AGREEMENTS. Exchange. IT IS HEREBY DECLARED AND AGREED, that each of them, the said A. B. and C. D. and his heirs, shall and will cause to be made and delivered at his and their own expense, unto the other of them, his heirs or assigns, or his or their solicitor, within one calendar month from the date hereof, a full and satisfactory abstract of his respective title to the said premises so agreed to be exchanged as aforesaid (1). Mutual convey And also shall and will, on or before the day of ances to be executed. now next ensuing, upon having a sufficient conveyance or assurance of the lands and hereditaments of the other of them, made to him, his heirs and assigns, (the said A. B. receiving from the said C. D. his executors, administrators, or assigns, the said sum of £ ;) execute at the expense of the other of them (except as to fines and recoveries, and outstanding terms if any) proper conveyances (2) and assurances of the inheritance in fee simple in possession of their respective hereditaments, together with the title-deeds thereof, unto Leaseholds. Copyholds. Leaseholds. (1) * If the premises be leased, add, "But which abstract shall not extend to or comprise the title of the lessor of the said premises :" Without which either party might require the title of the lessor to be produced, but which in all probability could not be obtained. (2) If the premises be copyhold, say, "Execute proper surrenders and assurances of the inheritance in fee simple, according to the custom of the said respective manors, of their respective hereditaments, unto the use of the other of them, his heirs and assigns, free from all charges and incumbrances, except only the rents, suits, and services respectively due or payable to the lords or ladies for the time being of the said respective manors, and a deed of conveyance containing the usual covenants for the title of the said parties and their quiet enjoyment, and for further assurance by and to each of them respectively." If the premises be leasehold, say, "Execute valid assignments, or other proper and effectual assurances, of all and singular the said premises, for the then residue of the said several terms so granted by the herein before in part recited indentures of lease as aforesaid, and all assignments of the same respectively, unto the other of them, his executors, administrators, and assigns, free from all incumbrances, except only the several rents, covenants, and agreements, in the said several indentures of lease reserved and contained respectively, on the tenant or assignee's part, to be paid and performed. AGREEMENTS. Exchange. Conveyances to contain all proper covenants, &c. Each party to be entitled to the rents, &c. from the last quarter day. and to the use, or for the other of them, his heirs and assigns, or as he or they shall direct, free from all incumbrances. AND in the said assurances all usual and proper covenants shall be contained by and to the said parties respectively; and all persons possessing any legal or equitable estate or interest in the said premises, or beneficially entitled to the said sum of £ , shall concur if required according to their respective interests. AND it is hereby agreed, that the said parties shall respectively be entitled to the rents and profits of the said premises, so to be to them respectively assured, from the day of , now last past, up to which time, all rents, taxes, rates, assessments, and charges payable in respect of the said premises, shall be paid and discharged by the party conveying the same. AND further, &c. (1). AND the said C. D. doth hereby covenant, pro- The sum of £ with and to the said A. B. his heirs, executors, and for equality of to be paid mise, and agree administrators, that upon the execution of such conveyances and as- exchange. surances, and delivery of such possession and title-deeds, by the said A. B. as aforesaid, he the said C. D. his executors or administrators, shall and will pay unto the said A. B. his executors, administrators, and assigns, the said sum of £ in lawful current money of England, as or for such equality of value as aforesaid. ALWAYS, that these presents shall not be void by reason of any trifling error or omission which may have been made in the description herein before given, of the hereditaments of either of the said parties, so that the same be of the same nature and quantity of interest, and be situated within the county herein before mentioned, or of any quit PROVIDED (1) As it is essential to constitute a legal exchange, that the word " exchange" should be used in the deed by which the agreement for exchange is executed, and as that word is holden to imply mutual warranty of title, by each party to the other, by virtue of which either party if ousted from the lands taken by him in exchange, may re-enter upon those given in exchange, Batard's Case, 4 Co. 21. Co. Lit. 174; Attorney Gen. v. Vigor, 8 Ves. Jun. 256; it will be proper, should the parties desire, to prevent its legal consequence, that the agreement should declare, 66 AND FURTHER, that in case the said assurances shall be effected through or by means of the word exchange, to be therein used, then it shall be declared and provided, in or by the said assurances, that neither party shall enter upon the lands of the other of them, by reason of any defect of title therein, under or by virtue of the warranty and condition of re-entry, implied by the word exchange, to be there used or otherwise; but each of them shall rest upon and abide by the covenants for the title, quiet enjoyment, and further assurance to be therein contained, and the remedies thereby given." Errors in descriptions, &c. not to vacate the contract. Warranty im plied by the word "exchange." Neither party to take advantage of the implied warranty. AGREEMENTS. Exchange. If title of either party prove de fective, these presents to be void. Intervening accidents not to af fect the contract. rent or other small out-going to which the same may be subject, but in such case, a reasonable abatement or equivalent shall be made or given, as the case may require, by or to the said parties respectively, or their respective heirs, executors, or administrators. AND it is further agreed, that in case the title of either of the said parties to the hereditaments hereby agreed to be conveyed in exchange, shall prove defective (except as last aforesaid), these presents shall be void, and all reasonable costs, charges, and expenses paid, or sustained by the said parties, or either of them, or his or their respective heirs, executors, administrators, or assigns, or his or their respective solicitors in the investigation thereof, shall be wholly borne and paid by the