V. COOMBES. FURNIVALL the defendants, J. Simmonds and S. Boxall, or either of them, ceased being churchwarden or overseer of the poor of the said parish in manner and form as in the said first plea alleged; concluding to the country. [ *742 ] Demurrer to the same plea, so far as it related to the other defendants, showing, for causes of demurrer, that the same plea did not avoid the declaration, and the other defendants, by ceasing to be churchwardens and overseers, were not excused or discharged from the performance of the covenant upon which the plaintiff had declared; and the said indenture did not provide that the defendants should cease to be liable for the performance of the said covenant when they ceased to be churchwardens and overseers; nor did they cease to be liable on the said covenant when they ceased to be churchwardens and overseers: that the proviso in the said indenture was repugnant to the said covenant, and void, and was an illegal and fraudulent attempt on the part of the defendants to render their successors, and the future inhabitants, liable for the said repairs of the said church, the price and value of which repairs the defendants were bound by law to retain, and, it must be presumed, did retain, out of moneys in their hands, before and at the time of making the said indenture: that it did not appear, in or by the said first plea, that the said other defendants, or any or either of them, ever were churchwardens and overseers; and that the averment in the same plea, that the defendants had ceased to be churchwardens and overseers, was uncertain, and tended to raise an immaterial issue, and was consistent with the fact of some of the defendants still being churchwardens and some of them, overseers. Joinder. The plaintiff also demurred specially to the second plea, alleging for causes, that it was not by the indenture and the covenant of the defendants mentioned in the declaration, a condition precedent to the payment of the said sum of 3891. 13s. 4d. therein mentioned, that the plaintiff should, within the space or time of five calendar months from the day of the date of the said indenture, do, perform or execute, or cause or procured to be done, performed or executed, in and to the said parish church, all the works and repairs covenanted and agreed by the plaintiff to be done, performed and executed; nor did the plaintiff, by the said indenture, covenant to do, perform or execute, or to cause to be done, performed or executed, all such works and repairs within such space of time; that the plea was immaterial in this, to wit, that it tied the C. COOMBES. [ *743 ] plaintiff to prove a strict and literal performance of all the FURNIVALL works and repairs covenanted to be done, within the said space of time; whereas, a substantial performance of such works was sufficient, within the true intent and meaning of the said *indenture; that it was not necessary that all the works and repairs should be done, if the works and repairs were finished and completed within such time in a good, proper, workmanlike, and substantial manner, to the satisfaction of the said architects, fit for use and Divine service to be performed in such church; that the said works and repairs might have been so finished within such time, though all the works and repairs might have been done within such time, and yet the same might not have been finished and completed in manner aforesaid, according to the said covenant; that, therefore, whichever way a jury should find any issue joined upon the second plea, such finding would be immaterial and not decisive of the cause; and that the plea introduced new matter, and should have concluded with a verification, and not to the country. Joinder in demurrer. The defendants demurred to the replication to the first plea, assigning for causes, that the said replication was an argumentative traverse of all the defendants having ceased being churchwardens and overseers, as in the first plea alleged; that the replication. afforded no answer to the plea, inasmuch as allowing that the said J. Simmonds continued churchwarden, and that the said S. Boxall continued overseer of the poor, as in the replication was alleged, yet that afforded no ground for the joinder of the other defendants in the action. Joinder in demurrer. Manning, Serjt. (with whom was Shee, Serjt.) in support of The question on the first plea is, whether the proviso therein set out, is not wholly repugnant to the covenant which it professes to qualify. The covenant is clearly a personal contract on the part of the defendants. It is true that they are described as churchwardens and overseers; but neither in the one character nor in the other, had they capacity to contract. *And even if as churchwardens or as overseers they could have contracted, they have clearly no joint capacity to do so. Their description, therefore, must be rejected; and the covenant must be read as if the defendants had contracted, generally and personally, that the [ *744 ] v. COOMBES. FURNIVALL churchwardens and overseers should do the acts specified. Having entered into such a personal covenant, the proviso by which it was sought to relieve them from all individual liability, is void-first, because it is utterly repugnant to, and at variance with, the covenant; and, secondly, inasmuch as the defendants thereby seek to do what the law will not allow, namely, to bind the future churchwardens and overseers of the parish. Lord Coke, in commenting upon one of the sections in Littleton (s. 220), says 146 a, "By this section it appeareth, that when, in a general grant, the law doth give two remedies, the grantor may provide that the grantee shall not use one of them, and leave the party to the other. But where the grantee hath but one remedy, there the remedy cannot be barred by any proviso; for such a proviso should be repugnant to the grant." So also, in Sir Anthony Mildmay's case (1), it is laid down that "a proviso good at the beginning, by consequence may become repugnant; as if a man by his deed grants a rent for life, proviso that it shall not charge his person, this is a good proviso; yet if the rent is in arrear, and the grantee