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1806.

SPENCELY
qui tain
versus
E WILLUT.

order to try his credibility, we must at the same time try all the other causes on one issue. All the contradiction in his testiinony was left to the jury.”

LAWRENCE, J. “ If it was the same contract, it should be put so; but the question was, not in that form. If it was another contract to try his credit, then it could not be put at all. I think it has been solemnly decided, that any question to try the credit of a witness must be a question arising out of the cause, or it must be a general question. If it is not considered as decided, it is fit that it should be so in the most solemn way.”.

Lord Ellen BOROUGH, C. J. then added, that he had so often decided the point at Nisi Prius, that he was tired of it, and wished, that, in future, a bill of ex'ceptions might be tendered, in order to put the question at rest.

RULE NISI REFUSED, quoad hoc.

cent tolling

Doe on the demise of Cook and ELIZABeth his wife in right of the said ELIZABETH against DANVERS,

February 12th. T. T. possesseil of a customary estate, parcel of the manor Copyhold. Cus. of S., held of the lord of the manor according to the custom tomarses

Statute of lunta of the manor demiseable by copy of court-roll, to which she tations. Dewas admitted on payment of a fine, saring the right of the sc

"" entry. Sta. lord, and which she surrendered to such use as should be de- tute of frauds,

tod Trust wheat. clared by her will in writing, and of which she had granted W

Will in wrie a lease for forty-one yeurs, upon license by the lord, devised ting Custom the same by the description of "all tkut copyhold messuaye at S.

* Ejectment. to Mary C. wife of C.The devise was contained in a paper Misnumer oft of instructions written by her attorney in her presence, for the devisee and

Misdescr ption purpose of preparing a formal will, but which was not signed of estate in der by her, she lying before the will could be prepured, in 1780. vise. ForThe paper was proved as it will in the Ecclesiastical Court in

vise.

teiture.

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1782. Her heir was admitted to the estate as heir, in 1782, and, upon his death, his son, also in 1791; and they received rent upon the lease till the expiration thereof in 1800. After which, Elizabeth, not Mary Cook, the actual devisee, was admitted as devisee and brought ejectment. The lease contained a clause of re-entry for non-payment of rent, and a forfeiture was committed by the tenunt,twenty years before ejectment brought. Held as follows : The freehold of this customary estate is in the lord, though it is not held ad voluntatem domini, and it may well pass by the description of copyhold in a will, if the intent be so, whether strictly copyhold or customary freehold. It is not within 39 Car. II, c. 3, s. 5, nor within the 7th and 9th sections, where the words ' by will in writing' mean a will of lands, as in section 5 attested by three witnesses. A will directing the use of a copyhold or customary estate, is neither a declaration nor an assignment of a trust within that stutute ; for, there is no separation of the legal and equitable estate, which is essential to a trust. Such customary estate passes by the surrender and will according to the custom, and such a paper in writing proved in the Ecclesiastical Court, is a good will in writing under the custom, by analogy to the cases upon the statute of wills, 34 H. VIII. Also, the receipt of rent for tuenty years, under the lease granted by the testatrir, is no adverse possession to bar the entry of the derisee under the statute of limitations, 21 Jac. I. c. 16, and the time begins to run against her, only when the lease expires, for, till then, she could not bring ejectment or enter, and she was not bound to enter for the forfeiture. Neither did the descent from the heir of the testatrix to his son, during the lease, toll the entry; for the entry is not tolled where the only remedy is by entry, as in the case of a devise, nor where the estate of freehold is in the lord. Held also, notwithstanding the misnomér of Mary for Elizabeth, Elizabeth shall take under the devisee, if the jury find that Elizabeih was the devisee meant by the testatrix,

Dor dem. THIS was an action of ejectment to recover the pos

session of a liouse and premises situate in the paDANVERS. rish of St. Dunstan's, Stebunheath, otherwise Stemney,

Cook terus

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1806.

