Brice against Smith
| Jurisdiction | England & Wales |
| Judgment Date | 20 May 1737 |
| Date | 20 May 1737 |
| Court | Court of Common Pleas |
English Reports Citation: 125 E.R. 1024
IN THE COURT OF COMMNON PLEAS
M. 8 Geo. II. Roll. 1283.
REPORTS of ADJUDGED CASES in the COURT of COMMON PLEAS during the time LORD CHIEF JUSTICE WILLES presided in that Court; together with some few CASES of the same period DETERMINED in the HOUSE of LORDS, COURT of CHANCERY, and EXCHEQUER CHAMBER. Taken from the Manuscripts of LORD CHIEF JUSTICE WILLES. With NOTES and REFERENCES to prior and subsequent DECISIONS, by CHARLES DURN-FORD, of the Middle-Temple, Barrister at Law. 1800. The following extract is taken from the Preface to this work :- The body of this work will be found to consist of four classes of cases: 1st, Those which are taken verbatim from the Lord Chief Justice's manuscripts; and they are either the judgments of the Court which he publicly delivered, containing as well his own abridgment of the record or special case as the reasons on which the opinion of the Court was founded, or cases of which he wrote an account in his own note books after the cases had been determined. 2ndly, The judgments of the Court which he gave, without his own abridgment of the records; the records in which cases I have abstracted either from the original records or from the paper-books. 3dly, Cases taken from short notes of the Lord Chief Justice's manuscripts, the records being abridged by myself. 4thly, Those where nothing more appeared on the Lord Chief Justice's paper books than simply, "judgment for the plaintiff" or "for the defendant," &c. the records of which cases I have abridged, and the opinions of the Court I have taken from other quarters and added in the notes. Throughout the whole ib may be observed that the language of the Lord Chief Justice is printed between inverted commas. The notes to this work, (except where they consist of references to eases, already in print and to some very modern decisions) may also be arranged in four classes: 1st, Those of the Lord Chief Justice, distinguished by "MS. Lord Chief Justice Willes." 2dly, Manuscript cases collected from various quarters, in the possession of the Lord Chief Justice, to many of which he referred himself; and they are distinguished thus " MS. Coll. Lord Chief Justice Willes." 3dly, Manuscript notes of Mr. Baron (afterwards Mr. Justice) Wm. Fortescue, in his own hand writing; thus marked "MS. Mr. Justice Wm. Fortescue." 4thly, Notes taken by the late Mr. Justice Abney, afterwards copied by his clerk; thus distinguished "MS. Abuey, J." 1021 WII.LES, i. BRICE V. SMITH 1025 [1] brice against smith. Friday, May 20th, 1737. [M. 8 Geo. II. Roll. 1283.] Under a devise to A. and his heirs for ever, and if he die without issue then to his right heirs, A. takes an estate-tail. The plaintiff in formedon claimed under a devise, to which was annexed in the will a condition to pay a sum of money, in the declaration he only set forth the devise, not the condition, and held to be no objection.-The attestation of a will of land need not state that the witnesses subscribed their names in the presence of the testator. The opinion of the Court was thus delivered by willes, loed chief justice. "In formedon. This cause was spoken to the last term (a). The action was brought by Philip Brice against Gerard Smith for four messuages and one acre of land in Old Brentford. The cause was tried before Lord Ch. Just. Eyre, 17th February, 8 Geo. 2; and a verdict was given for tbe plaintiff, but a case was reserved for the opinion of the Court on these points; First, Whether there was sufficient proof of the will of Philip Brice, the grandfather of the plaintiff, under [2] whom he claimed by reason that the witnesses were all dead, and it was not said in the attestation that they subscribed their names in the presence of the testator. Secondly, Whether the title described in the declaration was agreeable to the devise; the devise under which the plaintiff claimed being on condition, and the condition...
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