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No. XX.

11 & 12

W. III.

c. 6.

person or persons, being the King's natural-born subject or subjects within any of the King's realms or dominions, shall and may hereafter lawfully inherit and be inheritable as heir or heirs to any honours manors lands tenements or hereditaments, and make their pedigrees and titles by descent from any of their ancestors lineal or collateral, although the father and mother, or fathers or mothers, or other ancestor of such person or persons, by from through or under whom he she or they shall or may King's naturalmake or derive their title or pedigree, were or was, or is or are, or shall be born subjects born out of the King's allegiance, and out of his Majesty's realms and do- shall inherit as minions, as freely fully and effectually to all intents and purposes, as if heirs, such father or mother, or fathers or mothers, or other ancestor or ances- though their Pa. tors, by from through or under whom he she or they shall or may

make

rents were born

or derive their title or pedigree, had been naturalized or natural born sub- out of the King's ject or subjects within the King's dominions; any law or custom to the dominions, &c. contrary notwithstanding.

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[ No. XXI. ] 25 Geo. II. c. 39.-An Act to obviate Doubts that may arise upon an Act made and passed in the eleventh and twelfth Years of the Reign of his late Majesty King WILLIAM the Third, intituled An Act to enable his Majesty's natural-born Subjects to inherit the Estate of their Ancestors, either lineal or collateral, notwithstanding their Father or Mother were Aliens.

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WHEREAS in and by an Act of Parliament made and passed in the 25 Geo. II. eleventh and twelfth years of the Reign of his late Majesty King c. 39. WILLIAM the Third, intituled An Act to enable his Majesty's natural-born 11 & 12 W, IIE Subjects to inherit the estate of their ancestors, either lineal or collateral, c. 6. notwithstanding their father or mother were aliens; It is enacted, That all and every person or persons, being the King's natural-born subject 'or subjects, within any of the King's realms or dominions, should and 'might thereafter lawfully inherit and be inheritable, as heir or heirs, to any honours manors lands tenements or hereditaments, and make their pedigrees and titles by descent from any of their ancestors, lineal or collateral, although the father and mother, or fathers or mothers, or other < ancestor of such person or persons by from through or under whom he 'she or they should or might make or derive their title or pedigree, were or was or should be born out of the King's allegiance, and out of his Ma'jesty's realms and dominions, as freely fully and effectually to all intents and purposes as if such father or mother or fathers or mothers or other ancestor or ancestors by from through or under whom he she or they should or might make or derive their title or pedigree, had been naturalized or natural-born subjects: And whereas many doubts and inconveniences may arise upon the said recited Act, in case of persons gaining 'capacities to inherit and derive their pedigrees by virtue of the said reIcited Act, after the deaths of their ancestors to whom they claim to be heirs, whereby estates well vested by descent mortgages purchases and 'settlements duly made may be defeated:' For remedy whereof be it enacted and declared by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That the said statute shall not extend, or be deemed taken or construed None to inherit to extend, to give any right or title to any person or persons to inherit as but such as heir or heirs, or coheir or coheirs, to any person dying seised of any shall be in manors lands tenements or hereditaments, in possession reversion or being at the remainder, by enabling any such person or persons to claim or derive death of the bis her or their pedigree through any alien ancestor or ancestors, unless Ancestor who the person or persons so claiming or deriving his her or their title as heir shall die seised. or heirs, coheir or coheirs, was or were or shall be in being, and capable to take the same estate as heir or heirs, coheir or coheirs, by virtue of the said statute, at the death of the person who shall so last die seised of such

No. XXI.

25 Geo. II. c. 39.

shall be cast

upon a daughter,

manors lands tenements or hereditaments, and to whom he she or they shall so claim to be heir or heirs, coheir or coheirs, by force of the said

statute.

