manner following, (that is to fay) the fum of two hundred pounds to my daughter Elizabeth Brown, or her affigns, and the like fum of two hundred pounds unto my grandfons and granddaughters, children of my daughter Dorothy Birkett; (that is to fay) forty pounds to my grand-daughter Dorothy Brkett, or her affigns, and to the reft of the children of my faid daughter Dorothy Birkett, the fum of one hundred and fixty pounds, to be equally divided amongst them or their children, per ftirpem not per capita, fhare and thare part alike: and all thefe fums of money or legacies abovefaid, it is my will and mind fhall be paid within two years after the death of my fon James Longmire; but provided that refufal, failure or neglect be made, of payment of the faid fum of four hundred pounds, or any part thereof, to the perfons and parties I have herein and hereby bequeathed the fame, then and in fuch cafe, I give, grant and devife, all and fingular the premises abovefaid, unto my daughter Elizabeth Brown, and her heirs, to hold for and during fuch a term of years, as the faid fum of four hundred pounds may and fhall be raised, out of the clear rents and mean profits thereof, and applied and paid to the legatees as above directed; and when, and as foon as the faid fum of four hundred pounds fhall be fo raised, by and out of the mean profits, then it is my will and mind, that all and every the abovefaid premifes fhall return into the poffeffion, and to and for the fole ufe of the heir, male or female, lawfully begotten by my said son, and to his or her heirs for ever; but, and if my fon James Longmire fhall die leaving no, lawful iffue, I then give, grant and devife, all and every the aforefaid premises, with their appurtenances, unto my faid daughter Elizabeth Brown, and to her heirs and affigns for ever, chargeable nevertheless, with the payment of the fum of two hundred pounds thercout, to my grand fons and daughters, children of my daughter Dorothy Birkett, in like manner, and in fuch proportions, as I have above directed and willed the heirs lawfully begotten of the body of my son James, if he fhall leave any fuch, to pay the like fum; and it is my will and mind the fame be paid within one whole year after the or they shall enter upon the premises. And lastly, I hereby appoint my be |