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Burgess

Wheate.

and no new one raised, yet that interposition will bar the lord of his escheat. But then it is said, if the old use is not altered, then the escheat takes place on its extinction, because 'tis engrafted upon it; when one fails, the other takes place. But that use may be determined and no new use raised, and yet the lord shall not have an escheat. Suppose Mrs. Harding had never executed this conveyance, and been disseised, and the disseissor died seised, or made a feoffment, and Mrs. Harding had died without heirs ex parte paternd, the old use would have been determined, and yet the lord would not have been any nearer his escheat; for if (p) the heir of thedis[ *186 ] seisor or the feoffee of the disseisor had been *in, the old use had determined, and escheat would not take place.

It may be said, there is a new use obtained by the disseisor by operation of law, which will bar the escheat. If that can be said, I can with a better grace say, here is a new estate acquired by the trustee, by operation of law, and his own conveyance. He has as much an use as a disseisor. There is no variance made in the use by Mrs. Harding. She has made a tenant to the estate. That tenant in my opinion is a bar to the lord's claim. I am therefore also of opinion, there is no alteration of this use. The consequence is, that the heir ex parte maternd cannot be entitled to any part of the estate, except the mill and closes under the deed of 1713.

Original bill dismissed as to all the rest, and the information on the part of the Crown dismissed totally (q). f Ex relatione Mri. Fazakerly, \ Mediante Mro. Gascoyne.

(j>) For "if" read " in that case."
(o) Lord Loughborough observed, in Wil-
liams v. Lord Lonsdale, 3 Vcs. Jun. 756,
that " the only point determined in Bur-
gess v. Wheate was, that the Crown, en-
titled, as it was supposed, by escheat upon
the death of the cestui/ que trust, had not a
title by subpoena in Chancery to make the
heir of the trustee, having merely a legal
estate, convey; that there was no equity
for that Court to exercise jurisdiction."
The point there determined was, that the
heir of the trustee of a copyhold had no

equity to compel the lord to admit him. That case comes the nearest to the principal one of any that have been determined since. The reader may also consult the cases of Middleton v. Spicer, 1 Bro. C. C. 201; Barclay v. Russell, 3 Ves. Jun. 424, both of which were cases of vacant passession, as observed by Mr. Eden; and Walker v. Denne, 2 Ves. Jun. 170: all of which are critically examined and compared with the principal rase by the learned Editor in 1 Eden, 239.

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The King V. The Corporation of Carmarthen.

5. C. 2 Burr. 869.

No information SERJEANT Narcs moved for an information in nature of a £» warrmio 1U0 warranto against all the Corporation of Carmarthen, by against a corpo- name, to shew why they acted as a body corporate. The Court observed that before the stat. 9 Ann. (a), all informations in The Kino

nature of quo warranto were filed by the Attorney-General, Cor * n

and that this statute extended only to officers in corporations, Carmarthen.

and not to corporations themselves. Lord Mansfield, C. J., *—;—*——'

put this question: Whether an informer has a right to come ration- ac,ine

1 . V, , , -iii ° as such, but only

into this Court, to demand a tnaJ whether or no any corpora- against indivition in the kingdom is dissolved? Whereupon the Serjeant dual members. waved his general motion, and moved for informations against particulars, for acting as members of the corporate body (6).

(o) C. 20, s. 4. If a person shew here a grievance which (&) Upon a rule to shew cause, why an wants to be remedied, this Court will find information in nature of a quo warranto a remedy." But the rule was discharged should not be exhibited against the de- on the merits; R. v. Gregory, 4 T. R. 240, fendant, to shew by what authority he n. (a). Such an information upon this claimed to be fellow of Trinity-hall, Lord statute does not lie against the mere claim Mansfield said,—" The objection is strong, of one, who, though elected, never was that no such information can be filed here admitted; nor against a member, till rounder stat. 9 Ann., and that all other infor- moval by-lhe corporation j R. v. Ponsonby, mations ought to be filed by the Atr.-GTM. 1 Ves. J. 1, 1 Lord Ken. 1, Say. R. 245, But those informations did exist before the 2 Bro. P. C. 311 (2d ed.) See also Bac. statute of Anne. Every college is a cor- Abr. Information (D), and R. v. Lathorp, poration in itself, and altogether they form post, 468. one corporation in the University in gross.

