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![handle is hein.slavery/ssactsengr0632 and id is 1 raw text is: FOUKE V. LEWEN
the lessor cannot have an action of debt for the rent against the first lessee, by reason
of his acceptance, which hath extinguished the privity of contract, Waller's case, 3 Rep.
24. Marsh v. Brace, Cro. Jac. 334. Better reported 2 Bulstr. 151, 152. Marrow v.
Turpin, Cro. Eliz. 715; Moor 600, S. C. Qucare, What shall be considered as an accept-
ance of lessee's assignee 1 But yet in such case the lessor, after his own acceptance,
shall maintain an action of covenant, Batchelor v. Gage, Brett v. Cumberland, ub. sup.
Et vide Thursby v. Plant, 1 Saund. Rep. 240, 241. Fisher v. Ameers, 1 Brownl. 20.
And particular notice of assignment not necessary, Marsh v. Brace, 2 Bulst. 151, 152,
the acceptance of rent being sufficient notice in law, and shall bar lessor of his entry,
Whichcot v. Fox, Cro. Jac. 398; 2 Bulst. 290. Edwards v. Morgan, 3 Lev. 233. Ashurst
v. Mingay, 2 Show. 133; Sir T. Jones, 144. Entered Ashurst v. Mingar, Lill. Ent.
135, S. C. Chancellor v. Poole, Doug. 765, 3d edit. Eaton v. Jacques, ibid. 460.
Luxford v. Barber, 1 Term Rep. 92, 95. Et vide note (5) to the above case of Thursby
v. Plant.
(4) There is only a simple order of dismissal without costs, Reg. Lib. 1682, A. fol. 58.
So covenant will lie for grantee of reversion, Ashurst v. Mingay, 2 Show. 133; Sir
T. Jones, 144. Edwards v. Morgan, 3 Lev. 233. And as well of copyhold as freehold
lands, Glover v. Cope, 4 Mod. 82. But it did hot lie at the common law, but was given
by 32 Hen. 8, cap. 34. Thrale v. Cornwall, 1 Wilse 165. See that stat. and also Bac.
Abr. tit. Covt. E (6), vol. 2, p. 75. Et vide Co. Litt. 215 a. And covenant to renew will
lie for assignee of the term against the grantee of the reversion, arg. Barker v. Dormer,
1 Show. 194. Isteed v. Stonely, 1 Ander.' 82.
Case 78.-FOUKE versus LEWEN.
15 Novembris [1682]. In Court, Lord Chancellor.
[1] Eq. Ca. Ab. 156, pl. 10.
A man marries an orphan, who dies under twenty-one. Her orphanage part shall not
survive to the other children, but shall go to the husband.
The bill was to have an account of a citizen's personal estate, and to be let into
the orphanage part, the plaintiff having married a citizen's daughter. And the chief
point of the case was, whether the other children of Lewen the citizen were so
advanced by him in his lifetime, as to exclude them of their orphanage part.(1)
[89] Per Curiam any provision made by the father in his lifetime for his children is
an advancement within the custom, (2) unless it be declared by writing that they are
not sufficiently advanced, (3) and for some time it was held that in such writing there
must be mention made what sum they received from their father, because of bringing
it into hotch-pot.(4)
But it was insisted that the plaintiff's wife being -dead, and she dying before the age
of twenty-one, her husband not having received her share of the orphanage part, her
share by the custom did survive, and prayed that tt~e Recorder might certify the custom
in this particular; and to prove the custom they cited Pheasant's case [2 Vent. 340;
1 Chan. Ca. 181].(5)
But the court rejected this matter; for although if an orphan dies before twenty-one
years of age unmarried, there may be such custom, yet that custom cannot take place,
where the orphan is married, and the interest of her share vested in her husband ;
and if there was any such custom, it would be unreasonable and void: and Pheasant's
case is nothing to the purpose; for the husband dying, and his wife's orphanage share
remaining in the chamber of London the question was, whether it was debitum or
depositum, and whether the widow should have it, or the executors of the husband.
Then they insisted on a clause in Lewen's will, recommending his children (whom
the plaintiff would have to be fully advanced) to the care of his wife, to provide further
for them ; and that that amounted to a sufficient declaration, that he thought them
not fully advanced: but it was answered, that such an implicit declaration would.
not serve turn; and besides that clause had another meaning, and did work upon
the legatory part only.
[90] Q. Whether any provision made by the father for his child be an advancement,
or whether only such a provision as is made on the marriage of the child. It seems
to be only such a provision as is made On marriage, or in pursuance of a marriage
agreement. (The point of the wife dying does not appear in the register's book.)
I VERN. 89.](ViewImageLocal?handle=hein.slavery/ssactsengr0632&div=1&collection=&method=preview&ext=.png&size=3)