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Citation: 95 Eng. Rep. 1124 1378-1865

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1124 EASTER TERM, 13 GEO. HI. 1773 3 VIMS. K. B. 403.

What estate the defendant Solomon Fell takes in the premises in question under
the said will; and whether the plaintiff takes any and what estate in the said
premises under the said will? THOmAS WALKER for plaintiff.
JOHN GLYNN for defendant.

This case was well argued at the Bar, by Serjeant Walker for the plaintiff, and
Serjeant Glynn for the defendant, in Hilary term last; and by Serjeant Davy for
the plaintiff, and Serjeant Burland for the defendant, in this term.
[403] They who argued for the plaintiff, contended that she took by the will a
vested remainder in fee, liable to be divested out of her by the birth of a son of
Solomon Fell the defendant: and that Solomon Fell the defendant took only an estate
for his life.
This being a case of great difficulty, and many different opinions having been
given thereupon by the most eminent counsel at the Bar, before the commencement
of the suit in Chancery, I think it would be rather tedious to the reader to set down
the arguments at the Bar in this Court; especially as the Court did not publickly
give their judgment upon those arguments, but privately certified their opinion upon
the questions put to them, by the Court of Chancery. The Lord Chief Justice in
this term, acquainted the Bar with the unanimous opinion of the whole Court to the
following effect, (and said no more) viz.
We are all of opinion that Solomon Fell the defendant took an estate for life, and
his son Thomas dying without issue, his daughter the plaintiff took an estate in tail
general, and that a remainder in fee-simple is vested in Solomon Fell the defendant;
this is our certificate to the Lord Chancellor.
To set down the cases that were cited, would be nugatory, because there was not
one to be found in point; the case of Loddington, and Kyme was said to come the
nearest to it, by the counsel; but the Court said nothing to that.

ScoTT an Infant by his Next Friend, versus SHEPHERD an Infant by his Guardian. C. B.
[Trespass vi & armis maintained against the person who originally throws a squib,
which after having been thrown about in self-defence by other persons at last
puts out the plaintiff's eye. See Day v. Edwards, 5 Term Rep. K. B. 648: &
Savignac v. Boome, 6 T. R. K. B. 125.] 1st count.
IS. C. 1 Sm. L. C. (11th ed.) 454; 2 Wm. Bl. 892. Followed, Byrne v. Watson, 1862,
15 Ir. C. L. R. 339. Referred to, The George and Richard, 1871, L. R. 3 A. & E.
4,76; Sneesby v. Lancashireand Yorkshire Railway Company, 1874-75, L. R. 9 Q. B. 267;
1 Q. B. D. 42; Clark v. Chambers, 1878, 3 Q. B. D. 330; Whalley v. Lancashire, &c.,
Railway Company, 1884, 13 Q. B. D. 140; B. v. Ashwell, 1885, 16 Q B. D. 226.
Applied, Sullivan v. Creed [1904], 2 Ir. R. 350.]
2 Black. Rep. 892, S. C.
This is an action of trespass and assault wherein the plaintiff declares, that the
defendant on the 28th day of October 1770, with force and arms, (to wit) with sticks,
staves, clubs and fists, made an assault upon the plaintiff at Taunton in the county of
Somerset, and greatly bruised, wounded, and ill treated him, so that his life was
greatly despaired of, and then and there threw, cast and tossed a lighted squib,
consisting of gunpowder and other combustible materials, at and against the said
plaintiff, and struck the said plaintiff on the face therewith, and so greatly burnt one
of the eyes of the said plaintiff, that the plaintiff underwent and suffered great and
excruciating pain and torment for a long time, (to wit) for the space of six months
then next following, and afterwards wholly lost his said eye; and the plaintiff hath
not only been forced to lay out and expend a large sum of money, (to wit) the sum of
201. in and [404] about the curing his said wound, but has also been prevented and
hindered from following and transacting his lawful affairs and business, and is wholly
deprived of the use and benefit of his said eye and the sight thereof.
That the defendant afterwards, (to wit) on the same day and year aforesaid, with
force and arms, (to wit) sticks, staves, clubs and fists made another assault upon the
plaintiff at Taunton aforesaid, and threw, cast and tossed a certain lighted firework
consisting of gunpowder, at and against the said plaintiff, and struck the said plaintiff

