Stephen Cannon, Demandant; William Ballantine Rimington, Tenant

COMMON BENCH REPORTS. CASES ARGUED and DETERMINED in the COURT of COMMON PLEAS, in Easter, Trinity, and Michaelmas Terms, 1852. By JOHN SCOTT, Esq., of the Inner Temple, Barrister-at-Law. Vol. XII. London, 1854.: [1] cases argued and determined in the court of common pleas and in the exchequer chamber, in hilary vacation, in the fifteenth year of the emgn of queen victoria. stephen cannon, Demandant; william ballantine eimington, Tenant. Feb. 9, 1852. [S. C. 21 L. J. C. P. 137 : in Exchequer Chamber, 12 C. B. 18. See Abergavenny v. Bruce, 1872, L. B. 7 Ex. 152.] An estate-tail having been discontinued by a f eoffment made by the tenant-in-tail more than twenty years before his death,-Held, that the issue in tail might bring his ' writ of formedon at any time within twenty years next after such death,-the period of limitation prescribed by the statute 3 & 4 W. 4, c. 27, not running against him during the life of-the tenant-in-tail. This was a writ of f ormedon in the descender. The count was as follows :- Cumberland, to wit: Stephen Cannon, the demandant in this suit, by W. S., his attorney, demands against William Ballantine Eimington ten messuages and five acres of land, with the appurtenances, in the parish of Penrith, in the county of Cumberland, which Stephen Cannon, the grandfather of the demandant, gave to Stephen Cannon, the father of the demandant, and the heirs of the body of the said Stephen Cannon, the father of the demandant; and which, after the death of Stephen Cannon, the father of the demandant, ought to descend to the demandant, the son and heir of the said Stephen Canon, the father, according to the form of [2] the said gift: And thereupon the- said demandant saith that the said Stephen Cannon, the grandfather of the demandant, hereinbefore mentioned, heretofore, to wit, on the 30th of November, 1796, was seised of and in the tenements aforesaid, with the appurtenances, in his demesne as of fee, and, being so seised thereof, afterwards, and before the 1st of January, 1838, to wit, on the day and year last aforesaid, duly made and published his last will and testament in writing, signed by him, and attested and subscribed in his presence by three credible witnesses, according to the form of the statute in such case made and provided, and thereby, according to the said statute, devised and gave to the said Stephen Cannon, the father of the demandant, and the heirs of the body of him the said Stephen Cannon, the father, the tenements aforesaid, with the appurtenances; and the said Stephen Cannon, the grandfather of the demandant, after his said will had been and was so made and published as aforesaid, and before he had in any wise revoked or altered the same, or the same had become or was in any wise revoked or altered, departed this life so-seised as aforesaid, to wit, on the 18th of April, 1797, leaving the said Stephen Cannon, the father of the demandant, him surviving, who, .thereupon, then, by virtue of the said gift, became and was seised of the said tene- ò.-ò-òò - ò . . . . . 800 CANNON V. BIMINGTON 12C.B.3. ments, with the appurtenances, in his demesne as of fee-tail, to wit, to him and the heirs of his body, in the time of peace, in the time of George the Third late King of England, by taking the explees thereof to the value of 101.: And the said Stephen Cannon, the father, afterwards, and before this suit, and within twenty years next before the commencement of this suit, to wit, on the 29th of April, 1831, departed this life, leaving his son and heir of his body, Stephen Cannon, the demandant, him surviving; whereupon the right to the said tenements, with the appurtenances, according to the form of the said gift, descended from [3] the said Stephen Cannon the father, to, and now remaineth, and ought to remain, in, the said demandant, as tenant-in-tail, according to the form of the said gift, as son and heir of the body of the said Stephen Cannon, the father; for that the said Stephen Cannon, the father, died as aforesaid, leaving the said Stephen Cannon, the demandant, the son and heir of his body, him surviving, &c. Pleas,-first, that the said Stephen Cannon, the grandfather of the demandant, did not devise or give to the said Stephen Casmon, the father, the said tenements, with the appurtenances, or any of them, or any part thereof, in manner and form as the demandant had in his said writ and count supposed,-concluding to the country. Secondly,-that the right, title, and cause of action in the writ and' count above mentioned, did not first descend or accrue within twenty years next before the suing and bringing of the writ whereby this action was commenced,-verification, and prayer of judgment if, &c. Thirdly,-that, after the said Stephen Cannon, the father of the demandant, became and was seised of the said tenements, with the appurtenances, as in the count is above alleged, and twenty years and more before the commencement of this action, to wit, on the 31st of January, 1798, to wit, at, &c., he, the said Stephen Cannon, the father of the demandant, discontinued the possession of the said tenements, with the appurtenances, and the receipt of the profits thereof, and of every part thereof; and that, from the said time when the said Stephen Cannon, the father of the demandant, so as aforesaid discontinued the said possession of the said tenements, with the appurtenances, and the receipt of the profits thereof as aforesaid, he, the said Stephen Cannon, the father of the demandant, in the life-time [4] of the said Stephen Cannon, the father, was not, nor, after the death of the said Stephen Cannon, the father, was the said Stephen Cannon, the demandant, in possession of the said tenements, with the appurtenances, or any part thereof, or in the receipt of the profits of the said tenements, with the appurtenances, or any of them, or any part, thereof,-verification, and prayer of judgment if, &c. The demandant joined issue on the first plea, and replied to the second,-that the said right, title, and cause of action did first descend and accrue within twenty years next before the suing and bringing the writ whereby this action was commenced ; and, to the third,-that the said Stephen Cannon, the father of the demandant, after he became, and whilst he was, so seized of the said tenements in the said count mentioned, with the appurtenances, as therein mentioned, and before he had in any wise discontinued the possession of the said tenements, with the appurtenances, or any of them, or of any part thereof, as in the third plea mentioned, and before...