II. Provided always, and be it enacted by the authority aforesaid, That in case the person or persons who shall be in being, and capable to take If the descent at the death of the ancestor so dying seised of any such honours manors lands tenements or hereditaments, and upon whom the descent shall be cast by virtue of this Act, or of the said recited Act, shall happen to be a daughter or daughters of an alien, and that the alien father or mother, through whom such descent shall be derived by such daughter or daugh ters, shall afterwards have a son born within any of his Majesty's realms or dominions, the descent so cast upon such daughter or daughters shall be divested in favour of such son; and such son shall inherit and take the estate in like manner as is allowed by the common law of this realm in cases of the birth of a nearer heir; or in case such father or mother shall have no son or sons, but shall have one or more daughter or daughters afterwards born within any of his Majesty's realms or dominions, the daughter or daughters so born afterwards shall inherit and take in copar cenary with the daughter or daughters upon whom the descent shall be cast at the death of the ancestor last scised; any thing in this Act contained to the contrary in any wise notwithstanding.

and the Alien Father, &c. shall afterwards have a Son, the Daughter to be

divested, &c.

[No. XXII. ] 10 & 11 William III. c. 16.-An Act to enable posthumous Children to take Estates as if born in their Fathers Lifetime.

10 & 11 W. III. WHEREAS it often happens, that by marriage and other sctɩlements>

c. 16.

estates are limited in remainder to the use of the sons and daugh-'ters the issue of such marriage, with remainders over, without limiting an 'estate to trustees to preserve the contingent remainders limited to such 'sons and daughters, by which means such sons and daughters, if they happen to be born after the decease of their father, are in danger to be 'defeated of their remainder by the next in remainder after them, and left unprovided for by such settlements, contrary to the intent of the 'partics that made those settlements;' Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this Parliament assembled, and Vin. V. 18.408. by the authority of the same, That where any estate already is or shall. Estates limited hereafter, by any marriage or other settlement, (1) be limited in remainin remainder to der to or to the use of the first or other son or sons of the body of any the lawful issue person lawfully begotten, with any remainder or remainders over to or to of the body of the use of any other person or persons, or in remainder to or to the use any person Son of a daughter or daughters lawfully begotten, with any remainder or or Daughter remainders to any other person or persons, that any son or sons or daughborn after the ter or daughters of such person or persons lawfully begotten or to he decease of the begotten, that shall be born after the decease of his her or their father, Father, may take such estate shall and may, by virtue of such settlement, take such estate so limited as if born in his to the first and other sons, or to the daughter or daughters, in the same lifetime, &c. although there be no limitation to Trustees, &c.

(1) In Reeve v. Long, Salk. 227, 3 Lev. 408, Skin. 430, Pasc. 6 W. & M. it was ruled, that a contingent remainder, limited by will, became void by the death of a tenant for life before the birth of his son intitled to the remainder; but the judgment was reversed by the House of Lords, contrary to the opinion of all the judges. In the Report in Salk. a Doubt is expressed, whether this statute extends to a devise, and I am not aware that there is any express decision that the statute extends to wills; but in Roe v. Quartley, T. R. 634, the court seems to take it for granted hat it does. Mr. Butler, in a note to Co. Lit.

pa. 298, says, “There is a tradition, that as the case of Reeve v. Long arose upon a will, the Lords considered the question to be settled by their determination in that case, and were unwilling to make any express mention of limitations or devises made in wills, lest it should appear to call in question the authority or propriety of their de termisation. Besides (he observes) the words of the Act may be construed, without much vio lence, to comprize settlements of estates made by will, as well as settlements of estates made by deed." In Bull. N. P. pa. 105, it is also said, that there is no ground for the distinction.

manner as if born in the lifetime of his her or their father, although there shall happen no estate to be limited to trustees after the decease of the father, to preserve the contingent remainder to such afterborn son or sons daughter or daughters, until he she or they come in esse, or are born to take the same; any law or usuage to the contrary in any wise notwithstanding.

II. Provided always, That nothing in this Act shall extend or be construed to extend to divest any estate in remainder, that by virtue of any marriage or other settlement is already come to the possession of any. person or persons, or to whom any right is accrued, though not in actual possession, by reason or means of any afterborn son or sons or daughter or daughters not happening to be born in the lifetime of his her or their father.

[ No. XXIII. ]

4* Anne, c. 16.-An Act for the Amendment of the Law, and the better Advancement of

Justice.t

No. XXII.

