that is, the state of demand [*] should have contained an allegation, that some one or more of the stipulations made by the defendant below, and contained in the agreement, had been broke by him, and how, Crane, for plaintiff. Judgment reversed, KATTS v8. ARMSTRONG, ON CERTIORARI. THE action before the justice, was an action on the case, brought by Armstrong against George Katts and Son, and founded on the following state of demand: George Katts, and Son, to damage, $100, by taking away a line fence, BY THE COURT.-The proceedings below, is defective in several respects. This is intended as an action against two persons, and one only named in the record; the other being described by the relation in which he stands to the other defendant, The state of demand also, cannot be supported, It is not particular enough. It ought at least to shew, that the fence was the fence of the plaintiff below. Crane, for plaintiff. Judgment reversed, ROBINSONS vs. SCULL, ON CERTIORARI. Joint suit must be for a joint cause. THE action below was brought by Mary Scull against George Robinson and John Robinson. The account which Mrs. Scull delivered the justice, as the ground of her action, contained a great many items of [*] goods sold; some of them charged to George, and some to John Robinson, but no charge against them jointly. BY THE COURT.-There must be a joint contract, in order to make out a joint cause of action. Judgment reversed. OUTCALT vs. HUFFMAN. ON CERTIORARI. THE action below, was an action on the case; and the state of demand was founded on a breach of covenant, in a deed of indenture for the sale of real estate. BY THE COURT.-The action should have been covenant. Judgment reversed. CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-JERSEY. SEPTEMBER TERM, 1811. 3 385 * 819 54 166 Den ex dem. CRANE and al, vs. FOGG, and al. A devise to I. and J., and heirs of their body, and if they die without issue, to W. and his male heirs. W. takes on default of issue of I. and J., as devisee in remainder in tail male. And on his failure of male issue, the land devised reverts to the right heirs of the testator. THIS was an action of ejectment, for a farm in Salem county, tried at the Salem Circuit, in December, 1810, before Rossell, justice. The jury found a special verdict, containing the whole state of the case. The substance of which, is as follows:-Archibald Hamilton being seized of the premises in question, on the 13th March, 1787, made his will. The clause in his will which gave rise to the controversy, is as follows: "I give and bequeath unto my two sons, Isaac Hamilton and Jacob Hamilton, all my lands, to be equally divided between them, and to them and their heirs, lawfully begotten of their own bodies; and if they cannot live peaceably together, then to divide the land, and the care of Jacob Hamilton to be left to my Executrix hereafter named; and if both my two sons, Isaac Hamilton and Jacob Hamilton, should die without issue, then I give and bequeath all my lands unto [*] my son William Hamilton, and to his male heirs," The testator, in this will, gave his personal estate among his children and grand-children, in different portions, and died seized of the premises in question in December, 1788, leaving the following children then living, viz: William, Isaac, Jacob, Abraham, Mary, Susanna and Ann, and one grand-daughter, named Elizabeth, daughter of a son by the name of Charles, and also a grand-daughter, Susanna Bishop, daughter of Margaret, another daughter of the testator, who had inter-married with one Bishop; both Charles and Margaret died in the life-time of the testator; that Isaac and Jacob, on the death of the testator, entered into the premises, and were seized thereof, and being so seized, died without issue of their body, neither of them having ever had any issue; that on the death of Isaac, who survived his brother Jacob, and died in 1799; William entered into the premises, and was seized thereof, and being so seized, died in 1802, leaving a widow, Elizabeth Hamilton, and seven daughters, but no sons, which widow and her daughters were together with Fogg, the defendants, Fogg being a tenant under the widow, under a lease for years, unexpired. That the lessor, Mary English, is a daughter of the testator, and one of his heirs at law; and that David English, another lessor, is her husband, claiming in her right; that Isaac Watts Crane, the other lessor, after the death of William Hamilton, and while his widow was in possession of the premises, purchased several distinct portions of the estate, from several of the heirs at law of the testator, which the special verdict particularly sets out. That Crane, before the commencement of this action, tendered to Elizabeth Hamilton, widow of the said William Hamilton, dec'd, one of the defendants, an assignment of her dower, under his hand and seal, which she refused to receive. L. H. Stockton, for the plaintiff. William Hamilton took an estate in special tail, that is, an estate [*] in tail male, and being without male issue, the estate tail was spent, and the estate reverted to the heirs of Archibald Hamilton, the original donor. He cited Coke Lit. 27, 222, Blac. Com. 114, 115, 175, Ambler 12, Pre. Ch. 7, 172, 589. Leake and Ewing, for the defendants; took the following points: 1st. William Hamilton took a fee simple, by the words of the will; and his daughters are his heirs at law. 2d. Under our statute, Pat. 54, 78, William Hamilton is to be considered as second devisee in tail; and, therefore, by