« ForrigeFortsett »
1806. to'shew that such an adinission as this will enure as a Zouch on the grant." dernise of
Taunton. « This estate is supported in the per. " ... versus sonal representative by the effect and operation of the HENKYFORSE
statute ; and there is a great analogy in this respect between copyholds and hereditaments incorporeal, which are held within the statute, although at common law there could be no occupancy of a rent, as an incorporeal hereditament, but there might be a special occupancy,* Ripley v.Waterworth,+ Holden v. Smallbrooke , Seymour's case,|| D. of Devonshire v. Atkins, Lowe v. Burron. And it is now so held, because, by the statute of frauds any estate which is capable of being devised by the tenant per autre vie, who might thus have created a special occupant, will now pass to the executor. And the same reasun holds that the estate per autre vie, in copyholds, should be preserved as in incorporeal hereditaments; for the estate, howe. ver limited to any heirs, can only extend to the duration of the life of the last cestui que vie named in the grant. There is, indeed, no case at law ; but there, are many in equity, that copyholds per autre vie should go to the personal representatives.”. .
LAWRENCE, J. “ Those are only cases of special occupancy where there was not a general occupancy.".
TAUNTON. " There are also cases of resulting trusts in equity, where he who pays the fine has the estate to him and his representatives : thé cestui que rie; being only the supporter of the estate for his benefit. As where a copyhold was granted to A. for the lives of A., B., and C.; A. died intestate, his administrátor took the estate, as having the title of the first taker
* 2 Ro. Ab. 150. Salk. 189. † 7 Vesey, Jun. 440, 418. # Vaugh. 187,201. Co. Litt. 41. | 10 Co. 96. Š 2 P.W. 381. Dy. 328, pl. 10. 2 B&c. Ab. 277. 93 P. W. 262, and 1 l'ern. 237, pl. 5.
who paid the fine, the other lives being only in nature 1806. of trustees; Ilow v. How,* Clark v. Danvers.t And
Zouch on the where a copyhold was granted to the busband and demise of wife, and J. S. for their lives successive, but it'appear." ed by the rolls that the fine was paid by the hus- Henar Forss. band and wife ; J. S. was decreed a trustee for them; Bengeř v. Drew, I IVthers v. Wither's, . But Lord Hardwicke there says, that the statute of frauds does not extend to copyholds."
Lord ELLEN BOROUGNI, C. J. “ If so, there is no general occupancy of copyholds; and the admission of the lessor of the plaintiff was only upon an invalid claim; then, unless there are some words of grant in the admission which are substantively a grant to him, the admission will not help the case.”
Taunton then contended,“ that although in gene- , ral the admission was according to the surrender, and although, on the surrender, nothing operated by way of grant; yet the admission by the lord made the les sor of the plaintif' tenant at will. For this he cited 2 Leonard, 210, where it is said, ' it was holden by the court, that if copyholder in fee dieth seised, and the . lord admits a stranger to the land, who entereth, he is but a tenant at will and not a disseisor to the copyholder who hath the land by descent, because he coma eth in by the assent of the lord,' &c."
Lord ELLEN B'O ROUGH, C. J.“ If you are right in this point, the adınission givés à title in every case."
Lord ELLENBOROUGH, C. J. (Without hearing the other side). “ The counsel for the plaintif having very properly stated those cases which operate against him, as well as those on which he would rely, it is un
* i Vern. 415, + 1 Ch. Ca. 310.
Peere. Will. 781. $ Amb. 151.
1806. necessary to hear the other side. This is a claim made over on the by the administrator de bonis non, as special occupant
demise of under the statutes 29 Cur. II. c. 3, and 14 Geo. II. Thom A$FORSE
versus*** c. 20, of a copyhold estate, to which as intestate he was Henry Forse. admitted in reversion per autre vie ; but that title
cannot subsist, unless copyholds are the subject of occupancy, and it has been decided that they are not, nor are they within the statute 29 Car. II. c. 3, and 14 Geo. II. c. 20. Then it is too much to say that, if the lord admits a person eo nomine as administrator, in which character he could not claim, it shall, as against the lord, convey an interest as if there bad been an express grant. Neither of these points being sustainable, the plaintiff has no title at law."
