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any of them her share to go to her
See Executor and ADMINISTRATOR,

firit and other fons in tail, and for de-
No. 1.

fault of such fons, to her daughters as
tenants in common; in case of



the seven sisters dying without issue, or

such iflue dying under twenty-one, the
See Way Right of, No. I.

surviving filters to take her ihare, and
1. Lands usually occupied with a houte

if all the fifters should die without issue,
will not pass under a devise of “

or such issue die under twenty-one, then
mesfuage with the appurtenances," un- over; held that the words for “ default
less it clearly appear that the teftator of such sons," did not make the re-
meant to extend the word “

appur- mainder to the daughters contingent,
tenances,” beyond its technical sense. which took effect notwithftanding the
Buck d. Whalleyv. Nurton, T.37 Geo.3. birth of a fon. Doe d. Dacre v. Dacre,

Page 53

E. 38 G.3. (Affirmed on error in K.B.
2. But if that do appear, they may pass. 8 Term Rep. 112.). Page 250

57 7. Teftator devised'in fee to P. 'D. his
3. The word “appurtenances" will


brother for life, and after his decease
orchards. ib.

to G. P. his neice for life, then to
4. A. devised all his freehold and leafe- truftees to preserve contingent re-
hold estates “ to B. and the issue of

mainders, and after the decease of
her body as tenants in common, but in P. D. and G. P. “ in trust for the use
default of such issue, or being such if of the first son of G. P. and his heirs,
they thould all die under twenty-one and for want of such iffue to the other
and without leaving issue” then over; fons of his neice, and their heirs in fuc-
held that all the limitations subsequent cession, and for want of such isue male,
to that to B. being contingent, the then to the daughters of G. P. and for
remainders in the freehold were barred want of such iffue over; held that the
by fine and recovery, but that the leafe- words for want of such iffue male,
hold vested in the remainder-man on the made the remainder to the

death of B. without iflue. Burnfall v. contingent, and that it was therefore

Davy and Others, H. 38 Geo.3. 215 defeated by the birth of a fon. Keene
5. Testator devised “ all his freehold d. Pinnock et ut. v. Dickson, B. R.
leasehold, &c. estates” to A. in fee, M.23 Geo. 3.

254 n.
provided that if B. shall have “ any fon 8. Devise to S. N. son of T. and M. N.
or fons," then “to such male issue as B. for life, remainder to trustees to pre-
Thall have when A. attains twenty- serve contingent remainders, remain-
one," but A. to have the rents and

der to the first and other sons of S.N.
profits of the estates till he attains and their heirs male ; for default of
twenty-one : by a subsequent clause he such issue to the use of the daughters
gave « all the residue of his real and of T. and M. N. and for default of
personal estates whatsoever, not before Such issue to the use of the right heirs
disposed of to A. his heirs, fc. for of T. N. for ever; held that the word
ever.” B. had one fon who died be. “ such” referred to the daughters of
fore A. attained twenty-one, and a T. and M. N. before-mentioned only,
second who was born three weeks and restrained the limitation to them to
after that period. Held that the first an estate for life. Denn d, Briddon
son took nothing, but that the second et ux. v. Page and Another, B. R.
took an estate in tail male. Whitelocke, M.23 Geo. 3:

261 n.
Administrator, &c. v. Heddon and 9. A. after giving a life estate in certain
Others, E. 38 Geo. 3.


copyholds to B., devised as follows:
6. Devise to the teftator's seven fifters, "All the rest of my lands, tenements, and
share and Share alike; on the death of


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hereditaments, either freehold or copy- the circumstance of the conveyance of
hold, whatsoever and wherefoever, and that estate to the truttees being merely
also all my goods, &c. after payment of for the purpose of creating a term to
my just debts and funeral expences, I secure the wife's jointure. Goodtitle,
give, devise, and bequeath the same d. Holford and Others v. Otway, M.
unto my wife S. C.” held that under

37 Geo.3.

Page 576
this devise S.C. took a fee. Denn d.
Mellor v. Moor in Error, M. 37 Geo. 3.

