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V, ante,

1586.

1766.

doing so, without paying costs. He mentioned the case

of Hawes, executrix, versus Saunders, M. 5 G. 3*, BENNET v. where it was determined “that an executor shall pay COKER.

« costs for not going on to trial, after having given “ notice of trial :" and he argued, that so he shall like

wise, where he has not tried it pursuant to his underpage 1584. and

taking, after a motion has been made against him for judgment as in case of a nonsuit. For this was his own lacbes : he ought to have been previously informed of the facts upon which he grounded his action.

Lord MANSFIELD-This may be reasonable in a case where the executor may probably bring another action. But here, I suppose, he will be bound not to bring another action ?

Mr. Dunning readily agreed to be so bound. [East. 396.)

And The Court observed, that on a judgment as in case of a nonsuit, an executor does not pay costs. (b)

Mr. Thurlow urged, that here, the executor has positively undertaken to try it; and thereby put the defendant to the expense of going down to trial. And they may go on again: they will not be absolutely precluded.

Lord MANSFIELD-Here is no double vexation. The plaintiff agrees not to try it ; but withdraws the cause at the Assizes, upon finding that there is a deed against him. So that there is an end of the matter.

Mr. Justice Aston observed to Mr. Thurlow, that the defendant had saved all the fees of Court; which he must have paid, if there had been a verdict. (Which observation was repeated and confirmed by Lord MinsFIELD.)

Mr. Justice Yatek-It is not in all cases, that an

.(b) See Barnes 130. acc. which was a judgment pursuant to 14 Geo. 2. and so must this be taken to be : but where an executor is non prossed for not declaring in due time, the Court, on the foot of laches, held that he should pay costs, 3 Burr. 1584. The reason seems to be the same in the case of a judgment upon the statate, and therefore it may be presumed that this observation must be understood, subject to this restriction, riz: if the judgment did not proceed from his own laches, in which case it is observed, in the next page, both by Justice Yates and Lord MANSFIELD, that an executor shall pay costs for not going on to trial. But quere, for there can scarcely be supposed to be a judgment on the statute, unless the plaintiff has been guilty of laches; for if not he might shew it for cause against the rule and the Court would not give the judgment against him. [ 1929

executor shall discontinue without paying costs : for, if

1766. it is plainly his own *fault, he shall not have such leave. So, in case of not going on to trial, if it is his own laches, Bennet v. he shall pay costs. (To which also Lord MANSFIELD COKER. agreed.) Therefore the question is (c) “ whether there * is laches or delay; or whether it be a fair transaction." Now this was fair and candid. The plaintiff has done better for the defendant, than if he had gone on to trial : he discovered he was in the wrong; and as soon as he

[7 Mod.98,118) knew it, desisted.

The Court granted Mr. Dunning's motion, “to u discontinue without payment of costs :" but the plaintiff was not to bring any new action, without * Leave of the Court. (* There might perhaps, arise Assets in futuro : and then it would be reasorable for the executor to have leave to bring a new action.;

Brown qui tam, vers. Bailey.

Wednesday, 18

Nov. THE THE Court made a Rule, “ That where they give

* Leave to compound a Penal Action, the King's Compounding a Half of the composition, shall be paid into the bands .penal action. of the Master of the Crown-Office, for the use of his c.5, s. 3. & 4. Majesty.

made perpetual by 27 Eliz. c.10. [See also Gilb. Ex. 191. Hard, 395. 2 BI. Rep.

1154.) (c) This is very just, and warranted by Cooke's Cas. of Prac. 60, 3 Burr. 1451, and the like principle has prevailed where an executor is non prossed, as mentioned in 1928: so in Cooke's Cas. of Prac. 14, 15, 20, and yet there are many former cases which shew that where a person sues as executor, and could not sue in any other right, and the defendant pleads special matter lying in the executor's knowledge, which is found for the defendant, yet the plaintiff shall not pay costs, 1 Vent. 92. cited and relied on per cur. in Lord Raym. 1413. So where an executor has in his replication set forth a fact in his own time, which has been traversed by the defendant and found to be false", yet the plaintiff has not paid costs, 2 Barnes, 122, 124. Lord Raym. 1413. Str. 682. Quere, whether the authority of the above cases are shaken by these late determinations or not?

1766,

Friday, 14th
Nov.

GULLIVER, on the demise of AMBROSE CORRIE, Clerk ;

and also on two several demises of the same person by the name of AMBROSE Wykes, Clerk ; against

SHUCKBURGH Ashby, Esq. and others. Devise to the heir at law in. THIS

was a special Case in Ejectment. The cause tail, with a

came on to be tried at the last Lent-Assizes for the proviso for

county of Northampton, before Mr. Justice YATES; taking the tes when it was agreed, by consent of the parties, that al. tator's naine, is not a condi- though a verdict was found for the plaintiff, on the last tional limita- demise, it should be subject to the opinion of this Court tion.

upon the following case.

