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devifed all his "faid (freehold) manors, land," &c. to his eldest daughter in tail male in ftrict fettlement, with like remainders to his fecond and third daughters: and by the residuary claufe deviles all other his manors, lands, &c. either freehold or copyhold (except those in the county of York, &c. which he had before difpofed of), fubject to the faid rent charges, in failure of iffue male of his jon and himself, to his three daughters as tenants in common, in fee: held that certain customary eftates, which the devifor bad, with freehold property in Yorkshire, did not, on failure of the male line, pafs to the eldest daugh ter under the defcription of all his free bold manors, lands, &c. in that and other counties. For fuppofing that the frechoid of fuch customary eftates be in the tenant, and not in the lord, they being holden not at the will of the lord as pure copyholds, but according to the cuftom of the manor, and the tenants being entitled to the timber and mines, and the estates being demifed and demifeable in fee fimple or otherwife; yet as they were holden by copy of court-roll, and paffed by furrender and admittance, and were generally reputed and called copyholds, and the teftator having diftinguished in other parts of his will between copyhold and freebold, he must be prefumed to have ufed the word freehold in its ufual and popular fignification, as not including thefe customary estates confidered by himself as copyholds; and therefore fuch cuftomary eftates paffed to the three daughters under the refiduary claufe. And it feems that as by fuch residuary claufe the daughters would not take till failure of ifue male of the fon and of the devifor; he, the fon, the heir at law, took an eftate-tail by implication in the customary eftates not before devifed. Roe d. Conolly v. Vernon, E. 44

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G. 3. 2. One devifed thus: "Concerning my "worldly estate, I give and bequeath "to M. M. 1s. Also I give and be"queath to A. M. 2s." (with pecuniary bequests to feveral others in the fame form of words); "Alfo 1 "give and bequeath to G. S. my mef

3.

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fuage and lands, &c. in W. Also I

give and bequeath to the faid G. S. "and his wife all my lands, &c. in B. "Also all my meffuages, &c. in W. Alfo all my goods, chattels. &c. and perfonal eftate, after having thereout "first paid and discharged all my debts "and funeral expences: Also fubject to "the payment thereout all the aforefaid

legacies. And I nominate the faid "G. S. to be fole executor, whom I "charge with the payment of my debts, legacies, and funeral expences,"

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&c. Held that G. S. and his wife took a fee in the real eftate devifed to them, by reafon of the words having thereout paid all my debts," &c. which was a perfonal charge on them in respect of the realty as well as perfonalty, all devifed in one entire fentence, together with fuch charge. Doe, d. Stevens and Pain v. Snelling,E. 44 G. 3. 87

Under a devile of lands, arrears of rent, and a bond and judgment, to truf tees and the furvivor, and the executors,

c. of fuch furvivor, in trust, out of the rents and profits of the faid eftates and arrears, &c. to pay certain annuities for lies, and a sum in grofs; and from and after payment of the faid annuities and money, the teftator devifed fucceffive eftates for lives, remainder to C. W. in tail, remainder to his own right heirs; and he also gave a general power of leafing to the trustees for the best rent, with an allowance of 10/ a year to each for their trouble: held that the purposes of the truft being all anfwered by the death of the annuitants, and the raifing of the money for legacies, the remainder-man in tail, (the life eftate being spent,) took the legal eftate in the premifes. For where the purposes of a trust may be answered by giving the trustees a lefs eftate than a fee, no greater eftate fhall pass to them by implication; but the ufes in remainder limited on fuch leffer eftates fo given to them fhall be executed by the ftatute. And in this cafe it is fufficient to answer the purposes of the trust to give the trustees by implication an ef tate for the lives of the annuitants; with a term of years in remainder fufficient

