as regards Ann's moiety, is now spent; or they would take their respective moieties in fee, upon condition of having issue. In either way of construing the will, there is no pretence to say, That a forfeiture has been incurred; for admitting that Ann took only an estate tail in common with her sister, yet they would take the remainder in fee, as joint te nants, under the residuary clause; and the fine which will pass future as well as present interests, being only levied of her moiety, to which she was clearly entitled, would attach not

only upon her estate tail, which she held in common, but [178] ! also upon her joint reversion, of which it would sever the jointure; and then the declaration of uses would give it to the husband of Ann, under whom the defendants claim. [Lawrence, J. May it not be considered, that the two sisters are joint tenants of each moiety of the remainder, under the residuary clause; and if so, taking the fine to operate upon Ann's moiety, under the residuary clause, would not the effect of it be to sever the jointure in that moiety only of which each was joint tenant?] Being joint tenants of the whole, the fine would operate to sever the jointure of the whole, and attach upon the entire moiety: but supposing the fine and indenture to have no effect, and that this was an interest undisposed of, descending to the heirs at law, the sisters of Ann could only take as parceners. Then they

must all dissent; for none but the heir can take advantage of a condition broken, the grantee of part of a reversion, which is this case, shall not take advantage of it (a): and all the parceners, including the descendants of the sisters, who are dead, make but one heir. Therefore, they should either have all joined in this ejectment, which would have shewn their dissent; or at least it should have been stated as a fact, in the case that all the others dissented, as well as the parcener, by whom the ejectment is brought.

case.

LAWRENCE, J. There is no such point reserved in the For aught we know, it might have been proved at the trial that they all dissented, if any question had been made of it but referring to the case of Muschamp v. Bluet (b), he observed, That however a condition not to alien to such an one by name might be annexed to a deyise in fee, it was

[179]

(a) Co. Lit. 214, b. 215, a. 6. 347.

K 3

(1) Bridgm. Rep. 137.

not

1805.

not equally clear, that a condition, like the present, restrain

Dozd. GILL ing alienation generally, except to certain persons, was good. In that case it was holden otherwise.

and Wife

against PEARSON.

Wood, in reply, said, That he was not aware of that case; but contended, That such a condition would be equally good within the principle laid down in Co. Lit. in the passage before cited. As to the other objections, the legacies and annuities are charged on the estate, in whose ever hands it is; and therefore that would make no difference in the interest of the persons who were to take. It was clearly the inten tion of the devisor that both his daughters Ann and Hannah should take a fee; but with the condition annexed. Then the fine being in breach of that condition was a nullity at least, if it did not operate as a forfeiture; and Ann's moiety would descend, on her death, to her heirs at law, of whom Hannah was one; and as such she would take one-fourth, unless the whole moiety passed to her under the residuary clause, as surviving joint tenant. It is clear that one parcener may maintain ejectment for her share, as well as one joint tenant. The dissent of the others is immaterial, considering the fine as merely void. [Lawrence, J. This is not a breach of condition; but the case of a condition not performed and in the case of a will, where a condition an nexed to the devise of a fee is considered as a conditional limitation, the duration of the estate ceasing upon the nonperformance of the condition, there needs no entry by the heir to determine it. Taking the whole devise together, [180] may it not be considered as an executory devise in fee to Ann Wait, if she had issue; and if she had not, then a devise to such of her sisters, or their children, as she should appoint? Curia adv. vult.

Lord ELLENBOROUGH, C. J. now delivered the opinion of the Court. In this case three questions have been made: 1st, Whether the conditions annexed to the estates of Ann Collett and Hannah Collett be good in point of law? 2dly, As to the effect of the residuary clause? And, 3dly, Whe ther this ejectment can, under the circumstances of this case, be supported by one of several co-heirs? As to the first, we think that the condition is good; for, according to the case of Daniel v. Ubley, in Sir Wm. Jones, 137, and in Latch. 9,

39, 134, though the Judges did not agree as to the effect of a devise" to a wife, to dispose at her will and pleasure, and to give to which of her sons she pleased," Jones, Justice, thinking it gave an estate for life, with a power to dispose of the reversion among the sons, the other Judges, according to his report, thinking it gave her a fee simple in trust to convey to any of her sons; yet, in that case, it was not doubted, but that she might have had given her a fee simple conditional to convey it to any of the sons of the devisor; and if she did not, that the heir might enter for the condition broken; which estate Jones thought the devise gave, if it did not give a life estate, with a power of disposing of the reversion among the sons: and, according to Latch. 37, Dodderidge said, He conceived she had the fee, with condition, that if she did alien, that then she should alien to one of her children; and concluded his argument on this point by saying, That "her estate was a fee, with a liberty to alienate it if she would; but with a condition that if she did alienate, then she should alienate to one of her sons:" and in Dalison's Reports, 58, there is a case to this effect (35.): "A devise to a wife to dispose and employ the land on herself and her sons at her will and pleasure;" and Dier and Walsh held, She had a fee simple; but that it was conditional, and that she could not give it to a stranger; but that she might hold it herself, or give it to one of her sons. These cases shew that the devise in question may operate as a devise on condition; for the breach of which, in levying a fine to the uses within stated, the heirs at law of the devisor will be entitled to enter; and the plaintiff, as one of them, will be entitled to one-fourth part of the moieties whereof such fine was levied, if the residuary clause do not operate as a devise over on non-performance of the condition and we think that the residuary clause cannot be considered as a devise over; for it does not seem to have been at all in the contemplation of the devisor to make a devise over of the share of each daughter, on the breach of the condition by such daughter; but merely to dispose of those things which had not been before disposed of by the will. This brings the case to the single and only remaining question, Whether one co-heir can enter for the breach of a condition ? — and it seems that he may. In assize, where one co-parcener enK 4 ters,

