material to enquire what they said when they entered and seized, but only whether they had in fact a legal warrant to justify them." Now, all expressions are to be considered in conjunction with the facts of the case in which they are used, and in Crowther v. Ramsbottom, there was no doubt not only that the defendants had the warrant under the justicies at the time they seized, but that they seized under it, and enforced the obedience that writ required; at least there was nothing to shew they had repudiated the right to refer to that warrant as the ground on which they acted. The expressions then of Lord Kenyon and Mr. Justice Lawrence, taken in conjunction with the facts of that case, go no further than this: that whoever seizes another's goods, and has a right by warrant, which it is his duty to execute, so to seize them, and applies that seizure to the purposes that warrant directs, is not precluded by any thing he says at the time of the seizure, from so applying them. But that does not bear, as it seems to me, upon a case where the officer does not apply the seizure to the purposes of his warrant, but leaves those purposes wholly unsatisfied. Upon this ground, therefore, that in Groenvelt v. Burwell and Crowther v. Ramsbottom, the warrant was ultimately pursued, and the thing it commanded was enforced, which was not the case here, it seems to me that those cases form no ground for impeaching the opinion I am humbly submitting to the House. My opinion therefore is, that upon the traverse absque residuo causa, it was competent to the Plaintiff to shew that the acts of the Defendant were not really done under or in execution of the writ, but for another purpose, and under another claim, and that the writ and the proceedings under it were a mere colour and contrivance to get possession of the goods, and that what the writ required, viz., to cause the debt for which the judgment was obtained to be made, was never effected or attempted. And 1833. LUCAS NOCKELLS. this being my opinion, it is unnecessary to say any thing upon the new assignment. I will only observe, that unless the Plaintiff proves more trespasses than the plea, if unanswered, necessarily covers, he cannot both reply to the plea, and new-assign; he may do either, not both. In the absence of the Lord Chancellor, Lord Wynford said, that the House affirmed the judgment of the Court below. Judgment affirmed. Testator de (IN THE HOUSE OF LORDS.) DOE dem. WINTER V. MATTHEW PERRATT and WILLIAM BURGE. vised to E. W. ERROR on a judgment given by the Court of King's Bench, in an action of ejectment brought to recover certain lands called by the name of the Truckwell estate, in the county of Somerset. (See 5 B. & C. 48.) for life, and after her de cease to J. C. or his male heir; remainder to "the first male heir of the branch The lessor of the Plaintiff claimed to be entitled to the said lands under a devise in the will of Emanuel of his uncle R. C.'s family, paying to the daughters of R. C. which should be then living 100!. at the time of taking possession of the estate." At the time of the devise, and of testator's death in 1787, his uncle R. C. was dead, leaving five daughters and children of each, with whom testator was acquainted. The first daughter died in 1799, leaving a daughter, who had a son born in 1795. The second died in November 1820, leaving a son, born in 1770. The third died in 1813, leaving a son, born in 1773. The fourth died in 1806, leaving a son, born in 1768. The fifth, alive in 1822, had a son, then alive, born in 1772. J. C. died without issue, in 1808, and E. W. in July 1820: Held, by Taunton and Bosanquet Js., that upon her death the son of R. C.'s eldest daughter's daughter took under the above devise: by Bayley J., the son of his second daughter; by Littledale J., the son of the fourth daughter; and by Tindal C. J., that the devise was void for uncertainty. Chilcott Chilcott, duly executed, to pass real estate. The testator died seised of these lands in fee, and the will, made in 1787, was as follows: 1833. DOE dem. บ. "I give unto John Chilcott, my kinsman, living in PERRATT. London, 100l. to be paid in one year after my decease;" - -after sundry other small legacies, "Also I give unto Ann White, my sister-in-law, the sum of 20%., and the income of Burge's cottage, and her living in it, if she thinks proper, during her natural life; also I give unto Elinor White 100l., and half of Truckwell estate, during her natural life; also I give unto William Burge, my