Doe dem. Benjamin Goodyear Blomfield v The Rev. Charles Eyre, Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1848 |
| Date | 01 February 1848 |
| Court | Exchequer |
English Reports Citation: 136 E.R. 1058
IN THE EXCHEQUER CHAMBER.
S. C. 18 L. J. C. P. 284. Followed, Robinson v. Wood, 1858, 27 L. J. Ch. 726. Distinguished, Jones v. Davies, 1880, 28 W. R. 455. Followed, Hurst v. Hurst, 1882, 21 Ch. D. 284, 293.
in the exchequer chamber. doe dem. benjamin goodyear blomfield v. the key. charles eyke, Clerk. Feb. 1, 1848. [S. C. 18 L. J. C. P. 284. Followed, BoUnson v. Wood, 1858, 27 L. J. Ch. 726. Distinguished, Jones v. Dames, 1880, 28 W. E. 455. Followed, Hurst y. Hurst, 1882, 21 Ch. D. 284, 293.] A., a copyholder in fee, in contemplation of her marriage with B., surrendered the copyhold to the lord, to the intent that he might re-grant to the use of A. until the marriage; and, after the marriage, to the use of B, for life; and, after his (a) A. seised in fee enfeoffs B. for life. In trespass quare clausum fregit at the suit ol C., B. may plead soil and freehold in himself at the time of the alleged trespass. Under a replication taking issue upon the plea,-by de injuria, or by a direct traverse, -it would be competent to C. to shew, that, before the trespass, B. had surrendered to A., or had enfeoffed D. But, if B. fully disclosed his real title in his plea,-shewing A.'s seisin in fee, and the feoffment to B., with an allegation that B. thereupon became seised in his demesne as of freehold, for the term of his life,-the proper course would appear to be, not to reply de injuria, or traverse the seisin of B. tempore transgressionis, but to reply the surrender to A., or the feoffment of D. A simple traverse of the seisin alleged in B. would be bad upon special, if not upon general, demurrer, though it would be good if pleaded over to, or if issue were joined upon it. 5C.B.714. DOE . EYRE 1059 decease, to A. and her assigns for life; and, after her decease, to the use of such child and children of the marriage, and for such estate, &c., charged with any sum or sums for any other of their children, as A. should by deed or will appoint, &c.; and, in default of appointment, to the use of all the children of the marriage, in equal shares; and, in default or failure of such children, then, after the decease of B., to the use of A., her heirs and assigns.-The marriage took place, and two sons having been born, A., by a will, referring to the power, devised and appointed the tenement to her eldest son C., his heirs and assigns, after the decease of B. upon condition that C. should pay to D., her second son, 2001. within one year after the decease of B., or on D.'s attaining the age of twenty-one. The will then proceeded --" but, in case neither of my sons aforesaid shall be living at the decease of B., then I do give, devise, direct, and appoint the said copyhold messuage, &c., unto E. (the father of B.), his heirs and assigns," in trust for sale.-After the date of the will, four other children were born of the marriage. A. died, living B.- C. and D. died before B.:-Held (in affirmance of the judgment in the Common Pleas), that the appointment in favour of C. was not rendered void by the subsequent limitation to E. notwithstanding that the limitation to E. was to a person incapable of taking- [vide post, 730, n.] Ejectment. The declaration contained two demises from Benjamin Goodyear Blomfield,-the one on the 1st of January, 1825,-the other, on the 1st [714] of September, 1841. The defendant defended, as landlord, for six-sevenths of the property. The cause was tried before Coleridge, J., at the summer assizes for the county of Essex, in 1845, when a verdict was found for the plaintiff, subject to the opinion of the court of Common Pleas upon a special case, which was argued in Trinity term, 1846, and, in Michaelmas term, in the same year, judgment was pronounced in favour of the defendant (a). The case was afterwards turned into a special verdict, which stated- That, before and at the time of the surrender to uses thereinafter mentioned, Mary Sida was seised in her demesne as of fee, at the will of the lord of the manor of Overhall and Netherhall, in the county of Essex, according to the custom of the said manor, of the tenements, with the appurtenances, in the declaration mentioned, the same then and still being part and parcel of the same manor, and a customary tenement thereof, demised and demisable by copy of the court-rolls of the said manor, by the lord of the said manor, or by his steward of the court of the said manor, for the time being, to any person or persons willing to take the same, in fee-simple, or otherwise,-to hold of the lord of the said manor, at the will of the lord of the said manor, according to the custom of the said manor: That, by the immemorial custom of the said manor, [715] the youngest son of any person dying seised of any descendable estates in any of the copyhold tenements thereof, is the customary heir of his father, and succeeds, as such heir, to