Hurst V. The Earl of Winchelsea. .

S. C. 2 Burr. 879; 2 Ld. Ken. 444 (<•).

A HIS was a case stated from Chancery for the opinion of the An appointment

Court of King's Bench, and appeared to be this,—Thomas ^mTMtd"*

Herbert, by will duly executed, devised to his wife Elizabeth ratesa „,„,.

all his lands, &c. in fee-simple. — Elizabeth (on his death) mon devise, and

married a second husband; hut, previous to such second mar- 'he aPP°In^ein

riage, settled the said estates to use of herself for life; then heir-at-law) is

to Thomas Herbert, her own son by the first marriage, for his in by descent,

life, and so on to his issue in strict settlement; then in re- aJJd not by PTM"

mainder to such person or persons as she should by deed or

will, notwithstanding any coverture, appoint. After the *second [ *188 ]

marriage she made a will, wherein she devised all Iter estate to

said Thomas Herbert (charged with several pecuniary legacies),

and died, living her second husband. Afterwards, Thomas

Herbert died, sans issue and intestate. And the question was,

Whether this estate should descend to his heir, ex parte pa

terna or materna? or whether the remainder in fee vested in

him by descent from Elizabeth his mother, in which case it

would go to the maternal heir; or whether it vested by the

devise, operating as an appointment under the settlement, in

which case, Thomas Herbert would be a purchasor, and the

lands would descend to the paternal heir.

The Court, after hearing two arguments, declared they should certify that it descended to the maternal heir of Thomas Her

(<■) Where the arguments are stated at length, and the wills and deed are inserted.

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bert; it being a known rule(</), that a common devise in feesimple to an heir-at-law, gives him no estate at all, he being adjudged in by descent; and it having also been determined in the Case of the Duke of Marlborough and Lord Godolphin (e), in Chancery, that an appointment by will is subject to the same rules as a common devise (f).

{d) See Allen v.Heber, ante, 22, and cases there cited, and Harg. Co. Lit 13b, n. [63].

(«) 2 Ves. S. 61, 73—see also Southby v. Stonehoute, Id. 610 j Fearoe C. R. 76 (8th ed.).

(/) S. P. Bathpoole't Ca., 2 Leon. 101. Mr. Sugdcn, in his Treatise on Powers, p. 323 (3rd ed.), observes, " that this is a very extraordinary decision. It may be right to hold that the instrument should operate as a proper will as to the words and general effect of it; but upon what solid principle a man can be held to take that by descent, which never vested, or had a chance of vesting in his ancestor, it is not easy to conceive. We may ask with Ld. C. J. Willet, 'Will any one say that any thing can descend to the heir, that did not vest in the ancestor?' Willes, 338. The grounds of the determination are quite foreign to the question. The principle of the decision cannot even be supported by

any plausible fiction, nor does policy require the adoption of it; for in the general run of cases it must be wholly immaterial, whether the appointee take by descent or purchase. It should be observed, that, in the case alluded to, the power was reserved to the person who made the settlement, and who was at that time seized in fee. It may not, therefore, be deemed a general authority, that in every case of a beneficial power, the heir of the donee, being the appointee, takes by descent, although the donee himself never had any interest in the estate; nor indeed was it acquiesced in as an authority upon the point it professed to decide; for the decree of Ld. K Henley, in conformity to the judgment of K. B., was appealed from to D. P., and the appeal was afterwards compromised, 1 Ld. Ken. 465, 2 Burr. 882." See Langley v. Sneyd, 3 Brod. & B. 243.

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Goodman V. Goodright (g).

