Hewlett v Cruchley
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1813 |
| Date | 28 November 1813 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 696
Common Pleas Division
696 HEWLETT V. CRUCHLEY 5 TAUNT. 276. of it after the ten years, it therefore remains to the heirs. All the property which passes to the trustees is property applicable to be put out on good and sufficient security. [Heath J. Might not they annually put out the rents and profits on real security 1 Mansfield C. J. That is the strongest part of the clause : the testator contemplates that the same, all that he has given, is capable of being put out on good and sufficient security.] Cur. adv. hilt. MANSFIELD C. J. now delivered the opinion of the Court. This is an action of trover by the Plaintiff, who is the heir at law of the testator, against the trustees of his will, for sugar which arose on the estate of the testator, after his decease, and after ten years which had expired before this sugar arose on the estate, so that the heir at law would be entitled to the sugar, if he was entitled to the estate after ten years had passed. The question arises on the construction of a most absurd will, and it is quite impossible it could govern any other case which could arise; and Heath J. and myself are both of opinion that the Plaintiff, the heir, is entitled to those sugars, though we are not agreed on the media [276] by which be becomes entitled. [Here his Lordship read the terms of the will.] There is no doubt that these words, "of what nature or kind soever" would comprehend realty, and it at first struck nie, as it did my Brother Heath, that they included the real estate : but on further consideration, I think the testator did not mean to include his real estate. Several cases were cited, but they do not at all interpret this will, but only serve to shew that the import of words may be restrained, extended, &c. by the context. It appears to me, that the testator in this devise speaks of personalty only ; land could not be placed out, nor securities changed. These words apply so strictly and properly to personalty only, as to control the general words "all the residue of ray estate, of whatsoever nature or kind the same may be," and to confine them to personal estate only. My Brother Heath thinks these words are not sufficient to control the devise, so that it shall not include the realty, but that it constitutes a trust for ten years only, arid that the intent of the testator was, to give these trustees a term for ten years only. If my construction is right, the heir took at the decease of the testator ; if my Brother Heath's, then the heir, at the determination of the trust, at the end of ten years, became entitled to the estate, and consequently to the profits, and therefore to these sugars ; and the Plaintiff is entitled to judgment, Judgment for the Plaintiff, [277] HEw.LErr v. CRUCHLEY, Nov. 25, 1813. There is no species of action in which the Court will riot grant a new trial for excess of damages, if the circumstances require it.In an action for a malicious prosecu. tion, it is no answer that the Defendant was encouraged in what he did by the opinion of counsel, if the statement of facts was incorrect, or the opinion ill-founded. Whether the Court will grant a new trial on the ground of surprize, occasioned by a witness giving different evidence from what was expected by the party calling him. This was an action for a malicious prosecution. Upon the trial of the cause, at the sittings after Trinity term, 1813, it appeared that the Defendant, who was an attorney, had been the deputy prothonotary of the marshalsea court, and the Plaintiff bad been for 14 years his clerk, with unimpeached character, in the business of that office. The Defendant bad been suspended from his office on the 17th of February 1812, by an order of that Court, and by the same order the Plaintiff was appointed to the same officio in his room. It was a part of the Plaintiff's duty, while be was a. clerk, to receive and enter in an...
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Mackey v Thompson
...warning well in mind, I turn now to examine some of the relevant decisions on the law. 96 In Hewlett v. Crutchley (1813) 5 Taunt. 277, 128 E.R. 696 it was held that in an action for malicious prosecution it is no answer that the defendant was encouraged in what he did by the opinion of coun......
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Panton v Sherwood
...factor for consideration (Abrath v. North E. Ry. Co. (1886), 11 App. Cas. 247, followed; Hewlett v. Cruchley (1813), 5 Taunt. 277; 128 E.R. 696, considered; Ravenga v. Mackintosh (1824), 2 B. & C. 693; 107 E.R. 541, applied). A police officer who signs an information drafted by the Stipendi......