1805. FLETCHER against WILKING. [289] Monday, Where an es tate was conveyed to a trus the party, must have been sued out as soon as possible after the distress made, without waiting for a copy of the warrant or the giving of notice to the magistrate: and from the incongruity between the steps required and provisions directed by the stat. 24 Geo. 2, and the proceedings in replevin, in addition to the reasons before given, we think it was not intended by the Legislature that the provisions of the stat. 24 Geo. 2, c. 44, should extend to this action of replevin. Judgment for the Plaintiff. ROACH and Another against WADHAM. The same against the same, Executor of J. WADHAM. THESE 'HESE were actions of covenant by the plaintiff's, the one against the defendant as executor of John Wadham deceased, for certain arrears of a rent charge, alleged to be due heirs, to the use from the testator in his lifetime in respect of a certain mesof such person tee habendum to him and his tate as W. should by deed, &c. appoint, and for want of such limitation to the use of W. and his heirs; and the same and for such es- suage and other hereditaments called the Blackmoor's Head; and the other against the defendant as assigneee, for other arrears of the said rent charge alleged to have become due from him since the assignment to him. The first count of the declaration against the defendant as executor, after stating an indenture of the 24th of June, 1796, hereafter set forth, conConveyance re- veying the said messuage and hereditaments subject to the fee-farm rent to said rent charge, averred that all the estate, right, title, inthe chief lord, terest, property, profit, claim, and demand whatsosver of Covenant by W. Wm. Watts, of and in one undivided moiety of the said signs, for the hereditaments, by appointment and conveyance thereof, lepayment of it; gally came to and vested in John Wadham deceased, wheretook a vested by he was seised thereof, and continued so seised until his served a certain and contained a his heirs and as held, that W. fee liable to be divested by the execution of his power of appointment. And W. having contracted to sell the estate afterwards by iudentures of lease and release, to which he and his trus tee were parties, after reciting the former couveyance, the trustee, by direction of W. did grant, bargain, sell, and release, and W. did grant, bargain, sell, alien, release, ratify, and conârm, and also direct, limit, and appoint to the purchaser and his heirs all their estate, title, interest, use, trust, &c. in law and equity, subject to the reserved rent, and to the performance of covenants on the part of W. to be performed; and the purchaser also covenanted with W. to pay the said rent, and to indemnify and save him harmless; held, that the purchaser took the estate by the appointment of, and not by conveyance from W. the instruments (a lease and release) though more commonly and properly adapted to pass an interest, and containing words of grant for that purpose, yet professing in terms to be an appointment; and the trustee having joined in it by the direction of W. which was unnecessary if it had been intended that the purchaser should take an estate derived caly out of the interest of W.; and it being obviously for the benefit of the purchaser to take by appointment, and such appearing upon the whole to have been the intention of the parties: and held in consequence, that the defendant, (the heir, devisee, and executor of the purchaser) was not liable in covenant for rent in arrear, either as executor or assignee of the land, which was bound in the hands of W's. appointee by W's covenant. [29] decease, decease, and then charged that 10 10s. was due in his life- By indentures of lease and release, dated the 23d and 24th of June, 1791, the release being made between John Russ of the first part, the plaintiffs of the second part, Rachael the wife of John Punter of the third part, William Watts of the fourth part, and Thomas Coates of the fifth part; Russ being seised in fee of one undivided third part of the said messuage and hereditaments; and the plaintiffs 1805. ROACH against WADHAN. [291] being 1805. ROACH against WADEAM. being seised in fee of the other two undivided third parts, according to their several and respective shares and interests therein, did grant, release, and convey the said messuage, &c. unto Thomas Coates, his heirs and assigns for ever, "habendum the same unto the said Thomas Coates, his heirs and assigns, to the use of such person and persons, for such estate and estates, by snch parts, shares, and proportions; and in such manner and form as the said W. Watts by any deed or deeds, writing or writings under his hand and seal, to be by him duly made and executed in the presence of, and attested by two or more credible witnesses; or by his last will, &c. shall limit, direct, or appoint, give, or devise the same; and for want of such limitation, and as soon as such limitation, &c. shall cease and determine; and as to such part and parts thereof whereof no such limitation, direction, or appointment shall be made, to the only proper use aud behoof of the said William Watts, his heirs and assigns for evermore, absolutely discharged from the several uses, trusts, limitations, provisoes, and agreements, in the said indenture of settlement contained; to be holden of the chief lords of [292] the fee of the said premisses, &c. by the rents and services therefore due and of right accustomed." Reddendum as follows; "Yielding and paying, and the said W. Watts, and by his direction the said T. Coates, do, and each of them doth grant ont of the said messuage and hereditaments hereby granted and released unto the plaintiffs, their heirs and assigns for ever, the yearly fee farm rent or rent-charge of 281. &c. (payable quarterly) on certain days." And W. Watts, for himself, his heirs and assigns, did