dies, his executors shall charge the person of the grantor in an action of debt; for otherwise they would be without remedy; and therefore now it is become repugnant and, by consequence, void." Here, the repugnancy is immediate and contemporaneous with the covenant, and renders the proviso void; for if the proviso were to have any operation, it would wholly release the defendants from their liability. If churchwardens could be charged as such, the charge would, in effect, be on the parish fund; but there is no power, neither is it legal, to throw any liability on future parishioners. In Dyer, 9 b, Anon. 19 Hen. VIII. it is said, "that if a man appoint A. and B. executors, with a proviso that B. do not administer, the proviso is void, and they shall sue jointly." Two feoffees granted custodiam parci of A. to W. N. capiendo feodo quod J. S. nuper parcarius cepit, proviso quod scriptum non extendat ad onerandum one of the grantors; and this proviso was held void; for this restrains all the effect of the grant against him": Bro. Abr. Conditions, pl. 238, Vin. Abr. Condition, (A a) pl. 10. In Jenk. Cent. 96, pl. 86, it is said, "A. makes a feoffment of land to B., with warranty; proviso that the warranty shall be void: this is a void proviso; as in a deed, an habendum which is repugnant to the premises is void; for both being in one instrument where the latter clause is repugnant to the former, the latter is void." So, in (1) 6 Co. Rep. 41 b. [ *745] v. COOMBES. [ *746 ] Mary Portington's case (1), it is laid down, "Suppose that a man FURNIVALL makes a gift in tail, and further grants that he may make leases for years or lives, according to 32 Hen. VIII. c. 28, or to levy a fine with proclamation, according to the acts in such case, to bar his issue, provided always, that he shall not make leases or levy a fine; none will deny, but such proviso would be repugnant." In Sir John Davis's Reports, 34 b, it is stated, "If a feoffment be made to J. S. and his heirs, with a proviso that his daughters shall not inherit, such proviso is void." Also in Vin. Abr. Condition (Z), pl. 11 (quoting from Bro. Abr. Conditions, pl. 116), it is said, that "if a man aliens in fee, upon condition that if the feoffee or his heirs make any assignee the feoffee or his heirs may enter, this is a void condition; for it is repugnant to the estate." So, in Jenk. Cent. 242, pl. 26 (2) it is laid down, that "a condition *annexed to an estate-tail that the unmarried donee shall not marry, is void; for without marriage he cannot have an heir of his body." In Co. Litt. 206 b, it is said, that "if a man make a feoffment in fee, upon condition that he shall not alien, this condition is repugnant and against law, and the estate of the feoffee is absolute. But if the feoffee be bound in a bond that the feoffee or his heirs shall not alien, this is good, for he may, notwithstanding, alien if he will forfeit his bond that he himself hath made." So it is, if a man make a feoffment in fee upon condition that the feoffee shall not take the profits of the land, this condition is repugnant and against law, and the estate is absolute. But a bond with a condition that the feoffee shall not take the profits, is good. In Rex v. Stevens (3), it was held that an allegation, sensible in the place in which it occurs, and not repugnant to antecedent matter, is to take effect, though repugnant to subsequent matter. (TINDAL, Ch. J.: Is the proviso actually repugnant to the covenant, or is it intended merely to make the plaintiff look for payment to a particular fund? CRESSWELL, J.: The defendants do not covenant to pay out of any particular fund.) That the defendants could not charge their successors and the future funds of the parish, or make a retrospective rate for the (1) 10 Co. Rep. 35 a. (2) S. C. Dyer, 343. (3) 5 East, 244; S. C. 1 Smith, 437; 3 Smith, 366. x. COOMBES. [ *747 ] * FURNIVALL purpose of reimbursing themselves, has been established by numerous cases: Tawney's case (1), Dawson v. Wilkinson (2), Rex v. The Churchwardens of Bradford (3), Rex v. The Churchwardens of Dursley (4); all of which were reviewed by the Court of Exchequer Chamber in the Braintree case (5). Another objection to the first plea is, that although it alleges that the defendants had ceased to be churchwardens and overseers, it does not state that they had not retained sufficient money in their hands to pay the plaintiff. The plea is also bad in this respect,-that it does not aver that the defendants are neither churchwardens nor overseers, but states that they are not churchwardens and overseers. Consistently with this allegation, some of them may be churchwardens and the rest, Overseers. The second plea is undoubtedly bad; for it assumes, that it is a condition precedent to the plaintiff's right to receive payment, that the whole of the works and repairs should have been completed within five months. It is unnecessary to cite cases to show that this proposition cannot be maintained. Dallman v. King (6) may, however, be mentioned, as strongly in point. Moreover, if there had been anything in this objection, the plea should have concluded with a verification, inasmuch as it introduces new matter. With respect to the replication to the first plea, it is not meant as an answer to the whole plea, but only to so much of that plea as relates to the defendants Simmonds and Boxall. Supposing them to continue liable, and the rest of the defendants to be discharged, the bringing of the action against the whole of the defendants is not a misjoinder-it is a joinder of parties who, originally liable, may be discharged by matter ex post facto. (TINDAL, Ch. J.: Is it not a singular thing to divide a plea in this manner ?) An objection might possibly have been raised to it; but none has been taken. Channell, Serjt. (with whom was Byles, Serjt.) for the defendants: It must be admitted that the second plea is open to the objection (1) 2 Ld. Ray. 1009; 2 Salk. 531; 6 Mod. 97. (2) Cas. temp. Hardw. 381. (3) 12 East, 556. (4) 5 Ad. & El. 10; 6 N. & M. 333. (5) Veley v. Burder, 54 R. R. 560, in error (12 Ad. & El. 265; 4 P. & D. 452). (6) 44 R. R. 661 (+ Bing. N. C. 105; 5 Scott, 382). |