able in like manner as bills of exchange, generally; and if the plaintiff in error would reftrain or confine this power of indorfing or affigning notes to the perfons only to whom fuch notes are payable, it lies upon him to fhew that this is fo, by the true meaning and conftruction of the ftatute; but that he has not. done.

The whole intereft and property of this promiffory note_was in the administratrix; which note, in its nature, is made affignable by act of parliament; and therefore I say again, that it is incumbent upon the plaintiff in error to make it out that it is not affignable in the hands of the adminiftratrix; but why it fhould not be affignable in the hands of her who hath the whole property in it, I cannot tell; and if inquiry was to be made into the ufage among merchants, I believe there would be found many instances of these notes being affigned by administrators.

As to the 2d objection, I think it has received a very full anfwer. In an action brought by an administrator himself, whose power to fue is founded upon the letters of adminiftration, it must be alledged in the declaration, that administration was committed to him, and that those who granted it had a right to grant it; but he who claims under an adminiftrator, has no occafion to make a profert in curiam of the letters of administration, because he has not the fame in his power or cuftody. Upon the whole I am of opinion that the judgment ought to be affirmed.

Wright Juftice, spoke to the like effect, and was of the fame opinion.

Denifon Juftice, fpoke to the like effect, and moreover faid, That as this cafe came before the court upon a demurrer in law, the question was, Whether this is not a good indorsement in point of law? And he was of opinion that it was good, and that the act of parliament must have a liberal construction, it being made for the benefit of trade and commerce.

But Mr. Juftice Denifon further faid; That if it had appeared to the court upon a special verdict, that there was no fuch cuftom among merchants, as for adminiftrators to indorfe or affign bills. of exchange, it would have been a very different cafe from the prefent; but that no fuch thing appeared, and in truth that the cuftom is for adminiftrators to indorfe and affign bills; that he previously had fome notice of this cafe coming before the court, and therefore had inquired touching the ufage among merchants, and been well informed that it was the conftant ufage amongst them, for adminiftrators to indorfe and assign over bills of exchange made payable to their inteftates or order:

That

feme fole of

order, the

husband's

property, and

That fuppofe a note of hand is made payable to a feme fole before marriage, and the afterwards marries, being poffeffed of the note, payable to herself or order, fhe, being covert, cannot indorfe A note pay-6.1.486 and affign over the fame. And to this purpose he cited a cafe of able to a Connor and Martin, in C. B. Eafter, 8 Geo. 1. which he himself took a note of in that court; it was an action brought by the marries, it indorfee of a promiffory note, payable to Sufan Connor or her becomes her order, and given to her before marriage; which note, after her marriage, and while covert, the indorfed to the plaintiff: The the cannot defendant pleaded that Sufan Connor was married at the time of indorfe it the making the indorfement: The plaintiff demurred; and the es queftion upon argument was, Whether the plaintiff could main-1 Str. 516. tain the action upon a note indorfed by a feme covert? The [and fee IP. Wms. 255.1 whole court were of opinion that the feme covert could not affign the note, because by act of law it became the fole right and property of her husband: This fhews that it was not an interest fixed to her perfon, because if it had, fhe might have indorsed it. He alfo faid, that the 2d objection had been fully answered; and that he was of the fame opinion with the C. J. and Wright Juftice.

Fofter Juftice, of the fame opinion.

Judgment affirmed per totam curiam】

over while

TRINITY TERM.

7 GEO. III. 1767.

A cafe fent from the court of

chancery up

Between Theodore Darley, Brother and Heir at Law of Vincent Darley deceased, Plaintiff;

AND

Elizabeth Darley, Widow, George Vincent Langworthy, Garland Langworthy and Effex his Wife, Sarah Marshall, Widow, Robert Gould and Mary his Wife, and John Trehawke, Defendants.

THIS

HIS cafe was made for the opinion of the judges of the court of Common Pleas, by an order of the court of Chancery of the 10th of December 1766; which states,

That the plaintiff's brother, Vincent Darley deceased, was feifed in fee of the premiffes in queftion; viz. the manor of Trewithie, the moiety of the manor of Relaton Peverell, Battens, on the quer- Adacroft, Bowda, Trefwell, Trefellan, Lanxton, Trewanet, and tion, whether two twelve parts in Twelve Men's Moor, (inter alia) ex parte a common re- maternâ.

covery fuffer

ed by tenant for life, with remainder to trustees to preferve contingent remainders; remainder to the fame tenant for life in fee; is a revocation of his will?