William Wykes, Esq. being seised in fee of the Estate s1 Blac. 607.

in question, (subject only to a mortgage of part thereof,) Š.C. 2 Brown 462. 3 East 551. on the 5th of August 1736, made his last will in Qu. Fearne writing duly executed and attested : whereby he de. 194, 195.]

vised (amongst other things,) in casc he should die without issue, that, after the death of his wife, the premises should go to his sister Dorcas Wykes, for life; and after her decease, unto bis nephew Ambrose Saunders and the heirs male of his body lawfully begotten, and the heirs male of their bodies lawfully begotten; and for want of

such issue, unto the heirs malc of the body of his sister [ 1950 ] Dorcas Wykes, and the heirs male of their body lawfully

begotten ; with remainder, to his wife and nephew's godson Ambrose Corrie (the lessor of the plaintiff) and the heirs male of his body lawfully begotten, and the heirs inalc of their body lawfully begotten; remainder, to the heirs of the body of his nephew Anibrose Saunders ; remainder, to the heirs of the body of his sister Dorcas Wykes ; remainder, to his kinsman Robert Ekins, and the heirs male of his body in tail male; remainder, to his own right heirs for ever : " PROVIDED always, " and this devise is expressly upon this condition, that " whenever it shall happen that the said Mansion-House " and said Estates, after my wife's decease, shall descend or come unto any of the

persons herein before named, [that? the person or persons to whom the same “ from time to time shall descend or come, [that he or “they] do or shall then change their surname, and take upon

them and their heirs the surname of WYKes only, " and not otherwise.” But, in this proviso, there is NO deoise over.

Yet there is another proviso (which immediately follows) prohibiting waste, without the consent of the person to whom the premises shall next come; and in

V.

this latter proviso, there is a devise over to the person 1766. who is or sball be next intitled to the premises expectant upon the death of the waster, of such part of the estate Gulliver upon which waste shall be committed or suffered : and so, toties quoties, on every committing or suffering ASHBY. waste by the person in possession, without such consent as aforesaid.

On the 9th of May 1742, the testator died without issue; leaving his sister Dorcas Wykes, spinster, and Ambrose Saunders, (the only son of Sarah Saunders, his other sister, then deceased, his co-heirs : And his widow entered upon the estate, and enjoyed it till her death. And upon her death, which happened on the 16th of January, 1747, his sister Dorcas entered, and enjoyed till 26th of December 1756; when she died without issue ; and Ambrose Saunders, who was then the testator's sole heir at law, entered, and enjoyed till 8th of October 1765; when he died without issue; and the defendant Shuckburgh Ashby entered, and has (together with the other defendants, his tenants,) been in possession ever since.

On the 8th and 9th of February 1759, the said Ambrose Saunders, being in possession, executed Indentures of Lease and Release, and became vouchee in a common recovery, which was suffered in the Easter Term following : but NEVER CHANGED AS Name of Saunders, nor took upon him the surname of Wykes.

On the 17th of January 1766, the lessor of the plaintiff [ 1931 ] entered, for breach of the proviso, by Ambrose Saunders's not taking the name of Wykes.

It appeared upon the trial, that Ambrose Saunders, by indenture dated 26th October 1757, had mortgaged part of the premises in question,

The question was,." Whether, on the case above “ stated, the plaintiff was intitled to recover, in this “ ejectment, such parts of the premises mentioned in the 6 declaration as are not comprised in the said indenture " of 26th of October 1757, or any part thereof.”

This case was argued twice; first, by Serjeant Glynn for the plaintiff, and Şerjeant Leigh for the defendants; and the second time, by Mr. Hill for the plaintiff, and Mr. Blackstone for the defendant.

Serjeant Glynn and Mr. Hill (d) argued that the plaintiff has a title to recover; both upon the general

(d) Vid. 1 Vez. 422, 423. where Lord Hardwicke was of the same opinion as to the principle on which Serjeant Hill argued this case, and on which he thought it ought to have been determined for the plaintiff.

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1766.

rules of construction, and legal authorities; and to effec.

tuate the intent of the testator, GULLIVER

They endeavoured to sbew, that the proviso “ to take

the surname" operated as a conditional limitation, not ASHBY.

as a condition : and therefore the lessor of the plaintiff's title accrued before the common recovery was suffered.

"They previously discussed the legal notion of a condition, and of a limitation ; and cited Co. Litt. 201. a. b. 214. 6. 215. a. b. and said that conditional limitations differ from conditions subsequent; and have different properties. 2 Salk. 570. Page versus Hayward. 1 Vent.,

202 The Lady Ann Frye's case. [1 Vez. 422.] Wherever the Estate determines by way of limitation

(though a collateral or conditional limitation (it will go over to the next person appointed to take, without any devise over: but if the condition or limitation is annexed to an Estate of Fee-simple, then it will go to the heir (either general or special ;) unless there be a limitation over.

Wherever several Estates are devised one after another, if any of the preceding Estates become void, the next remainder-man shall take, though there be no express devise over.

A remainder tested cannot be devested by the determi. nation of the preceding Estate: And consequently, it

must take effect immediately. 2 Co. 51. u. Sir Hugh ( 1932 ] Cholmley's Case. 2 Bulstr. 125. Roberts versus Ro

berts. 3 Let. 437. Duncomb versus Duncomb. Perk. $567. Bro. Derise 4.

There is no distinction between remainders depending on Estates tail, and remainders upon Estates for life. Where the devisee in tail dies or refuses, the next in remainder shall take. In proof of which, they cited Cro. Elis. 423. and the case of Goodright versus Wright, 1 Strange 25. and that of Goodright versus Cornish, in 4 Mod. 255. and í Lord Raym. 3. and 1 Salk. 226. S. C. where the Court held " that if the remainder to the heirs “ male of John Knowling was void in point of limitation, " then the next remainder limited to Richard took effect “ presently."

And there is no difference, in point of reason, where the Estate tail is originally void, and where it determines by matter ex post facto.

An authority precisely to the point is Rudhall versus Milward, Moore 212. M. 27 & 28 Eliz. (at which time a condition to restrain a discontinuance was, and perhaps is now holden to be good ; though a condition to restrain a common recovery is not so.) It was determined, « William Rudhall was enabled to take benefit of the “ breach, whether it was a condition or limitation."

6 that

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