Taylor, ex dimiss. Atkyns, Esq. v Horde, Esq. et Al
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1757 |
| Date | 25 January 1757 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 190
IN THE COURT OF KING'S BENCH
See 7 Ves. 113. 8 Ves. 112. Cowp. 689. Herne's PI. 480, cited in Talb. 174.
Vide 9 Vin. 84 (C.). 1 Durn. 707, and Butler's notes on Co. Lit. 330 b., n. 1.
S. C. 2 Sm. L. C. (llth ed.), 575. Referred to, Simpson v. Bathurst, 1869, L. R. 5 Ch. 199; Des Barres v. Shey, 1873, 29 L. T. 595; Weller v. Stone, 1885, 54 L. J. Ch. 501; Boyce v. Edbrooke [1903], 1 Ch. 845.
[60] taylor, ex dimiss. atkyns, esq. vers. horde, esq. & al', Tuesday 25 Jan. 1757. The limitation of estates by virtue of powers must be strictly pursued. [See 7 Ves. 113. 8 Ves. 112. Cowp. 689. Herne's PI. 480, cited in Talb. 174.] [Vide 9 Vin. 84 (C.). 1 Burn. 707, and Butler's notes on Co. Lit. 330 b., n. 1.] [S. C. 2 Sm. L. C. (llth ed.), 575. Eeferrecl to, Simpson v. Bathurst, 1869, L. E. 5 Ch. 199; Des Baires v. Shey, 1873, 29 L. T. 595 ; Wetter v. Stone, 1885, 54 L. J. Ch. 501; Boyce v. Edbrooke [1903], 1 Ch. 845.] In ejectment brought in Michaelmas term, 1752 by John Atkyns, Esq. (in the name of Cyprian Taylor) against Robert Atkyns, Esq. the heir at law, and others; upon the general issue pleaded, and issue joined thereon and tried at the Bar of this Court, the jury find a special verdict: which was, in substance, as follows. That Sir Robert Atkyns the Elder, Knight of the Bath, on 8th June 1669, was (amongst divers other messuages, lands, tenements, &c. in Gloucestershire,) seised in fee of the manor of Lower Swell and the other premises in question; and, being so seised, made and executed three several indentures, (which are set out in the special verdict:) one of which is dated on the llth and the two others on the 12th of June 1669. By one of these indentures, which was dated on the 12th of June 1669, (which the counsel on both sides, for distinction's sake, called the lesser deed,) made between Sir Edward Atkins, Knt. one of the Barons of the Exchequer, Sir Robert Atkyns, Knight of the Bath, Solicitor General to the Queen, and son and heir apparent of the said Sir Edward, and Dame Mary (wife of the said Sir Robert Atkyns, of the one part; and Sir Edward Carteret, Krit. and John Lowe, gentleman, of the other part; it is witnessed that in consideration of a marriage thentofore had and solemnized between the said Sir Robert Atkyns and Dame Mary his wife, and of her releasing and acquitting a former jointure to her made before marriage, and of a new provision to be had and made for her the said Dame Mary, for and in the nature of a jointure, in bar and recompence of her dower and thirds at the common law, in case she should happen to survive and over-live the said Sir Robert Atkins her husband, and he the said Sir Robert Atkyns did thereby covenant and grant to and with the said Sir Edward Carteret and John Lowe, that he the said Sir Edward Atkyns, the said Sir Robert Atkyns and Dame Mary his wife, should and would, before the end of Michaelmas term, then next ensuing, levy and acknowledge before the Justices of the Court of Common Pleas at Westminster, one or more fine or fines sur conusance de droit come ceo, &c. unto the said Sir Edward Carteret and John Lowe, with proclamations, of the said manor of Lower Swell and the other premises in question : which said fine or (a) It does not appear what the action was : if it was assumpsit it seems that tender ought to have been pleaded, with touts temps prist, which is inconsistent with the order for time ; and according to Strange, 638, the money ought to be paid into Court, or else it is no plea; and the plaintiff may sign judgment on a certificate that no money was paid in ; but the authority of that case appears by the N.B. there to be doubtful : but without relying on that, the law seems to have been generally holden that a plea of tender after an imparlauce is bad, 5 Comyns, 227. And though 2 Mod. 62, is there referred to for an admission that it was good to a bond though in no other case, yet the reason of it there is because it is to save the penalty; which reason does not now subsist, since by the statute a Court of Law will relieve the defendant on payment of principal and interest; and therefore if that were law before, yet cessante ratione, &e. it is not so now; and if a tender is not pleadable after imparlance, there is the same reason why it should not, after an order for time : which was the reason given by the Court for not allowing it in 1 Barnes, 246, cited by Mr. Aspinall, especially after so long time given as in this case. IBURB. . TAYLOR V. HORDE 191 fines so as aforesaid or in any other sort to be had, levied, and executed of the said manor and premises alone, or together with any other lands, tenements or hereditaments, by or between the parties to the said indenture or any of them, alone or [61] together with any other person or persons, were to be and enure, and were thereby declared to be and enure, as to the said