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3 WIUS. X. B. 405. EASTER TERM, 13 GEO. i1. 1773 1125
on the face therewith, and so greatly burnt one other eye of the plaintiff that the
plaintiff for a long time, (to wit) for the space of six months then next following,
underwent and suffered great and excruciating pain and torture, and afterwards
wholly lost his said eye, and the said plaintiff hath not only been forced to lay out
and expend a large sum of money, (to wit) other 201. in and about the curing of the
said last mentioned wound, but has also been prevented and hindered from following
and transacting his lawful affairs and business, and is wholly deprived of the use and
benefit of his said last mentioned eye and the sight thereof.
That the defendant afterwards, (to wit) on the same day and year aforesaid, with
force and arms, (to wit) with sticks, staves, clubs and fists at Taunton aforesaid, made
another assault upon the plaintiff, and there again beat, bruised, wounded and ill
treated him, so that his life was greatly despaired of, and other wrongs, &c. to the
great damage, &c. and against the peace, &c. to the plaintiff his damage of 5001. and
therefore he brings suit, &c.
The defendant by his guardian pleaded not guilty, whereupon issue being joined,
this cause came on to be tried at the last Summer Assizes for the county of Somerset,
before Mr. Justice Nares; when it appeared by the plaintiff's evidence, that in the
evening of the 28th day of October 1770, at Milborne Port in the said county, it
being the day the fair was held there, the defendant threw a lighted serpent, being a
large squib, consisting of gunpowder and other combustible materials, from the street
into the market-house, which is a covered building, supported by arches, and enclosed
at one end, but open at the other end and on both the sides, when a large concourse
of people were then assembled; and that the said lighted serpent or squib, so thrown
by the defendant, fell upon the standing there of one William Yates, who was then
exposing to sale gingerbread, cakes, pies, and other pastry wares upon his said stand-
ing; that one James Willis instantly, and to prevent injury to himself and to the
said wares of the said William Yates, took the [405] said lighted serpent or squib from
off the said standing, and then threw it across the said market-house, when it fell
upon another standing there, of one James Ryall, on which he was also exposing the
same sort of wares to sale; that the said James Ryall instantly, and to save himself
and his said goods from being injured, took up the said lighted serpent or squib from
off the said standing, and then threw it to another part of the said market-house, and
in so throwing it struck the plaintiff then in the said market-house in the face there-
with, and the said lighted serpent or squib so striking against the plaintiff's face, and
the combustible matter therein then bursting put out one of the plaintiff's eyes.
Upon this evidence the jury found a verdict for the plaintiff with 1001. damages,
subject to the opinion of this Court; whether upon these facts this action is main-
tainable against the defendant. JOHN GLYNN for the plaintiff.
JOHN BUILLAND for the defendant.

This case was argued at the Bar in Hilary term last by Serjeant Glynn for the
plaintiff, and Serjeant Burland for the defendant.
Serjeant Glynn.-It was objected at the trial that the plaintiff had mistaken his
action, that trespass vi et armis will not lie, because the damage which the plaintiff
received was not done immediately by the defendant, but was consequential, and pro-
bably might not have happened to the plaintiff, if the squib had not been secondly
thrown by Willis, and afterwards by Ryall; therefore it is said that the action ought
to have been trespass upon the case.
In answer to this, I insist, that whoever does a tortious act is answerable in
trespass vi et armis for all the consequences ; if a man turns an unruly ox, a lion or
tiger loose amongst people, and mischief ensues thereby to any one, the person injured
may have trespass vi et armis. If a man throws a stone over a wall and kills another
it is manslaughter, although he neither saw or aimed at any body.
By the stat. 9 & 10 W. 3, cap. 7, the throwing of any squibs in any publick street,
house, shop, river, highway or passage shall be adjudged a common nuisance, and
every person being convicted thereof shall forfeit 20s. and if he doth not immediately
pay the same, shall be committed to the house of correction, &c. so that the throwing
the squib by the defendant was an unlawful act, and mischief having ensued, this
action of trespass vi et armis well lies against him.
[406] Serjeant Burland for the defendant.-There must be an immediate assault,
stroke or injury done by one to another, or an action of assault and battery will not

