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1812,

no custom of

Saturday, Roe, on the Demise of John CLEMETT, against
Nov. 28th.

BRIGGS. tator's burgage. IN ejectment for a messuage with the appurtenants in house (being

Kirkland, in the parish of Kendal, in the county of burgage held of a manor

Westmorland, which was tried before Graham, B. at the where there is assizes, a verdict was taken for the plaintiff, subject entailing,) to to the opinion of the Court on the following case : his wife for life, or until John Clemett, the grandfather of the lessor of the plaintiff, marriage, and after her de

being seised (inter alia) of an estate descendible and cease or mar

devisable in a burgage-house, in which he dwelt at the riage to R. C,

his younger son, time of making his will, situate in Kirkland, within the • for and during

the term of his manor of Kirkland, held according to the custom of natural life, and after the

the manor, on the 16th of April 1752, by his will, decease or mar- duly executed and attested, devised the same as follows: wife, and also “I hereby devise to my wife all those my two burgageafter the de cease of his son houses, messuages, and tenements, with the appurR. C. unto the heirs of the body

tenants, the one wherein I now dwell, and the of R. C., law “ other called Vicar-Fields-House, both in Kirkland, fully begotten or to be begot “ for and during the term of her natural life or day ten, equally amongst them as

“ of marriage. And after the decease or marriage of shall then be

my said wife, I devise the said two burgage-houses, living, share and share alike, messuages, tenements, and premises, and one other (there being not any child burgage-house situate in Capper-lane, in Kirkland of R. C. then born,) and in

“aforesaid, unto my younger son Richard Clemett, for case R. C. die

“ and during the term of his natural life, to hold the without issue, lawfully be “ same last-mentioned burgage-house immediately after gotten or to be begotten, after his decease remainder over : Held that R. C. took either an estate of inheritance in the nature of an estate-tail, or estate for life, with a contingent remainder to his children, depending on the event of there being a child born and living at the death of R. C.; and that in either case, the child of R. C. was barred, by the freehold of the lord becoming united, by a deed of enfranchisement, in the owner of the customary estate, who derived title by conveyance from R, C. after his estate came into possession.

66 my

1812.

ROE, Lessee of CLEMETT,

against BRIGGS.

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my decease, and to hold the said two first-mentioned burgage-houses, messuages, and premises immediately after the decease of Jane, my said wife, or her day of mar

riage, which shall first happen, for and during the term “ of his natural life; and after the decease of my said wife, or day of marriage, and after also the decease of my said son R. Clemett, I do hereby devise the said three several “ burgage-houses, messuages, and tenements, with the

appurtenants, unto the heirs of the body of my said son R. Clemett, lawfully begotten or to be begotten equally

amongst them, as shall then be living, share and share « alike.And after a further devise of other burgagehouses to his eldest son Leonard Clemett, and the heirs of the body of that son, in manner therein tioned, then he devised as follows : “ Also it is my “ further will, that in case my son R. Clemett die without " issue lawfully begotten or to be begotten, that after his decease I devise the said three first-mentioned burgage“ houses, messuages, tenements, and premises, with the

appurtenants, unto the heirs of the body of my said

son L. Clemett, lawfully begotten or to be begotten, “ for ever, share and share alike.” The testator died seised as aforesaid, soon after making his will, leaving his son L. Clemett his heir at law, and his son R. Clemett, him surviving. From the death of the testator and his said wife, until the conveyance thereof as after-mentioned, R. Clemett was in possession of the said burgage-house, with the appurtenants, in which the testator dwelt as aforesaid, or in receipt of the rents and profits thereof. It is not known that any recoveries have been ever suffered or any fines ever levied of any burgage-tenements, held according to the custom of the manor, nor that any custom exists in the manor for the entailing of such

burgage

Ee 2

1812.

Roe, Lessee of CLEMETT,

against BRIGGS.

burgage-tenements, or the barring of entails thereof, or in any manner respecting the same.