the express words of the statute, he took an absolute estate in fee. 3d. That Crane, being out of possession when he pur chased, the purchase is void at common law. Mr. Leake also contended, that at the time of making the will, and the death of the testator, the statute de donis was not in force in this State; that whenever we legislate on a subject, the English statute on the same subject, is thereby repealed; that the statutes limiting estates-tail, and the supplement thereto, were passed before the making of the will, and therefore, the English statute was not in force. The following cases were cited on the part of the defendants, 2 Stra. 734, 2 Bur. 1112, 3 Bur. 1541, 2 Wil. 34, 11 Mod. Pow. on Dev. 361, Pat. 78. Scott and Stockton replied. The cause was learnedly argued at considerable length, in May term last; and at this term, the following opinions were delivered. KIRKPATRICK, C. J.-Upon the case presented by this special verdict, I am of opinion, 1st. That the testator's son William, took, under the will of his father, a vested remainder in tail male, in the premises in question, expectant on the death of his brothers, Isaac and Jacob, without issue. [*] 2d. That upon the death of William, without male heirs, the ultimate remainder in fee, descended to the right heirs of Archibald Hamilton, under whom the plaintiff claims: I think there can be no doubt but this would be the course upon the principles of the common law; and upon looking into our act limiting estates-tail, and the supplement thereto, I can see nothing to alter this course. The first part of the section upon this subject, relates to devises in tail, made before the passing the act; and in this there are certain modes of expression, which the Legislature thought it necessary to explain, by a subsequent act. From the words "passed through one descent since the death of the testator, and is now in the second, or more remote de scent from the testator," it had been doubted by some, (and I think not without reason) whether, if an estate-tail gene ral had been devised to A, and upon his death, had descended to his son B, it had then passed through one descent, and was in the second, or more remote descent; or, whether B's life also must have terminated, and the estate must have descended in the same line, to his son C. in order to make it a fee simple. And to explain this doubt, was the object of the supplement. But the present being the case of devise, made after the passing of the act, we have nothing to do either with the first part of the section, or with the supplement, which goes only to explain its words. They relate to another thing. This act, therefore, limiting estates-tail, so far as it touches this case, is expressed in these words:-"All devises which shall hereafter be made in tail of any kind, shall be deemed, &c. to vest in the person to whom the same may descend, agreeably to the devise or entailment, after the decease of the first devisee, all the estate," &c. [*] Now, if I am right in my first position, there was no descent to William. He took as a remainder-man under the will, and not as heir, after the decease of the first devisee: So far as relates to the subject under consideration, or what these acts call the line of entailment, he was the first devisee himself. The act in question, therefore, cannot apply to him. It cannot destroy the limitation, and turn the estate in his hands, into a fee simple: From this view of the subject, I am inclined to think, there must be judgment for the plaintiff. But; unless my brethren are perfectly satisfied, I should wish another ar gument as to the ability of the heirs out of possession, and having only a right of entry, to convey, &c. *ROSSELL, J.-Archibald Hamilton, by his last will, dated the 13th of March, 1787, devised to his sons Isaac and Jacob, and to their heirs, lawfully begotten of their own bodies, all his lands; and if they should die without issue, then he bequeathed these lands to his son William, and to his male heirs. Archibald, the testator, died in December, 1788. Isaac and Jacob came into possession of the lands in question, on the decease of their father, and died, one in June, 1789, the other in December following, without issue; and William took possession agreeably to the directions of the will. William died in 1802, intestate, and without male issue; but leaving seven daughters. Two questions have been strenuously argued before the Court. 1st. Will the words in the devise to William and his male heirs, create an estate-tail. 2d. After the death of Isaac and Jacob, who were the first devisees in tail, did not the possession of William, vest in him a fee simple, under the laws of this State. As to the first, it has been frequently adjudged, that the words "heirs male" in a will, create an estate-tail; and some authorities go so far as to say, they are always intend ed of the body, in a will. Secondly: Our act to pass estates in fee, by devises; and to limit estates in tail," was passed 1784, and the explanatory act in 1786, previous to the will and death of Archibald Hamilton, and will therefore regulate the disposition of this estate as far as the devisees in such will, come within their provisions. The second section of the act of 1784, by which, estates in tail are limited, is couched in terms so obscure and uncertain, that the Legislature were induced to [*] pass the act of 1786, to explain and do away this uncertainty. It seems, however, that they have still left the matter in doubt, |