S. C. 2 Burr. 873.

JtiRROR from the great Sessions of Chester. In ejectment the case was as follows: One Mrs. Mostyn, on the marriage of her niece (and afterwards heir-at-law), Mrs. Wynn, with the Reverend Dr. Wynn, entered into articles, covenanting to settle {inter alia) an estate for life to Mrs Wynn, with remainder to the issue of that marriage in tail; reversion to herself in fee; whenever Dr. Wynn should have settled his own estate to the same uses. Mrs. Mostyn, by her last will, reciting the said articles, gives her equitable reversion in the premisses to the heirs of the body of Mrs. Wynn, by any after-taken husband; and for want of such issue, with remainder over to Ch. Lloyd in tail. The Doctor and Mrs. Wynn suffered a recovery after the death of Mrs. Mostyn, to the use of Mrs. Wynn in feesimple; then Mrs. Wynn died sans issue, living the Doctor. The defendant (being her heir-at-law) entered, and the lessor of the plaintiff (being the remainder *man under Mrs. Mostyn's will) brought this ejectment (//), and obtained judgment in the Court below. The defendant brought this writ of error.

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Goodman

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Mr. Norton, for plaintiff in error, argued that the articles and will made only one conveyance (i); that thereby Mrs. Wynn had a life estate, with a remainder in tail; and that by the recovery it was barred, and an estate in fee acquired, which descended to the plaintiff in error.

Serjeant Hewit, for the defendant in error, insisted that in order to give Mrs. Wynn an estate tail in remainder, a particular estate for her life must be raised by implication in order to support it; but that no estate for life can be raised by implication, unless where there is no prior estate subsisting; which there is with respect to the reversionary interest. For he argued, that there being no heirs of the body of Mrs. Wynn by any second husband, that devise was void, and the devise to Lloyd took place as an estate tail (vested) in the reversion, expectant on the death of Mrs. Wynn, sans issue by the Doctor. This devise was in words de prcvsenti, and was immediate. There is therefore no necessity to imply a life estate; and if none be implied, Mrs. Wynn's contingent remainder in tail must fall to the ground, and that of Mr. Lloyd become vested. Per Cur.—This case lies in a narrow compass, when stript of unnecessary arguments. The whole comes to this question, Whether Mrs. Mostyn intended to give the reversion to her devisees, after the death of Mrs. Wynn, sans issue by the Doctor; or whether she intended to give them an estate in possession immediately, which is argued on behalf of the defendant in error; but she certainly meant the former, notwithstanding the words of the devise are in the present tense, " I give"(&), on which the whole of the argument is founded. This then being premised, let us consider the effect of this devise infuturo in two lights: 1. As a contingent remainder to the heirs of the body of Mrs. Wynn. To support which, a particular estate for her life *must be raised by implication; [ * 190 ] and then there would be an estate tail executed in Mrs. Wynn, which would have been barred by the recovery, and so the defendant in error would be defeated. But there is no need to determine this point: for we think, that if this cannot be considered as a contingent remainder, executed in Mrs. Wynn by implication of law, it must be considered,—2. As an exe

(i) And then her life estate under the articles, uniting with the remainder in tail to her heirs-male under the devise, would give her an estate tail, so that the recovery would be well suffered. But the estate given by the devise could not be tacked to the estate given by the articles; Moore v. Parker, 1 Ld. Baym. 37, 4 Mod. 319; Dee v. Fonnereau, 2 Doug. 508, per Lord Mansfield. Neither could the devise to the heirs of the body of Mrs. W. give her an estate tail by implication; Moore v. Parker, ut supra; Lanesborough v. Fox, Ca. temp. Talbot (or Forest.), 262; Jones v. Morgan, 3 Bro. P. C. 323 (2nd ed.), Fearne C. R. 453 (8th ed.), by the Lord Chancellor,

VOL. I.

and his opinion confirmed in D. P.; Doc
v. Fonnereau, ut supra, where this point
was not expressly determined, but may be
understood to have been so; for though
judgment was there given for the plaintiff,
and this point was advanced on his behalf
in argument, yet the Court ultimately gave
judgment for him on another ground:
which see, infra, n. (/).