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for the purpose of raifing the grojs fum charged out of the rents and profits. And this conftruction is further confirmed in this particular cafe by the bequeft to the truffees of the arrears and the bond and judgment, as well as of the rents and profits; for otherwife the interest in the bond, &c. would go to different reprefentatives than the estate, if the trustees took a fee; and the lea ing power was only to be executed as the occafions of the truft required. And there was also a personal remuneration to the truftees of 10l. a year for their trouble, which was not extend. ed to their heirs. Doe d. White v. Simpson, E: 44 G. 3. 162

4. Under a devile" to 4. for life, and "after him to his eldeft or any other "fon after him for life, and after "them to as many of his descendants "iffue male as fhall be heirs of his or

their bodies down to the tenth gene"ration, during their natural lives:" held that A. took no more than a life eftate; for here is no general intent to create an eftate tail, as contradiftinguished from the particular intent to give an estate for life to the first taker; but a fingle intent to create a fucceffion of life eftates to perfons not in effe, which the law ill not allow. Seaward 198

v. Willock, E.'4 44 G. 3. 5. The word fare may carry a leafehold eftate. As where a teftator, having three fons and one daughter, and leafehold eftates and perfonal funds, devi. fed one leafehold estate to his eldest son, and other leafeholds to his fecond fon, directing his executors to receive and apply the rents until they came of age; and then directed a certain fum to be put out at intereft for the benefit of his widow, durante viduitate, and that on her death or marriage it should be divided equally between his three fons, fhare and share alike; and then he gave his daughter Cool. to be paid her when of age; and then gave the refidue of his worldly effects to be divided equalIv amongst his three fons, share and fhare alike; and lastly directed that" if any of his faid children died under age and without lawful iffue, the jhare of him or her deceased should go equally

amongst his furviving fons:" held that the word share in the last clause refer. ring as it must do to the whole share or portion of the daughter, must have the fame meaning as to the fons, and muft comprise the leafehold as well as perfonal funds before given to them; and that upon the death of the eldest fon under 21, and without iffue, the leafehold eftate devised to him went equally between the two furviving fons. Doe d. Stopford v. Stopford, M. 45 G. 3.

501 6. Under a devife of all freehold and copyhold eftates whatfoever fituate at B. with their appurtenances, to A. and the heirs of her body lawfully to be begotten whether fons or daughters, as tenants in common; and in default of fuch iffue, then over : held that A. took an eftate tail. Pierfon v. Vickers, M. 45 G. 3. 548

DISCHARGE OF DEBTOR.
See ESCAPE..

EAST INDIA COMPANY.

See INDICTMENT againft Officers in India for receiving Prefents contrary to the ftat. 33 G. 3. c. 52. S. 62.

EJECTMENT.

See COPY HOLD, No. 2. JOINT Tɛ,

NANTS, No. 1. NOTICE TO QUIT. In Ejectment the legal title muft prevail,

vid. Weakley d. Yea Bart. v. Rogers, in the Exchequer Chamber, M. 30 G. 3. and other cafes referred to in the note to Doe d.. Shewen v. Wroot. 138-9

EQUITY OF REDEMPTION,

See COPY HOLD, No. i.

ERROR, WRIT OF. See PRACTICE, No. 2.

ESCAPE.

1. B. being in cuftody at the fuit of 4. in a joint action against B. and C. B. juftifies bail in an action entitled by miftake" A. against B. "only, and a rule fo entitled is ferved on the marfal

of B. R. who thereupon difcharges B. out of cuftody, he not being charged in culody in any more than one action at the fuit of A.: held that the marshal was liable in an action for an efcape. White v. Jones Marfball of K. B. &c., T. 44 G. 3

292

2. In an action against the marfhal for an efcape, it being alledged in the decla ration that the prifoner was arrefted oa mefne procefs, and brought before a judge at chambers by virtue of a writ of habeas corpus, and was by him thereupon committed to the custody of the marshal, as by the record thereof now remaining in the court of B. R. appears, &c. fuch allegation is either impertiment and furplufge; for properly fpeaking, fuch documents are not records nor capable of becoming fo: or, confidering them as quafi of record, the allegation is fufficiently proved by the production of them from the office of the clerk of the papers of the K. B. prifon, with whom they were properly depofited. Wigley v.