That Vincent Darley, previous to his marriage with Elizabeth Newton widow, by indentures of lease and release, dated the 7th and 8th days of February 1743, the release being tripartite, and made between Vincent Darley of the first part, William Archer Efq. deceafed, and John Trehawke, of the fecond part, and the faid Elizabeth Newton of the third part: The faid Vincent Darley in confideration of the marriage, and of 500l. paid as a marriage portion and provifion of maintenance for the faid Elizabeth, in cafe fhe furvived him, and in bar of dower; and in confideration: of the yearly income which he would be intitled to have and receive, in right of the Taid Elizabeth, during their joint lives;

and

1743

and for fettling the premiffes in queftion as therein and herein. after is mentioned.; did thereby give, grant and convey, unto the Marriage fet faid William Archer and John Trehawke, and to their heirs for tlement of 7 ever, all thofe meffuages, lands and premiffes, called Battens and and 8 Feb Adacroft, with the appurtenances, lying in Northill, in the poffeffion of the faid Vincent Darley deceafed; and all thofe two other meffuages and tenements, with the appurtenances, called or known by the name of Lanxton, otherwise Langton, in Northill aforefaid, late in the poffeffion of Peter Hurdon butcher, deceased; and also all those two other messuages and tenements called by the names of Trewithie and Lewarne, then alfo in the poffeffion of the faid Vincent Darley or his tenants, and the reverfion and reverfions, remainder and remainders, rents, duties, and fervices, of all and fingular the faid premiffes, and all the eftate, right, title, intereft, ufe, poffeffion, claim and demand whatsoever, of him the faid Vincent Darley, of, in, and unto the faid premiffes; to hold the fame with the appurtenances unto the faid William Archer and John Trehawke, their heirs and affigns for ever; in truft to, and for the ufes, intents and purpofes, and with and under the conditions, powers, limitations and authorities, therein and herein-after mentioned, limited, appointed, expreffed, and declared (that is to fay); to the use and behoof of the faid Vincent Darley, his heirs and affigns, until fuch time as the faid intended marriage fhall take effect, and be duly had and folemnized; and from and immediately after the folemnization thereof, to the ufe and behoof of the faid Vincent Darley and his affigns, for and during the term of his natural life, without impeachment of or for any manner of wafte, and with full power for him or them to commit wafte; and afterwards, and from and after the determination of that eftate, to the ufe and behoof of the faid William Archer and John Trehawke, and their heirs, for and during the natural life of the faid Vincent Darley, upon truft, and to the intent to preferve the contingent ufes and eftates therein limited and appointed, from being barred, docked, defeated or destroyed, and for that purpose to make entries and bring actions as often as need fhall require; but nevertheless to permit and fuffer the faid Vincent Darley and his affigns, peaceably and quietly to hold and enjoy all and fingular the aforefaid meffuages, lands, tenements and premiffes, with the appurtenances; and to have, take, receive and keep, the rents, iffues and profits thereof, during his natural life: And from and after the death of the faid Vincent Darley, to this further ufe, intent and purpofe, that it fhall and may be lawful to and for the faid Elizabeth Newton and her affigns, immediately from and after the folemnization of the faid intended marriage, and the death of the faid Vincent Darley her intended husband, to have, levy, receive and take, for and during her natural life, one annuity or yearly rent-charge, of

fifty

ted to Oct.

fifty pounds of lawful money of Great Britain, free and clear of and from all and all manner of rates, taxes, impofitions, defalcations, deductions or abatements whatsoever, already impofed or to be impofed upon the faid premises; and the faid annuity to be paid quarterly, by even and equal portions and payments; the first payment thereof to be made on fuch feast as shall next happen after the death of the faid Vincent Darley, in lieu and full fatisfaction of dower; with a claufe of diftrefs for nonpayment of the faid annuity, and a clause of entry in case the fame annuity is in arrear for three months, and no diftress to be found: And after the death of the faid Vincent Darley and Elizabeth Newton, to the use of the faid William Archer and John' Trehawke, and their executors and adminiftrators, for the term of two hundred years, for younger children's portions: And after the determination and expiration of that term, to the use and behoof of the firft fon of the body of the faid Vincent Darley, on the body of the faid Elizabeth: And afterwards, and for default of fuch iffue, to the use and behoof of the second, and all and every other fon and fons of the body of the faid Vincent Darley, on the body of the faid Elizabeth lawfully to be begotten, and the heirs of their bodies, lawfully iffuing, feverally and refpectively, as they fhall be in priority of birth and feniority of age; the eldest of fuch fon and fons, and the heirs of his body, being always to be preferred, and to take to the faid premiffes before the younger of fuch fon and fons, and the heirs of his body: And afterwards, for default of fuch iffue, to the use and behoof of the faid Vincent Darley, his heirs and affigus, for ever.

That the marriage, foon after the date and execution of the faid fettlement, took effect; but there never was any child or children of the marriage either male or female.

The will da- That Vincent Darley, on the 10th day of October 1759, made his will, and thereby devised all his lands, tenements, and hereditaments, in the counties of Devon and Cornwall, to the defendant Elizabeth Darley his widow for her life, with remainders

1759.

Leafe and releafe of the

28 and 29 Sept. 1763.

from Vincent

Darley to

over.

That the faid Vincent Darley, afterwards, by indentures of leafe and release, dated the 28th and 29th days of September 1763, made between the faid Vincent Darley of the one part, and George Green gent. of the other part, for the confideration of ten fhillings, did grant, bargain, fell, release and confirm unto the faid in fee, to his George Green, his heirs and affigns, all that the manor of Treufe, in con- withie, lying in Northill, with the rights, members, and appurfideration of tenances; and alfo, the moiety of the manor of Relaton Peverell, lying in Northill, and Linkinham, and all those lands, tenements,

Geo. Green

10s. without faying it was

and