1838. MALINS

v.

FREEMAN.

the successor of the dean is not successor to the whole corporation who made the lease, but only the principal member of it; yet because the whole corporation never dies, such lease, by construction, shall be void after the death of the dean, who is the principal member of the corporation, and his successor, with the chapter, shall avoid it. So, in the principal case, although it be provided by the statute of 11 Hen. 7 that the discontinuance, alienation, warranty, and recovery shall be void; yet they are not void presently, but are to be made void by such persons to whom, after the death of the woman, the interest, title, or inheritance appertains. And with this resolution agrees 27 H. 8, 23 b., on this very statute of 11 Hen. 7." Nor can I in principle distinguish this case from Doe d. Bryan v. Bancks, 4 B. & Ald. 401. There, a lease of coalmines reserved a royalty rent for every ton of coal raised, and contained a proviso that the lease should be void to all intents and purposes, if the tenant should cease working at any time two years. After the working had ceased more than two years, the lessor received rent: and it was held that a tenancy from year to year was not thereby created; for, the lease was not absolutely void by the cesser to work, but voidable only at the option of the lessor. "The true construction," says Bayley, J., "of the proviso in this lease, that it shall be null and void to all intents and purposes upon a cesser of two years,' is, that it shall be voidable only at the option of the lessor, and that it does not lie in the mouth of the lessee, who has been guilty of a wrongful act in omitting to work in pursuance of his covenant, to avail himself of that wrongful act, and to insist that thereby the lease has become void to all intents and purposes. By the express provisions of the 13 Eliz. c. 10, certain ecclesiastical leases are made void to all intents, constructions, and purposes; yet it has been frequently held that such leases are good during the life of the person by whom they are made. I think,

therefore, that the fair construction of this lease is, that it is void only at the option of the lessor." A contrary construction would enable the lessee, or, in this case, the purchaser, to avail himself of a proviso that was introduced for the benefit of the other party, in order to defeat and destroy his own contract.

PARK, J.-I am of the same opinion. Doe d. Bryan v. Bancks seems to me to decide the case.

BOSANQUET, J.-There are many authorities to shew that the words "null and void" may mean may mean "voidable," unless there be something in the context to prevent their receiving that interpretation. This proviso was clearly intended for the benefit of the vendor. It would be manifestly contrary to reason and justice so to construe it as to enable the purchaser to avail himself of his own default to avoid his contract.

COLTMAN, J.-It would be so clearly contrary to justice so to construe the proviso in question as to enable the purchaser to take advantage of his own default in order to defeat the contract he has entered into, that the court would not be disposed to yield to the argument unless the context manifestly shewed that the construction contended for was consistent with the intention of the legislature. By the statute 14 Eliz. c. 8, a recovery suffered by tenant for life, without the assent of the remainder-man, is declared to be " clearly and utterly void and of none effect;" and yet it has been held that a recovery suffered by tenant for life, vouching the remainder-man in tail, who vouches the common vouchee, to the use of the tenant in tail and his heirs, will bar the reversion in fee; the object of the statute heing to protect the remainder-man against the tenant for life. Many other authorities to the same effect might if necessary be cited.

Judgment for the plaintiff.

1838.

MALINS

V.

FREEMAN.

VOL. VI.

1388.

Friday, April 27th.

HOCKEN V. BROWN and Another.

By the 7 Geo. 4, TRESPASS for seizing the plaintiff's goods on the 19th

c. 57, s. 51, it is

enacted that the June, 1836, under colour of a writ of fi. fa.

discharge of any

prisoner under the act "shall and may extend to any sum and sums of money

which shall be payable, by way of annuity or otherwise, at any future time or times, by virtue of any bond, covenant,

or other securi

ties of any

nature whatso

ever; and that every person

would be a

creditor or

creditors of such

The defendants pleaded that they had recovered against the plaintiff and one Charles Vincent Gaveron a debt of 2,400l., and 60s. costs, and sued out the fi. fa. thereonjustifying the seizure.

Replication-that, by an indenture of the 16th February, 1835, made between Charles Vincent Gaveron of the first part, the defendants of the second part, and one W. E., a trustee of the defendants, of the third part, an annuity of 135l. per annum was granted by Gaveron to the defendants, to be paid during the lives of the defendants, the payment whereof was secured by a joint and and persons who several warrant of attorney executed by Gaveron and the plaintiff as his surety; that judgment was entered up on prisoner for such the said warrant of attorney against Gaveron and the plaintiff on the 26th February, 1835, and that on that judgment the fi. fa. in the plea mentioned was sued out; that, be admissible as on &c., a quarter's annuity was in arrear; that, after the creditors of such making of the indenture, and after the recovery by the prisoner for the defendants, and before the annuity so became in arrear, to wit, on the 26th September, 1835, Gaveron was a prisoner for debt confined in the Fleet Prison at the suit aforesaid, which of one Richardson, and others, that he applied by petition court shall ascer- to the court for the relief of insolvent debtors to be distain, &c. &c.;