10 & 11

W. III. c. 16.

FOR the anundment of the law in several particulars, and for the easier 4 Anne, c. 16. speedier and better advancement of justice, Be it enacted by the By 9 Anne, c. Queen's most excellent Majesty, by and and with the advice and consent 20, sect. 7. of the Lords Spiritual and Temperal and Commons in this present Par- This Statute is liament assembled, and by the authority of the same, That from and extended to after the first day of Trinity Term which shall be in the year of our Lord Writs of Manone thousand seven hundred and six, where any demurrer shall be joined damus and lu and entered in any action or suit in any Court of Record within this formations in realm, the Judges shall proceed and give judgment according as the very nature of Quo right of the cause and matter in law shall appear unto them, without Warranto. regarding any imperfection omission or defect in any writ return plaint Judges shall declaration or other pleading process or course of proceeding whatsoever, give judgment except those only which the party demurring shall specially and particu- on demurrer, larly set down and express, together with his demurrer, as causes of the &c. without resame, notwithstanding that such imperfection omission or defect might garding any de have heretofore been taken to be matter of substance, and not aided by fect in Writ, the Statute made in the twenty-seventh year of Queen ELIZABETH, in- &c. tituled An Act for the Furtherance of Justice in case of Demurrer and Pleadings, so as sufficient matter appear in the said pleadings upon which the Court may give judgment according to the very right of the cause, (1) and therefore from and after the said first day of Trinity Terin no ad- Exception. vantage or exception shall be taken of or for an immaterial traverse; or 27 Eliz. c. 5.

* Called 4 & 5 Anne, c. 16, in Vol. II. p. 930, and in Bird on Wills, &c. p. 28.

+ The following account of this Act is taken from Burnet's History of his own Times :-"The Lord Somers made a motion in the House of Lords to correct some of the proceedings in the Common Law and in Chancery, that were both dilatory and very changeable. He began the motion with some instances that were more conspicuous and gross, and he managed the matter so, that both the Lord Keeper and Judges concurred with him, though it passes generally for a maxim, that Judges ought rather to enlarge than contract their jurisdiction. A Bill passed the House that began a reformation of proceedings at law, which, as things now stand, are certainly amongst the greatest grievances of the nation. When it went through the House of Commons, it was visible that the interest of Under-Officers Clerks and Attorneys, whose gains were to be lessened by this Bill, was more considered than the interest of the nation itself. Several clauses, how beneficial soever to the subject, which touched on their pro

fits, were left out by the Commons. But what fault soever the Lords might have found with these alterations, yet, to avoid all disputes with the Commons, they agreed to their amendments."

A principal motive to the engaging in the present work was the removal of any prejudice against the alteration of the law, in consequence of the inconvenient magnitude which the statutes have already attained. In various parts of the work, such alterations are suggested as appeared to be of a beneficial nature, and, as the title of the present number must be repeated in Part III, I propose to avail myself of that opportunity of introducing such observations as may appear to be material, with respect to any alterations in the proceedings of Courts of Law.

As the Act, of which the contents are very miscellaneous, contains some important provisions respecting real estates, it is inserted in this place in conformity with the general principle stated in the introductory note to the Statute of Frauds. (1) See this Statute and Notes, post Part IV, Class No.

4 Anne,
c. 16.

No. XXIII. of or for the default of entering pledges upon any bill or declaration; or [Part II. of or for the default of alledging the bringing into Court any bond bill indenture or other deed whatsoever mentioned in the declaration or other pleading; or of or for the default of alledging of the bringing into Court letters testamentary or letters of administration; or of or for the omission of Vi et armis et contra pacem, or either of them; or of or for the want of averment of Hoc paratus est verificare or Hoc paratus est verificare per recordum; or of or for not alledging prout patet per recordum; but the Court shall give judgment according to the very right of the cause as aforesaid, without regarding any such imperfections omissions and defects, or any other matter of like nature, except the same shall be specially and particularly set down and shewn for cause of demurrer.

Statutes of Jeofails extended to judgments on Nihil dicit, &c.