Page 558

1. Affumpfit againft three ; two pleaded
10. A. feifed in fee of the manors of a debt of record by way of fet-off; the

Stanford, &c. and also of the manors of Plaintiff replied nul tiel record, and gave
Swinford and South Kilworth, entered a day to the two Defendants, but e-
into marriage articles to secure a join- tered no fuggeftion respecting the
ture to his intended wife upon the third; held on demurrer, that the ac-
above eftates, and to make provifion tion being discontinued, judgment muft
for younger ehildren, and agreed to be given against the Plaintiff, even
settle the Stanford eftate upon his eldest

though the Defendants' plea were bad.
fon in ftrict fettlement, subject to part Tippet and Others v. May and tus
of such jointure and provision. He Others, E. 39 Geo. 3.

then devised those estates in cafe he
should happen to die without issue, and

subject to fuch jointure as he might See Practice, No.4.15.
make, to the leffors of the Plaintiff for
five hundred years upon the trufts there-

1. If a diftringas be returnable, on the
in expressed. Afterwards by separate

last day of Term, the Plaintiff at the
deeds of lease and release, he conveyed,

rising of the Court may move to in-

creale issues on the alias or pluries dis
first, the Stanford estate, to trustees in

tringas to be issued thereupon on the
fee, to the use of himself in fee till the

following day, in cafe no appearance
marriage, with divers limitations in

shall then have been entered. Reg.
pursuance of the articles, and subject

Gen. Trin. 38 Geo.3.
to a term of five hundred

for fe-

2. Sowhere iffues have been levied on such
curing part of his wife's jointure to the
use of himself in fee; fecondly, the

diftringas, he may at the rifing of the

Court, move for leave to sell the ities
Swinford and South Kilworth estates
to trustees in fee to the use of himself

to pay the costs of the distringas. ib. ib.
in fee till the marriage, to the use and
intent that his intended wife should

take the other part of her jointure there. See Market, No. 1, 2.
out if she survived him, and after his TOLL.
death, remainder to trustees for five
bundred years to secure such jointure,

remainder to himself in fee. He after-
wards married and died without issue.

Held that the will was revoked as to
both eftates by the deeds of settlement,

though they were confiftent with the

provisions of the will, and though the 1. The exclusive right of trading to the
devisor took back the estate, he parted East Indies granted to the East India
with by the same instruments. Goodtitle Company by 9810 Will.3. has never
d. Holford and Others v. Otway, M. been put an end to, and every infringe-
37 Geo.3.

ment of it is a public wrong. Camden
11. Held also, that the latter eftate was and Others v. Anderson in Error, E.
not excepted from this revocation by 38 Geo.3.

2. Though


Page 49


2. Though such parts of 98 10 Will. 3.

EVIDENCE, as inflicted penalties, &c.were repealed See EJECTMENT, No. 1. by 33 Geo.3. C.52., and though the INQUIRY, Writ of, No. 2. latter act says, that “ no acts, or parts NEW TRIAL, No.3. of acts thereby repealed, shall be VARIANCE, No.6. pleaded or fet up in bar of any action," 1. Delivery of an attorney's bill is con&c. yet it is competent to under

clusive evidence, on a taxation by the writers who have fubfcribed policies on

prothonotary, against an increase of thips trading to the East Indies in con

charge in a fublcquent bill on any of travention of 9 & 10 Will. 3. to avail the items contained in the first ; and themselves of the illegality of such strong prefumptive evidence against trading, in an action brought on the

any additional items.

Loveridge v. policies. Camden and Others v. An

Botham, E. 37 Geo.3. derson in Error, E. 38 Geo.3.

In an action on an attorney's bill, the Page 272 Nifi Prius roll is good primâ facie

evidence that the action was not comEAST INDIES,

menced till the expiration of a month See INDIA.

after the delivery of the bill. Webb v. Pritchett, E. 38 Geo.g.