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EXECUTION.

335

Jones, Marshal of the Marshaljea, T. 44 if one of two defendants taken on a joint

G. 3.

EVIDENCE.

440

1. No perfon can by the ftatute of frauds be charged upon any promife to pay the debt of another, unless the agreement upon which the action is brought, or fome note or memorandum thereof, be in writing; by which word agreement must be understood the confideration for the promife as well as the promife itself. And therefore where one promifed in writing to pay the debt of a third perfon, without ftating on what confideration; it was holden that parol evidence of the confideration was inadmiffible by the ftatute of frauds; and confequently fuch promife appearing to be without confideration upon the face of the written engagement, it was nudum pactum and gave no cause of action. Wain v. Warlters, E. 44 G. 3.

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2. An averment that the plaintiff was ready and willing to transfer, and requefted the defendant to accept stock, can only be fatisfied by fhewing an VOL. V.

ca. la. be difcharged under infolvent debtors act, that will not operate as a discharge of the othe. the difcharge of the former not being with the actual confent of the plaintiff. Nadin v. Baltie and Wardle, E. 44 G. 3.

EXECUTOR.

147

A count upon an account ftated with the plaintiff, executrix, &c. (not faying as executrix, &c.) cannot be joined with counts on promifes to the teftator; for it is no allegation that the promises were made to the plaintiff in her reprefentative capacity; and under fuch a count proof might be given of an account flated with her in her individual character. Qu. Whether if it had been laid to be on an account ftated with the plaintiff herfelf, though named as executrix, &c. it could be so joined, as the cause of action would still appear to have arifen in the time of the executrix, though the money, when recovered, would be aflets? Henshall v. Roberts, in error, E. 44 G. 3. 159 Ff EXEMP

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FALSE IMPRISONMENT.

1. The toleration act, 1 W. & M. c. 18. provides (18.) that any perfon maliciously disturbing any diffenting congregation under that act, on proof before a justice of peace, fhall find fureties in 50%, or in default be committed to priton till the next feflions, and on conviction forfeit 20l. to the Crown. To an action againft magiftrates for trefpaís and falfe imprisonment, they pleaded a charge preferred before them for an offence against that claufe, and a commitment for want of fureties under it to the next feffions; and that before the next feffions it was agreed between the profecutor and the now plaintiff

in the confent of the committing magiftrates (the now defendants), that the profecution should be dropped, and the plaintiff be difcharged at the feffions for want of profecution; that the plaintiff was accordingly then and there fo difcharged in full fatisfaction and difcharge of the affault and imprisonment : held this was no legal fatisfaction; for ether the agreement was illegal, as filling a profecution for a public mif demeanor, and thereby impeding the courte of juftice ;or the fatisfaction, ifany was moving from the profecutor only, and not from the juftices; their authority over the profecution being at an end after the commitment of the plaintiff: and their confent afterwards to the profecutor, dropping the profecution being a mere nullity, and no fatisfaction for a prior injury, if any, received by the plaintiff from their act. Edgcombe G. 3. v. Rodd and Others, T.

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FOREIGN SENTENCES.

2. An indi&ment for an affault, falfe imprifoment, and refcue, ftated that the Judges of the Court of record of the torn and county, &c. of P., iffued their writ, directed to T. B., one of the Serjeants at Mace of the faid town and county, to arreft W., by virtue of which T. B. was proceeding to arrest W. within the jurijdiction of the jaid Court, but that the defendant affulted T. B. in the due execu tion of his office, and prevented the arreft: held ‍fuch indictment bad; it not appearing that T.B. was an officer of the Court: and that there could not be judgment after a general verdict on fuch a count as for a common affault and falfe imprisonment, because the jury must be taken to have found that the affault and imprisonment was for the caufe therein flated, which caufe appears to have been that the officer was attempting to make an illegal arreft of another, which being a breach of the peace, the de. fendant might, for aught appeared, have lawfully interfered to prevent it. Rex v. Ofmer, T. 44 G. 3.

