no issue of her body lawfully begotten then the grant to her should be void: and D. should have the term: and it was held, that the proviso should have this construction, that if she die unmarried or married having no issue of her body (for she may not have lawful issue unless she be married) then it shall be void.' And in Woodward v. Glasbrooke, where A. devised land to his several children in tail, and if any of them should die before 21, or unmarried, such child's part to go to the survivor, it was held that it should go over where one arrived at 21 and died unmarried."

PELL, in reply, contended, that wherever it might be necessary in order to make the text of the will consistent with the intent, it was immaterial whether some words were changed or not, as in Framlingham v. Brand. And he said that it might possibly be the intent of the testator by this condition and by introducing the word unmarried, to allow T. Cooke to make some provision for his wife and children.

LAWRENCE, J. "He could not mean to do that, because if he married and had children, whatsoever settlement he made for the wife would have been void, for the children would have taken after his death."

PELL then cited Ball v. Coleman,† and Doe d. Davy, v. Burnull, to shew that the words die without issue in this case would be held to be a dying without issue generally.

Cur, adv. vult.

And on this day the judgment of the court was delivered to the effect following, by

Lord ELLENBOROUGH, C. J. After stating the

2 Vernor, 388.

NO. XXX. N. S.

+ 2 Vern. 670, and 1 P. Will. 142.
6 T. Rep. 30.

li

1806.

Doɛ dém.
EVERETT

versus COOKE

case. "On reading this will, although there may be perhaps some reason to think that the testator meant that in case T. Cooke died without leaving any children, the estate should go over to W. Cooke and his three children, yet we do not think we ought to give that effect to it, considering the words which have been used. For if such had been really his intent, nothing would have been easier than to have expressed it clearly; as for instance he might have said, my will is that in case the said W. Cooke shall die an infant, or shall die unmarried, or without issue living at the time of his decease, then I give the same to IV. Cooke and his three children.' Now in order to support this construction we must reject the words infant and unmarried altogether, or if we suffer those words to remain, we must insert the word or between the other articles of the condition, and read it if he shall die an infant orunmarried or without issue.' But this would leave it upon any one single event, as his dying unmarried; for unless he were married he could have no lawful issue. That mode of reading the will would defeat the limitation, if he died unmarried at any time, and that difficulty occurs whether it be construed in case he die an infant unmarried, or be unmarried and of age at the time of his death. And if we convert the word and into or, and it is to apply to each part of the sentence, making all the branches of the condition in the disjunctive, then according to the rule, in disjunctivis sufficit alteram partem esse verum, it would have gone over, in case he died an infant, to the prejudice of his children if he had any. But the most reasonable construction seems to be as in · Framlingham v. Brand,* that it is one contingency on the event of his dying an infant, attended with two qualifications, his dying unmarried or married without any children, He, the testator, might have intended that

* 3 Atk. 309.

1806.

DoE dem.

versus

Cooz.

if he died an infant married and without children, his wife might be entitled to a distributive share, or that he might make a devise in her favour, still preferring EVERETT his children to her, if he left any. That is, if he died under age without wife or children, that it should go to W. Cooke, but that if he survived 21, he might dispose of it at all events. In putting this construction upon the will, it would stand as if the devise were to W. Cooke for life, and in case he die an infant unmarried, then over to W. Cooke and his children, but if he, Thomas Cooke, have any children, then I give the same to his children." His lordship made a few further observations in confirmation of this construction, and concluded that there must be

JUDGMENT for the PLAINTIFF,

DALE (qui tam) against BEER.-Feb. 12.

A plea in an action qui tam, not entitled qui tam, nor describ

ing the plaintiff as sueing qui tam, is not such a nullity as Practice. Plea, that the plaintiff can sign judgment as for want of a plea, title of

if there be not some other cause for misleading the plaintiff

as to the real action in which the plea is pleaded.

THIS was a rule to shew cause why the judgment

The

should not be set aside for irregularity. judgment was signed as for want of a plea. The declaration was entitled Thomas Dale (qui tam) v. Walter Beer; but the plea was entitled only as in a cause, Walter Beer at the suit of Thomas Dale, The plaintiff treated this as a nullity, and signed judgment as for want of a plea. It was neither stated qui tam in the margin nor in the commencement of the plea, which was in the ordinary form. " And the said Walter comes and defends, &c. and says that he doth not owe the said sum of 1. as the said Thomas hath above thereof complained against him."

DALE

(qui tam)

versus

BEER.

1806.

READER, in support of the rule, contended, that it was not necessary that the special character of the (qui tam) plaintiff should be stated in the title to the plea.

DALE

versus

BEER.

It would not be necessary to state that a man sued as executor. The christian names of both parties appeared upon the plea, and there was no other cause between the same parties.

:

LAWES, contrà, contended, that it was not a plea in the cause that if it were a plea in abatement, no perjury could be assigned upon the affidavit in support of it.

Lord ELLEN BOROUGH, C. J.

"There is no rule of

Now

the court that a plea should be so entitled. Then the
question is, whether there is sufficient certainty for the
plaintiff to know that it is a plea in his cause.
this is an action of debt and must be for a particular
sum. I do not know that it is necessary that he should
state that the plaintiff sues qui tam, he is the person
who himself sues, and all that addition of circumstance
is only what he states to entitle himself to sue."

RULE ABSOLUTE.

Wear. Fishery. Nuisance. River.

WELD

versus HORNBY.

WELD against HORNBY-Feb. 10th.

Semble. A prescription or grant of a fishery cannot authorise the erecting of a wear entirely across a public river, whereby the passage of all fish shall be prevented; for that is prima facie a public nuisance.

THIS was an action upon the case against the defendant for disturbance of the plaintiff in his fishery in the river Ribble and the river Hodder, to which the defendant pleaded the general issue. At the trial at the last Lancaster assizes, before SUTTON,

B. the plaintiff proved his right of fishery, by general
usage, in the river, and that the defendant had erected
a wear below the salmon fishery of the plaintiff,
whereby all the fish were prevented from coming up
the river from the sea.. The defendant set up a grant
in the reign of King James I. of a water corn-mill,
and the liberty of taking in all seasons the salmon in
the river, and all other fish; with a right to a wear
across the river, which was not limited in terms as to
height or breadth, and it appeared that anciently he
and his predecessors had been possessed of a com-
mon brush-wood wear, which extended all across the
river; but which was so constructed, that, although
it prevented the large fish from passing up the river,
yet a great many fish insinuated themselves through the
interstices of the brush-wood and passed up. In the
year 1766, this brush-wood wear was in part removed,
and a stone wear was erected extending across two
thirds the width of the river, the rest being composed
of brush-wood as before; and in 1784, this stone-wear
was continued entirely across the river, and a complete
trap was constructed to catch all the fish, so that none
could pass up the river, except by the opening of the trap
at the pleasure of the defendant. It appeared that the
stone-wear was not higher than the ancient-wear.
The plaintiff's action was brought in 1804, after about
19 years' possession by the defendant. The learned
judge upon this possession, left it to the jury to say
whether the plaintiff was prejudiced in his fishery by
what the defendant had done; and secondly, if they
thought so, whether the defendant had not a right
to do it under the old grants. For as there was a stone-
wear over half the river in 1766, it was too late to
dispute that. The jury found that what was last built
was not higher than that built in 1766, and that it
must now be taken not to be higher than it ought to
be; upon which ground they found a verdict for the

1806.

WELD

versus

HORNBY.