thereby cove nant and grant to and with the plaintiffs, their heirs and assigns (amongst other things) that he, Watts, his heirs and assigns wonld pay, or cause to be paid to the plaintiffs, their hetrs and assigns, the said yearly rent of 287. on the days and times, and in manner and form aforesaid. By this deed a rent charge of 141. was in like manner reserved to Russ. The deed also contained a clause of distress, and proviso for reentry in case of non payment of the said rent charge of 281. By indentures of lease and release, dated the 25th and 26th of September, 1792, the release being made between the said W. Watts of the first part, James Shoopholine (a trustee for Watts as to other hereditaments comprized in the deed now stating) of the second part, the aforesaid T. Coates of the third part, the defendant's testator J. Wadham (but who did not execute the deeds) and one T. Stevens of the fourth part, J. Powell (a trustee to bar dower named by J. Wadham the testator, and the said Stevens) of the fifih part, T. Jones fa mortgagee for a term of 1000 years, created by said Watts in the hereditaments conveyed to him by the indenture before stated) of the sixth part, and R. Bolger (a trustee named on behalf of said Wadham the testator, and the said Stevens as to the remainder of the said mortgage term intended to 1805. ROACH against WADHAN. be thereby assigned to attend the inheritance) of the seventh [ 293 ] part. After reciting the indentures of lease and release before stated, and the mortgage of the said hereditaments granted by the said Watts to the said Jones for 1000 years, for securing 500l. and interest, by indenture dated the 12th of April then last; also reciting a contract dated the 18th of May then last, whereby the said Watts covenanted with the said Wadham the testator, and the said Stevens, on or before the 18th of June then next, to convey to them, their heirs, and assigns, as tenants in common (inter alia) the aforesaid messuage and hereditaments; and whereby in consideration thereof, the said Wadham and Stevens covenanted each for himself, his heirs, executors, &c. with the said Watts to pay to him on the execution of such conveyance 1000l. viz. one moiety thereof by Wadham, his heirs, executors, &c.; and the other moiety by Stevens, his heirs, executors, &c.; and also out of the first ground rents to be reserved out of all the said ground, from any other grant to be made over and above (inter alia) the yearly sum of 421. payable out of the ground granted by Russ and Punter, to convey to Watts, his heirs and assigns, ground rents of a certain amount: re citing also, that by lease and release, bearing date with the deed now stating the whole of the said contract of the 18th of May had been carried into execution, except the convey. ance of the hereditaments hereinafter conveyed; reciting also that there was then due to the said Jones, on his said security, 500l. which it had been agreed should be paid out of the said 10007. mentioned in the said contract; it is witmessed, that in full performance of the said contract of the 18th of May, and in consideration of 500l. paid to the said Watts by the said Wadham (being the same sum as in the said indenture or equal date is mentioned to be paid by Lockier to Watts), and in consideration of 5007. to [294 1805. ROACH against MADHAN. to the said Jones paid by Stevens by direction of Watts, the said Coates, by direction of W. Watts, did according to his estate and interest, bargain, sell, and release, and the said W. Watts did grant, bargain, sell, alien, release, ratify, and con firm, and also limit, direct, and appoint unto the said Wadham the testator, Stevens and Powell, aad to their heirs and assigns for ever, the said messuage and hereditaments comprized in the indentures first before stated, and all the estate, right, title, interest, use, trust, possession, freehold inheritance, property, benefit, and equity of redemption, challenge, claim, and demand whatsoever, both at law and in equity, and otherwise however, of the said W. Watts and T. Coates respectively, and of each and every of them, of, in, to, and out of the said hereditaments and premisses, &c. to hold the same unto the said Wadham, the testator, and the said Stevens and Powell, and the heirs and assigns of the said Wadham and Stevens for ever, as tenants in common; in trust, as to the estate of Powell, for Wadham Stevens, their heirs and assigns as tenants in common; in trust as to the estate of Powell for Wadham and Stevens, their heirs and assigns as tenants in common, subject nevertheless as to the said messuage and he reditaments called the Blackmoor's Head to the payment of the said yearly fee farm rent of 421. reserved by the said indentures of lease and release of the 23d and 24th of June, 1791, and to the powers and remedies therein contained for enforcing the payment thereof when in arrear, and to the performance of the covenants in the said indenture of release contained, which thenceforth on the part and behalf of the said W. Watts, his heirs, and assigns ought to be paid, observed, and performed. And in the said indenture is contained the following covenant: And the said John Wadham and T. Stevens for themselves se. [295]verally, and for their several and respective heirs, executors, &c. did covenant and agree with the said W. Watts, his heirs and assigns, "in equal shares and proportions, well and traly to pay the said fee farm rent of 427. so reserved, &c. by the indentures of 1791, i. c. one moiety thereof by the said Johu Wadham, his heirs and assigns, and the other moiety thereof by the said T. Stevens, his heirs and assigns: and also to fulfil and keep all and every the covenants, clauses, provisoes, and agreements contained in the said indenture of release of 1791, on the part of the said W. Watts, his heirs or assigns, to be performed, &c.; and from the payment of the |