nor has the plaintiff applied to be permitted to infpect the books of the corporation and been refufed, and that is a fufficient reafon for not granting the rule at present. So the rule was denied per totam curiam. EASTER TERM : 13 GEO. III. 1773. Harriot Pleafance Fell an infant, by her next friend, 2 Black. Rep. verfus Solomon Fell, Ésq. 888. S. C. court of THIS cafe was fent from the court of Chancery to be A cafe upon determined by the court of Common Pleas which a will fent ftates, that Thomas Fell Efq. being feifed in fee of and in from the several freehold and copyhold eftates, fituate in the parish Chancery, for of Bingley, and elsewhere in the county of York, on the 7th the opinion of day of December 1763, duly made and publifhed his laft will this court. and teftament, in the words and to the effect following, (that is to say,) mainder to his I Thomas Fell of Milnerfield in the parifh of Bingley in the [Devife to A. county of York, gentleman, do make and ordain this my laft for life, rewill and teftament, revoking former wills, in manner and form fon B. and his following; I refign my foul into the hands of my moft merci- heirs male ful Lord God, in hopes of a glorious refurrection to life eternal, for ever; through the merits of our bleffed Saviour Jefus Chrift; my his next heir body to be buried at the difcretion of my most affectionate male, the wife; the expence to be borne by my executor herein after-men- elder before tioned. And as to my worldly eftate and effects, I give and if no male bequeath iffue left be remainder to the younger: hind A. the ettate to de volve to the females; and if no females, then A. to give and dif pole as he thinks fit. bequeath the fame in manner and form following: and first, I give and bequeath to my loving wife, over and above what is fettled on her by jointure, all my perfonal eftate whatsoever (except pictures;) and I alfo give her out of my real eftate fo long as the fhall remain my widow 20l. a year, to be paid by my executor herein-after and my trustees herein-after appointed. Alfo I give to my coufin Martha Fell during her life 10l. a year for her better fubfiftence. And I give to all my fervants that shall live with me at the time of my deceafe 10l. each, and mourning, to be paid within one year next after my deceafe. tail male; re- And I do appoint my coufin Solomon Fell junior of the Six mainder to his Clerks Office, fole executor of this my will, and heir for life of tail; remain. all my eftates (except as before bequeathed, and as fhall be der to A. in herein-after mentioned;) and after his death to his fon Thomas fee.] A. is tenant for life, remainder to his fons in daughters in and his heirs male for ever; but if the faid Thomas fhould die without iffue, then to his next heir male for ever, the elder to be preferred before the younger; and if no male iffue left behind faid Solomon, then the eftate to devolve to the females; and if no females, then my faid coufin Solomon to give and difpofe of the fame as he fhall think fit, always remembering to have an eye to God's honour and glory and his own confcience in the difpofal thereof. And I do nominate and appoint the reverend Miles Burton now curate of Coverney in the Ile of Ely, Mr. Thomas Lillie minifter of the gofpel of Gilftead, and Jonathan Peele gentleman, of the fame place in the parish of Bingley, trustees, to fee the due performance of the execution of this my will, and for their trouble therein I do give them 20l. to be paid and received by them within one year next after my decease, out of the rents and profits of my eftate. And forafmuch as I am confcious that my debts, legacies and funeral expences will amount to a confiderable fum, I will, therefore, that my trustees aforefaid, with the confent of my executor, do fell and difpofe of my eftate at Welton, in the East Riding of York, as alfo all thofe eftates in the parish of Halifax and parish of Kildwick, late my fifter's, and now an undivided eftate between the reverend Gregory Perkins of Netherton and myself, for the moft money that can be got for the fame; and the money to go towards the discharge of my debts, legacies, &c.; and until my debts and legacies fhall be fully paid and difcharged, I will that my trustees pay to my coufin Fell my executor only 100l. a year; and I do appoint William Murgatroyd of Micklethwaite receiver of the rents and profits of my eftates, fo long as he fhall continue to give in to my trustees and executor a juft and fair account; and he fhall have a falary out of my eftate of 15. a year for collecting the faid rents. And if the faid William Murgatroyd fhould be indebted to me at the time of my death in any fum of money, I do hereby discharge him from the fame; and I will that that he remain tenant upon the premises he occupies at the fame rent during life, if he pays his rent regularly. And I do give my trustees aforefaid 20l. apiece, over and above the 201. already bequeathed for their trouble in the execution of the truft repofed in them. And I do give Obadiah Ramfbottom 50l. having ferved me faithfully, to be paid as above by my trustees, out of the rents and profits of my ellates. That on the 4th of June 1764, the teftator Thomas Fell made a codicil to his faid will in the words and to the effect following; viz. This codicil dated the 4th of June 1764, annexed to my laft will dated the 7th day of December 1763, I add firmly to eftablish and lawfully to corroborate my aforefaid will; for, forafmuch as I gave my eftate at Welton to the ufe of my executor therein named, not having then furrendered the fame in form that I might bequeath it to the ufe of my will (it being copyhold) I having therefore furrendered the fame, do order it to be difpofed of according to the ufe of my faid will; that is to fay, to be fold as foon as conveniently it can be fold, towards payment of my debts and legacies. And as to Mr. William Murgatroyd, I leave it to my executor's choice whether he shall chooie him as a fteward or not to collect his rents, &c. for I choose not to bind him in fuch an affair. I defire my wife, at the expence of my executor, may give gloves and rings