FOREIGN SENTENCES.

304

1. Where a foreign Court of Prize profeffes to condemn a fhip and cargo on the ground of an infraction of treaty in not being properly documented, &c. as required by the treaty between the captors and captured; fuch fentence is conclufive in our courts against a warranty of neutrality of fuch hip and cargo in an action upon a policy of infurance againit the underwriter; although iaterences were drawn in fuch fentence from ex parte ordinances in aid of the conclufion of fuch infraction of treaty. Baring v. The Royal Exchange Aurance Company, E. 44 G. 3.

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2. A fentence of a foreign Court of Prize is conclufive evidence in an action upon a policy of infurance upon every matter within the jurifdiction of fuch Court upon which it has profeffed to decide. Therefore where a Dani fhip, warranted neutral, was captured by a French fhip of war, (Denmark being at peace with France,) and the court in which she was libelled as prize,

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profeffing to confider that the built of) the veffel was unknown, that he was fold to a neutral subject only fince the declaration of war, that the bill of fale did not mention her place of built, or her original owner, that the mate and third officer were naturalized Danes only fince the declaration of war, and that the greater part of the crew were fubjects of hostile powers, condemned the fhip as good and lawful prize; fuch condemnation is conclufive against the warranty of neutrality in an action on the policy against the underwriter; and no evidence can be received to falfify the facts affirmed by fuch fentence, nor to fhew that the conclufion was unfounded: although the fentence proceeded to refer to certain ordinances of

France, containing rules to direct judge

ment of its Courts in the confideration of the question of neutrality; by which rules the Prize Court appears to have regulated their judgment in the conclufion they had drawn. Bolton v. GladeGone, E. 44 G. 3. 155

FORFEITURE.

See AGREEMENT, No. 2.

FRAUDS, STATUTE OF.

1. No perfon can, by the ftatute of frauds, be charged upon any promife to pay the debt of another, unless the agreement upon which the action is brought, or fome note or memorandum thereof, be in writing; by which word agreement must be underflood the confideration for the promife, as well as the promife itself. And therefore where one promised in writing to pay the debt of a third perfon, without ftating on what confideration, it was holden that parol evidence of the confideration was inad. miffible by the ftatute of frauds; and confequently fuch promife appearing to be without confideration upon the face of the written engagement, it was nudum pactum, and gave no caufe of action. Waine v. Warlters, E. 4+ G.

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2.

FREEHOLDER.

See PRESSING, No. 2. FREIGHT.

See INSURANCE, No. 3. PASSAGE

MONEY.

GRANT.

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1. Where there is a grant of a particular thing once fufficiently afcertained by fome circumftance belonging to it, the addition of an allegation, mistaken or falfe, respecting it, will not frustrate the grant: but where a grant is in gene ral terms, there the addition of a parti cular circumftance will operate by way of restriction and modification of fuch grant. Roe d. Conolly v. Vernon, E. Therefore where one having cuftoma44 G. 3. ry tenements, compounded and uncompounded, furrendered to the use of his will" all and fingular the lands, tene"ments, c. hatfoeger, in the manor, "which he held of the lord by copy of << court roll, in whofe tenure or occupa"tion foever the fame were, being of "the yearly rent to the lord in the whole "of 41. 10s. 84d, and compounded for:" held that the words and compounded for," restrained the operation of the furrender to that defcription of copyholds then belonging to the furrenderor. And that the words being of the yearly "rent, c. of 41. 10s. 8d.," which were not referable to any actual amount of his rents, either compounded or uncompounded, though much nearer to the whole than to the compounded only, could not qualify or impugn that ib.

reftriction.

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