Sidebilder
PDF
ePub

Dor der

vers715 Cook

no issue of her body lawfully begotten then the grant 1806. to her should be void: and D. should have the term : , and it was held, that the proviso should have this Everett construction, that if she die unmarried or married having no issue of her body (for she may not have lawful issue unless she be inarried) 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.”

Pelu, in reply, contended, that wherever it might be necessary in order to make the text of the will consistent with the intent, it was iminaterial 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.”

Pellthen cited Ball.v. Coleman;t and Doe d. Davy, v. Burnalist 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.

+ 2 Vern. 670, and i P. IVill. 142.
# 6 T. Rep. 30. .

li

NO. XXX. X. S.

1806.

Doe dem.
EVERETT

versus COUX E.

case. “ On reading this will, although there may be perhaps some reason to think that the testator meant that in case 7. Cooke died without leaving any chil. dren, 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 bave 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 W. Cooke and his three children. Now in order le support this construction we inust reject the words infant and unmar. ried 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 it be 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 iofant unmarried, or be unmarried and of age at the time of his death. And if we convert the word and into ot, 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 par. tem esse veram, it would have gone over, in case be died an infant, to the prejudice of his children if he bad 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 qua}ifications, bis dying unmarried or married without any children, He, the testator, might have intended that

* 3 Atk. 309.

tersus

if he died an infant married and without children, bis 1806. wife might be entitled to a distributive share, or that

Doe dem. he might make a devise in her favour, still preferring EVERETT his children to her, if he left any. That is, if he died

Coor. 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. Çooke 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 in ust be

JUDGMENT for the PLAINTIFF.

Ple,

DALE

versus BEER.

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 Peace
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

should not be set aside for irregularity. The judgment was signed as for want of a plea. The de. claration was entitled Thomus Dale (qui tam) v. Walter Beer; but the plea was entitled only as in a cause, Walter Beer at the suit of Thomus 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, wbich was in the ordinary form. “ And the said Walter comes and defends, &c. and says that he doth not owe the said sum of J. as the said Thomas hatla above thereof complained against him.”

1806.

DÁLE

versus BEER.

READÉR, 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 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 ELLENBOROUGH, C. J. “ There is no rule of 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. 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 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. Naisance. River.

:: Welp against HORNBY-Feb. 10th. Semble. A prescription or grant of a fishery cannot autho

rise the erecting of a wear entirely across à public river, whereby the passuge 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,

WELD

versus HORNBY.

1806.

WELD

versus HORNDI.

B. the plaintiff proved his right of fishery, by genera! usage, in the river, and that the defendant had erected a wear below the salmon fishery of the plaintif, whereby all the fish were prevented froin 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 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 many fish insinuated themselves through the interstices of the brushi-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 brusli-wood as before ; and in 1784, this stone-wear was continued entirely across the river, and a complete trap was construçled 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 plaintif'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 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 wbicli ground they found a verdict for the

« ForrigeFortsett »