ROE on the demise of SAMPSON against Down and another. to 1787. Easter Term. Under a devise to a party of premises for be life, provided THIS was a special case for the opinion of the of he chooses to reside therein, and then to A. B. in fee, it is not necessary to com plete A. B.'s right to the premises, on the death of the devisee for life, that such devi see should have actually resided in the premises. The intention to reside, and which intention would have been carried into effect had circumstances permitted, is W. S., (father of the lessor of the plaintiff) was on the 7th of July, 1781, admitted to the land, to hold to him, his heirs and assigns for ever, and at the same time surrendered it to the use of his will. On the same day he and M. E. his wife were admitted to the house sufficient. and garden, to hold to him during his natural life, and from and after his decease to the wife during her natural life, and from and after the decease of the said W. and M. E., then to the right heirs of the said W. for ever: and at the same time he surrendered the said house and garden to the use of his will. The said W. S., on the 11th of April, 1783, duly made his will, whereby he gave and devised all that his copyhold messuage or tenement, with the lands, hereditaments, and appurtenances thereto belonging, situate at Plaistow, in the county of Essex, unto his said wife, M. E. S., for and during the term of her natural life, in case she should choose to live and reside therein: from and immediately after the decease of the said wife, then he gave and devised the same unto his son, W. J. S., and the heirs 1787. ROE on dem. SAMPSON against Down and another. of his body; but in case his said wife should not choose to live and reside in his said house at Plaistow, then he gave and devised the same, and the lands, hereditaments, and appurtenances thereto belonging, unto the defendants, and the survivor of them, upon trust that they (his said trustees) did and should, as soon as conveniently might be after his decease, sell and dispose of the same; and he directed that the money arising by such sale should be considered as part of the residue of his personal estate therein after disposed of, and be applied accordingly; and in the event of his said wife's declining.to live and reside in his said house at Plaistow, and the same being sold and disposed of, and the money arising therefrom applied as thereinbefore directed; he gave and bequeathed to his said son, W. J. S., the lessor of the plaintiff, in lieu of the reversion of the said messuage, lands, hereditaments, and premises, the sum of 1,000l. of lawful money of Great Britain, when he should attain the age of twentyone years; but in case his said son should happen to die before he attained the said age, then the said 1,000/. was to fall into the residue of his personal estate; and as to all the residue of his personal estate not thereinbefore by him disposed of, he gave and bequeathed the same unto the said defendants, upon the trusts, and to and for the several ends, intents, and purposes therein-after mentioned. That on the 21st of February, 1784, the said W. S., the father, died without altering his will: that at the time of his death his wife, M. E. S., was in London, not at Plaistow, and in a very bad state of health. She said to her daughter, Miss S., that she was going to Bath, and if she returned from thence she would go to Plaistow. Within ten days after the death of the testator, namely, on the 1st of March, 1784, Mrs. S. died, without having at any time since her husband's death resided on the estate at Plaistow. The lessor of the plaintiff is the eldest son of the testator, and to whom the premises in question are devised after the death of the wife, in case she should choose to reside therein. The question for the opinion of the court is, whether under all the circumstances the lessor of the plaintiff be entitled to recover? Fielding, for the defendant. I contend that the lessors of the plaintiff have no title to the premises in question. The will devises the premises unto the testator's wife for life, provided she chooses to reside therein, and upon her death to the lessor of the plaintiff; but in case she shall not choose to reside therein, then unto the defendants. Now the testator clearly meant that his wife should reside in the premises, and the words in the will, if she shall choose to reside, mean, if she shall actually reside. SED PER CURIAM. The wife's intention to reside on the premises is sufficient, provided the intention would, circumstances permitting, have been carried into effect; and as there is sufficient evidence of that intention, there must be DE Judgment for plaintiff. LAYCOCK against TUFNELL. 