said party, whose title shall so prove defective, his executors or administrators. AND it is further agreed, that any loss or damage which may happen to the hereditaments of either of the said parties, by fire, storm, or tempest, or any increase which may take place in the value thereof, at any time between the date hereof and the completion of the said exchange, shall not affect the present contract, nor entitle either of the said parties to any abatement or equivalent in respect thereof. PROVIDED nevertheless, that the benefit of any policy or policies of insurance, which shall be then subsisting against any such loss or damage shall in that case belong to the parties taking the premises, upon or in respect of which any such policy shall subsist, his heirs, Neither party to executors, administrators, or assigns. AND it also agreed, that neither of the said parties or his heirs shall from henceforth, during the subsistence of the present contract, grant or contract for any leases or agreement for leases of the said premises, or any part of the hereditaments hereby agreed to be conveyed by him in exchange, without the consent in writing of the other of them, his heirs or assigns. AND it is hereby lastly agreed, that all matters relating to the said exchange hereby agreed to be made, not herein particularly provided for, shall be regulated by the rules of law and equity, or the practices amongst conveyancers in relation thereto, and in case of difference of opinion in respect thereof, then by reference to arbitration in the usual manner of submission for that purpose (1). IN WITNESS, &c. grant leases. Matters not hereby provided for, to be regulated by the prac tice in similar cases. Or by reference to arbitration. Decree, &c. (1) *An agreement to apply to chancery or parliament for a decree or act of confirmation if necessary may be added as ante, p. 127. No. XXXIV. An Agreement between Parishioners to contribute rateably towards the Expence of a Suit for Tithes, &c. (1). Variations where other persons have a common interest in the subject of the suit (2). AGREEMENTS. Expences. ARTICLES of agreement, indented, had, made and concluded, this BETWEEN (three or four of the principal parishioners) of the one Parties. whose hands and seals are hereunto set and son to contribute expence of suit. (1) To assist or bear a portion of the expence of a suit of another, in Illegal for a perwhich the party assisting has no interest, is contrary to the rules of common law, Co. Lit. 368. a.; 2 Roll. Ab. 114; D. pl. 1 ; and forbidden by divers statutes; 1 Ric. 2. c. 4; 32 Hen. 8. c. 9; as tending to the encouragement of litigation; but where persons claim a common interest in the same thing, as in a way, church-yard, common, or the like, by the same title, they may lawfully assist each other in the maintenance or defence of any suit concerning it. Haw. P. C. 18. s. 18; 2 Inst. 564; 2 Roll. Ab. 115, 117. If however the rights of the parties be discordant, as by being claimed under different titles, so as to give rise to different causes of action or species of defence, it seems their concurrence in the expence will amount to maintenance, although their interest be in some respect in common between them. See Oliver v. Bakewell, 4 Gwil. 1381. (2)* Although the above form is particularly adapted to a suit insti- Other parties. tuted by or against a parish, yet it may with great ease be made to serve as a precedent for any similar object, where several parties (as the lord of a manor and commoners, associated tradesmen, joint tenants, or others) have a common interest in the subject of the suit, in which cases make those who have already agreed to become parties, of the one part, and such as may hereafter become so, of the other part, as above, recite the commencement of the suit depending or agreed to be instituted as the case may be; and then proceed to the witnessing or operative part of the agreement, post, p. 140, saying "parties hereto," instead of "principal parishioners), and other the inhabitants, parishioners, and occupiers aforesaid." SUP.-VOL. I. M AGREEMENTS. Expences. Recital of suit instituted. ment to defend the suit at the common ex per.ce. Covenant by the parishioners to contribute in tions. WHEREAS (the rector) of, &c. in or about term subscribed, of the other part. due from them to him for easter offerings in such year, and that the same or the value thereof respectively might be decreed to be paid Recital of agree to him by the said parishioners and continued to be paid in future. AND WHEREAS the said (principal parishioners) and other the inhabitants, parishioners, and occupiers aforesaid, conceiving that they would be greatly aggrieved by such decree, and therefore materially interested in the event of the suit, have mutually resolved to defend the same at their joint expences, and have agreed to contribute towards the expence thereof, in proportion to the sums at which they shall respectively from time to time be justly rated to the church and poor of the said parish. Now THEREFORE THESE PRESENTS WITNESS, and it is hereby covenanted, declared, and agreed by and berateable propor- tween the said (principal parishioners) and all and every other the inhabitants, parishioners, and occupiers of lands, tenements or hereditaments, within the said parish of who now have or shall or may hereafter become parties hereto, by signing and sealing these presents for themselves severally and respectively, and for their several and respective heirs, executors, and administrators, with and to the other and others of them, and their and each of their respective executors and administrators, that they the said (principal parishioners) and all and every other the said inhabitants, parishioners, and occupiers, shall and will pay and contribute unto the committee to be appointed for the purposes of these presents as hereinafter is provided, from time to time, as and when in the opinion of the said committee, or the major part of them, there shall be occasion, in proportion to the rate or assessment to which they now are or at any time or times hereafter shall be rated or assessed to the church or poor of the said parish, all and every such sum and sums of money as shall be requisite and sufficient to defray all costs and expences incurred, or to be incurred, in defending the said suit, or in defending or prosecuting any other suit or suits which shall or may be prosecuted or commenced by or against the said parish, or any of the parishioners thereof, upon or in relation to the matters or things which may arise out of or be connected therewith, and all costs which shall be decreed against the same parish or parishioners, parties here |