as trustees, to support contingent remainders; with remainder to the use of the first and every other son of the marriage successively, in tail male; with remainder, in case the Countess of Jersey should survive the Earl, to the use of her, her heirs and assigns for ever; but in case she should die in the lifetime of the Earl, then to the use of the first, and every other the daughter and daughters of the marriage successively, in tall male; with remainder to the use of such person or persons related by blood or consanguinity to the Countess of Jersey, and for such estates or interests, and in such manner, and subject to, and charged or chargeable with, such annual or other sums of money in favour of such persons so related, and subject to such powers, &c. (such sums of money, powers, &c. being for the benefit of some one or more persons, related by blood or consanguinity to the Countess of Jersey,) and in such manner as the Countess of Jersey, notwithstanding her coverture, by her last will in writing, or by any codicil thereto, signed and published in the presence of three or more credible witnesses, should direct, limit, or appoint; and in default of such direction, &c. and so far as any such, if incomplete, should not extend, to the use of the said Countess in fee. And it was by the said indenture of release, among other things, declared, that it should and might be lawful to and for the Duke of Bedford &c., and the survivors or survivor of them, and the executors and administrators of such survivors, at any time or times thereafter, at the request and by the direction of the Earl and Countess of Jersey, during their joint lives, and of the survivor of them, testified by some writing under their respective hands and seals, or under the hand and seal of the survivor, attested 1822. Earl of JERSEY and Others against DEANE. 1822. Earl of JERSEY and Others against DEANE. attested by two or more credible witnesses, to dispose of, either by way of absolute sale or in exchange for or in lieu of other lands, &c. to be situate somewhere in England, all or any part of the manors, &c. thereby granted and released, (except the mansion house, &c. called Osterley,) and the inheritance thereof in fee simple, to any persons whomsoever, for such price, or for such equivalent, in manors, lands, &c. as to the said Duke of Bedford, &c. or the survivors or survivor, &c. should seem reasonable; and that, for the purpose of effecting such sale or exchanges, it should be lawful for the said Duke of Bedford, &c. the survivors and survivor of them, &c. at such request, and by such direction, and so testified as aforesaid, by any deed or deeds, instrument or instruments in writing, sealed and delivered in the presence of, and attested by, two or more credible witnesses, absolutely to revoke, determine, and make void all and any of the uses, trusts, powers, &c. therein contained, of and concerning the hereditaments so proposed to be sold or exchanged, or any part thereof; and by the same or any other deed or deeds to limit, &c. any uses, estates, or trusts of the said hereditaments, ths uses of which should be so revoked, which it should be thought expedient to limit, &c. in order to effectuate such sales or exchanges; and that it should likewise be lawful for them to give effectual discharges and receipts to the purchasers, upon payment of their respective purchase monies. And in the said indenture of settlement was contained a covenant by the Earl of Jersey, for further assurance on his part, and on the part of the Countess of Jersey, and all persons claiming under him the said Earl of Jersey. By By an indenture bearing date the 20th day of March, 1807, and made between the Earl and Countess of Jersey, his wife, of the one part, and T. G. of the other part, reciting the said indentures of lease and release of the 15th and 16th days of December, 1806, and the fines levied in pursuance thereof, and the limitations contained in the settlement, and reciting that the said Countess of Jersey was desirous of acquiring an absolute power of appointment over the manors and other hereditaments comprised in the settlement, on the event either of her surviving or dying in the lifetime of the said Earl of Jersey, and there being a general failure of issue of her body inheritable to the said manors and other hereditaments under the limitations contained in the settlement, it was witnessed, that, for the purpose thereinbefore mentioned, the Earl of Jersey did thereby, for himself, his heirs, &c. and for the Countess of Jersey, his wife (she thereby consenting thereto), covenant and grant to T. G., his heirs and assigns, that they the Earl and Countess of Jersey would, as of Easter or Trinity term, 1807, or some other subsequent term, at the costs of the Countess of Jersey, levy nine or more fines, sur conuzance de droit come ceo, &c., with proclamations, unto the said T. G. and his heirs, of all the manors, &c. mentioned and conveyed by the above settlement, and fines levied in pursuance thereof, with their respective rights; and it was thereby agreed and declared, between the said parties thereto, that as well the said fines so as aforesaid, or in any other manner so to be had and levied, and also all other fines, common recoveries, &c. already or thereafter to be levied, suffered, or executed between the said parties thereto, of the said manors, &c. should, immediately after the levying, 1822. Earl of JERSEY and Others against DEANE. 1822. and Others against DEANE. levying, suffering, and perfecting of the same, respectively Earl of JERSEY operate and be taken to operate, first, for corroborating the several uses, trusts, &c. limited, expressed, and contained, of and concerning the said manors, &c. by the settlement, antecedently to the several limitations therein respectively contained to the use of the Countess of Jersey in fee simple; and after the expiration or sooner determination of the several uses, trusts, &c. and in the meantime subject to the same respectively, to the use of such persons, for such estates, upon such. trusts, &c. and subject to such powers, &c. as the Countess of Jersey, by any deed or deeds, &c. with or without power of revocation or new appointment, to be sealed and delivered by her, in the presence of two or more credible witnesses, or by her last will in writing, or any codicil thereto, or any writing purporting to be. her last will, or any codicil thereto, signed and published in the presence of three or more credible witnesses, should from time to time, either in the lifetime of the Earl of Jersey, or after his decease, and notwithstanding her then present or any future marriage, direct, limit, or appoint; and in default and until such direction, limitation, or appointment, or so far as any such direction, limitation, or appointment should not extend, to the use of the Countess of Jersey, her heirs and assigns, for ever. In pursuance of the cove... nant for that purpose contained in the last-mentioned indenture, nine several fines, sur conuzance de droit come ceo, &c. were duly levied by the Earl of Jersey and his wife, in Trinity term, 1807, of the several manors, &c. in the above indentures mentioned. On the 15th day of June, 1816, certain freehold lands and hereditaments comprised in the said recited indenturés were were put up for sale, and the defendant, Ralph Deane, became the purchaser, for the sum of 4010., and paid a deposit of 201. per cent. upon the purchasemoney, and signed a written agreement to complete his purchase on or before the 11th day of October, 1816, on having a good title made. The question for the opinion of the Court was, whether the fines levied by the Earl and Countess of Jersey, in Trinity term, 1807, did or did not operate to extinguish, destroy, or suspend the power or right of the Earl and Countess, and the survivor of them, to request and direct a sale or exchange of the settled estates under the powers for that purpose contained in their marriage-settlement, so as to prevent an exercise of those powers by the trustees of the settlement. The case was argued in last Michaelmas term, by Lynch, for the plaintiff, who contended, first, that the fines were levied by persons one of whom had the fee, and that they were a rightful and not a wrongful or divesting assurance. Secondly, that although a fine is an acknowledgment upon record of a fee simple in the conusce, and will, unless controuled by the agreement of the parties, have a divesting operation; yet that its operation is not of that inflexible nature, but that it bends to and is controlled by the agreement of the parties, for the purpose of effecting any particular or special purpose. Thirdly, that the fines were by the settlors, and were expressly, and were so declared to be, for further assurance, and in confirmation of the prior uses contained in the settlement. Bredon's case (a), is an authority in support of (a) 1 Rep. 76. a. 1822. Earl of JERSEY and Others against DEANE. the |