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1126 EASTER TERM, 13 GEO. I. 1773 -3 WILS. M. B. 407.

lie; if the squib had not been touched by a second man after it was thrown by the
defendant it might have expired and done no harm; but it is thrown by a third
person, hits the plaintiff and puts out his eye. No act hath been done by the defen-
dant to the plaintiff from whence the injury happened.
I agree that the turning an ox loose or any wild creature, lion, tiger, &c.
among people whereby mischief is done to any person, is such an act for which
trespass vi et armis well lies; for the turning the beast loose is the very act of the
person, and is as much an assault and battery as if he was to shoot a bullet out of a
gun; the man who turns a wild beast loose is as culpable as a shooter. So if one
strikes a horse and drives him over another man, trespass vi et armis lies ; for
injury and hurt is the necessary consequence of the act: but it is not so in the
present case, for the squib could not have hurt the plaintiff, unless another person
had taken it up and thrown it; it was not necessary for a second man to throw it
cross the market-house; and I humbly insist that an action of assault and battery
would have laid against the man who last threw it at the plaintiff; as if one throws
a stone, but hurts no body, and another takes it up and throws it again and there-
by hurts a third person, the action must be against the person who threw it secondly,
and not against the first person who did no harm.
Suppose an action had been brought against Ryall, it certainly would have well
laid, and he could not have defended himself by any plea whatever; for pleading that
he threw it casualiter, et per infortunium et contra voluntatem suam it put out the
plaintiff's eye, would not have excused him; like the case in Hob. 134, Weaver versus
Mard, which was trespass of assault and battery. The defendant pleads that he was
a trained soldier in London, and he and the plaintiff were skirmishing with their
company, and the defendant with his musket casualiter et per infortunium et contra
voluntatem suam in discharging of his gun hurt the plaintiff; and resolved no good
plea. So I say, as Ryall is guilty of the immediate assault, the defendant is not; he
is only guilty of a nuisance, by first throwing the squib.
Serjeant Glynn in reply.-Whether the act of throwing the squib by the defen-
dant was criminal or innocent with respect to the publick, yet if damage be done
thereby he is answerable in his action. In 1 Stra. 596, Underwood versus Hewson the
defendant was uncocking a gun, and the plaintiff standing to see [407] it, it went off
and wounded him: and at the trial it was held that the plaintiff might maintain
trespass ; every man is answerable for any injury he does, although he do it without
any design, or by accident; unless the injury done by him was inevitable.
The Court took time to consider until this term, when judgment was given
for the plaintiff by three Judges against one, wherefore they gave their opinions
seriatim.
Nares Justice, for the plaintiff.-The question is, whether, upon the facts proved
at the trial, which have been reported, and before stated, this action of trespass of
assault and battery vi et armis doth not well lie against the defendant? Or whether
it should not have been an action upon the case against him, upon a supposal that the
injury done to the plaintiff was consequential and not immediate?
I am of opinion that this action of trespass vi et armis doth well lie against the
defendant.-The nature of the act, the time and place when and where it was done,
make it highly probable that some personal damage would immediately happen there-
by to somebody then present in a crowded market house on the fair-day ; and I think
the act in itself was illegal at common law; but the stat. 9 & 10 W. 3, ch. 7, which
makes the throwing of squibs in any publick street, &c. a common nuisance, and
gives a forfeiture for so doing, puts it out of doubt that the act was unlawful.
It is objected that the plaintiff's eye was not put out by the immediate act of the
defendant but by the immediate act of James Ryall, and therefore this action will not
lie against the defendant, but would well have laid against Ryall.
I answer, that the act of throwing the squib into the market-house was of a
mischievous nature, and bespeaks a bad intention, and whether the plaintiff's eye was
put out mediately or immediately thereby, the defendant, who first threw the squib,
is answerable in this action: but supposing the defendant had no bad or mischievous
intention when he threw the squib, yet as the injury done was not inevitable, this
action well lies against him; for the malus animus of a defendant is not necessary to
be alleged, proved or taken into consideration in this action; "but in felony it shall
be considered, as where a man shoots [with a bow] arrows at butts and kills a man