1787. ROE on dem. 1787. Hilary Term. ECLARATION in replevin, for seizing the cattle The plaintiff in and goods of plaintiff; avowry for 1587. 10s., half plead in bar a a year's rent due to defendant under a demise to set-off to an avowry for rent (a). Qu. Where an avowry, stating the plaintiff to have held under a demise, at the yearly rent of 3177, without stating when the rent was payable, does not mean that the rent was payable yearly. (a) But he may plead a payment ; as a payment of rent to the ground landlord or to prior incumbrancer, or of land or property tax. 4 T. R. 511. 6 Taunt. 524. Dougl. 624, 5. 3 Barn. and Ald. 516. 3 Moore, 278. 1 Brod. and B. 37. 1787. LAYCOCK against TUFNELL. plaintiff. The avowry stated that the plaintiff held under a demise at the yearly rent of 3177., without stating when the rent was payable. To this avowry the plaintiff pleaded in bar a set-off for goods sold, work and labour, &c. as to part of the sum due for rent, and as to the residue, a tender. The defendant demurred to that part of the plea, claiming a set-off, and the plaintiff joined in demurrer; and as to the tender, the defendant replied a subsequent demand; the plaintiff demurred to this replication. Farhill, for defendant. A set-off is not pleadable in bar to an avowry for rent, for this is an action grounded on tort, and the statute only makes it pleadable in actions of debt or contract. Graham v. Graham v. Fraine, B. R. Hil. 24 Geo. II., is in point: and in the above case it was said, that in the case of Absalom v. Knight (b), at Reading Assizes, 1742, the judge at the trial had refused to let plaintiff in replevin go into any evidence of a set-off, in order to prove no rent due; this opinion was afterwards confirmed in full court, on a motion for a new trial. The court were clearly of opinion, that there could not be a set-off of this nature in replevin, and were about to give judgment for the defendant, when Wood, for the plaintiff, objected that it would be presumed from the avowry that the rent was reserved yearly, whereas the defendant had distrained for half a year's rent. But the court paid no regard to the objection, as the plaintiff had by his pleading admitted the rent to be due. Judgment for defendant. (b) Barnes, 450, 4to. ed. Bull, N. P. 181. CARTER, Assignee of SHERIFF OF MIDDLESEX, against YATES. Middlesex, DECLARATION in debt on a bail bond, against one of the bail, at the suit of the plaintiff, under an assignment of the bond by the sheriff to the plaintiff. Plea, actio non, because that the said plaintiff exhibited his bill against him the defendant in this cause, on Tuesday next after the morrow of the purification of the Virgin Mary in Hilary Term, being the 6th day of February, in the 27th year of the reign of our lord the now king; and that the said assignment of the said writing obligatory in the said declaration mentioned, was not at any time before or on the said 6th day of February, the said day of exhibiting the said bill of the said plaintiff in this behalf, stamped according to the form of the statute in such case lately made and provided; and this the said defendant is ready to verify; wherefore he prays judgment, if the said plaintiff ought to have or maintain his said action thereof against him, &c. Replication, precludi non, because that the said assignment of the said writing obligatory in the said declaration mentioned, was, at or before the exhibiting the said bill of the said plaintiff against the said defendant, duly stamped, according to the form of the statute in that case made and provided, to wit, at Westminster aforesaid, in the county aforesaid; and this he the said plaintiff prays may be inquired of by the country, &c. Demurrer for the following causes: for that the said replication doth not answer the said plea, inasmuch as he the said defendant, in and by his said plea, pleaded two several and distinct matters, to wit, that the said 1787. Easter Term. To a plea in bond, at the suit of the as action on bail signee of the sheriff, that the assignment of the bond was before the ex- not stamped before the exhibiting the bill; and con clude his replication to the country. He need not take issue as to the bill was exhibited, nor aver that the assignment was stamped "be time when the fore the com mencement of the suit," if the action thereon be in K. B. And if the plaintiff avers that it was Westminster, he stamped at may neverthe less conclude to the country. |