1805.

DoE d GILL and Wife against PEARSON.

[181]

1805.

DOE d. GILL and Wife against

PEARSON.

ters, claiming for herself and her companion, it vests the seisin in both. Brook's Abridg. tit. Entre Congeable, 57. Where the entry is not lawful, the claim of one co-parcener for herself and her companion does not vest the seisin in her companion. E contra, where the entry is lawful. Ibid. - The entry of one co-parcener is the entry of both as to a stranger. [182] Ib. pl. 38. If lands come to two in common, and one enters into them generally, this shall be the entry of both. 1 Roll's Abr. 740, letter F. pl. 3. If a man devise certain annuities to his four sons, out of certain lands, and devise over, that if his heir does not pay these annuities, the sons shall have the land; if the annuities be not paid, and one of the sons enter generally, this shall be an entry for all the four sons, inasmuch as they are joint tenants. Ihid, pl. 7. Upon the whole, therefore, we think that the condition an nexed to the estate devised to Ann Collett and Hannah Collett is good in point of law. That the residuary clause has no effect in this case; and that the ejectment by one of the co-heirs is good, for the purpose of recovering the share of such co-heir. Judgment for one-fourth of the share devised to Ann Wait,

Postea to the plaintiff.

Wednesday,
Feb. 6th.

The KING against The Churchwardens and Overseers of the Parish of ST. JOHN MADDERMARKET, in NORWICH.

Under a local ANN SUTLIFFE appealed to the Norwich City Ses

act, 10 Ann.

c. 6, for rating

persons to the relief of the poor in Nor

wich for lands,

sions, against an assessment of 1001. stock, charged upon her for the relief of the poor; and the justices allowed the appeal, subject to the opinion of this Court, on a case which stated in substance, That the appellant was assessed personal estates for 100%. stock, or personal property charged upon her by in the parish, &c. and money a rate, duly made and allowed, for the relief of the poor of out at interest, the parish of St. John Maddermarket, in the city and county

&c. stock and

they are not

liable to be

rated for government stocks or funds, which are no more than perpetual annuities, the prin cipal of which can never be recalled by the holder from government, though redeemable at the pleasure of the latter.

of

1805.

The KING against

The Churchwardens, &c. of St.. Joan MADDERMAEKET, NOR

WICH.

of Norwich, by virtue of a local statute of the 10 Ann, c. 6, which enabled the churchwardens and overseers of the poor. of the said parish, upon the authority of a certain warrant, by two of the Norwich magistrates, framed in the words of the said act," To rate and assess the sum (of 1371. 11s. 10d.) on the inhabitants, and on every parson and vicar, and on all and every the occupiers of lands, houses, tenements, tithes impropriate, appropriation of tithes, and on all persons hav** [183] ing and using stocks and personal estates in the said parish (of St. John Maddermarket) or having money out at interest, in equal proportions, as near as may be, according to their several and respective values and estates." And on hearing the said appeal, it appeared to the said Court, That, ever since the passing of the said statute, lands, houses, tenements, stocks, and personal estates, within the said city and county, and money out at interest, as well without as within the said city and county, of the respective inhabitants within the ser veral parishes of the same, have been constantly assessed to the poors' rates, according to the circumstances of such inhabitants. That the appellant had not any stock or personal estate in the said parish of St. John Maddermarket, or in any other parish or hamlet within the said city and county of Norwich, nor had any money out at interest, on real or personal security; but that she was possessed of " money vested in the public funds, or on government security, and then standing in her name in the books of the Governor and Company of the Bank of Englund, in the 5 per cent. Bank Annuities;" and therefore the appellant admitted that the said assessment was just, if the said last-mentioned money was liable to be rated: and the said Court being of opinion, That money vested in the public funds, or on government security, was not, by virtue of the aforesaid act, liable to be rated to the relief of the poor, allowed the said appeal, and relieved the said Ann Sutliffe from the said assessment of 1001. stock, charged upon her by the said rate.

Wilson, in support of the order of Sessions, contended, That as the mention of coal mines in the stat. 43 Eliz. c. 2, was construed to be an exclusion of all other mines liable to be rated to the relief of the poor, so in the local statute of Anne, the enumeration of particular sorts of personal estate, including "money out at interest," and omitting stocks, which

are

[184]