Doe dem. Cook

tersus DANVERS,

in the county of Middlesex. The declaration was en titled of Hilary term, 49 Geo. III. 1802, and was upon two demises by Mark Cook and Elizabeth his wife, in right of his said wife; the first demise being laid upon the 1st of July, 1800, and the second upon the 1st of January, 1802; and at the trial of this cause before the Lord Chief-Justice, the following facts were admitted and a verdict was found for the plaintif, subject to the opinion of the court on the following case:The premises in question are parcel of the manor of Stebunheath, otherwise Ştepney, in the county of Middlesex. At a court held for the said manor, on the 12th day of April, 1745 ; Thomazine Taylor, spioster, was admitted to the premises in question, by the description of“ all that customary messuage or tenement, with the appurtenances on the south side of Ratcliffe Broad-street, late in the occupation of Chandler Butcher, to have and to hold the said premises, with the appurtenancez unto the said Thomazine Taylor, her heirs and assigns for ever, of the lord of the said manor by the rod, according to the custom of the said manor, by the rent, suit of court, customs, and other services thereof, heretofore due and of right accustomed;" and she gave to the lord for a fine for such her estate and entry into the premises 11. 5s. and fealty was respited ; and so, saving always the right of the lord, the said Thomuzine Taylor was admitted tenant thereof in form aforesaid. At the same court, the said Thomazine Taylor, according to the custom of the manor, surrendered (amongst others) the premises in question, into the hands of the lord of the said manor, by the description of all and singular, her customary messuages, tenements, cottages, lands, and other bereditaments whatsoever, held of the lord of the said manor by copy of court.roll with their and every of their appurtenances to such uses, intents, and purposes as the said Thomazine Taylor, in or by her

Cook

VCI SUS DANVERS.

1806. last will and testament in writing, should limit, appoint, Doe dern. or declare. The court books of the manor of Stepuey,

now in existence, commence in the year 1654. They contain entries of admissions of all the tenants admitted to the premises in question between that period and the 3d of May, 1791 ; which are all in the same form. The habendum of these entries is also in the same form as that already set forth in the admission of Tho. mazine Taylor, and the admissions are severally followed by entries of surrender by the new tenants to the same uses and in the same form as is already set forth in that entry; and other tenements of the manor appear to have passed by grants similar to the foregoing from the commencement of the rolls. “ Thomuzine Taylor by indenture of lease of the 7th day of June, 1759 (by virtue of a previous license from the lord) demised the premises in question to Dorothy Whiting (since deceased) for 41 years from Midsummer day then next at the rent of 8l. per annum, payable quarterly on the usual rent dars, and subject to the following proviso for re-entry in case of non-payment; provided always, that, “ if it shall happen the said yearly rent of 8), or any part thereof, shall be behind or unpaid, in part or in all, by the space of twenty-one days, next over or after any of the said feast-days or times of payment on which the same ought to be paid as aforesaid, or if all and every of the defects, decays, and wants of reparations, which shall from time to time be found upon any such view, in or about the said demised premises, or any part thereof, be not well and sufficiently repaired or amended within the time

1] espace of three months next after any such notice or warning in writing, left or given as aforesaid, or if the said Dorothy Ilhiting, ber executors, administra

tors, or assigus, do not well and truly observe, perform, · and keep, all and every the covenants, grants, articles, and agreements herein contained, which, on her and

Doe den.

versus

their parts aud behalfs, are or ought to be observed, 1806. performed, and kept, that, then, and from thenceforth, Do and at all times afterwards, it shall and may be lawful Cous upto and for her the said Thomazine Taylor, her heirs DANVERS. or assigns, into and upon the said hereby demised premises, or inlo any part or parcel thereof, in the name of the whole, wholly to re-enter, and the same to have again, re-possess, and enjoy, as in her and their first and former estate." The lessor took possession of the premises under this lease, and she and her representative Mr. John Scott Whiting, the present tenant in possession, continued to occupy them from the commencement of the lease until the expiration of it at Midsummer, 1800. On the 3d of August, 1780, Miss Taylor, the lessor, gave directions to her attorney to prepare her will, and he accordingly wrote down the following instructions for it, and was desired to attend her therewith the following morning at eleven o'clock, to have it executed : Thomazine Taylor, of the parish of St. Mary, Rotherhithe, com. Surrey, spinster, by her will gives to John Noble, the father, in trust for Richard Noble and Thomazine Noble, all that messuage or tenement, situate on Fish-street Hill, London, in trust for bis two children until their ages of twentyone years ; all that' copyhold messuage or tenement, situate in Ratclil'e Highwuy, within the manor of Stepney, to Mary Cook, wife of -- Cook, and to her heirs for ever, (no surrender to use of will ever made ;) all the residue to John Noble, absolutely. To be buried in the vault under Limehouse church, where my uncle and aunt Mervin lie; and appointed the said John No ble sole executor ; to Mr. Francis Musun my best diamond ring of the value of 501." Before any will was formally prepared by the attorney under these instructions, viz. upon the said 3d of August, 1780, Miss Taylor died, leaving Thomas Dancers, father to the present defendant, her heir at law. These instruc

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