1819.

BORWICK

against WALTON.

in order that the original action may proceed. The action had been commenced against the defendant, as acceptor of a bill of exchange, and the plaintiff had likewise brought several actions against the drawer and indorser. He has a right to recover all his costs in those actions (which are unsettled, the parties being insolvent) against the present defendant; and for that purpose, the plaintiff is proceeding in the action. The recovery in the action for the escape is collateral to the merits of the original action, and is a penalty upon the sheriff for his neglect of duty, and not a satisfaction for the debt.

Holt contrà, for the sheriff. Whatever remedy the plaintiff may have against any other person, he has made his election to consider the defendant as not in the custody of the sheriff, but as having escaped out of such custody by the sheriff's default. It will therefore be inconsistent to punish the sheriff for not having the defendant in custody, and to proceed against him at the same time, as if he had him in custody. He has already paid the debt in the action for the escape, and ought not to pay it twice over.

Per Curiam. The plaintiff has brought his action against the sheriff for the escape, and has recovered his whole debt, and he is now desirous to turn round upon the sheriff, and to say, "It is true, I chose to consider the defendant for one purpose out of your custody, and as having been suffered to escape, by your own negligence, but I will now consider him, for another purpose, as in your custody, and as not having escaped." In other words, "having already one satisfaction, it is convenient for me to receive another." Such proceed

ings are not to be borne. The plaintiff has made his election to proceed against the sheriff for an escape, and, as far as the sheriff is concerned, he must abide by it.

Rule absolute, with costs.

1819.

BORWICK

against WALTON.

The Marquis of CHOLMONDELEY against Lord

CLINTON.

THE Master of the Rolls sent the following case for Where 4., in a

the opinion of this Court:

By indenture of bargain and sale, duly inrolled in the Court of Common Pleas, dated the 11th June, 1781, and made between George Earl of Orford, of the first part; Charles Lucas, of the second part; and Joshua Sharpe, of the third part; the said George Earl of Orford duly conveyed certain manors and hereditaments in the counties of Devon and Cornwall, whereof he was tenant in tail by purchase, to the use of Charles Lucas, his heirs and assigns, in order to make him tenant to the precipe, for the purpose of suffering two common recoveries, with double vouchers, in which the said George Earl of Orford should be vouched, which recoveries were thereby declared to enure, to the use of the said George Earl of Orford, his heirs and assigns, for ever. And in Trinity term, 1781, two common recoveries, with double vouchers, were duly suffered, in pursuance of the said indenture of bargain and sale, of all the aforesaid manors and other hereditaments, in which recoveries the said George Earl of Orford was vouched,

and vouched the common vouchee. The said George

conveyance to uses, settled an estate for life

on himself, re

mainder in tail

ma

to his issue,

with an ulti

mate limitation

to the heirs of and at the time

S. R. in fee;

of the settlement A. was himself the right heir of S. R. Held

that this ulti

mate limitation that the estate

was void, and

after the death

of 4. without issue, descendgeneral.

ed on his heirs

Held, also,

that it was not

competent to go

into the inten

tion of the set

tlor, apparent from the recital,

in order to ex

plain the words

of this limita

tion, they being words of plain and well-known import. Bayley J. Dissentiente.

Earl

1819.

The Marquis of

against

Lord CLINTON.