(k) The distinction between devises per
verba de prasenti and per verba de futuro
is not now attended to; and both are con-
sidered a future devise, unless it clearly
appear, that the testator meant nothing
else but a devise to take effect in prtesenti.

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cutory devise, first to Mrs. Wynn, then to Mr. Lloyd (/). And if so, they are both too remote, and therefore void. It is now settled, that you may entail by way of executory devise for a life or lives in being, and twenty-one years after. But this is a devise to the heirs of the body of Mrs. Wynn by her second husband (during the first marriage), on failure of the heirs of her body by the first; which may last for a longer period of time in suspense than the law has ever yet allowed. And being void, the reversion descended to Mrs. Wynn, as heir-at-law (»?).

Judgment reversed per tot. Cur.

(I) This statement does not appear very accurate: it seems from comparing it with the report in 2 Burr, that it should be— "That if the devise to the issue of Mrs. W. by any other husband be void, the limitation to Ch. Lloyd in tail cannot be considered as a contingent remainder: and if it be considered as an executory devise, then not being to take place till after an indefinite failure of issue of the body of Mrs. W., it is too remote, and therefore void." And from 2 Doug. 507, n. [3], it appears, that the decision went upon the alternative, either of the niece having taken an estate tail by implication, or of the first devise (to the heirs of the body of the niece by any other husband) being too remote, and, of course, the second. The Court thought it unnecessary to determine whether the niece took an estate tail by implication. Lord Mansfield said, "The whole of the case comes to this: whether Mrs. Mostyn intended by the devise to give to the heirs of the body of her niece by a second husband the remainder, reversion, or estate (whatever it is called), after the deaths of herself, Dr. Wynn, and Mrs. Wynn, and failure of issue between them: or whether she meant to give an estate in possession to the issue of Mrs. Wynn by a second husband?" His Lordship therefore (being clear that it was not an immediate deviBe) put the case entirely on the remoteness of the first devise. Upon this part of the case Mr. Feamc says—" I observe the Court delivered no express decisive opinion as to the validity of the limi

tation to the heirs of the body of Mrs. W. by any other husband, taken as a future devise; but it must be inferred from Ok judgment, when compared with the words of Lord Mansfield, that the Court were inclined to avoid admitting the validity of that limitation; for Lord Mansfield said, 'And supposing the devise to the issue of Mrs. Wynn by any second husband to be void, the limitation to C. L. could not take place as a contingent remainder.'" His other observations are too long to be inserted here; and therefore the reader is referred to the learned treatise itself; F. C. R. 458 & 534: see also HarrUv. Bona, pott, 043.

(ro) See Doe v. Fonnertau, 2 Doug. 487. and the notes to that case, which is well worth very attentive perusal. That case was very similar to the present one: and there the Court at onetime considered the devise to the second son, after a devise to the heirs male of the body of the first, void, (no particular estate being given to the first son by the will): but upon further consideration they gave judgment for the second son, on the ground, that the limitation to him was a good executory devise, "if Thomas the first son at his death leave no issue male then living." As to the distinction between "leaving no children living at the death," and an indefinite failure of issue, see Porter v. Bradley, 3 T. R. 140, and Doe v. Webber, 1 B. & A 713, where all the authorities are referred to; and also Wellington v. Wellington pott, 045.

I n case of loss at Ma, freight must be paid only in proportion to the

(1...-aveil, and the part of the voyage which was performed.

Luke V. Lloyd [or Lyde].

5. C. 2 Burr. 882.

ACTION by the master of a ship against a merchant for freight (n). The ship was bound to N. but taken by a French privateer; and carried into Plymouth afterwards, being retaken by an English man of war, who had half the goods for salvage, she not being retaken within ninety-six hours. The voyage to

(n) The plaintiff declared on an indebitatus assumpsit; 7 T. R. 382; Abbot, 324, n. (rV

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