the tenements of which his father died seised: That the said Mary Sida, being so seised and in possession of the said customary tenements, with the appurtenances, on the 2nd of August, 1764, by the rod, duly surrendered out of her hands into the hands of the lord of the said manor, by the hands and acceptance of William Chaplin, gentleman, in the place of the lord's bailiff, and in the presence of Daniel Sida and John Blomfield the elder, two copyhold or customary tenants in the manor aforesaid,-they witnessing the same according to the custom of the said manor,--the said tenements, with the appurtenances, to the intent that the lord of the said manor should thereupon regrant all and every the said surrendered messuages, lands, tenements, and hereditaments, with their appurtenances, to and for the several uses and purposes thereinafter mentioned and expressed of and concerning the same, that is to say, to the use and behoof of the said Mary Sida, her heirs and assigns, until a marriage intended should be had and solemnized between her the said Mary Sida and John Blomfield, the younger; and, from and after the solemnization of the said intended marriage between the said John Blomfield the younger and Mary Sida, then to the use of the said John Blomfield for and during his lifetime; and, from and after his decease, to the use of the said Mary Sida, his () Vide ante, vol. iii. p, 557, 1060 DOE V. EYRE 5 C. B. 716. intended wife, and her assigns, for and during her lifetime; and, from and after her decease, to the use of such child or children of the body of the said Mary, by the body of the said John Blomfield, her said intended husband, to be begotten, and for such estate or estates, or other interest, and in such parts, shares, and proportions, manner, and form, and [716] charged and chargeable with any sum or sums of money for any other of their children, as she the said Mary, by any deed or deeds, writing or writings, to be by her sealed and delivered in the presence of, and attested by, two or more witnesses, or by her last will and testament in writing, to be by her signed, sealed, and published as such, in the presence of, and attested by, three or more witnesses, should or might limit, declare, devise, direct, or appoint; and, for want of such limitation, declaration, devise, direction, or appointment, and until such limitation or direction, devise, direction or appointment should be made and executed, and the estate or estates, or other interest, to be raised and created thereby, as aforesaid, should respectively commence and .take effect, to the use of all and every the children, or of the child, if but one, of the body of the said Mary by the body of the said John Blomfield, her said intended husband, to be begotten, in equal shares and proportions, if more than one such child, and to take as tenants in common, and not as joint-tenants, and of the heirs of the several and respective bodies of such children lawfully issuing; and, if there should be but one such child, to the use of such only child, and the heirs of his or her body lawfully issuing; and, for want and in default or failure of such children, or of one such child of the body of the said Mary by the body of the said John Blomfield, her said intended husband, so to be begotten, then, and from and after the decease of him the said John Blomfield, to the use and behoof of the said Mary, his said intended wife, and of her heirs and assigns, for ever, and to and for none other use, intent, or purpose whatsoever: That, on the 9th of August 1764, the said Mary Sida intermarried with the said John Blomfield; and that the said John Blomfield, and Mary, his wife, continued from thence during their respective lifetimes, and the said John Blomfield continued until his death, in possession of the said premises, with the appurtenances : [717] That, on the 30th of May, 1765, the said surrender to uses was duly presented by the homage at a court of the lord of the said manor, according to the custom thereof; and that, on the llth of November, 1765, John Blomfield, the eldest child of the said marriage begotten of the body of the said Mary by the body of the said John Blomfield, her husband, and being the father of the lessor of the plaintiff, was born : That, on the 14th of November, 1766, William Blomfield, the second child of the said marriage begotten of the body of the said Mary by the body of the said John Blomfield, her husband,-and being the William Blomfield mentioned in the will thereinafter mentioned,-was born: That, on the 5th of January, 1767,-there being then no other children of the said marriage save as aforesaid,-the said Mary Sida, then Mary Blomfield, made her last will and testament in writing, which was signed, sealed, and published by her, as such will and testament, in the presence of, and attested by, three credible witnesses, -which will was and is as follows:- " I, Mary Blomfield, wife of John Blomfield, the younger, of Dedham, in the county of...
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