II. And be it further enacted by the authority aforesaid, That from and after the said first day of Trinity Term all the Statutes of Jeofails shall be extended to judgments which shall at any time afterwards be entered upon confession, Nihil dicit or Non sum informatus, in any Court of Record; and no such judgment shall be reversed, nor any judgment upon any writ of enquiry of damages executed thereon be staid or reversed, for or by reason of any imperfection omission defect matter or thing whatsoever, which would have been aided and cured by any of the said Statutes of Jeofails (2) in case a verdict of twelve men had been given in the said action or suit, so as there be an original writ or bill and warrants of attorney duly filed according to the law as is now used. III. Frovided always, and be it enacted by the authority aforesaid, That the attorney for the plaintiff or demandant in any action or suit, shall file his warrant of attorney with the proper officer of the Court where the cause is depending the same Terim he declares; and the attorney for the defendant or tenant shall file his warrant of attorney as aforesaid, the same term he appears, under the penalties inflicted upon attornies by any former law for default of filing their warrants of attorney. IV. And be it further enacted by the authority aforesaid, That from and after the said first day of Trinity Term it shall and may be lawful for any defendant or tenant in any action or suit, or for any plaintiff in Not extend to replevin in any Court of Record, with the leave of the same Court (3) to qui tam Actions. 2 Wils. 21.

When warrants of Attorney shall be filed.

Defendant, &c. may plead several matters.

(2) Defects which are cured by verdict at common law are not aided by the statute. presumption from the verdict in such case is, that The the fact which was omitted, or imperfectly alleged, must have been proved in order to have obtained the verdict.-See the cases founded on this distinction in Williams' Note to Stennel . Hogg, 1 Saund. 228.-See also Note to Crowther v. Oldfield, 1 Salk. 364, 6th Edit.

(3) The omitting to state that the second and subsequent pleas are pleaded by order of the court, although informal, is no cause of demurrer.-Andr. 108-I Wils. 219-Cow p. 500. If leave has not been regularly obtained, the proper course is either to sign judgment or to apply to the court to strike out one of the pleas.-Tidd's Prac. 4th Edit. 6051 Bos. and Pul. 415-1 Chitt. Plead. 452. The courts will not allow non assumpsit or non est factum to be pleaded with a plea of tender, which necessarily admits a right of action. The Court of C. B. refused to admit pleas of general issue and the Stock-jobbing Act, as the defence under that Act might have been given in evidence under the general issue.-1 Bos. & Pul. 222-or non assumpsit and alien enemy.-Id. & 2 B. & P. 72. This last decision was manifestly founded upon very correct principles-the one plea amounting to an absolute bar, the other only to a temporary disability. A plea to be tried by a jury cannot be

joined with ne unques accouple, which is to be tried 148. A defendant cannot plead double at the by the Bishop.-Harding v. Harding, Comp. Rep. suit of the crown without leave of the AttorneyGeneral.-Willes, 533-Forrest's Exch. 57. It is the prerogative of the crown to give two answers to a plea, replication, or any subsequent proceeding, of which see an instance, Rex v. Parry, 14 East. 549.

guilty and a justification, is not unfrequently the The supposed inconsistency of two pleas, as not topic of a little common-place eloquence at Nisi Prius; but, translating the legal phraseology into did it, and then I'll prove that I had a right to do it; common language, is no more than saying, Prove I and certainly the defence of non feci, si feci, recte feci, does not owe its origin to the Act for the amendment of the law. The necessity of applying for the leave of the court does put some little restraint upon an abuse of the privilege in the Court of Common Pleas, where an application cause, but even there the restraint is very limited, must be made by a motion for a rule to shew and is only exercised in such instances as have been specified-and the real practical effect of the requisition to apply for such relief is only an addition to the expence. If the apparent object of the statute had been attended to, a very salutary use might have been made of this restraint, by

plead as many several inatters thereto as he shall think necessary for No. XXIII. his defence.

4 Anne,

c. 16.