manor and all other the premises, to the use of the said Sir Robert Atkyns for life, without impeachment of waste ; and from and after his decease, to the use of the said Dame Mary for life, for her jointure and in bar of her dower; and from and after the decease of the said Sir Robert and Dame Mary, to the use of Sir Robert Atkyns, Knt. son and heir apparent of the said Sir Robert, and the heirs male of the body of the said Sir Robert the son, on the body of Lovis Carteret his intended wife lawfully to be begotten ; and for default of such issue, to the use of the right heirs of the said Sir Robert the father for ever. And the said Sir Edward Atkyns and Sir Robert the father did by this deed covenant with the said Sir Edward Carteret and John Lowe and their heirs, that in case any defect should happen in the said fine and that assurance, or iu case there should not be some good conveyance in the law made according to the intent of that indenture, so that by reason of such defect or failure of such conveyance and assurance in law, the said manor and premises or any part or parcel of them should not, before the thirtieth day of November then next ensuing, be sufficiently conveyed according to the intent of the said indenture, then they the said Sir Edward Carteret and John Lowe and their heirs, and all and every other person and persons and their heirs, standing or being seised, or which should stand or be seised of and in the said manor and premises, should and would from time to time and at all times from thenceforth for ever stand and be seised of and in the said manor and premises, or so much and such part and parts thereof whereof or concerning which any such defect should happen to be, to the uses, behoofs, intents and purposes therein before declared, limited and contained, according to the true intent and meaning of the said indenture, and to none other use, intent or purpose whatsoever. One other of these three indentures was a lease, elated llth June 1669 : and the remaining one was a release, dated liith June 1669. This release bore the very same date with the deed already recited (called the lesser deed :) and the counsel on both sides agreed in calling this deed of release (for distinction's sake) the greater deed, as this contained the settlement of the whole estate. By these indentures of lease and release, dated llth and 12th June 16G9, the release being tripartite, and made between the said Sir Edward Atkyns, the said Sir Robert the father and Dame Mary his wife, Philip Sheppard, Esq. Sir Clement Farnham, Knt. and Edward Atkyns, Esq. [62] (second son of the said Sir Edward Atkyns,) of the first part; the Right Honourable Sir George Carteret, Knt. and Bart. Vice-Chamberlain of His Majesty's household, and one of His Majesty's most honourable Privy Council, the said Sir Edward Carteret and the said John Lowe, the Right Honourable Edward Montagu, commonly called Lord Hinchinbrooke (sou and heir apparent of the Right Honourable the Earl of Sandwich,) Sir Philip Carteret, Knt. (son and heir apparent of the said Sir George Carteret,) and Edward Swift, Esq. of the second part; and the said Sir Robert Atkyns, Knt. (the son and heir apparent of the said Sir Robert Atkyns,) and Lovis Carteret (one of the daughters of the said Sir George Carteret and of Dame Elizabeth his wife,) of the third part; it is witnessed that in consideration of a marriage thentofore had and solemnized between the said Sir Robert Atkyns the father and Dame Mary his wife, and also of a marriage then shortly to be had and solemnized between the said Sir Robert Atkyns the son and the said Lovis Carteret, and of the sum of 65001. paid to Sir Robert the father by the said Sir George Carfceret, for the marriage portion of the said Lovis Carteret, and of 5s. a-piece to the said Sir Edward Atkyns, Sir Robert Atkyns the father, Philip Sheppard, Sir Clement Farnham, and Edward Atkyns, paid by the said Sir Edward Carteret and John Lowe, and for a provision to be had and made to and for the said Dame Mary (wife of the said Sir Robert Atkyns the father,) for and in the nature of a jointure in bar and recompence of her dower and thirds at the common law; and also for a provision for the said Lovis Carteret, for and in nature of a jointure, in bar and recompence of her dower and thirds at the common law; and for settling all the manors, lands, tenements, and hereditaments therein after mentioned, to the several and respective uses, upon the trusts, to the intents and purposes, and with, under and subject to the provisoes, declarations, limitations and agreements therein 192 TAYLOR V. HORDE 1 BURR. 63. after declared; the said Sir Edward Atkyns and Sir Robert the father did grant, release and confirm unto the said Sir Edward Carteret and John Lowe and their heirs, the said manor of Swell and other the premises in question (as described in the lesser deed,) and several other manors, lands, and hereditaments therein mentioned, to hold the said manor of Swell and...
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