to the præ and hereditaments, called or known by the name or names of to make Battens, Adacroft, Bowda, Trefwell, Trefillam, Lanxton, and Green tenant Trewannet, lying in the feveral parishes of Northill, Linkinham, cipe. and Saint Juliot aforefaid, with the appurtenances; and alfo two twelfth parts of Twelve Men's Moor, with the appurtenances lying in Northill aforefaid, together with all houfes, &c. and the reverfion and reverfions, remainder and remainders, rents and fervices of the faid premises; and, all the right, title, intereft, ufe, poffeffion, claim, and demand whatfoever, of him the faid Vincent Darley, of, in, and to the fame manors, lands and premifes with their appurtenances; To HAVE AND TO HOLD, all and fingular the faid manors, meffuages, rents, lands, tenements and hereditaments, and all and fingular other the premises, with their and every of their appurtenances, thereby granted, released and confirmed, or mentioned or intended fo to be, unto the faid George Green, his heirs and afligns for ever, to the only use and behoof of the faid George Green, his heirs and affigns for evermore, to be holden of the high and chief lord and lords of the fee and fees of the faid premifes, by the rents, fuits and fervices thereof, (if any) antiently due and of right accustomed to be paid for the fame. There are the like deeds of leafe and release from Chriftian Coad to the faid George Green, of lands in Saint Ives, which are likewife comprized in the recovery herein-after mentioned. intent was to thereof. That by indenture tripartite, dated the first day of November 1 Nov. 1763. 1763, between the faid Vincent Darley, Chriftian Coad, and John Indenture reCoad of the first part, the faid George Green of the fecond part, above leafe citing the and Edmund Turner of the third part, after reciting the faid in- and releafe, dentures of leafe and release of the 28 & 29 of September 1763, and that the from the faid Vincent Darley to the faid George Green; and like- make Green wife the faid indentures of leafe and release from the faid Chriflian tenant to the Coad to the faid George Green; and that the faid feveral inden- præcipe, and for fuffering tures of leafe and release were fo made to the faid George Green, a recovery and his heirs, to the ufe, intent and purpofe, that he the faid and leading George Green might become perfect tenant of the freehold of the faid the ufes manor, meffuages, lands, tenements, and premifes, with the appurtenances, and fhould and might ftand. feifed thereof until a good and perfect common recovery with double vouchers over might be duly had, fuffered and executed, of the faid lands and premifes, according to the ufual courfe of common recoveries, for the affurance of lands and tenements, in fuch cases used and accuftomed, it is witnessed and agreed, by all the parties and their heirs, in manner following; that the faid Vincent Darley and John Coad, fhall and will, before the end of Michaelmas term then next coming, permit and fuffer the faid Edmund Turner to fue forth, and profecute against the faid George Green, one writ of entry, fur diffeifin in le poft, returnable before his ma 3 jesty's jer's mudices of the Common Pleas at Westminster, thereby demand. ing again the fan Serge Green, the faid manor, meffuages, lands, tenements, beredicaments, and premises therein-before mentioned, by fath name and names, number of acres, quantities, qualities, of and, and other certainties and descriptions in the faid writ to be coctained, and in fuch manner and form as by the counsel of the fri Einars Turner fhall be advised or required: Unto, and upon which were of entry, fo to be fued forth and profecuted, the faid Gorge Gren thall appear gratis in his proper perfon, or by his kwal attorney or attornies, and fhall vouch to warranty the faid 1 Dar and John Coad, who fhall likewife appear in their proper pertens, or by their attorney or attornies, and enter into warranty, and afterwards vouch to warranty the common vouchee whd hall likewife appear and imparl, and afterwards make default and depart in contempt of the court, fo that judgment may be thereupon had and given for the faid Edmund Turner to recover the faid manors, meffuages, lands, tenements, hereditaments and premifes, againft the faid George Green; and for the faid George Green to recover in value against the said Vincent Darley and John Coad; and for the faid Vincent Darley and John Coad to recover in value against the common vouchee; to the end one good and perfect common recovery, with double voucher, may be thereupon had, fuffered, perfected and executed, according to the ufual courfe of common recoveries, for the affurance of lands and tenements, in such case used and accustomed; and the fame recovery thall alfo be executed by writ of habere facias feifiam, accordingly: And that it was thereby covenanted and agreed, by all the parties and their heirs, that the faid recovery, lo, or in any other manner to be had and fuffered, of the faid manors, melluages, lands, tenements, hereditaments, and premites, with the appurtenances therein before-mentioned, should be and enure, and thould be deemed, conftrued and taken, and is thereby meant and intended, and thereby declared to be and enure; and the faid Edmund Tuner and his heirs, from and immediately after the fuffering and perfecting the fame, shall stand and be tested of all and fingular the faid manors, meffuages, Lands, tenements, hereditaments and premifes, and every part and parcel thereof, with their and every of their appurtenances, to and for the feveral uiès, intents and purpofes, therein and dereen atter mentioned, expreiled and declared, of and concerning the lame; and to and for no other ufe, intent or purpose, whanksver; that is to fav'. As for and concerning all and Auguin the taal manors, metfuages, lands, tenements, herediConena, two zweltch parts of Tiace Men's Moor, and all other the prem.cox, w. their and every of their privileges, commons, and appare sexes, thereunto respectively belonging, fituate, lyang and bag, the parithes of Northill, Linkinham, and Saint Zax, and cray of Cormais aforesaid; to the only use and boothe and,mime Derky, his heirs and affigns for ever; and and to and for no other ufe, behoof, intent or purpofe, whatfoever. And as for and concerning all and fingular the said manor called Charlton, and other the