V. Provided nevertheless, That if any such matter shall upon a demurrer joined be judged insufficient, costs shall be given at the discretion of the Court; (4) or if a verdict shall be found upon any issue in the said cause for the plaintiff or demandant, costs (5) shall be also given Proviso touchin like manner, unless the Judge who tried the said issue shall certify, (6) ing Costs. that the said defendant or tenant or plaintiff in replevin, had a probable See 2 Bur. 754. cause to plead such matter which upon the said issue shall be found

against him. (7)

VI. And whereas great delays do frequently happen in trials by rea- Venire facias 'son of challenges to the arrays of panels of jurors, and to the polls for how to be

putting defendants under terms of making proper admissions, so as to prevent the expence of proving facts which are no part of the matter in dispute. In a former publication, I was induced to make the following observations, which have some relation to this subject-Appendix to Pothier, 226. "In the case of Webb v. Fox, 7 T. R. 391, to an action of trover, the defendant pleaded the general issue, and also that the plaintiff was a bankrupt. Upon a demurrer to the latter plea, Lord Kenyon said, he could not commend the mode in which the question was brought before the court, since the whole of the case might be gone inte upon the general issue; whereas the defendants, in addition to the plea of not guilty, pleaded a special plea, [which, he said, would have been bad upon special demurrer, as amounting to the general issue,] and which would be attended with additional expence to the parties.-Now it is clear, that in case the court had decided in favour of the plea, much expence would have beeen saved, because the allegations of the parties in the first instance would have brought the point before the court in as perfect a state as it could have been brought by the great additional expence of a trial and a special case. I remember his lordship expressing his disapprobation of the two pleas, with more severity of manner than appears by the report. The question which I recollect his having asked,---Why, if the special plea was preferred, was the general issue added? might have received the very easy answer, that although the defendant might expect by the special plea to obtain a cheap and early decision of the cause, it would not have been judicious to have therefore abandoned every other ground of defence."

Notwithstanding the advantage which in many respects arises from the opportunity of going into the whole case on the general issue, there is a great inconvenience in subjecting parties, whose only difference is with respect to the legal effect of certain undisputed facts, to go through the expence of a trial, in order to state those facts judicially to the court---but upon this subject, I shall take an opportunity of submitting some observations in another place.

(4) It is only the quantum of the costs which is in the discretion of the court, and not the question whether any costs shall be allowed.---Duberly . Page, 2 T. R. 391.

(5) An avowant is a plaintiff within this section.---Dodd v. Joddrell, 2 T. R. 235. A defendant in replevin is subject to costs upon avowries

awarded.

not supported.---Stone v. Forsyth, Doug. 709, Note.---See Vollum v. Simpson, 2 B. & P. 368, infra Note 7.

(6) The certificate need not be made in court, and may be granted after the plaintiff's application for costs.---Cremer v. Dent, Barnes, 141. In Duberley v. Page, mentioned No. 4, supra. Buller, J. said, he had never known any instance of a Judge, at Nisi Prius, certifying in favour of the party pleading double, when the issues were found against him.

(7) The effect of this clause is only to give the costs of the particular pleadings, when the general judgment is in favour of the defendant. If all the issues are found for the plaintiff, and the Judge certifies under the statute 43 Eliz. the plaintiff is entitled to no more costs than damages. If after judgment for the plaintiff upon demurrer as to one plea, the defendant obtains a verdict upon the other, the plaintiff is entitled to the costs of the demurrer.----Duberley v. Page, supra Note 5. Where upon not guilty, and not guilty within six years, the defendant had judgment on demurrer as to the second, and the plaintiff afterwards proceeded to trial and had a verdict on the first, the defendant had costs on the demurrer, and no costs of the trial were allowed on either side.-Cooke v. Sayer, Bur. 753.

In Vivian v. Blake, 11 East, 263, the defendant to an action of trespass on the plaintiff's fishery, pleaded the general issue, and that the locus in quo was a public harbour, where all the king's subjects had a right to fish, the replication prescribed for a free fishery, which was negatived by the rejoinder. The verdict being found for the plaintiff on the general issue, and for the defendant upon the special pleading, it was ruled that as the issue on the prescription, which had been entered for the defendants, went to the whole trespass, the finding on the whole record being in favour of the defendant, the plaintiff could not be entitled to the costs of the general issue,

It was formerly held, that the plaintiff or defendant in replevin, in whose favour any particuler issues were found, (the general result of the suit being in favour of the other party,) was only entitled to the costs of the pleadings-but it is now settled, that he is entitled to the costs of the trial.- Brooke v. Willet, 2 H. Bl. 435-Vollum v. Simpson, 2 B. & P. 368. The courts allow the particular costs, to which a party is entitled under this Section, to be deducted out of the general costs awarded to the opposite party.

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