Reports of Cases Argued and Determined in the Court of King's Bench

Roberts, the said four did, under and by virtue of the
power given to them by the deed of 1750, appoint.]
That is precisely the present case. In the first place,
there is a conveyance and then an appointment operat-
ing by way of release in extinguishment of her dower.
[Bayley J. But before the appointment comes into oper-
ation the whole is conveyed by the previous part of the
deed.] The case is not to be decided by the strict rules
of the common law; it depends upon the statute of
uses, and effect must be given to the intention of the
parties. It is clear that Catherine Roberts could have
given the whole legal fee by concurring with the other
three persons who had the power jointly with her; and
if the power had been so executed, what would have
been the consequence in a court of equity before the
statute of uses? For her act will have the same oper-
ation and effect since the statute as it would have had
in a court of equity the very day before the statute
passed. Now if this question had arisen in a court of
equity before that statute passed, and the parties had
done exactly that which they have done in this case, viz.
attempted to convey all they had in order to give a good
legal estate, that would have been held to operate as an
appointment by the four, and Catherine, who had an
interest, having attempted to extinguish the power,
would not afterwards have been permitted to say in a
court of equity that she had any interest in possession in
opposition to her act exercising the power. In Bough-
ton v. Sandilands (a) there was not any concurrence of
the husband as a conveying party; for there Eliza
Boughton, with the privity and consent of G. C. B. Bough-

(a) 3 Taunt. 512.

ton,

ton, directed and appointed, and with the same privity and consent granted and confirmed, &c. But the husband and wife did not exercise the power as a joint power of appointment. It would be inconsistent with all the authorities to hold the instrument in this case to operate on the fee as an appointment. It is sufficient if it can so operate for a partial and useful purpose, so as to put an end to all those interests which would not have passed by a conveyance of the fee. [Bayley J. Might not an operation be given to every one of the words, by supposing Catherine Roberts and Humphrey Roberts to grant, bargain, and release to the releasees all the property, and then the four who have the power, to direct, limit, and appoint, to the uses thereinafter mentioned? The deed does not profess to grant to the use of the releasees. There is not any single use declared in their favour.] By so reading the deed, effect will be given to every word, and the intention of the parties will be carried into execution. It is suggested, in a note to Co. Litt. 271 b., that although it is very informal to blend together the language of the appointment and the release, yet the words may be marshalled by construction so as to give them all their intended effect.

The following certificate was afterwards sent.

"This case has been argued before us by counsel, and we are of opinion, that, under the said indentures of the 1st and 2d days of June 1750, and the common recovery suffered in pursuance thereof, and under the said indentures of the 1st and 2d October 1751, the legal fee of such of the estates and premises comprised in the said first-mentioned indentures, as were settled and as

sured

1826.

WYNNE

against GRIFFITH.

1826.

WYNNE against GRIFFITH.

sured by the said last-mentioned indentures, did not vest in the said William Mostyn, John Lloyd, Robert Wynne (of Garthwin) and Pierce Wynne."

J. BAYLEY.

G. S. HOLROYD.

J. LITTLEDALE. (a)

(a) This case was argued on the 11th of January 1826, and the certi ficate was sent on the 28th of January.

END OF TRINITY TERM.

INDEX

TO THE

PRINCIPAL MATTERS.

ACTION ON THE CASE.
See MARKET.

The lessee, by deed poll, assigned
his interest in the demised pre-
mises to A., subject to the pay-
ment of the rent and the perform-
ance of the covenants contained
in the lease. A. took possession
and occupied the premises under
this assignment, and before the
expiration of the term assigned to
a third person. The lessor sued
the lessee for breaches of cove-
nant committed during the time
that A. continued assignee of the
premises, and recovered damages
against the lessee: Held, that the
lessee might maintain an action
upon the case founded in tort
against A. for having neglected to
perform the covenants during the
time he continued assignee, where- 1.
by the lessee sustained damage.
Burnett and Others, Executors, v.
Lynch, T. 7 G. 4.
Page 589

ALIEN.

who resided there before, but who
were natural born British subjects,
and at the time of the separation
of the two countries adhered to
the British government, are not
aliens, and are capable of inherit-
ing lands in this country. Doe on
the demises of Auchmuty and
Others v. Mulcaster and Others,
T. 7 G. 4.
Page 771

ANNUITY.

Warrant of attorney and judgment
for securing an annuity set aside
because the initials only of the
Christian names of the witnesses
were inserted in the memorial.
Metcalf v. Bowes, H. 6 & 7 G. 4.

Children born in the United States
of America since the recognition 2.
of their independence, of parents
VOL. V.

counts, a magistrate, a rated inhabitant of the parish, cannot vote either on the determination of the appeal, or on a question as to granting a case for the opinion of this Court. The King v. Gudridge and Others, E. 7 G. 4. Page 459

APPOINTMENT.

See DEED, 7. DEVISE, 2.

ARBITRAMENT.

1. Where an award is void, and nothing can be done upon it without suit, the Court will not interfere to set it aside, because such suit must fail. But where a cause is referred by order of N. P. and the arbitrator has power to order a verdict to be entered for either party, and he makes an award, ordering a verdict to be entered; although such award be void, the Court will set it aside, for otherwise the party in whose favour the award is made will have judgment upon the verdict without any new proceeding to enforce the award. Doe dem. Turnbull and Others v. Brown, E. 7 G. 4.

384

2. Where a cause is referred by a Judge's order, made by consent of the parties, and the time for making the award is afterwards enlarged by a Judge's order, on moving for an attachment for not performing the award, it must be shown that the order enlarging the time was made by consent. Halden v. Glasscock, E. 7 G. 4. 390

3. Where a cause and all matters in difference were referred by order of Nisi Prius, and the arbitrator by his award found "that nothing is due to the plaintiff:" Held, that this must be considered as a finding, that the plaintiff had no right to recover in the action.

The arbitrator had power to enlarge the time for making his award by indorsement on the or

der of reference; that order, toge ther with two indorsements enlarging the time, was made a rule of Court: Held, that on moving for an attachment for not performing the award, it was not necessary to produce an affidavit that the indorsements were duly made.

By the order of reference, costs were to abide the event; there were two defendants, one of whom did not attend before the arbitrator, or take any part in the proceedings before him. The Master taxed the whole costs of the cause, and the reference in one sum to the other defendant, by whom payment was demanded of the plaintiff. The Court refused to grant an attachment for nonpayment of those costs. Quare, whether the Master had power to tax costs for the two defendants separately? Dickins v. Jarvis and Smith, E. 7 G. 4. Page 528 Debt on bond conditioned for the performance of an award to be made on a day therein named.

One of the terms of the submission was, that the arbitrator should examine the witnesses produced by the parties in difference. Plea, that the arbitrator made several appointments for proceeding with the reference, and examined witnesses produced by the plaintiffs, and occupied the whole of the time of the meetings respectively in so doing; that plaintiffs, on the day when the time for making the award expired, closed their case, and defendant was called upon to enter upon his defence; that at that time an insufficient time remained for the defendant to bring forward and examine his witnesses; that he requested the arbitrator to allow him reasonable time to bring forward and examine his witnesses, which the arbitrator refused, without the consent of the plaintiffs,

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