sum or sums of

money, if the same were pre

sently due, shall

a creditor or

value of such

sum or sums

of money so payable as

value the said

and such credi- charged, and that, on the said petition coming on to be tor or creditors, heard by the said court, he (Gaveron) was discharged, and

shall be entitled in respect of

such value to the benefit of

was held entitled to the benefit of the act; and that, by

all the provisions made for creditors by the act, without prejudice nevertheless to the respective securities of such creditor or creditors, excepting as respects such prisoner's discharge under the act:"-Held, that the discharge of the grantor of an annuity under the act, does not release one who had as surety for the grantor executed a joint and several warrant of attorney to secure the instalments of the annuity.

And, semble, that the grantor is not discharged from liability to his surety for payments made by the latter in respect of the annuity subsequently to the grantor's discharge under the act.

force of the said discharge, the plaintiff was released from his liability to the payment of the money to the defendants in respect of the said annuity.

To this replication, the defendants demurred specially, assigning for causes-that, although the plaintiff had admitted the execution by him of a certain joint and several warrant of attorney, whereupon the judgment, execution, and seizure by the defendants in their plea alleged in justification of the trespasses complained of by the plaintiff were admitted to have proceeded, yet that he had in no way avoided the effect of the said warrant of attorney, or of the said judgment and other proceedings so admitted to have been taken upon and by virtue of the said warrant of attorney; that the replication attempted to put in issue, to be tried by the country, a mere inference and question of law, that is, whether, on account of Gaveron having been discharged as an insolvent from his liability to be sued on a certain joint and several instrument or security in the declaration mentioned, and into which the plaintiff and Gaveron had jointly and severally entered, the plaintiff was also thereby discharged from such his separate liability. The plaintiff joined in demurrer.

Channell, in support of the demurrer.-The plaintiff claims to be relieved from liability by reason of the discharge of Gaveron, the principal debtor, under the insolvent debtors act. Where a creditor by his own act releases a principal debtor, the surety is thereby also discharged: but it is otherwise where the discharge of the principal is under the operation of a statute. There is nothing in the language of the 7 Geo. 4, c. 57, to warrant the conclusion that the discharge of the principal in a case like this, releases the surety: the 51st section rather tends to negative that inference: it enacts-" that the discharge of any such prisoner so adjudicated as aforesaid shall and may extend to any sum and sums of money

1838.

HOCKEN

v.

BROWN.

which shall be payable by way of annuity or otherwise at any future time or times, by virtue of any bond, covenant, or other securities of any nature whatsoever; and that every person and persons who would be a creditor or creditors of such prisoner for such sum or sums of money if the same were presently due, shall be admissible as a creditor or creditors of such prisoner for the value of such sum or sums of money so payable as aforesaid, which value the said court shall, upon application at any time made in that behalf, ascertain, regard being had to the original price given for such sum or sums of money, deducting therefrom such diminution in the value thereof as shall have been caused by the lapse of time since the grant thereof to the time of filing such prisoner's petition; and such creditor or creditors shall be entitled in respect of such value to the benefit of all the provisions made for creditors by this act, without prejudice nevertheless to the respective securities of such creditor or creditors, excepting as respects such prisoner's discharge under this act." (p) In Cowley v. Bussell, 4 Taunt. 460, it was held that the grantor of an annuity discharged out of custody under the insolvent act 51 Geo. 3, c. 125 (q), was discharged both

(p) The clause is re-enacted in the same words in the 1 & 2 Vict. c. 110, s. 80.

(g) The 16th section of which provides" that all and every creditor and creditors of any debtor who shall be discharged by virtue of that act for any sum or sums of money payable by way of annuity or otherwise at any future time or times, by virtue of any bond, covenants, or other securities of any nature whatever, may be and shall be entitled to be admitted creditor or creditors, and shall be entitled to receive a dividend or dividends of the estate of such debtor, in such inanner and upon such terms and

conditions as such creditor or creditors would have been entitled unto by the laws now in force, if such debtor had become bankrupt, and without prejudice in future to their respective securities, otherwise than the same would have been affected by a proof made in respect thereof by the creditor under a commission of bankrupt and a certificate obtained by the bankrupt under such commission." Chambre, J., in commenting upon this clause in Cowley v. Bussell, says "I think, upon the whole, the intention of the statute is, to extinguish the debt as to the principal creditor [debtor?], al