« ForrigeFortsett »
ties themselves. I cannot consider the possession of the dcfendanl as the possession of Coddan with respect to the le:;al rights subsisting between the plaintiff and Coddan, because the goods were transferred to him by a tortious act.'*
Afterwards, his lordship added, that the opinion of Lord Kenyan, in the case of Daubigny v. Duval, as far us it was.applicablc to this case, seemed to have been changed when he decided that of Sweet v. Pym. He hoped, however, that it would not be understood that he meant to say that a person who is entitled to a lien upon certain goods, may not commit the possession of them to another as his servant, with notice of the lifcn, and may not transfer, to such person, the right to insist upon the lien; his observation applied only to a tortious transfer of the possession. As if the factor had" delivered the goods to the defendant, with notice of his lien, and desired him to keep them as his security tor the amount of the lien; but here was nothing of this kind.
Rule Nisi Refused.
Doe on the Demise of Vernon against Vernon.—■
A. devised customary or copyhold estates to B. and kit heirs
vf being connected zzilh the surrender of A. to the use of mos.
hit talL "1 ■»
, Doc den.
Semble. D. has an equitable interest, and F. may be a trus. V«rno«
tee for D. and a court of equity may compel htm to sur- y I^kvk,
render ,• but D. has no legal estate, nor any remedy at /arc.
^HIS was an action of ejectment brought for the recovery of certain customary tenements in the parish of Wakefield and county of York, The cause came on to be tried at the assizes for the county of York, held on the Qth day of March, 1805, before Mr. Baron Graham, when a verdict was taken for the plaintiff, subject to the opinion of the court on the following -ase:
Thomas, Earl of Strafford, being seised to him and his heirs, according to the custom of the manor, of (amongst others) the tenements mentioned in the declaration; which are customary tenements, holden of the manor of Wakefield, by copy of court-roll, by rents and services, according to the custom of the manor, and pass by surrender and admittance, paying on admittance thereto, some of them compounded or certain fines, and others of them uncompounded or arbitrary1 fines, to the lord; on the 10th of April, 1739, according to the custom of the manor, made the following surrender of these customary tenements with the appurtenances, to the use of his will: "At this court it wa» witnessed, upon the oath of Benjamin Sigston, a tenant of the lord, that the Right Hon. Thomas Earl of Strafford, the 10th day of April, 1732, did surrender into the hands of the lord of the said manor, by hU hands, all and singular the messuages, dwelling houses^ cottages, closes, lands, tenements, and hereditaments whatsoever, with their and every of their appurtenances, situate, lying, and being in Wakefield, Stanley, Akerthorpe, Thorns, and Sandal Magna, Or elsewhere within the said manor of Wakefield, which the said carl now holds of the lord of the said manor of Wakefield, by copy of court-roll, in whose tenures or occu.
1805. pations soever the same now are or be, being of the ^—-— yearly rent to the lord in the whole, of 4l. 10s. 8£d. Vihnoh and compounded for; to and for such use and uses, intents and purposes, and upon such trusts and limitations, and under such powers and authorities as are or shall be limited, expressed, or declared, in or by the last will and testament, iu writing, of him the said earl, and to and for no other use, intent, or purpose whatsoever. The whole of the lord's rents paid for customary tenements of the said earl.holden of the said manor, amounted at the time of the said surrender of the said earl to ll. 18s. l^d.; part thereof, to wit, 21. I Is. id. being for the compounded, and 21.6s. 8;d. the residue thereof, being for the uncompounded part ©f the customary tenements. The said earl, on the £2d day of June, 1732, by his will of that date, duly executed, after specially devising several estates to be held in tail, made the following general residuary devise of his other estate, including die said customary tenements, holden of the manor of Wakefield as aforesaid, which he had so surrendered to the useof his will. "And as to all others my manors, messuages, lands, tenements and hereditaments, whatsoever and wheresoever, either freehold or copyhold (except those in the said counties of York, Lincoln, and Nottingham^ which I have already disposed of by my will as aforesaid) subject to the said several rents-rcharge