premifes, with the appurtenances, lying in the parish of Saint Ives, and county aforefaid, to the only use and behoof of the faid John Coad, his heirs and affigns for ever; and to no other use, intent and purpose, whatfoever. That in Michaelmas term 1763, a recovery was fuffered in his majefty's court of Common Pleas, accordingly; wherein the faid Edmund Turner was demandant, the faid George Green tenant, and the faid Vincent Darley and John Coad vouchees, who vouched the common vouchee, against whom judgment was had in the ufual form. That the trustees to preferve contingent remainders, never made any entry to avoid this recovery in the teftator's life time. That the teftator, Vincent Darley, died on the 8th day of February 1764, without republishing his will. That the tenements called Battens, Adacroft, and two Lanxtons, are comprized in the fettlement and recovery; And, That the manor of Trewithie, the moiety of the manor of Rellaton, Peverell, Bowda, Trefwell, Trefillam, Trewannet, and two twelfth parts in Twelve Men's Moor, are comprized in the faid recovery, and are not comprized in the fettlement of the 7th and 8th of February 1743. And that Trewithie tenement and Lewarne tenement are comprized in the faid fettlement, and not, by any particular names, in the recovery or deed, to lead the ufes thereof there. The question is-Whether the deeds executed and the recovery fuffered by the faid Vincent Darley, under the circumftances of this cafe, is a revocation of his will? This cafe was argued twice at the bar; the first time, in Eafter term laft, by Serjeant Nares for the plaintiff, (the heir at law) and Serjeant Leigh for the defendants; and in this prefent term, by Serjeant Burland for the plaintiff, and Serjeant Glynn for the defendants. fel for the It was argued by the counsel for the plaintiff, that the deeds Cafes cited executed and the recovery fuffered by Vincent Darley, was a by the counrevocation of his will; that it is an established principle, and plaintiff. well known, that if a man be feifed of lands in fee, and maketh Parliament his will thereof, and afterwards maketh a feoffment or other con- Caf. 154. I veyance thereof in fee, and takes back a new estate in fee, this Roll. Abr. 614. O. pl. 2, is 3, 4, 5. faid, that a recovery by tenant for life, remainder to truftees, &c. was a nullity, an innocent recovery, and in this cafe nugatory; that Vincent Darley's eftate for life was not devifeable; that all he could devise was his reverfion or remainder in fee; that he could not suffer a recovery of his remainder or reverfion in fee; that the recovery only operated upon his life-eftate, which amounts to nothing. Wilmot, Chief Juftice. There are a great many determinations touching the revocation of wills, and very nice artificial diftinctions are made in favour of heirs at law. It seems to be clear, from the latest determinations upon this subject, that if a man be feifed in fee, makes his will and devifes, and afterwards conveys by recovery, fine, feoffment, releafe, &c. and takes back the fame, or a different eftate, it fhall amount to a revocation; the reason is, that it must be prefumed he intended to alter his will: But we must confider whether the right of the trustees (to preferve, &c.) in the prefent cafe to enter, will not preferve the contingent remainders, although the trustees did not enter in the life of Vincent Darley. We will confider, and give our opinion to the court of Chancery.-After fome time taken to confider, the court gave their opinion, that the deeds executed, and the recovery fuffered by Vincent Darley, are a revocation of his will; but did not deliver their opinion,or give any reasons to the bar in communibanco. N. B. By an the will on the proceedings in Chancery, it appears that a called Bonds extract from meffuage, Walls, (7 Bro. 177, [3 Parl. teftator's wife during her rents, iffues, and profits of all teftator's chattel estates, if she should chufe to refide at Battens aforefaid; and the was alfo to have the use of all the houthold goods, plate, and furniture, at Battens, and the stock on the premifes, both quick and dead: Upon the further hearing of this caufe in Chancery, Lord Chancellor Camden was pleased to declare, That the teftator having fuffered a recovery after the execution of his will, the fame was thereby revoked, which made void, as well the bequest of Bonds Walls and of the other chattel eftates, and the use of the houthold goods, plate, and furniture at Battens, with the live and dead ftock, as the devifes of the real eftates, comprized in the recovery. The Widow Darley petitioned for a rehearing of the caufe, with respect to the whole decree, except as to the real eftates; whereupon the Chancellor affirming his former decree, the faid widow appealed from both the decrees to the lords, when their lordships were pleafed to reverfe them in toto, as to the matters complained of, and declared, That the widow was intitled to the benefit of the faid bequests, discharged from the condition of living at Battens, which the common recovery had put out of her power. C. B.. In confider- plaintiff a would accept on him by de Chilton verfus Whiffin and Cromwel. THIS HIS was a fpecial action of trefpafs upon the cafe, wherein the plaintiff declared, that the defendants and one William Hinkley were copartners in trade and merchandize; that Hinkley drew a bill of exchange upon the plaintiff, dated the 18th day of March 1766, for 65l. payable to one Robert Clay, or his order, fifty-five days after date; and in confideration that the plaintiff would accept the faid bill, the defendants undertook and pro- they promifed mifed to find money to pay the bill, take it up, and to fave the to indemnify plaintiff harmless and indemnified, by reafon of his acceptance wards the dethereof; that he accepted the bill, which became due the 16th fendants beof May 1766, and was indorfed by Robert Clay to Heathfield and came Smith, who on the 15th of September 1766, fued out procefs terwards the from B. R. and caufed plaintiff to be arrested, and held to bail plaintiff was for the faid 65. that on the 24th of November 1766, he put in fued upon the bail to that action, and in January 1767, was furrendered to charged in him; after rupts, and af bill, and execution. Refolved, the plaintiff could not come in as a creditor, under the commiffion. the |