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![handle is hein.slavery/ssactsengr0307 and id is 1 raw text is: LOCKE V. JAMES
per tout, and may therefore be reasonably expected to know the tite to the whole
premises. And if he is possessed as a tenant in common, he is at least bound to
shew his own title, though he may not know that of his companions. [Parke, B.,
mentioned Curtis v. Spitty (1 Bing. N. C. 756 ; 1 Scott, 737), as confirming Hare v.
Cator.]
Cur. adv. vult.
The judgment of the Court was now delivered by
PARKE, B. In this case the defendant pleads in abatement the non-joinder of
another joint tenant, as joint [900] assignee of the term, and the objection, on special
demurrer, is that the plea does not state his title specially. We are of opinion that
this objection is good.
The general form of pleading is allowed to the plaintiff, because he cannot be pre-
sumed to know the particulars of the defendant's title. The reason ceases, where the
defendant pleads his own title as joint tenant, for he must be presumed to know how
he became such. On principle, therefore, the plaintiff's objection is well founded.
There are no precedents precisely in point; but there are some which afford a
strong analogy. In real actions, where the defendant pleads joint tenancy of his own
part, he ought to shew by whose feoffment: Dyer, 32 a., and Com. Dig. Abatement,
(F. 5); and in actions against an executor, a plea of abatement of non-joinder states
that the testator made his will, and appointed the defendant co-executor: Brownl.
Red., 199 and 200.
It was argued by the plaintiffs' counsel, that this was properly a plea in bar, and
was good in substance; and if it was so, the defendant might avail himself of it,
there being no special demurrer on the ground that it was an argumentative traverse
of the averment that all the estate vested in the defendant by assignment. And the
case of Hare v. Cator was cited, to which may be added Curtis v. Spitty, where the
Court of Common Pleas held, that if the defendant was assignee of part of the land
only, he was entitled to a verdict on the issue that all the estate did not vest in him
by assignment, contrary to the dictum of Mr. Justice Holroyd, in Merceron v. Dowson
(5 B. & C. 484; 8 D. & R. 364). But in this case the defendant does not take part
of the estate; he is seised per my et per tout in the whole; and the cases cited do
not apply. His plea is properly pleaded in abatement; but for the reason before
given, is bad in form.
Judgment for the plaintiff of respondeant ouster.
[901] LOCKE AND OTHERS V. JAMES. Exch. of Pleas. July 10, 1843.-A testator,
by his will duly executed, devised certain real estates to R. N. in fee, subject to
and charged with an annuity of six hundred pounds a year, which he gave to
his daughter E. J. for her life, with powers of distress and entry on the devised
estates, in case the annuity were in arrear. He subsequently erased with a pen
the word six, and inserted over it the word two, leaving however the word
six legible, in each place where it occurred ; and on the same day he added
a memorandum or codicil to his will, signed by him in the presence of one witness
only, recognizing the above alterations. -Held, that the substitution of two
for six hundred was, under these circumstances, inoperative, and that E. J.
retained a legal interest in the annuity of £600.
[S. C. 13 L. J. Ex. 186.]
This was an action of trespass for breaking and entering the plaintiffs' close, and
seizing the cattle of the plaintiffs, which trespasses the defendant justified as a distress
for the arrears of an annuity of £600, alleged by her plea to have been granted to
her by the will of one Ralph Nicholson the elder, an(] to be thereby charged upon and
payable out of certain lands, of which the close on which the distress was made was
parcel.
The plaintiffs traversed that such annuity of £600 was so granted and charged,
and thereon issue was joined ; and as the proper finding of that issue depended on a
question of law, the parties agreed that judgment should be entered in pursuance of
the 25th section of the 3 & 4 Will. 4, c. 42, according to the opinion of the Court
upon the following facts:-
October 18th, 1828. The said Ralph Nicholson the elder, by his will of this date,
1071
11 M. & W. 900.](ViewImageLocal?handle=hein.slavery/ssactsengr0307&div=1&collection=&method=preview&ext=.png&size=3)