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3 I. X . 40 8. EASTER TERM, 13 GEO. Ill. 1773 1127

it is not felony, and it should be construed that he had no intent to kill him; and
so of a tyler upon a house who with a tyle kills a man un-[408]-knowingly, it is
not felony: but where a man shoots at butts, and wounds a man, although that it
be against his will, he shall be said to be a trespasser. 21 Hen. 7, 28 a. '-If the
injury done be not inevitable, the person who doth it, or is the immediate cause there-
of, even by accident, misfortune, and against his will, is answerable in this action of
trespass vi et armis; so is 1 Stran. 596, Underwood versus Hewson. Hob. 134, Weaver
versus Ward. Sir Thomas Jones, 205, Dickenson versus Watson. 6 Ed. 4, 7, 8. Sir
Thomas Raym. 422. 4 Mod. 404, 5.-If the act in the first instance be unlawful,
trespass will lie; but if the act is prima facie lawful, and the prejudice to another is
not immediate, but consequential, it must be an action upon the case, and this is the
distinction laid down by the Lord Chief Justice Raymond in Reynolds versus Clarke.
1 Stran. 635. 2 Lord Raym. 1399, S. C. In the case at Bar, the act in the first
instance done by the defendant was unlawful, therefore trespass vi et armis well lies
against him; every subsequent act in throwing the squib by Yates, and Ryall, did
partake of the nature of the first act, and was quasi causa causata immediately and
instanter. In the case of The Prior of Spalding in trespass against defendants for
putting earth and mud into his sewer, whereby the water therein was stopped in
its course and surrounded 40 acres of his land adjoining; it was objected that
trespass vi et armis did not lie, and prayed judgment of the writ; but by Thirning
Chief Justice, although the surrounding the land with water was not against the
peace, yet the putting the earth and mud into the sewer may be against the peace;
and the defendants have done what they ought not to have done, wherefore they must
answer. 12 Hen. 4, 3 a. There are some cases where one may have either trespass
vi et armis, or an action upon the case, as Hob. 180, Wheatley versus Stone. Cro. Jac.
122, 43, Dent versus Oliver.-" If a man be riding on the way, and another man
striketh his horse by which the rider falleth and is hurt, he which is cast off his horse
shall have trespass against the other" [whereby I suppose is meaned trespass vi et
armis], F. N. B. 89 E. and 90 K., 91 A. 8vo. edit.-The stroke is given to the horse,
and not to the rider, but he is instantly hurt by the fall, in consequence of the act of
striking the horse.
It is objected that the squib, after it was thrown by the defendant, had a new
direction given to it, whereby the plaintiff was injured, but was not hurt by the
defendants throwing it.-I answer, that the defendant was the first actor, and the
cause of the cause of the putting out the eye of the plaintiff, the act was not compleat
until the explosion ; if a man turns out a mad bull, ox, or any other wild or mischievous
beast towards A. who turns the brute towards B. who turns it again towards C. [409]
whom it hurts, he who was the first actor and turned out the beast is answerable in
trespass vi et armis for the injury done to C.-But suppose the death of a man
ensues from turning out such a wild beast by the owner, who knows it to be mischievous,
the owner of the beast is guilty of murder, Rex versus Huggine, 2 Ld. Raym. 1583.-
If a man doth an unlawful act, he shall be answerable for the consequences of it.
1 Ld. Raym. 480, per Holt Chief Justice. 5 Mod. 427, S. C. and S. P.
I shall conclude with what the Lord Chief Justice Wilmot, and the Court said in the
case of Slater versus Baker and Stapleton, I Wilson, 362, where it was objected that the
defendants ought to have been charged as trespassers vi et armis, and not as trespassers
upon the case; the Court said, "that the plaintiff in that case ought to receive a satis-
faction, seemed to be admitted, so we will not look with eagle's eyes to see whether
the evidence applies exactly or not to the case, when we can see the plaintiff has
obtained a verdict for such damages as he deserves, but we will establish such verdict
if possible:" so I am of opinion the plaintiff ought to have judgment.
Blackstone Justice.-I am of a different opinion. I take it here is no verdict; the
declaration and special case are stated for the opinion of the Court, whether the facts
in the case amount to an assault and battery vi et armis by the defendant upon the
plaintiff?
The declaration alleges that the defendant threw, cast and tost a lighted squib
against the plaintiff, and struck him on the face therewith, whereby he lost his eye ;
this is laid as an immediate injury done by defendant to the plaintiff, which is the
gist of this action of assault and battery ; for if the injury received from the act of the
defendant was not immediate, but a consequence, trespass vi et armis will not lie, but
it must be an action on the case; and my Lord Raymond in the case of Reynolds versus

