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Evans tenants; or, 3dly, That they took estates for life successively.


As to the first, nothing is more certain, than that the testator meant to perpetuate his estate in his name and family; and, so far as the law will permit, we must carry that intent into execution. As to the second, the provisions of the will make such a construction absurd. During the minority of the persons entitled to take, the profits are to accumulate for their use. Are all to divide these profits when accumulated? Are all to take the names and arms of Daniel? Are all to make jointures of 200/. per annum? It is therefore necessary to adopt the third construction, that they are to take estates for life successively. But by what is this warranted? By reference to the other words of the will. Then, by the same rule of reference, you may ascertain the quantum of interest meant to be devised, as well as the joint or sole enjoyment of the devisees. The whole context shews, that the words of inheritance were here omitted by accident. The direction, that those to whom the estate should come, and their descendants, should take the name and arms, shews he meant to devise a descendible estate. The Case of Colleton and Hellier{u), before Lord Hardwicke, was not near so strong as this. I therefore am clearly of opinion, that Sir William Duckenfield took an estate tail; and think the case would not have borne a second argu[ * !)23 ] *ment, had it not been of so much consequence in point of interest.

Wilmot, J.—I am clearly of the same opinion, and never had any doubt. I dare say, the variation in the wording of the will arose from a notion in the drawer (for though written in the testator's own hand, it is plainly the draught of some lawyer), that you cannot make an after-born son a tenant for life. I have known such a notion prevail in the country, though nothing is more untrue (to). Indeed, if you afterwards make a limitation to their issue, it will make them tenants in tail. Therefore he gave no estate specifically to these children, but left it to the operation of law to construe it. I believe the testator meant to give estates for life, and afterwards to their sons in tail, as to all the devisees; but he has not done so with respect to the sons in being, nor as to Hulton and the other remainder-man. And he certainly meant to give the after-born sons the same estate as to those in esse. Could he mean to disinherit their children, as he must have done (even if they had any) by the construction now contended for? You must connect this with the precedent and subsequent devises. What is the construction of those, must also be the construction of this.

(k) Or Corytm v. Helyar, 2 Cox, 340 j his children as purchasers:" and that the

cited in 2 Burr. 923, 2 Ves. Sen. 195, doctrine, that there could not be a limita

4 Bro. C. C. 461, Fearne's C. It. 590, tion to an unborn child for life, with lirai

(8th ed.). tations to the issue of such unborn child iti

(u>) " It was once doubted whether an succession, had been distinctly laid down

estate for life could be given to unborn by the learned Judge who delivered the

issue. The law is now clearly settled, opinion of the Judges in the Duke of Marl

that an estate for life may be limited to un - borough't Case; which case is reported in

born issue, provided tha devisor does not 3 Bro. P. C. 232 (2d ed.), or 5 liro. P. C.

go farther, and give an estate in succession 592 (1st ed.). And in Humbertttm v.

to the children of such unborn issue;" per Humberston, cited ante, 505, Ld. Cotcper,

Lord Kenyan in Hay v. Earl of Coventry, C, decreed estates tail to the sons unborn,

3 T. R. 86. And this is explained by and estates for life to those »n eue, accord

what was said by his Lordship in Bru- ing to the doctrine of cy pres (as to which

denellv. Elwes, 1 East, 452, viz. " An see Nicholl v. Nicholl, post, 1159).—See

unborn child may be made tenant in tail, also Godolphln v. Godolphin, 1 Ves. S. 21;

but not tenant for life with a limitation to and Fearne C. R. 502.

Yates, J.—I am of the same opinion, and equally clear in that opinion. The after-born sons had not, could not have, offended the testator. There is therefore no room to suppose, he could intend to narrow his bounty in respect to them and

their issue* Judgment for the defendant (x).

(x) " As to the case of Emns v. Astley, lie estate wag limited in formal terms to the three first sons of the devisor's sister, and to the heirs of their bodies, and in the limitation to the fourth son those words were omitted: and afterwards, when the devisor was directing what was to be done in conformity to his will, he took it for granted that an estate of inheritance was given to the fourth son, for he directed the sons of that fourth son to take his name and arms. And I remember that in determining that question, the Court considered the rule adopted by Lord Hale, noscitur a sociis; which was no pedantic or inconsiderate expression when falling from him, but was intended to convey in short terms the grounds upon which he formed his judgment The kindred terms, to which the Court referred in Evans v. Astley, were the limitations to all the other

brothers, and a requisition that the de-
visor's name and arms should be borne by
them and their descendants. And the de-
visor could not be supposed to have in-
tended, that the estate, which was the
substance, should go one way, and the
arms and name, which were the shadow,
another."—Per Lord Kenyan, in Hay v.
Earl of Coventry, 3 T. R. 86. And in Doe
v. Dacre, 1 Bos. & P. 260, Buller, J., ob-
served, that " with respect to the case of
Evans v. Astley, the proviso, that the de-
visees and their descendants should take
the name and arms of the devisor, was in-
consistent with a mere estate for life." See
also Denn dem. Briddon v. Page, Id. 261;
Doe v. Vaughan, 5 B. & A. 464. As to
what words pass an estate tail, see the
cases collected in I Roberts on Wills, 469
(3d ed.); Bac. Abr. Leg. Se Dev. (D);
Vin. Abr. Dev. (C b.)