The customary mode of conveyance of such burgage-tenements is by grant, without any lease for a year, livery of seisin, or inrolment. John Clemett the lessor of the plaintiff, and son of R. Clemett, was born in 1754. On the 14th of November 1769 L. and R. Clemett duly executed a customary conveyance of the said burgage-house wherein the testator dwelt, to James Thompson, whereby for valuable consideration they granted and confirmed (as far as by law they could (a)) the said premises to Thompson and his heirs, to hold to him and his heirs for ever, according to the custom of burgage-tenure used and allowed within Kirkland aforesaid. Upon the deed of conveyance Thompson entered and took possession of the same burgage-house with the appurtenants. Several similar mesne conveyances thereof were in like manner from time to time made, executed, and delivered by Thompson and the respective grantees thereof, the last of which was on the 13th of February 1787, to James Scaife and his heirs, who thereupon entered into and was possessed thereof. On the 7th of April 1787, Lady Andover then being lady of the manor of Kirkland, and Edward Shepherd then being entitled to the lord's rent of the premises in question, and entitled to the freehold thereof in fee, holding the same of the said Lady Andover, as chief lady of the manor, he the said Shepherd signed, sealed, and delivered to J. Scaife a deed of enfranchisement of that date, by way of feoffment, whereon livery of seisin was duly made; whereby, after reciting that Scaife had contracted with Shepherd for the absolute

(a) The words within the brackets were not the words of the conveyance, but of the counse) who settled this case,

purchase

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purchase to him his heirs and assigns of the messuages and tenements thereinafter mentioned and granted unto a freehold estate of inheritance, and of the yearly rents issuing out of the same, at or for the price therein mentioned; it was witnessed that for the consideration therein mentioned, the said Shepherd did grant, bargain, and sell, enfeoff, release, ratify, and confirm unto the said Scaife, his heirs and assigns, the premises in question, (amongst others,) to hold the same unto and to the use of the said Scaife, his heirs and assigns for ever, absolutely freed and discharged of and from all rents, fines, customary tenures, and services whatsoever. Scaife, on the 13th of February 1789, signed, sealed, and delivered a feoffment, and delivered seisin according to the same,' (as far as by law he could, which is indorsed thereupon,) which feoffment purported that the said Scaife, for the consideration therein mentioned, did grant, enfeoff, and confirm unto John Fletcher, his heirs and assigns, the said premises therein described, as a freehold, messuage, or tenement, with the appurtenances; and on the 17th of April 1789, Fletcher was admitted to the same, describing it as freehold, late burgage, at the court of the said manor. By indentures of lease and release of the 31st of January and 1st of February 1794, the said Fletcher and Mary his wife, together with John Miller, to whom they had mortgaged the premises, did for the consideration therein mentioned (as far as by law they could,) convey the said premises therein described to be freehold, to John Romney in fee; and covenanted to levy a fine sur conuzance de droit come ceo, to enure to the use of Romney, his heirs and assigns for ever; which said fine was accordingly levied in Hilary term, 34 G. 3. By feoffment, with livery and seisin dated 17th of Fe

bruary

1812.

ROE, Lessee of CLEMETT,

against BRIGGS.

bruary 1804, the said Romney (as far as by law he could) conveyed the premises therein described to be freehold, to the defendant in fee. The said Fletcher, Romney, and the defendant, respectively entered upon and possessed the premises pursuant to the said conveyances to them respectively; and the defendant is now in possession thereof. R. Clemett died in 1804, leaving the lessor of the plaintiff, his only son and heir; and within five years after his death, and before the day of the demise laid in the declaration, the lessor of the plaintiff made a due entry thereupon, in order to avoid the fine. If the lessor of the plaintiff were entitled to recover, the verdict was to stand; if not, a verdict was to be entered for the defendant.

This case was argued in Michaelmas term 1811, by Holroyd for the plaintiff, and Richardson for the defendant. For the plaintiff it was contended that the testator's son, R. Clemett, took an estate for life only in the first instance; in support of which the cases of Doe v. Goff (a) and Robinson v. Grey (6) were cited; 2dly, that the remainder to his issue was vested, Bromfield v. Crowder (C); or if it was not vested, but contingent, yet still it was not barred; 2 Roll. Abr. 794. pl. 6. Styl. 249. 273. S. C. I Fearne, 449. Hopkins v. Hopkins (d). Podger's case (e). Roe v. Vernon ().

For the defendant it was argued that R. Clemett took an estate of inheritance; for which the following cases were cited, viz. Doe v. Applin (8), Doe v. Smith (h), Doe

(a) 11 East, 668.
(d) i Alk, 588. 590.
(f) 5 East, 51.

(6) 9 East, I.

(c) 1 N. R. 313. (e) 9 Rep. 107. a. 3d point. () 4 T. R. 82. (h) 7 T. R. 531.

v. Cooper,

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