servant man, 57. All the rest and residue of my goods, chattels, rights, credits, personal and testamentary estate, and also my lands, tenements, and heredits, I give, devise, and bequeath unto Elizabeth Chilcott, my dearly beloved wife, during her natural life, whom I make my whole and sole executrix; and I do allow her, the said Elizabeth Chilcott, to give what she thinks proper of her said effects to her sisters, Elinor White and Ann White, during their natural lives; and after the above lives being expired, that is to say, Elizabeth Chilcott, Elinor White, and Ann White, all the lands, rights, profits, and heredits of Truckwell estate to come to John Chilcott, my kinsman, living in London, or his male heir. If any free land, not to be sold or mortgaged on any account whatsoever, but to remain in the Chilcott's family for land of inheritance, with two cottages, garden, and orchard, in the parish of Brompton Ralph, adjoining to the aforesaid Truckwell estate, called by the name of Middle Wetcombe, free land; and if no male heir lawfully begotten by the said John Chilcott, then the above lands to fall to the first male heir of the branch of my uncle Richard Chilcott's family, who lived at Hancrich Farm, yielding and paying unto such of the daughters of the aforesaid Richard Chilcott, which shall be then living, the sum of 100l. each, at the time of the taking possession of the aforesaid estates." Elizabeth 1833. DOE dem. V. PERRATT. Elizabeth Chilcott survived the testator (who died in 1787), and afterwards, by will, executed the power given to her of disposing of the testator's estate in favour of her surviving sister Eleanor White, who, after the death of Elizabeth Chilcott, thereby became seised of the entirety of the said estate for the term of her life. Elizabeth Chilcott died in 1795. Ann White died in 1791. Eleanor White died, so seised as aforesaid, in July 1820. John Chilcott, described of London, died in 1808, without any heir male, and leaving only a daughter, Sarah Chilcott, who afterwards married Thomas Webb, and died in 1810, leaving issue, a son, John Chilcott Webb, who thereupon became the heir at law of John Chilcott, and also of the testator Emanuel Chilcott. Richard Chilcott, the testator's uncle mentioned in the will, died in 1780, leaving only daughters; viz. Mary, Joan, Sarah, Betty, and Agnes. Mary, the eldest, married George Bishop, and died in 1799, leaving issue, four daughters; of whom the eldest, Elizabeth, married John Derham Perratt, and had issue, a son, Matthew Perratt, the Defendant, born in 1795, whose mother is still living. Joan, the second, married Isaac Winter, and died in November 1820, having had issue two sons, Thomas Chilcott Winter and Isaac Winter, of whom the former was born in 1765, and died a bachelor and intestate in 1817, leaving his only brother, Isaac Winter, born in 1770, the lessor of the plaintiff, his heir at law. Sarah, Sarah, the third, married Samuel Parsons, and died in 1813, leaving issue two sons; viz., James Parsons, born in 1771, and who died in 1813 intestate and without issue, and John Parsons, born in 1773, still living. Betty, the fourth, married Benjamin Viney, and died in 1806, leaving issue an only son, Thomas Viney, born in 1768, who died in 1819, having by his will, dated July 1819, devised all his real estates to his wife, Catherine Viney, in fee. Agnes, the fifth, married John Greenslade, and is still living, having issue a son, Thomas Greenslade, born in 1772. 1833. DOE dem. V. PERRATT. The said five daughters of Richard Chilcott were all living at the time Emanuel Chilcott made his will, and at the time of his death; and as well the said five daughters as the several descendants of such daughters respectively, who were born before the date of the said will, were all known to the testator at the time of his making the same. Isaac Winter, lessor of the Plaintiff, claimed to be entitled to the lands mentioned in the will, as being the heir at law of his brother Thomas Chilcott Winter, who, upon the death of Eleanor White, the tenant for life, was contended to have been entitled under the said devise, as being, at the death of John Chilcott, without any male heir lawfully begotten by him, "the first male heir of the branch of Richard Chilcott's family," according to the intention and meaning of the testator. The Defendant claimed as answering that description better than the lessor of the Plaintiff: and the following questions were put to the Judges by the House of Lords: |