Combe qui tarn v. Pitt. (See ante, 437).

S. C. 3 Burr. 1586—1682.

ACTION on the statute of bribery (y), for corrupting three voters at last Ilchester election. Verdict for plaintiff, with 15001. damages, subject to the report of Wilmot J., who tried the cause. And the defendant's counsel relied on three objections:—1. That the declaration states, that the party was bribed to vote for Mr. Lockyer *and Lord Egmont; and it came out in evidence, that it was for Mr. Lockyer and his friend: 2. That the declaration states, that Lord Egmont and Mr. Combe were candidates at the time of the bribe given; and no evidence was given thereof: 3. That it also states, that the persons bribed had a right to vote; but no evidence was given thereof, other than that they actually voted.

Lord Mansfield, C. J.—This is an action brought for three penalties for election bribery, for which very offence the defendant has been formerly convicted upon an information («).

Action on the statute of bribery need not state all the parties for whom the bribe was

[ »524 ]

given; nor2dly, needitbeproved that those parties were candidates; nor 3dly, need the voter's right of voting be proved.

iy) 2 O. 2, c. 24: and see further «n- c. 118. acUneoU against bribery in 4» Geo. 3, (s) Ante, 383.

Combe q. t. And the Court, in giving judgment, considered he was liable Pj to this action. Yet the reluctance of every man to see a per

« y-i 'son twice punished for the same offence operated strongly at

the trial, in saving the case in this shape. The same also operated here, in hopes that the parties might come to some compromise. This has not happened. We are sorry for it: but the law must have its course. We must not make an illegal or dangerous precedent to get out of this statute, so long as it remains in force. Its extent and severity we all know happened by accident. As to the first objection: in penal actions the rule is, that the material fact must be charged; and that you must prove a fact charged, sufficient to warrant all the consequences of a verdict. The material fact here is, being bribed to vote. It makes no difference whether the proof was, that he was bribed to vote for both, or for Lockyer only. The second objection goes upon the vague idea of what is a candidate previous to the day of election. The poll is then the only evidence. The .House of Commons, in the case of Gore of Tring, candidate for Bucks, determined, that nothing was evidence of being a candidate but the poll-books. Before the time of election any one is a candidate for whom a vote is asked. This very fact makes the person in whose behalf the bribe was given a candidate. As to the third objection, the defendant shall not dispute a man's right of voting, when he has asked I ''^a J him for his vote. It is a sufficient *proof of right, that he actually did vote. I am sorry I must be clear, that there is no ground for the objections.

Wilmot, J.—Of the same opinion. The material and substantial charge is, the bribe to give a vote at that election, for a person then a candidate. Had it been only proved that it was in fact given to vote for Lockyer, it had been sufficient. This action might be pleaded in bar against any other action for the same offence.

Yates, J.—Of the same opinion. Id certum est, quod certum reddi potest. Lord Egmont appeared to be afterwards the friend intended. But, apart from this, the offence against the statute is bribery, to give his vote in that election; it is immaterial for how many candidates. In any subsequent action for bribing the same voter for any other candidate, the defendant, by averment, might plead this recovery in bar. Had it been traversed, that Lord Egmont and the other were candidates, it would have been immaterial and bad. It is immaterial whether the voter had a right to vote or no; if he claimed to have a right, it is the same offence by the statute.

Discharge the rule, so far as relates to the entering judgment for the defendant—but the defendant is at liberty to move for a new trial, or in arrest of judgment, as he shall be advised.

Afterwards, in the same Term, Norton, Attorney-General, moved for a new trial for irregularity in the former trial; in that the record of Nisi Prius and plea-roll were not properly made up: they stating only the declaration and the plea in bat of nil debet, but having totally omitted the previous plea in abatement, demurrer, and judgment; which, he alleged, were necessary to be entered of record in order to bring a writ of error, if necessary. And he cited Harpur and Davy, Carthew, 498 (a); and a rule was made to shew cause next T erm (6).

(a) Or rather the case of Dubortine v. (haucdhur, there cited; S. C. Carth. 447, 5 Mod. 399, 12 Mod. 190, 1 Ld. Raym. 329; where a verdict for the plaintiff was set aside, because he had omitted to put a plea in abatement upon the Nisi Print roll. But the Court of King's Bench afterwards made a rule, that a copy of the plea in chief only should be delivered and paid

for; 7 Mod. 51, 1 Salk. 5.

