mo 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. Gtasbrooke,* where A. devised land to his several children in tail, and if any of thetn 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.f&nd 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 thejudgment of the court was delivered to the effect following, by

Lord Ellenboroboh, C. J. After stating the

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1806. case. " On reading this will, although there may be rioTrieni perhaps some reason to think that the testator meant EVKHI.TT that in case T. Cooke died without leaving any chilCoi^e. dren, the estate should go over to W. Cooke and bis 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 IV. 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 lo 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 rend 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, orbe unmarried and of age at the lime of his death. And if we convert the word a/«/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 diyuuetivis sufficit alterampartem esse veram, 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, hrs dying unmarried or married without any children. He, the testator, might have intended that

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if he died on infant married and without children, his 1806. wife might be entitled to a distributive share, or that lie might make a devise in her favour, still preferring bis children to her, if he left <my. That is, if he died under age without wife or children, that it should go to IV. 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 infnnt unmarried, then over to W. Cooke and his children, but it 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


Dale (qui tam) against Bk^r.Feb. 12.

A plea in an action qui tam, not entitled qui tam, nor describing the plaintiff as sueing qui tarn, it not such a nullity practjce p, that the plaintiff can sign judgment as for leant of a plea, tiv|e 0t' * if there be not some other cause for misleading the plaintiff as to the real action in which the plea is pleaded.

'J'HIS was a rule to shew cause why the judgment D

should not be set aside for irregularity. The (qui mm) judgment was signed as for want of a plea. Thede- Ij"k"h' claration was entitled Thomas Dale {qui tam) v. Watter Jieer; 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 Ibrm. " And the said fValter comes and defends, 8tc. and says that he doth not owe the said sum of I. as the said Thomas hath above thereof complained against him."

Reader, in support of the rule, contended, that it was not necessary that the special character of the plaintiff should be stated in the title to the plea. It would not be necessary to state that a man sued ai executor. The christian names of both parties appeared upon the plea, and there was no other cause between the same parties.

LaWes, contra, 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 the court that a plea should be so entitled. Then the question is, whether there is sufticientcertainty for the plaintiff to know that it is a plea in his cause. Now 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 tarn, 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.

Weld against HornbyFeb. \Oth.

Semble. A prescription or grant of a fishery cannot authorise the erecting of a ucar enlirtly across a public ri'tr, whereby the passage of all fish shall be prevented; for tint is prima facie a public nuisance.

'jpHIS was an action upon the case against the defendant for disturbance of the plaintiff in hu fishery in the river Kibble and the river Hoddcr, 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 Imw. usage, io the river, and that the defendant had erected WsLD a wear below tl>e salmon fishery of the plaintiff, venut whereby all tiie fish were prevented froin coining up ^0BM,r* the river from the sea. The defendant set up a grant in the reign of King I. of a water corn-mill, and the liberty of taking in all seasons the salmon in the river, and ;ill 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 common 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 m;iny fish insinuated themselves through the interstices of the brush-wood and pussed up. In the year 1766, this brush-wood wear was in part removed, and a stone wear was erected extending across two thirds the widMi 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 plaintiffs action was brought in 1804, after about 19 years' possession by the defendant. The learned judge uppn this possession, left it to the jury to say whether the plaintiff w'as prejudiced in his fishery by what the defendant had done; and secondly, if they thought so, whetlier the defendant had not a right to do it under the old grants. For as there was a stonewear 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

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