1 Roll. Rep. 438. Lane and Pannel. Dyer 99. Style 325. and hath been in poffeffion ever fince; and that the faid John Robinfor, the furrenderor, died in the year 1767. That John Robinfon, the furrenderor, conceiving himself tenant in tail, under the furrender and admittance in 1720, did the proper act to bar an eftate tail, provided fuch eftate was vefted in him, according to the custom of the faid manor, previous to the furrender to the defendant Wharrey. This cafe was argued laft Eafter term, by Serjeant Leigh for the plaintiff, and Serjeant Glynn for the defendant: it was argued again in the prefent term, by Serjeant Nares for the plaintiff, and Serjeant Jephfon for the defendant. For the plaintiff it was contended, that this was an eftate in fpecial tail, executed in Mary Arnall, the wife of John Robinfon the fettler; on the other fide it was infifted, that the only took an eftate for life, with a contingent remainder to the heirs of their two bodies; that a contingent remainder muft veft eo inftante the particular eftate ends, or never can; that fhe dying in her hufhand's life-time, no estate could ever vest in their fon; for nemo eft hæres viventis. Upon both the arguments the court had great doubt, no cafe being cited on either fide that directly applies, fo as to govern the prefent cafe: the court gave no opinion upon either of the arguments, but feemed inclined to think, as this was a fettlement on marriage, with intention of the parties to provide for the wife and the iffue of the marriage, that the wife took an eftate in fpecial tail executed in her; but ordered the cafe to be argued again. Anonymous. Ulterius Concilium. IT T was faid by Bathurst Juftice, and not denied by the reft of the court, that if a man who has a right of common upon the lord's wafte, for cattle levant and couchant on his land, furcharge the common, the lord cannot for that cause diftrain, for the lord cannot judge thereof. It was alfo faid by Wilmot Chief Juftice, that if a man turn his cattle into Blackacre, where he has no right, and they escape and ftray into my field for want of fences, he cannot excufe himself, or justify for his cattle trefpaffing in my field. And it was faid by Blackstone Justice, that where a man turns in his cattle, under fome colour of right of common, the lord cannot diftrain; but if it appears he has no right at all, he may distrain. MICHAELMAS MICHAELMAS TERM 11 GEO. III. 1770. Johns verfus Whitley and others. C. B. (to wit) JOSE &c. Cornwall OSEPH WHITLEY, late of the parish of Lanhy- Trefpafs with drock, in the county aforefaid, victualler, Ed- a continuando ward Whitley, late of the parish of Saint Winnow, quare clausa fregerunt, in the faid county, hufbandman, and Peter Bennet, late of the ceperunt & fame place, husbandman, were attached to anfwer to John Johns, aportaverunt, gentleman, in a plea, wherefore, with force and arms, they broke and entered the clofes of the faid John, in the parish of Saint Winnow aforefaid, in the faid county of Cornwall; and trod down, confumed and spoiled the grafs and corn of the said John, of the value of ten pounds, there lately growing, with feet in walking; and eat up, trod down, confumed and fpoiled other the grafs and corn of the faid John, of the value of other ten pounds, there alfo lately growing, with certain cattle; and reaped, mowed, cut down, and felled other the grass and corn of the faid John, of the value of one hundred pounds, there alfo lately ftanding, growing and being, and took and carried away the fame, and converted and difpofed thereof to their own. ufe; and with the wheels of carts, waggons and other carriages, tore up, turned up, fubverted and fpoiled the foil of the faid John, in and of the faid closes; and alfo wherefore with force and arms, they the faid Jofeph, Edward and Peter, at the parish of Saint Winnow aforefaid, reaped, mowed, cut down and felled, other the grass and corn of the faid John, of the value of other one hundred pounds, there lately ftanding, growing and being, and took and carried away the fame, and converted and difpofed thereof to their own ufe; and alfo, wherefore the faid Jofeph, Edward and Peter, with force and arms, at the parish of Saint Winnow aforefaid, feized, took and carried away, other the grafs and corn of the faid John, of the value of other one hun dred breaking and entering clofes, fpoil ing the grafs and corn, and with cattle, &c. and for mowing and cutting and carrying away the fame and with carts, &c. fpoiling the foil of plaintiff. dred pounds, there lately found, and converted and disposed thereof to their own ufe; and did other wrongs to the faid John, to the great damage of the faid John, and against the peace of our lord the now King, &c. And thereupon the faid John, by John Kimber his attorney, complains; Declaration, for that the faid Jofeph, Edward and Peter, on the