3. In escape against the Sheriff if the See PRACTICE, No.34. 36, 37.

Plaintiff aver in his declaration that If a declaration in ejectment be served

J. $. was arrested « under a writ in. upon a tenant, and his landlord be ad- dorsed for bail by virtue of an affidavit mitted to defend, the Plaintiff can only now on record,” he must produce the recover such premises as the tenant is

affidavit in evidence, though the latter proved to be in poffeffion gt. Fenn d. part of the averment was unnecessary. Blanchard v. Wood, M. 37 Geo.3. 573

Webb v. Herne and Another, Sheriff of
Middlefer, T. 38 Geo.3.


4. Secus if the declaration only state that See Treating Act, No.1.

a writ was sued out, indcrfed for bail. Semb. ib.

• 282 ERROR,

5. If the abandonment of a contract be See Bail, No.10.

made the ground of an action, it is EXCHEQUER CHAMBER, Court of. not competent to the Plaintiff to thew

that a contract has exifted and been ERROR, WRIT OF,

abandoned without proving the speciSee New TRIAL, No.1.

fic contract. Walker v. Constable, T. PRISONER, No.2.

38 Geo.3.


6. In debt on bond, if one of the atteft.

ing witnesses be dead, and the other ESCAPE,

beyond the process of the Court, it is See Bail, No.9.

fufficient to prove the hand-writing of Evidence, No.3, 4. 9.

the witness that is dead." Adam and PLEADING, No. 19, 20.

Wife, Executrir v. Kerr, M. 1. If a theriff's officer having taken a

360 prisoner in execution permit him to 7. Qu. Whether evidence of a custom in go about with a follower of his be. Jamaica to execute bonds by substifore he take him to prison, it is an tuting a mark with a pen for a feal, be efcape. Benton v. Sutton, E. 37 Geo.3. admisible in fupport of a declaration

24 on a bond sealed, &c.? ib. 360 2. Qu. Whether it would not have been 8. Evidence that the homage have been

an escape also if the officer himself had accustomed to assess a certain fum of accompanied him? ib.

ib. money as a heriot upon alienation, and VOL. I.


39 Geo.3. Page 393

that such assessment has always been from the sea, is within the protection made with reference to the best chattel of 24 Geo. 3. Seff. 2. C.47. f. 15. The of the tenant, will not support an King v. Brady and others, M. avowry for a heriot in kind upon 38 Geo.3.

Page 187 alienation. Parkin v. Radcliffe, E. 2. Nor need he have a warrant to seize 39 Geo.3.

the foap in tranhtu, if liable to for9. Evidence of a custom for the lord to feiture,

ib. have the best beast or good on the

EXECUTION, tenant's death, will not support a justi. fication by him for taking the best See PRISONER, No. 1, 2. beafte Adderly v. Hart, T. 4 Geo. 1. .1. An attachment for non-payment of


is an execution. The King . 10. To debt for an escape, Defendant Davis, One, &c. M. 39 Geo.3.

336 pleaded a voluntary return and safe 2. If a fi. fa. be tefie'd before Defend. keeping fince; Plaintiff in his replica- ant's death, but delivered to the Sheriff tion aclmitted the voluntary return,

and executed after, the execution is but alleged that afterwards, and after regular. Waghorne v. Langmead, M. notice of the efcape, the prifoner 37 Geo.3. (Vid. et. Bragner v. Lang. escaped again this the Defendant mead, 7 Term Rep, 20.)

571 traverted: Hold, that it was not fuffi. 3. Same point. Gill v. Parsons, 13 cient for the Plaintiff merely to prove

B.R. (Same cafe, 7 Term Rep.21, .) a notice of escape and subsequent

572 escape, but that he must also, in order to maintain the action, prove the


TRATOR, first efcape alleged in his declaration. Griffiths v. Eyles, E. Geo. 3. 418 n

See ADMINISTRATION, No.1, 2. 11. Evidence that the parishioners have

BAIL, No.5. treated with the proprietor of tithes

Costs, No.9, 10. for a composition is not alone sufficient 1. If an executrix use the goods of her to establith his poffe Sion of the tithes teftator as her own, and afterwards in an action on the 2 & 3 Ed.6. C. 13. marry, and then treat them as the Wyburd v. Tuck, T. 39 Geo.3.

goods of her husband, she shall not be

allowed to object to their being taken EXCHEQUER CHAMBER, in execution for her husband's debt. COURT OF.

