for ever.
And for the further support of the young
couple, the said Abel Jones giveth unto the said Griffith,

his said son, all that part of the sloop called the Mally,
which the said Abel is now owner of, with all and sin-
gular mast, sail, &c. to his part belonging, or in any-
wise appertaining; to hold the same unto the said
Griffith Jones, his executors, &c. for ever. And as for
and concerning the messuage, &c. and garden, and all and
singular the premises before mentioned, and it is hereby
the true intent and meaning of these presents, and of all
and every the said parties, that is to say, that if she the
said Jane shall happen to survive her said husband
Griffith Jones, that then and in such case a moiety of
the rents and profits of all and singular Ty-ycha afore-
said, with its appurtenances, and a moiety of the rents
and profits of any other house or houses" (which should
be built upon the land, as was more particularly stated
in the deed), "to be received by her the said Jane as her
jointure," &c. "Provided always, and it is hereby
further covenanted and agreed," &c. - Here followed a
covenant for restitution of a part of the wife's intended
portion in case of her dying without issue in the course
of three years after the marriage: and a like covenant
for restitution of the husband's personal estate in case of
his dying without issue during the same period. The
deed was signed and sealed by all the parties.

The marriage took place, and Griffith Jones and his wife had issue, John Jones, their eldest son, and William Jones, the lessor of the plaintiff, their second son, and other children. In July 1798, the said Griffith and Jane Jones, and John Jones, levied a fine, with proclamations, of the above premises, which they mortgaged to one Evan Evans, and it was declared in and by the mort

gage

1833.

Doɛ dem.
JONES

against WILLIAMS

1833.

Doɛ dem. JONES against WILLIAMS.

gage deed that the fine should enure to certain uses
in that deed mentioned. Evans afterwards joined in an
assignment of the premises to one Lewis, under whom
the defendant claimed. Griffith Jones and his wife died
some time afterwards, leaving the said John and William
Jones, and other children, them surviving. John, the
eldest son, died in February 1832, leaving a widow and
children; whereupon William, the lessor of the plaintiff,
as the second son, claimed the life estate limited to
him by the marriage articles, alleging that that deed
operated as a covenant to stand seised to uses, by virtue
of which he was now entitled to the premises in ques-
tion, notwithstanding the fine levied by Griffith Jones
and John Jones; the estates given by the deed to the
first and other sons of the marriage being merely suc-
cessive life-estates, for want of words of limitation.
the part of the defendant it was contended, that the
deed was merely executory as to those premises, and
that the plaintiff could not claim any legal estate under
it. To shew that the lessor of the plaintiff had made
a sufficient entry to avoid a fine, it was proved that, in
July 1832, he went upon the premises and demanded
possession, saying that they were his property, and
asked the defendant Williams if he would become his
tenant. The learned Judge, upon this evidence, directed
a verdict for the plaintiff, but reserved the points as to
the operation of the deed of settlement, and as to the
sufficiency of the entry.

On

Wilson, in this term, moved for leave to enter a nonsuit upon the points reserved. First, the articles of agreement were only an executory contract, and could not give the lessor of the plaintiff a legal estate in the premises.

The

The clause referring to this property begins in the form of a recital, and points to a future time. No words of limitation are annexed to the use declared for the eldest son. It is said that the clause may be construed as a covenant to stand seised to uses; and there is, perhaps, sufficient consideration for such a covenant. But the objection

to this mode of reading the instrument is, that the intention will be defeated, for if the articles be a covenant to stand seised, giving merely successive life estates to the children, and altogether passing over the issue of those children; then, supposing there should be ten children of the marriage, every one of whom should leave issue, the fee simple might, by means of the ultimate limitation to the settlor's right heirs, be totally alienated from all the descendants of the marriage, notwithstanding a part of the consideration for the articles appears to have been a sum of money received as the portion of the wife. This cannot have been the intention of the parties. But if it should be held that these are mere executory articles, not passing any legal estate, the construction of them would devolve on a court of equity, where the instrument would be considered as mere notes or heads for a more formal conveyance to be prepared under the direction of that court, and into which limitations conformable to the intention would be introduced: for courts of equity, when considering those limitations which are the immediate objects of their jurisdiction, namely, limitations which do not include or carry the legal estate, will regard the end and consideration of the settlement, and the intent of the trusts, beyond the legal operation of the words in which the articles or trusts are expressed. This is laid down in Fearne Cont. Rem. p. 90., and instances are there given

where

1833.

DOE dem.
JONES

against WILLIAMS.

1833.

DoE dem.
JONES
against
WILLIAMS.

where courts of equity, in dealing with executory articles, have departed from the rule in Shelley's case. If this Court were to decide in the manner proposed upon the articles now in question, they would exclude this jurisdiction of the courts of equity, and prevent the settlement from being carried into effect, according to the practice of those courts, so as to fulfil the settlor's intention. [Taunton J. Is there any instance where a contract might have operated as a covenant to stand seised to uses, and the courts of law have forborne to give it that effect, lest they should usurp the jurisdiction of the Court of Chancery ?] There does not appear, in this case, any intent that the agreement should have an immediate operation. [Taunton J. A covenant to stand seised to uses need not.] The words are, "whereas it is agreed that Abel Jones giveth all and singular the premises, from Michaelmas next.” That means, that he will so give by a settlement to be thereafter prepared. [Denman C. J. The agreement is, "that he giveth."] When speaking of the sloop all the words he uses are de præsenti. Supposing, however, that William Jones's claim was not barred, his entry was not such as could avoid the fine. "A bare entry into the lands, without more, is not sufficient. He must also, at the time of entry, declare quo animo he entered, that it is to avoid all fines, otherwise it will not amount to a sufficient entry to avoid a fine:" 1 Wms. Saund. 319. f. note (1) to Clerke v. Pywell, citing 13 Vin. 292. pl. 23. (a), MSS.; and Ford v. Lord Grey (b).

Cur. adv. vult.

(a) The case there referred to is Berrington dem. Dormer v. Parkhurst,

2 Stra. 1086. 4 Bro. P. C. 85.

(b) 6 Mod. 44.

DENMAN

DENMAN C. J., on a subsequent day of the term (Nov. 15.), delivered the judgment of the Court. After referring to the marriage articles above stated, his Lordship said, There does not appear in the deed any agreement to make a further settlement at a subsequent time; we therefore think that the contract on the part of Abel Jones must be construed as a covenant to stand seised to the uses declared in that settlement. As to the entry, the point is like one which has been decided in the last case (a); and we think the rule of law is, that if a party enters expressly to claim the premises as his own, it is not necessary for him to say what particular act, adverse to his interest, he means to defeat. There will, therefore, be no rule.

PARKE J. The note in Mr. Serjeant Williams's Saunders, relied upon in moving for the rule, states that the party entering must, at the time, declare quo animo he enters; that it is to avoid all fines; but the authorities cited for that proposition do not support it.

Rule refused.

(a) Doc dem. Griffith v. Pritchard, antè, p. 765.

1833.

Doɛ dem.
JONES

against
WILLIAMS.

TURNER against ROBINSON and Another.

ASSUMPSIT for work and labour.

At the trial In an action by

a servant, who

The for wages, the

495

before Denman C. J., at the London sittings after was dismissed,

Trinity term 1833, the following facts appeared.

proof was, that 3. PE
he was to have 34 - 175

wages at the rate of SOL. per annum: Held, that the primâ facie presumption was, that the37 hiring was for a year; and that having been rightfully dismissed for misconduct before the

year expired, he could not recover wages pro ratâ. And this, although the master had 94552

brought an action against him for the misconduct, and recovered damages.

defend