Earl of Orford afterwards executed certain indentures of lease and release, bearing date respectively the 1st CHOLMONDELEY and 2d August, 1781: the indenture of release being made between the Right Hon. George Earl of Orford, described as only son and heir of Robert Earl of Orford, by Margaret his wife, also deceased, who was the daughter and only surviving child and heir of Samuel Rolle, late of Heanton, in the county of Devon, Esquire, deceased, who was the only son and heir at law of Robert Rolle, of the same place, Esquire, by Arabella his wife, who was the daughter and one of the coheirs of Theophilus Clinton, Earl of Lincoln and Baron of Clinton, also deceased, of the one part; and Joshua Sharpe, Esquire, of the other part: it recited the last will of the said Samuel Rolle, so far as to shew the gifts to his own sons, and to his daughters, and to the sons and daughters of his daughter; it then recited that the said Samuel Rolle did, in or about the month of November, 1719, depart this life without revoking his will, leaving the said Margaret Rolle, his daughter and only child him surviving, who afterwards intermarried with the said Robert then Lord Walpole, afterwards Earl of Orford; and that the said Margaret, late Countess of Orford, did, in or about the month of January then last past, depart this life, leaving the said George Earl of Orford his son and only child, who, by virtue of the will of the said Samuel Rolle, became entitled to all his manors, lands, tenements, and hereditaments, as tenant in tail. And that by indenture of bargain and sale tripartite, bearing date the 11th day of June then last past, and inrolled in his majesty's Court of Common Pleas, and made between the said George Earl of Orford, of the first part; Charles Lucas, of New Inn, in the county

of

of Middlesex, Gentleman, of the second part; and Joshua Sharpe, of Lincoln's Inn, in the said county of Middlesex, Esquire, of the third part; the said George Earl of Orford did grant, bargain, and sell to the said Charles Lucas and his heirs, amongst other lands, the several lordships, manors, lands, tenements, and hereditaments therein, and afterwards in the now recited indenture of release particularly mentioned, being the estate and inheritance of the said Samuel Rolle, to hold the same to and to the use of the said Charles Lucas, his heirs and assigns, for ever, to the intent and purpose that he might become a good and perfect tenant of the immediate freehold and inheritance of the said premises, against whom common recoveries might be had and perfected in the manner therein mentioned for that purpose; which said recoveries, and all other recoveries, fines, and other assurances of and concerning the premises were thereby declared to be and enure to the use of the said George Earl of Orford, his heirs and assigns, for ever; and that two common recoveries of the said several lordships, manors, lands, tenements, and hereditaments in the counties of Devon and Cornwall, formerly the estate and inheritance of the said Samuel Rolle, had been accordingly suffered; but that the said George Earl of Orford was willing and desirous that the same premises should continue and remain in the family and blood of the said Samuel Rolle. It then witnessed, that for and in consideration of the natural love and affection which the said George Earl of Orford had and bore unto his relations, the heirs of the said Samuel Rolle, and to the intent that the manors, messuages, lands, tenements, and hereditaments, thereinafter men

tioned,

1819.

tioned, might remain, continue, and be in the faThe Marquis of mily and blood of his late mother, the said Margaret

CHOLMONDELEY Countess of Orford, on the side or part of her said Lord CLINTON. father, the said Samuel Rolle, for a nominal consider

against

ation, he the said George Earl of Orford, did grant, bargain, sell, release, and confirm, to the said Joshua Sharpe, and to his heirs, the aforesaid manors and hereditaments, in the counties of Devon and Cornwall, and then described the parcels thus: "All and singular the aforesaid premises were formerly the estate and inheritance of the said Samuel Rolle, deceased;" and then added, " and all other the manors, lands, tenements, tythes, and hereditaments, of him the said Gorge Earl of Orford, with their and every of their rights, members, and appurtenances whatsoever, which were the estate and inheritance of the said Samuel Rolle, situate, lying, and being in the several towns, parishes, hamlets, and places aforesaid, and every or any of them, or elsewhere, in the said counties of Devon and Cornwall; to hold to the said Joshua Sharpe, his heirs and assigns, to, for, and upon such uses, trusts, intents, and purposes, and by and under such limitations, powers, provisoes, and agreements, as were thereinafter limited, declared, or mentioned, of and concerning the same," and the uses were declared in these words: "To the use and behoof of the said George Earl of Orford, for and during his natural life, without impeachment of, and with full power to do and commit any manner of waste on the said premises, or any part or parts thereof; and from and after his decease, to the use and behoof of the heirs of the body of him the said George Earl of Orford, lawfully to be begotten, and, in default of such issue, to the use and behoof of such person or persons,

for