of 2000/. and 200/. per annum, and such devises thereof as. aforesaid; and the legacies by this my will or by any codicil which I shall hereafter make^ I give and bequeath the same, in failure of issue male of the body of my son William Lord Wtntworth, and of my own. body, to my said three daughters, Lady Anne, Lady Lucy, and Lady Harriet, and their heirs, equally to, be divided between them, as tenants in common, and not as joint-tenants." The said testator died in November, 1759, without altering or revoking his said will, and leaving his only Sod, the said fVilliam Earl of, Strafford, and his said three daughters him surviving. W illiam Earl of Stratf ord, on the death of his'father Earl Thomas, entered into the said customary tenements, and enjoyed the same till his death without issue in 17IJ1; but was never admitted thereto, unless as may be from what is hereafter stated. Lady Harriet Vernon, one of the daughters of the said Earl Thomas, on the <2l)tli day of April, 177U. and w hilst she was a widow, by her will of that date duly executed, devised as follows: "W hereas under or by virtue of the last will and testament of my late father the Earl of Strafford deceased, I am or shall be entitled, upon the contingencies therein mentioned, to the fee-simple of and in one undivided third or some other part or share of divers manors, messuages, lands, tenements, aljd hereditaments in the several counties of York, Lincoln, Nottingham, Isort/utmpton, Bedford, Suffolk, and Middlesex, or elsewhere: now 1 do hereby give and devise all my estate, right, title, share, and interest, of, in, and to the said several manors, messuages, lands, tenements, and hereditaments, of what nature or kind soever, and wheresoever situate or being, unto and to the use of my son Levcson Vernon, his heirs and assigns for ever, but subject, nevertheless, to, and 1 do hereby charge the same estates with, the payment of 2500/. from and immediately after my said adn Leveson Vernon, his heirs or assigns, shall come into possession thereof, such sum of 2500/. to be paid as therein directed." And after bequeathing several specific legacies, she devised as follows :"And all the rest, residue, and remainder of ray estates, real and personal, of what nature or kind soever, goods, chattels, and effects, I give, devise, and bequeath to my sou, Leveson Vernon, his heirs, executors, and administrators." And the said Lady Harriet, afterwards, on the 15th day of July, 1779, by her codicil of that date duly executed, deviled us follows : " Whereas since the Mo. x.\iv. K. s. C
making of the foregoing will, I am become seised of or entitled to sundry manors, messuages, lands, tenements, hereditaments, in the counties of Northampton and Bucks, devised to me by Elizabeth Tordiffe, widow, lately deceased; I do hereby give -and devise all and singular the said estates, and all and every my rinht, title, and interest therein and thereto, unto and to the use of my son, Leveson lemon, his heirs and assigns for ever, charged and chargeable nevertheless with the payment of several annuities as therein mentioned; and I do hereby confirm my foregoing will in all respects, and declare this to be a codicil thereto." The said Lady Harriet never surrendered the said customary tenements to the use of her will, nor was she or any other person (except as after mentioned,) ever admitted to the same, subsequent to.the death of the said Earl Thomas. The said Lady Harriet died in 1786, without altering or revoking her said will or codicil, leaving two sons her surviving, viz. Henry Vernon, Esq. the defendant,.her eldest son, and Leveson Vernon, Esq. the lessor of the plaintiff ', and devisee named in her will, her youngest son. On the death of the said William, Earl of Strafford, son of Earl Thomas, considerable freehold estates in-the counties of Northampton, Suffolk, Middlesex, and Kent, came into the possession of the descendants of the aforesaid three daughters of Earl Thomas, on failure of his and his sons' issue male, by virtue of the aforesaid residuary devise in his will, and the lessor of the plaintiff', Leveson Vertton, Esq. by virtue of the will of his mother, the said Lady Harriet, became entitled to one third part thereof, and has ever since enjoyed the same ; but the said Lady Harriet was not at the time of making her said will, or at the time of her death, seised of or entitled under or by virtue of the will of her said lather, Thomas Earl of Strafford, to any devisable estate or interest of or in any freehold premises, or any other pre