to twentyfour perfons whom the fhall think proper, at or as foon after my burial as poffible; the price about 155. a ring. The faid teftator died on the 11th day of June 1764 without iffue, leaving Solomon Fell (father of the defendant Solomon Fell the devifee named in the will) his coufin and heir at law, who died on the 20th day of March 1770, leaving the defendant Solomon Fell his only fon and heir at law. The faid defendant Solomon Fell, the devifee named in the faid will, had, at the time of the death of the faid teftator, and at the time the fard will and codicil were made, Thomas his eldeft fon and the plaintiff his only daughter and no other children living; but he had had another fon named Solomon, born on the 7th day of August 1763, who died on the 7th day of November following; though the teftator at the time he made his will knew the defendant had had fuch a fon Solomon born, but did not know that fuch fon Solomon was dead. The faid Thomas Fell, the fon of the defendant Solomon Fell, died in February 1765, and the plaintiff is now the only furviving child of the faid defendant. Vol. III. D D The The faid defendant, upon the death of the teftator, proved his faid will and codicil; and fuch will and codicil have also been proved in the court of Chancery by the fubfcribing witnefies,. and the fame have been declared to be well proved, and are established by a decree of the faid court. Upon the death of the faid teftator the defendant entered upon and took poffeffion of fuch of the teftator's real estates as were not comprised in his marriage fettlement, and which unfettled eftates are of the yearly value of 500l. and the fettled estates are of the yearly value of 120l. and are fubject only to the intereft of the teflator's widow therein for her life. The plaintiff filed her bill in the court of Chancery against the defendant for an account of timber trees and wood cut down by him, and for an injunction to reftrain him from cutting down any timber or wood from, off the faid eftates, or any part thereof, or committing any other wafte or spoil thereon, infifting that the defendant is only tenant for life of the said cftates. The defendant by his answer infifted that he did, by virtue of the feveral limitations in the faid will, become intitled immediately upon the death of the teftator, or at leaft upon the death of the defendant's fons, to an eftate in fee in poffeffion, or to an eftate in tail in poffeffion, with the ultimate remainder in fee in the defendant in cafe of failure of his iffue; and therefore that he has a right to cut down what timber or trees he thinks fit from off the faid eftate, and is not accountable for wafte. The cause came on to be heard on the 23d day of April 1771, before the right honourable the Lord High Chancellor of Great Britain, when his Lordfhip was pleased to order that a cafe fhould be made for the opinion of this honourable court upon the will of the faid teftator, on the following queftions, to wit; What eftate the defendant Solomon Fell takes in the premifes in queftion under the faid will; and whether the plaintiff takes any and what estate in the said premises under the faid will? Thomas Walker for plaintiff. John Glynn for defendant. This cafe was well argued at the bar, by Serjeant Walker for the plaintiff, and Serjeant Glynn for the defendant, in Hilary term laft; and by Serjeant Davy for the plaintiff, and Serjeant Burland for the defendant, in this term. They They who argued for the plaintiff, contended that she took by the will a vefted remainder in fee, liable to be divefted out of her by the birth of a fon of Solomon Fell the defendant: and that Solomon Fell the defendant took only an eftate for his life. This being a cafe of great difficulty, and many different opinions having been given thereupon by the moft eminent counsel at the bar, before the commencement of the fuit in Chancery, I think it would be rather tedious to the reader to fet down the arguments at the bar in this court; efpecially as the court did not publickly give their judgment upon thofe arguments, but privately certified their opinion upon the questions put to them, by the court of Chancery. The Lord Chief Juftice in this term, acquainted the bar with the unanimous opinion of the whole court to the following effect, (and faid no more) viz. Black. Rep. We are all of opinion that Solomon Fell the defendant took an [See the certi eftate for life, and his fon Thomas dying without iffue, his daughter the plaintiff took an estate in tail general, and that a remainder in fee-fimple is vefted in Solomon Fell the defendant; this is our certificate to the Lord Chancellor. To fet down the cafes that were cited, would be nugatory, because there was not one to be found in point; the cafe of Loddington and Kyme was faid to come the nearest to it, by the counfel; but the court faid nothing to that. 8.9.] 892. S. C. Scott an infant by his next friend, verfus Shepherd 2 Black. Rep. an infant by his guardian. C. B. [Trespass vi armis main tained against who originally after having ΤΗ HIS is an action of trefpafs and affault wherein the plaintiff declares, that the defendant on the 28th day of October 1770, with force and arms, (to wit) with flicks, ftaves, clubs and fifts, made an affault upon the plaintiff at Taunton in the county of Somerfet, and greatly bruifed, wounded, and ill treated him, so that his life was greatly defpaired of, and then and there threw, caft and toffed a lighted fquib, confifting of gunpowder and other combuftible materials, at and against the defence by said plaintiff, and ftruck the faid plaintiff on the face therewith, at laft puts and fo greatly burnt one of the eyes of the faid plaintiff, that the plaintiff underwent and fuffered great and excruciating pain and torment for a long time, (to wit) for the fpace of fix months then next following, and afterwards wholly loft his faid eye; and the plaintiff hath not only been forced to lay out and pend a large fum of money, (to wit) the fum of 20l. in DD 2 ex other perfons our the plaintiff's eye. Edwards 5 Term Rep. K. See Day v. and B. 648: & about K. B. 125.j ift Count. |