LAWRENCE, J. “ It never has yet been determined that independently of the statutes the lord had not a right to enter, upon the death of the grantee; or that, without express words the effect of the statutes could be to take away that right of entry which he has. The object of the statutes was to prevent persons from taking estates as occupants, to which they had no claim, but it was never intended that the right of the lord of the manor, who had a right at common law to enter on the death of the grantee, living the two lives, should be taken away. Sir IV. Blackstone, says in his Commentaries,* (these statutes must not be so construed as to create any new estate, or keep that alive, which by the common law was determined, but merely to dispose of an interest in being to which by law there was no owner, and which, therefore, was left open to the first occupant.' Now copyholds were held never to be the subject of occupancy, because the freehold is never out of the lord ; and if so, there is nothing on which the statute can operate. As to the other point,
* Vol. II. p. 2.
if the admission is looked to, there is nothing like a 1806. grant. The person admitted claims as administrator de zon
al Zouch on the bonis non of the original grantee for the life of Ilenry de mise of Forse, and thereupon he is admitted; but by this the Ta
versus lord does not mean to grant any thing but that HeNRY FORSE which the copy granted to the original grantor, and which the administrator could claim under it.”
Le Blanc, J. “ In this case, if the plaintiff had a title, the general words would operate to the prejudice of the lord against the rule that general words of a statute shall not operate to prejudice the lord, and here they will materially do so.”
JUDGMENT for the DEFENDANT.
Swan and Others against Steele, Clerk, and
Robert Woon.-Feb. 7th.
C. as cotton dealers, trading under the firm of A. and B. Fraud and colo
no fraud or collusion in him. THIS was an action on promises, in which the plain. Swan - tiffs declared in the first count of their declara. and Otliers
versus tion, on a bill of exchange, dated 26th August, 1809, Stunts and drawn by one David Maitland on Walter Campbell and Co. for 3421. payable to the order of the defendants and one George Payne, deceased, three months after date, and indorsed by the defendants and Payne, under the firm of Wood and Payne to the plaintiff's, and which bill IV'aller Campbell and Co, had accepted;
1806. and in other counts the plaintiffs declared for goods sold
and delivered, money paid, laid out, and expended, and Others had and received, and an account stated; to which de** versus
claration, the said defendant Steele, pleaded the geneAnother.
ral issue of non assumpsit ; and the defendant, Wood, suffered judgment by default. The cause came on to be tried before, the Right Honourable Lord ELLENBO. ROUGH, in London, at the sitting after last Trinity term, when the jury found a verdict for the plaintiffs, damages 368l. 5s. 4d. and costs 48s. subject to the di opinion of the court on the following case: That Wood and Payne mentioned in the pleadings, carried on the business of wholesale grocers in Lịcerpool, under the firm of Wood and Payne, from January, 1802, until January, 1804; that the defendant Steele, became a partner with the said Wood and Payne, in the month of May, 1802, and so continued till January, 1804, in the business of buying and selling cotion, which business was carried on also under the firm of Wood and Payne, and at their counting-house : but that the said defendant Steele was never in any manner inte. rested in the grocery business, that the said defendant Steele, took no active part in the cotton concern, nor was it known to the world or to the said plaintiff's, that he was a partner. That the plaintiffs sold the said Wood and Payne as grocers, a quantity of sugar; for which they gave their acceptance, in the firm of Wood and Payne, at four months, due 11th October, 1803, and not being able to provide for it when due, Wood and Payne, on the 8th day of October, 1803, delivered to the plaintiffs the bill mentioned in the decla. tion, due the 29th day of November, with others, to provide for that acceptance, and that the said bill
was indorsed by either Wood or Payne in the firm of '. Wood and Payne, without the actual knowledge of
Steele, as all other bills on the cotton concern were; that the said bill was paid to the said Il’ood and Payne,