(ft) This rule was afterwards discharged; the Court held that the irregularity was cured by the defendant's accepting the issue and paying for it. His objection ought to have been made at that time: it was too late to make it then; Combe v. Pitt, 3 Burr. 1682.—See Tidd's Fr. 755 (ed. 1821).

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No judgment
can be given on
a Sunday; and
if the return of
a writ of sum-
mons in a com-
mon recovery
he on a Sunday,
and the vouchee
dies on that day,
the recovery is

Swann v. Broome. [ 526 J

S.C. Ante, 490.

A HIS case was again argued by Glynn, Serjeant, for the defendant in error; who alleged—1. That days of appearance are of two sorts, compulsory and voluntary; and that all amicable proceedings have relation to the latter only. Therefore, the tenant having appeared gratis, it shall be intended, that he appeared on the first possible day: which is the essoign day of" the Term, which is the true day of appearance; the quarto die post being only a day of grace: Co. Litt. 134; 1 Bulstr. 35; Dyer, 361. In Pigot on Recov. 58, lease and release to make a tenant to the praecipe was on 27th November: recovery had in the same Term, which related back to November 26th, being the essoign day. Therefore held, there was no tenant to the praecipe. Bro. Abridgm. tit. Relation, 40; scire facias on judgment in debt—writ of error had been brought, tested the quarto die post: held, that it did not suspend the judgment; that being antecedent, viz. on the essoign day.—2. That the essoign day being on a Sunday makes no difference:— That business was formerly transacted on a Sunday may be inferred from the number of returns which are fixed on Sundays: That Sunday is still supposed the technical day, though, in latter times, no business has been done thereon. Several things are permitted by law to be done on a Sunday. Cro. Car. 466; the Court was adjourned to a Sunday, and it was said, the Court will meet on Sundays for the purpose of adjournment. If a county be adjourned to a Sunday, and election of knights of the shire be necessary in the mean time, they shall •proceed to election that day. In a writ of right, the appear- [ *527 ] ance must be on a Sunday. Notices to appear are always made out for Sunday, if that be the essoign day; if the Monday is inserted in its stead, the notice has been held bad. Judicial writs made returnable on a Sunday are bad, because there is no day of grace. Dyer, 312. But upon original writs

S'.v,ist the return is made on Sundays, because the tenant may have * his option to appear on that or a subsequent day.

« . BlacJcstone, for plaintiff in error.—The judgment cannot re

late back to the first day of the Term, for that would contradict not only the fact, but the record. The summons is returnable in one month of Easter, which is in the middle of the Term; and no fiction can make the judgment prior to that return. The doctrine of relation holds, where nothing appears to the contrary on the record. But when the sheriff is commanded on the roll, to have the parties here on Mens. Pasch. and it is then entered, "On which day come here, as well the "said A., &c."—the Court cannot wink so hard, as not to see and take notice, that the judgment could not be given a fortnight before the day of appearance. Selwin and Selwin (c), P. 33 Geo. 2, and M. 1 Geo. 3, King's Bench: The Court would not consider the judgment in a recovery, as prior to the return of the writ of entry.

2. As to the true question in this case, Whether the vouchee dying on a Sunday, the nominal return day of the writ of summons, the judgment is not void, as not being given in law till the Monday:

I admit there is no fraction of a day: But if any judgment could have been given on the Sunday, it would be sufficient, if Swann was alive on any part of it. I admit also that judgments shall relate back as far in the Term, as the facts appearing on record will permit, but no farther. And I will allow, L *>^° J that recoveries are to be favoured, as being the * legal conveyances of tenant in tail, as much as feoffments and wills are the conveyances of tenant in fee. But as feoffments must be legally completed by livery, and wills duly executed under the statute of frauds, so recoveries must be completed by judgment during the life of the vouchee. It was said, he has done every material act in his power to perfect the recovery, and therefore the Court will avail themselves of technical niceties to support it. But he has not, nor could he, appear in Court, and vouch over the common vouchee, &c, which are material forms. His intention is nothing to the purpose, as he did not live long enough to carry it into execution. If one makes a feoffment and seals a letter of attorney to deliver seisin, and dies before livery is actually given, the feoffment is void; Litt. 66. Judgment could not possibly be given on the nominal return day, being Sunday, and therefore no juridical day; and before the Monday, Edward Swann was dead. It will be necessary to look back to the original of our Terms and Returns, to maintain this argument. Spelman (of the Terms) has shewn, that formerly all the year was one continual Term, till the church interposed, and exempted certain holy seasons from profanation, which occasioned our several vacations. Certain festivals, and all Sundays were likewise exempted. As to Sundays in parti

(c) Ante, 222, 251.

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