first day of ft Count for July, in the year our Lord one thousand seven hundred and fixty-eight, and on divers other days and times between that day and the first day of October then next following, with force and arms broke and entered the closes, (to wit) one clofe called Wall Park, one other clofe called Three Pieces, otherwife The Three Pieces, one other clofe called Dinny Bowl, one other clofe called Lane End, one other clofe called Bove Town, and fix other clofes of the faid John, in the parish of St. Winnow aforefaid, in the faid county of Cornwall; and trod down, confumed and fpoiled, the grafs and corn, (to wit) wheat, barley and oats, of the faid John, of the value of ten pounds, then there growing, with feet in walking; and eat up, trod down, confumed and spoiled other the grafs and corn, (to wit) other wheat, barley and oats of the faid John, of the value of other ten pounds, there then growing, with certain cattle, (to wit) with horses, mares, geldings and oxen; and reaped, mowed, cut down and felled, other the grafs and corn, (to wit) other wheat, barley and oats of the faid John, of the value of one hundred pounds, there then ftanding, growing and being, and took and carried away the fame, and converted and difpofed of the fame to their own ufe; and with the wheels of carts, waggons and other carriages, tore up, turned up, fubverted and fpoiled the foil, (to wit) five hundred perches of the foil of the faid John, in and of 2d Count for the faid closes; and alfo for that the faid Jofeph, Edward and Peter, on the faid firft day of July, in the year of our Lord one cutting grafs and corn of thousand seven hundred and fixty-eight aforefaid, and on divers plaintiff, and other days and times between that day and the first day of October then next following, with force and arms, at the parish of St. Winnow aforefaid, mowed, reaped, cut down and felled, other the grafs and corn, (to wit) other wheat, barley and oats of the faid John, of the value of other one hundred pounds, there then flanding, growing and being, and took and carried away the fame, and converted and difpofed thereof to their own ufe, and alfo for that the faid Jofeph, Edward and Peter, on the faid first day of July, in the year aforefaid, and on divers other days and times between that day and the faid first day of October then next following, with force and arms, at the parish of St. Winnow aforefaid, feized, took and carried away, other the grafs and corn, (to wit) one hundred cart loads of other grafs, one hundred cart loads of other wheat in the straw, one hundred cart loads of other barley in the ftraw, and one hundred mowing and carrying it away. 3d Count for taking and carrying away other grafs and corn of the plaintiff. 1 cart tart loads of other oats in the ftraw, of the faid John, of the value of other one hundred pounds, there then found, and converted and difpofed thereof to their own ufe, and did other wrongs to the faid John, to the great damage of the faid John, and against the peace of our faid lord the now King; wherefore the faid John fays that he is injured, and hath fuftained damage to the value of one hundred pounds, and therefore he brings his fuit, &c. the whole entering the the grafs, and cattle, and And the faid Jofeph, Edward and Peter Bennett, by Knowling it plea. Hawkins their attorney, come and defend the force and injury, Not guilty to when, &c. and fay, that they are not guilty of the trefpafs afore- declaration. faid, above laid to their charge, in manner and form as the faid John hath above thereof complained against them, and of this they put themfelves upon the country, &c. And for further ad plea as to plea as to the breaking and entering the faid clofes, in the faid breaking and declaration mentioned, in which, &c. and treading down, con- clofes in the fuming and fpoiling the grafs there lately growing, with feet in declaration, walking, and eating up, treading down, confuming and fpoiling the treading, &c. faid other grafs there alfo lately growing, with the faid cattle in the eating, &c. faid declaration mentioned, and with the wheels of carts, waggons the other and other carriages, tearing up, turning up, fubverting and fpoiling grafs with the foil of the faid clofes by the faid Jofeph, Edward and Peter with carts, &c. Bennett, above fuppofed to have been done, they the faid Jofeph, spoiling, &c. Edward and Peter Bennett, by leave of the court here to them for the foil; defendants plead this purpose granted, according to the form of the ftatute in fuch in bar. cafe lately made and provided, fay, that the faid John ought not to have or maintain his faid action thereof against them; becaufe That before they fay, that before any of the faid times when, &c. one Chrif any of the topher Harris Efq. was feifed in his demefne as of fee, of and in &c. one C. the faid clofes in which, &c. and