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1822.

Earl of JERSEY and Others against DEANE.

afterwards overruled in the Exchequer Chamber, by six Judges to two; but one of the six decided on the ground, that, though the power was destroyed, yet the party claiming was barred, because his ancestor was conusee of the fine. That case, therefore, is no authority where the rights of third parties are introduced. The result is, then, that in the cases it is generally and broadly laid down, that a fine by tenant for life is a forfeiture, and that he cannot relieve himself from it by any agreement not introduced upon the record itself. But, thirdly, it has been argued, that the fines in this case were, and were declared to be for further assurance, and in confirmation of the prior uses contained in the marriage-settlement, and that Lord and Lady Jersey were in a condition to give further assurance, and were bound so to do. If, indeed, the deeds executed, and the fines levied in 1806, to carry into effect the articles entered into before marriage, can be considered as one assurance with those of 1807, the argument is at an end. But that cannot be so; for the deeds and fines in 1806, together, make one complete and perfect assurance: and those in 1807 were for the very purpose of making alterations therein; and being so, they cannot form one assurance together, Selwyn v. Selwyn (a) was the case of a recovery, and does not apply, unless it can be shown that there is not any dif ference between a fine and a recovery in this respect. It is argued, indeed, that Lutwich v. Mitton, which was the case of a fine, was overruled by it; but the two cases go on very different principles. In Roe v. Griffits and Others, the ground of the decision was,

(a) 4 Burr. 1952.

that

1822.

Earl of JERSEY

against DEANE.

that the testator had the reversion in fee in him, which was not affected at all by his admission under the surrender to the uses contained in his marriage-settlement. and Others Neither this case, therefore, nor Goodright v. Mead, nor Ferrers and Curson v. Fermor and Others, are applicable to the present. But the case of Doe v. Whitehead (a) is a strong authority. There Lord Mansfield stated, that if you could distinguish the conveyance, and suppose Timothy Stoughton to have been only tenant for life, at the time of his levying the fine, it would be the forfeiture of his estate for life; and he afterwards, in deciding the case, says, "I look upon all this as one assurance. If they were distinct conveyances or assurances, this fine would be a forfeiture of his estate for life under the new settlement." This, therefore, is an authority to shew that if the assurances are in this case distinct, the fine operates to produce a forfeiture. Now, how is it possible to consider the whole in this case as one assurance? Here, the first deed, after limiting the estate in a different manner, according as either Lord or Lady Jersey might happen to survive, contained a power of appointment by Lady Jersey, limited, however, to persons related to her by blood or consanguinity; but the second deeds give her an absolute power of appointment, without any such limit. They are, therefore, so far, at least, in discordance with the former, and cannot, independently of the interval of time and the other circumstances before alluded to, be

considered as forming one assurance. If these general positions be allowed, it must follow that this power of Lord and Lady Jersey, to request and direct a sale, is

(a) 9 Burr. 701.

at

1822.

and Others

against DEANE.

at an end. It is a component part of the powers of Earl of JERSEY sale and exchange; a power appendant, as relating to the life estates, and a power in gross, as relating to those in reversion. It was, therefore, extinguished by the operation of the fine. King v. Melling (a), Edwards v. Slater (b), and Digges's case (c), are authorities in point. As to the practice of conveyancers, which has been mentioned, it is not uniform in this respect, and is not any authority for the Court. It may be said, the construction contended for by the defendant is productive of hardship; but if parties will levy fines come ceo, in this manner, they must take the consequences, and must not leave others to ascertain, from secret conveyances, their intention. They have only to state their intention in the concord of the fine, and then no room for doubt will be left.

The following certificate was afterwards sent :

We have heard this case argued by counsel, and have considered it; and we are of opinion, that the fines levied by the Earl and Countess of Jersey, in or as of Trinity term, 1807, did not operate to extinguish, destroy, or suspend the right or power 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 marriagesettlement, so as to prevent an exercise of those powers by the trustees of the settlement.

(a) 1 Ventr. 225. (b) Hardr. 410.

С. Аввотт.

J. BAYLEY.

J. S. HOLROYD.

(c) 1 Co. 174.

1822,

TH

JOHN HATFIELD against JAMES THORP.

HE following case was sent by the Master of the An estate in Rolls for the opinion of this Court.

fee, upon the determination of a life estate,

was devised to the wife of

A. B.: A. B. was one of the attesting wit

nesses to the

will. The tes

1779, and the

wife of A. B.

died in 1813,

before the pre

vious life estate was determined: Held,

that 4. B. was

testing witness to this will.

John Steemson was, at the respective times of making his will and of his death, seised in fee simple of a freehold messuage, house, and garden, situate at Newark, in the county of Nottingham; and being so seised, made his last will in writing, bearing date the 18th of No- tator died in vember, 1779, and thereby devised to his daughter, Mary Bell, "All that his messuage, house, and garden, at Newark aforesaid; and at his daughter Mary Bell's death, the messuage and appurtenances to his daughter Elizabeth Hatfield and her heirs, for ever. The said not a good atJohn Steemson signed and published his will in the presence of Ann Hill, Samuel Leonard, and Thomas Hatfield, who respectively attested the same in his presence, and in the presence of each other. Thomas Hatfield, one of the attesting witnesses to the will, was, at the time of his attestation, the husband of the said Elizabeth Hatfield, the daughter of the testator. John Steemson died shortly after making his will, without having altered or revoked the same, leaving the said Mary Bell, Elizabeth Hatfield, and Thomas Hatfield, surviving him. Elizabeth Hatfield died on the 9th of April, 1813, in the lifetime of Mary Bell, without having done any act to dispose of the interest (if any) which she took under the will of John Steemson, leaving Thomas Hatfield, her husband, and the plaintiff, John Hatfield, her eldest son and heirat-law, surviving her. Thomas Hatfield died in January,

1822.

HATFIELD against THORP.

1819, and Mary Bell on the 10th day of April, 1820. The question for the opinion of this Court was, whether the will of John Steemson was duly attested to pass any, and what estate, in the messuage, garden, and premises at Newark, to Elizabeth Hatfield.

Cockerill, for the plaintiff. Thomas Hatfield, the witness upon whose attestation this question arises, was a credible witness, within the meaning of the statute of frauds; and this will was therefore duly attested, so as to pass the real estate. There are conflicting authorities upon the question, whether the interest which renders the attesting witness to a will incompetent, is an interest at the time of the attestation, or at the time when his testimony is required. In Holdfast on the demise of Anstey v. Dowsing (a), 19 G. 2., a person who took under a will an annuity charged upon the real estate devised, was held not to be a credible witness, within the meaning of the statute; and Lord Chief Justice Lee, in delivering the opinion of the Court, argued as if the objection of benefit from the will to the witness, at the time of subscribing, could not be removed or be taken off by any subsequent fact. In that case, however, the witness had an interest at the time of the trial. That decision occasioned the passing of the stat. 25 G. 2. c. 6., which, however, applies only to wills made after the 24th June, 1752. In Wyndham v. Chetwynd (b), 31 G. 2., a similar question arose: the testator, in that case, died in 1750, leaving a will, (by which he charged his real estate with the payment of his debts and legacies) attested by his two attornies and apothecary, he being indebted to each of them at the (b) 1 Burr. 414.

(a) 2 Str. 1253.

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