2 Black. Rep. Throgmorton, on the demise of Robinson, versus 728. S. C.

Wharrcy. C. B. Ante, Ter. Trin. 10 Geo. III. [Sec ante page IN this terin the case was argued the third time, by Serjeant 125.]

Burland for the plaintiff, and Serjeant Forfter for the defend

ant. See the full and exact state thereof in the last term. J. R. being

Serjcant Burland- Fohn Robinson being seised in fee of the seised in fee, copyhold lands in question, on the first day of August 1720, fursurrendered

rendered the faine to the use of Mary Arnall (whoin he then copyhold lands to M.A.

intended to marry), and the heirs of their two bodies lawfully whom he in- to be begotten ; and for default of such issue, to the use of the tended to

right heirs of the said John Robinson. The marriage afterwards marry, and the heirs of

took effect, and Mary was accordingly admitted tenant of the their two premises in question. bodies; and for default of fuch issue to the use of the right heirs of the said J. R. Refolved, that M. A.took an estate for life, with contingent remainder to the heirs of the body of her and her husband.

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The question is, what estate the wife took by the surrender? I am to contend, that she took an estate in special tail executed.

'It is laid down in Beresford's case, 7 Rep. 42. a. that such construction of a deed shall be made, as to produce three effe&ts; 1. To stand with the rule of law; 2. With the intention of the donor; 3. That all the parts of the deed may stand together,

if this may be by the rule of law. dod

In consideration of the marriage, the friends of the wife were bargaining with the intended husband, for the benefit of her and her children ; and it was never meant, that it should be in the power of the husband and wife to bar the issue; which it cer. tainly would be, if she only took an estate for life, with a con.

tingent remainder to the heirs of their two bodies, as is coni Leo. pl.

tended on the other side; and therefore, to carry the intention 133. Dyer

of the parties into execution, the wife must take an estate in 20. Lit: 26. special tail : and in such case all the persons will take the estate Pollex. 461. which was intended for them; therefore the court will go as far

as possible to effectuate the deed of surrender; and will not 1 Roll. Rep. favour a contingent remainder, if it clearly appears that the 239, 438. 3 Leon. 4. intention of the parties was to create a better estate for the wife

and her issue.

Yelv. 131.

Serjeant Forster for the defendant-Mary Arnall took an estate, for life, with a contingent remainder to the heirs of the bodies of her and her husband. It could not be the intention of her



husband, that she should have an estate tail executed; for in that Cro. Car. case, if he had survived him, it would have been in her power joza

Ld. Raym. to give away the estate from his children by her; and he cited Goffage versus Taylor, Style 325. as in point, that the wife took only an estate for life, with a contingent remainder to the heirs of their two bodies; and after a few days taken to consider, the court were of that opinion, and gave judgment for the defendant.

ant cannot


K. B. 194•

S. C.

Dowgall versus Bowman. C. B.

2 Black. 723.

S. C. SERJEANT Burland moved for leave to plead several pleas. The defende

to a declaration in case, upon promises; viz. non af umpsit 10 all the counts, and a tender; which was opposed by Serjeant ajjimpfit to

plead non Leigh, who infised, that the course and praciice of pleading a all the coun:s, lender, is, to plead it to part, and non assumpsit as to ail the reft. and a tender And of that opinion was the court; and refused to give leave to [See Maciulplead non afumpfit to the whole declaration, and a tender as to lan v. Hverado

4 Terin. Rep.

Strithorst versus Græme Esq. C. B. 2 Black. 723. Z Vartha

r Serkeley CASE upon several promises. The defendant pleaded, non The statute of

affumplit infra fex annos. The plaintiff replied, that he was limtations .836 abroad at the time of making the several promises in the Tronseed declaration, viz. at A. in the kingdom of S. and that he hath againit a ever since been, and fill is, abroad out of this kingdom. The plintiff who atacan

is a foreigner, defendant demurred, and the plaintiff joined in demurrer. unilhe comes I ha. your

Serjcant Glynn, for the defendant, objected that the replica- realm, tion was ill; but gave no reason why it was so, that I heard.

Caria. If the plaintiff is a foreigner (as it seems he is), and doth not come to England in fifty years, he still hath fix years after his coming into England, to bring his action; and if he never comes to England himself, he has always a right of action wbile he lives abroad, and so have his executors or administra. tors after his death. An infant inay sue before he comes of age, if he pleases; but if he does not, he has six years after he comes of age to bring his action. While


of the disabilities mentioned in the statute of limitations continue, the party may, but is not obliged to commence his action : the statute doth not run, while any of those disabilities continue.

can never be
gin to run

into this

Judgment for the plaintiff.

Vol. III.


Tinkler versus Poole and another. B. R.

Troverdige TROVER, for twenty-three barrels of herrings: Upon not

guilty pleaded, this cause was tried at Westminster, before of the re

Lord Mansfield. Verdiet for the plaintiff. Damages 281. 155. venue, for making a cofts 4os. subject to the opinion of the court, upon these short wrongful facts; viz. seizure of goods. [ 5 Burr. The defendants, being officers of the salt duties, tortiously 2657. S. C.] feised the twenty-three barrels of herrings; the plaintiff demanded

the herrings to be restored to him which was refused, and they were condemned by the commissioners of the salt duties: it appeared at the trial, there was no legal foundation for such condemnaion.