being fo feifed thereof, he H. was feifed the faid Chriftopher Harris, long before any of the faid times in fee of the when, &c. (to wit) on the 4th day of July, in the year of our which, &c. Lord one thoufand feven hundred and twenty, at the parish and by inof Saint Winnow aforefaid, by a certain indenture then and there denture demade between the faid Chriftopher Harris of the one part, and fame to J. K. one John Knight of the other part, (one part of which faid indenture, fealed with the feal of the faid Chriftopher Harris, they the faid Jofeph, Edward and Peter, bring here into court, the date whereof is the fame day and year laft aforefaid) demifed the faid clofes in which, &c. to the faid John Knight; to hold for 99 years the fame to the faid John Knight, his executors, adminiftrators PK and and affigns, for and during the full time and term of fourfcore either of them and nineteen years, fully to be compleat and ended, if Peter thould fo long Knight and Mary Knight, fon and daughter of the faid John live, to begin Knight, or either of them, fhould fo long live; the faid term after the to commence and begin immediately after the death and deceafe death of E. of Edward Mitchell, or other determination of the eftate then M. &c. Vol. III. K fubfifting times when, clofes in mifed the M. Kor immediately K. intitled to the E. M. &c. wards, and be- And. J. K. afterwards entered upon the faid clofes and was pot being to pof fried; and feffed, the faid M. K. afterwards died. whereby J. fubfifting of and in the faid premifes; by virtue thereof, the faid became John Knight became intitled to the faid clofes in which, &c. faid closes, for the faid term fo demifed to him as aforefaid, expectant on expectant on the death of the faid Edward Mitchell, or other determination of the death of the eftate then fubfifting of and in the faid clofes in which, &c. and determinable as aforefaid: and the faid Jofeph Edward Whitley, and Peter Bennett, further fay, that afterwards, and long before any of the faid times when, &c. (to wit) on the 17th day of November, in the year of our Lord one thoufand feven hundred and forty, at the parish of Saint Winnow aforefaid, the faid M. died, &c. Edward Mitchell died; and thereupon the eftate fubfifting of and in the faid clofes in which, &c. at the time of the making of the faid demife, ceafed and determined; and the faid. John Knight, by virtue of the premifes, afterwards (to wit) on the first day of December, in the faid year of our Lord one thousand feven hundred and forty, entered upon the faid clofes in which, &c. and was poflefled thereof for the faid term fo demifed to him as aforefaid, determinable as aforefaid; and the faid John Knight being fo poffeffed thereof as aforefaid, the faid Mary Knight afterwards, and before any of the faid times when, &c. (to wit) on the first day of March, in the year of our Lord one thoufand feven hundred and forty-five, at the parish of Saint Winnow And the de- aforefaid, died and the faid Jofeph Edward Whitley, and fendants fur- Peter Benn tt, further fay, that the faid John Knight, being fo poffeffed of the faid clofes in which, &c. for the terin aforefaid, determinable as aforefaid, he the faid John Knight afterwards, and before any of the faid times when, &c. (to wit) on the firft day of April, in the year of our Lord one thoufand feven hundred and fifty-four, at the parish of Saint Winnow aforefaid, duly made his faft will and teftament in writing, and thereby conftituted and appointed the faid Peter Knight executor thereof; and afterwards, and before any of the faid times when, &c. (to wit) on the fame day and year aforefaid, at the parish of Saint Winnow aforefaid, died fo poffeffed of the faid clofes in which, &c. by By which P. means of which faid premifes, the faid Peter Knight afterwards, K.entered and (to wit) on the fame day and year laft aforefaid, entered into the faid clofes in which, &c. and was poffeffed thereof for the refidue of the term aforefaid, determinable as aforefaid; and be times when, ing fo poffeffed thereof, he the faid Peter Knight afterwards, and before any of the faid times when, &c. (to wit) on the fecond day of February, in the year of our Lord one thoufand feven hundred and fixty-feven, at the parish of Saint Winnow aforefaid; demifed the faid clofes in which, &c. with the appurte nances, to the faid Jofeph; to hold the fame to him the faid Jofeph from thenceforth, for the fpace of one whole year then next following, and fo from year to year, for fo long time as ther say that J. K. after wards, and before any of the times when, &c. made his will; and the faid P. K. execu tor, and died poffefted of the faid clofes. was poflefled; and before any of the demifed the fame to defendant Whitley for one year; and fo from year to year at will, and fo long as the eftate of P. K. should continue. the |