Quick et uz. v. Sir Wm. Staines, Kat. 1. The Court of Exchequer Chamber Sheriff, T. 38 Geo.3.

will allow intereft to a Defendant in 2. An outftanding judgment againft Error under 3 H.7. 6.10. on a judg- teftator or inteftate not docketed acment of non pros, as well as on a judg. cording to the directions of the ment of aflirmance, Sykes v. Harrison 4 & 5 Will. & Mary, C. 20. cannot be in Error, E. 37 G80.3.

29 pleaded by an executor or admini. 2. For the future the interest allowed strator to an action on fimple contrad.

will be sl. per Cent. instead of 41. Steele v. Rorke, Admini fratrir, T. ib. 30 38 Geo. 3.

307 3. Where judgment for the Defendant 3. Qú. Whether an executor can main

on a special verdict is reversed in the tain trespass for trees cut down in the Exchequer chamber that Court on life time of his teftator? Williams, motion will give a final judgment for Executor, v. Breedon, Mich. 39 Geo.3. the Plaintiff. Denn er dem. Mellor v.

329 Moore in Error, E. 37 G.3.


4. If the obligee in a joint and several

bond make one of two obligors his EXCISE,

executor with others, the action on the 1. An excise officer seizing soap in the bond is discharged as to both obligors.

execution of his offiee at any distance Cheetham v. Ward, H.37 Geo-3. 630



Page 530



Way, Right of, No. 1.

1. On a motion for a new trial by a De-

fendant in an action against him for

goods delivered to the use of a third

person on his undertaking to see the

Plaintiff paid, the Court will take into
Bills of ExcHANGE, No. 3.

consideration not only the exprefsions
PARTNERS, No. 1, 2.

used, but the particular situation of the
Defendant at the time of his under.

taking, and the amount of the fum for

which he will thereby be made liable.
See Bail, No. 2.

Keate v. Temple, M.38 Geo. 3.

Page 158
Power, No. 1.

2. A sale of lands, though by auction is

within the statute of frauds, and there-

fore no action can be maintained upon

it without a memorandum in writing.
See COMMON Recovery, No. 4.

Walkerv. Confiable, T.38 Geo. 3. 306
1. No fine which appears to have been ac- 3. If A. agree with B. to let him land

knowledged more than twelve months, rent free, on condition that A. shall
can pass the King's silver office without have a moiety of the two succeeding
a rule of Court or Judge's order, crops, the agreement need not be in
Reg. Gen. E. 36 Geo. 3.

writing under the statute of frauds.
2. In such case, if the conufors be living, Semb. Poulter v. Kellingbeck, E.
an affidavit must be made thereof. ib. ib.

39 Geo. 3.

3. If dead, the affidavit must itate the

time of their death. ib.

4. And the application for a rule or order 1. A ship bound for London, after taking

that the fine may pass the King's filver in her cargo, but before breaking
office shall be made to the Court on ground, was cut out of her port of la-
motion if in Term time, if in vacation ding in Jamaica by a French privateer,
to a Judge at Chambers; and the rule but was afterwards recaptured, and
or order must be filed with the pre-

carried into another port in the same
cipe and concord at the King's filver illand, where the cargo was sold by
office. ib.


order of the Court of Admiralty for

the benefit of the freighters: Held,

that the owners of the Thip were not

entitled to any part of the freight.
If a Defendant be held to bail in this

Curling v. Long, H. 37 Geo.3. 634
country on an instrument entered in-
to in France, by which instrument

2. Though by the usage of the trade,

the thip was loaded at the expence of
his property only, and not his perfon

the owners. ib.

was, according to the law of France
made liable, the Court on motion will 3. For freight commences from break-
discharge him on his entering a com-

ing ground, ib.

mon appearance, Melan v. The Duke
de Fitzjames, M. 38 Geo.3. 138


2. If A. become bound to B. for the
See Costs, No. 6.

hopesty of C. who embezzles money,

X X 2

B. may


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