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Clarke, 2 Ld. Raym. 1402, puts the difference, where he says, "The distinction in law
is, where the immediate act itself occasions a prejudice or is an injury to the plaintiff's
person, house, land, &c. and where the act itself is not an injury, but a consequence
from that act is prejudicial to the plaintiff's person, house, land, &c. In the first case
trespass vi et armis will lie; in the last it will not, but the plaintiff's proper remedy is
by action on the case." And this distinction runs through all the cases which have
been cited.
The lawfulness or unlawfulness of an act is not the criterion between these two
actions, for a man may become an immediate [410] trespasser vi et armis by doing a
lawful act; as if a man in doing an act lawful in itself, hurts another by accident,
misfortune, and against the will of the actor, yet he shall be answerable in traspass vi
et armis for immediate injury done; unless the injury was inevitable, 27 Hen. 7, 28 a.
1 Stra. 596, and many other cases in the books to this purpose. Trespass on the
case will lie for doing an unlawful act, if the damage sustained thereby be not
immediate but consequential, 11 Mod. 108. The first act in the present case (I allow)
was unlawful; but the squib by the first act did not strike the plaintiff, the first act
was compleat when it lay on Yate's stall, afterwards Willis a bye-stander threw it
across the market-house, it fell on the stall of another man who threw it to another
part of the market-house and struck the plaintiff therewith and put out his eye. Willis
who took up the squib and threw it across the market-house is not answerable in
trespass vi et armis, for he did that act to prevent injury to himself, and did no harm
to any body. Willis and Yates gave the squib two new directions, acting as free
agents, not by the instigation, command, request, or as servants of the defendant, but
in defence of their persons, so the injury which happened to the plaintiff was the
consequence of, and not done immediately by the first act of the defendant.
It is said the first act was not compleat until the explosion of the squib; I admit
the squib had not power to do mischief until the explosion ; but it doth not follow
from thence that the first act was not compleat, at the instant the squib received a
new direction from a second act. Suppose several persons are playing at foot-ball,
which is tossed by many, and at last breaks windows; trespass vi et armis will only
lie against the man who struck it against the windows.-The throwing the squib
against Yate's stall was the only act the defendant did.
In the case of Slater versus Baker and Stapleton, there was a compleat verdict, but
the present case is reserved for the opinion of the Court; and although the Court in
that case said they would not look with eagle's eyes to see whether the evidence
applied exactly or not when the plaintiff had obained a just verdict; yet there being
no compleat verdict in the present case, the Court will not, like another sort of birds,
shut their eyes against the light.
Upon the whole I am of opinion that trespass vi et armis doth not lie in this case,
because I think the injury done to the plaintiff was not immediate, but was a conse-
quential damage ; and therefore the proper action upon the facts stated, is trespass
upon the case.
[411] Gould Justice.-I differ with my brother Blackstone, but with the utmost
respect to his sentiments. I think that neither Willis nor Ryall are liable to an
action in this case; if that be so, and this action will not lie against the defen-
dant Shepherd who did the first act, which was unlawful, the plaintiff who has
been greatly injured will be without remedy. The damage done did instantly
arise by and from the act of the defendant: Willis and Ryall in defence of them-
selves and their goods, being in a state of fear, without power of recollection,
instantly tossed and threw the squib away from themselves, what they did was
inevitable, as it seemeth to me. Suppose a burning squib thrown into a coach passing
along the street, and one of the persons therein throws it out, and the like mis-
fortune as this happens; surely the person throwing the squib out of the coach
might justify or excuse himself by pleading; though this is not so strong a case
I think as the present. The defendant is the only wrong doer; his act put
Willis and Ryall under an inevitable necessity of acting as they did, so neither
of them is liable to an action : upon the whole I am of opinion judgment must
be for the plaintiff.
Lord Chief Justice de Grey.-The distinction between actions of trespass on
the case, and trespass vi et armis should be most carefully and precisely observed,
otherwise we shall introduce much confusion and uncertainty ; this is that kind of