Mr. Dunning, for the defendants, objected that trover did not lie against the defendants; for that the seisure of the herrings, and putting them into the Custom-house warehouse, could not be said to be a conversion to the use of the defendants, the King's officers, but trespass, or trespass on the case : and he citęd Bunb. 67, 68, 8o.

But per curiam-The King had no property; so the goods were tortiously feised by the defendants, which was a conversion in the defendants, the officers. And the case in Bunb. 67. is not law.

Judgment for the plaintiff.

Buscall and others, Allignees of Thickpenny a Bank

rupt, versus Hogy. C. B. A new trial T ROVER for a great many goods, to the value of zool. granted to

Upon not guilty pleaded, this cause was tried at the latt , without costs, assizes for the county of Norfolk, before Lord Chief Baron Par. he having ker. Whereupon it appeared on the plaintiffs evidence, by been impro.' feven witnelles, that Thickpenny was an inn-keeper; and that he perly non

not only fold liquors to his guests ( hospitantibus ) in his inn, but also fold divers quantities of wine, rum and brandy, by four, five and fix gallons at a time, to several persons living two and three miles distant from his inn, for them to retail out and sell again, and had done thus for some years; whereupon it was insisted by the counsel for the plaintiffs, at the trial, that this fort of trading by an inn-keeper, made him liable to a cominiflion of bankrupt :



but the Chief Baron, without hearing any other evidence, was of a different opinion; and ordered the plaintiffs to be nonsuited, with leave to move the court for a new trial, without costs, in case he was mistaken in his opinion.

And now upon the motion of Serjeants Whitaker and Forster, to set aside the nonsuit, the court was clear of opinion, that the plaintiff ought not to have been called, but the matter ought to have been more fully sifted and gone into at the trial; that it not appearing to the court here, what proportion Thickpenny's trade in his inn bore to his trading abroad and out of doors, they could not judge whether he was liable to be a bankrupe or not; and therefore they set aside the nonfuit, and granted a new trial without cofts.

Nota. It was faid by Wilmot Chief Justice, that if Thick. penny's trade and profits in his inn was much larger than his trade and profits abroad out of the inn, he should incline to think that he was not liable to be a bankrupt. If it should come out in evidence that Thickpenny got 6ool. per annum in his inn, and not boos. per annum by sending out and selling liquors abroad; he seemed clear in opinion, that he could not be a bankrupt. However, as there was general evidence that he was a trader out of his inn, the plaintiffs ought not to have been nonsuited.

Simmons verfus Shannon.

C. B.

2 Black. Repa

725. S. C.

UPON a motion on behalf of the defendant, to set aside the Proffice.

judgment in debt on a bond for irregularity, it was sworn Notice of a by the defendant's attorney, that he had put in bail for her, being fiea, but that he had never received any declaration, or any notice of whether nea declaration being left in the prothonotaries office; which upon ceffary where Thewing cause was admitted to be true, but at the same time it

bail is put in? was inlisted on behalf of the plaintiff, that the judgment was regular; for that, by the known practice of the court where special bail is put in by the defendant's attorney, there is no oca casion to give him notice of a declaration being entered and filed in the office, but he ought to search for it there. There being a variety of opinions among the prothonotaries and lecondaries, touching this point of practice,

the court set aside the judgment upon payment of costs to plaintiff's attorney, and faid they would make a rule to fetile this point of practice. Nota, the capias was returnable, the first return (November 3d) declaration left in the office de bene ele, November Ôth, bail was put in on the 8th, on the 10th exception was made to the bail, on the 13th the bail justified; on the 14th plaintiff's attorney found plea of


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coverture in abatement in the office, and to signed judgment, the plea being put in after the four days. Per Chief Juftice, it is a good defence. Per Gould Justice, Let it not be understood by our setting aside the judgment under the circumstances of this particular case, that the court means hereby to enlarge the time for pleading dilatory pleas beyond four days.


11 GEO. III. 1771.

2 Black. Rep.

CANUARY 23d, 1771, Mr. Baron Smythe and Mr.

Justice Afton, two of the lords commissioners of the great 5. Bur. Rep. jeal, fat in the court of Chancery this morning: at noon the 2692.

lords commissioners resigned the feal to the King, when his majesty was pleased to give it to the lord commissioner Bathurst, one of the justices of his majelly's court of the bench, with the style and dignity of Lord High Chancellor of Great Britain, being lately created a peer of the realm, by the style and title of Henry Lord Apsey, Baron of Afley, in the county of Suffex.

January 25th Sir George Nares, knight, one of the King's ferjeants at law, was appointed by luis majesty a justice of his court of the bench, in the room of Lord Apsley.

January 26th, Sir William de Grey knight, the King's attorney general, was called to the state and degree of serjeant at law, and appointed by the King lord chief justice of his majesty's court of the bench; and

On Monday, January 28th, the right honourable lord chief justice de Grey, and the honourable Mr. Justice Nares took their respective places in court.


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