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3 VIIS. M. B. 412. EASTER TERM, 13 GEo. in. 1773 1129
injury where the distinction is very nice. It strikes me thus; trespass vi et armis
lies against the person from whom an injury is received by force. So the question
is, whether this personal injury was received by the plaintiff by force from the
defendant ? Or whether the injury was received from, or resulting from a new force
of another?
The real or true question (I think) is not whether the first act of throwing
the squib" by the defendant was lawful or not; for I see, that in doing a lawful
act, trespass vi et armis will, in some cases, lie against the actor; and yet there
are cases where trespass vi et armis will not lie against a person for doing an
unlawful act; legal acts may become trespasses vi et armis, by accident or inadvert-
ency. If a man cuts his own thorns, which by accident or through his inadvertency
fall upon his neighbour's ground, his going upon that ground to take them away
is a trespass vi et armis, because not inevitable. So if one in shooting at a mark
wounds or hurts another by mere accident; so if I aim a blow at one and by
accident strike another, trespass vi et armis lies. And in some cases where the
act seems to be totally inevitable, you cannot plead a justification or excuse, as
in Gcbbons versus .Peper, 4 Mod. 404. "In assault and battery, the defendant
pleaded that he was riding on a horse in the high-[412]-way, and that on a
sudden fright the horse started and run upon the plaintiff, who continued in the way
after he was called to go out, which was the same assault: to this plea the plaintiff
demurred; and it was moved for the defendant, that what he had pleaded was a
sufficient excuse ; for it was no neglect in him, and the mischief was inevitable ; but it
was answered, that the battery was not answered, that defendant should have pleaded
the general issue, for if the horse ran away against his will, he would not have been
found guilty, because it cannot be said with any colour of reason to be a battery
in the rider. The plaintiff had judgment."
For doing an unlawful act, as by laying a log in the highway whereby another
person is hurt, it is a nuisance, for which trespass vi et armis will not lie, but trespass
upon the case; whether the injury occasioned by the act be immediate and direct or
not, is the criterion, and not whether the act be unlawful or not; if the injury be
immediate and direct, it is trespass vi et armis, if consequential, it will be trespass on
the case.
"If an action unlawful in itself be done deliberately, with intention of mischief or
great bodily harm to particulars, or of mischief indiscriminately, fall where it may,
and death ensue against or beside the original intention of the party, it will be
murder." Foster, 261. So where a blow, intended against A. with a malicious
murderous intention, lights on B. and kills him, it is murder; although the blow was
not intended at B.
But to return to the present case of a civil action ; I think it was admitted upon
the argument of this case at the Bar, that if a man turns a wild ox loose amongst
people not with any intent to hurt any one, and he gores a man, trespass vi et
armis lies.
The throwing the squib by the defendant was an unlawful act at common law,
the squib had a natural power and tendency to do mischief indiscriminately; but what
mischief, or where it would fall, none could know; the fault egreditur 6 persona of
him who threw the squib, it would naturally produce a defence to be made by every
person in danger of being hurt thereby, and no line can be drawn as to the mischief
likely to happen to any person in such danger; the two persons Willis and Ryall, did
not act with, or in combination with the defendant, and their removal of the squib for
fear of danger to themselves seems to me to be a continuation of the first act of the
defendant until the explosions of the squib; no man contracts guilt in defending
himself ; the second and third man were not guilty of any trespass, but all the injury
[413] was done by the first act of the defendant; here I lay the stress, and here I
differ with my brother Blackstone ; for I conceive all the facts of throwing the squib
must be considered as one single act, namely the act of the defendant; the same as if
it had been a cracker made with gunpowder which had bounded and rebounded again
and again before it had struck out the plaintiff's eye. I am of opinion that judgment
must be for the plaintiff, and the postea was accordingly delivered to him, by the
opinion of three Judges against one.
Nota. The Lord Chief Justice cited the Register 95 a. A writ of trespass de
stagno fracto per quod inundavit vivarium querentis; and 95 b. de bladis inundatis,
K. B. xxiv.-36*

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&c. and 108 b. de fimo et alijs feditatibus positis juxtA parietes querentis, per quod
parietes prwdicti putridi devenerunt, et alia enormia, &c. as something like this case.

JOHN JACKSON versus HARRIOT FORD, Spinster. Assumpsit by Jackson

versus HarriotFord.
The plaintiff declared in an action upon the case, upon several promises against
the defendant, by the name of Harriot Ford spinster; to which declaration a plea in
bar was pleaded in the following words, viz.
And the said Ann White who is sued by the name of Harriot Ford, who is within
the age of twenty-one years, by James Ford her next friend and guardian by the
Court here specially admitted, comes and defends the wrong and injury when and so
forth, and says, that the said John Jackson ought not to have his aforesaid action
thereof maintained against her, because she says that the said Ann White, at the
several times of the making of the said several promises and undertakings in the said
declaration mentioned, and each of them was within the age of twenty-one years, (to
wit) of the age of nineteen years and no more, that is to say at Westminster afore-
said ; and this she is ready to verify : wherefore she prays judgment if the said John
Jackson ought to have his aforesaid action thereof maintained against her and so
forth. THOMAS WALKER.

And the said John Jackson as to the plea of the said Harriot Ford by her above
pleaded in bar says, that the said plea and the matters therein contained, are
insufficient in law to bar the said John from having his aforesaid action thereof main-
tained against her the said Harriot Ford; to which said plea in manner and form as
the same is above made and set forth, he the said [414] John is under no necessity nor
in any wise bound by the law of the land to answer; and this he is ready to verify:
wherefore, for want of a sufficient plea in this behalf, he the said John prays judg-
ment and his damages by him sustained on occasion of the not performing the
said several promises and undertakings in the said declaration mentioned to be
adjudged to him, &c. and for causes in demurrer in law in this behalf, according
to the form of the statute in such case made and provided, he the said John sets
down and shews to the Court here the causes following (that is to say) for that
by the said declaration it appears that the said John hath brought his action
against Harriot Ford, and no such person as Ann White is mentioned in the said
declaration, and yet the said plea begins with these words, "And the said Ann
White," which is wholly repugnant to the said declaration, and for that the said
plea- is not any answer to the said declaration, and is wholly uncertain, insufficient,
dubious and informal, &c. HARLEY VAUGHAN.

The defendant joined in demurrer, which was argued in this term by Serjeant
Davy for the plaintiff, who insisted that the plea was bad, both in form and substance;
the plea begins, and the said Ann White, who is not named in the declaration, so the
plea is no answer to it; who is sued by the name of Harriot Ford spinster, but the
plea doth not say by whom she was sued, the plea ought to have mentioned that she
was sued by the plaintiff, and of that opinion was the Court.
Walker Serjeant for the defendant, said the plea was well enough, and that the
words the said were only surplusage, but the Court thought otherwise, so he moved
for leave to amend the plea on payment of costs, which was granted per Curiam.

FROGMORTON ON THE DEMISE OF WILLIAM WRIGHT versus SARAH WRIGHT Widow,

AND SARAH KERSHAV Widow. The following words in the preamble of a will:
"As touching all my temporal estate, &c. I give and dispose thereof as follows,"
will not alone cause a devise of houses to A. without further disposition of the
same, to be construed an estate see
in 5fee-simple.
T. R. K. B.See
13. Doe d. S earingv. Bu kner,
6 Term Rep. K. B. 610, and also
2 Black. Rep. 889, S. C.
Ejectment for two messuages, two cottages, two barns, two stables, three acres of
land, two acres of meadow, and three acres of pasture, and common of pasture, with

HeinOnline -- 95 Eng. Rep. 1130 1378-1865