replied that A. presented the defendant; traversing that B. presented him. That was a traverse of the inducement to the defendant's traverse, and held good. Lord KENYON, Ch. J.-It seems clear from the cases cited, that, where a traverse is tendered, which is not calculated to try the right in question, the other party need not take issue upon it, since it would be a nugatory issue. But it is admitted that there cannot be a traverse upon a traverse, when the first will decide the whole question: and this does not depend on any arbitrary or capricious rule, but is founded on good sense and reason; otherwise pleading would answer no other purpose than that of lengthening the record. With regard to the question of law in this case, as to the right claimed by the plaintiffs, there can be no doubt but that there may be a prescriptive right in a subject to a several fishery in an arm of the sea. Here then after the defendants had pleaded that the place in question was an arm of the sea, in which every subject has a right of fishing, the plaintiffs replied a prescriptive right in themselves" without "this, that in the said arm of the sea every subject has a right of "free fishing," &c. That was saying in other terms, "The right "of fishing in this place does not stand on the general public "right, but on special grounds, derogatory from the general "law." That traverse necessarily involved in it the real question in dispute between the parties; and consequently the defendants should have taken issue upon it. ASHHURST, J.-It is clearly established, that wherever the point in question is traversed by one party, the other must take issue upon it; for they are not to go on in infinitum. The use of pleading is to bring the matter in litigation to one point; and there cannot be any doubt here but that the merits of this case might have been fairly tried on the first traverse. But it has been objected that this was a traverse of the law: that argument would have been well founded if there could be no prescription against the general right; but, as it is clear that there may be a prescription to take away the general right of the public in an arm of the sea, the traverse tendered by the plaintiffs would put in issue the real question between these parties; for it is founded on an antecedent fact introduced into the replication, which, if true, would defeat the general right upon which the defendants relied. BULLER, J.-The defendant's counsel has endeavoured to support the second traverse on two grounds; first, Because the traverse 1791. The Mayor, &c. of ORFORD against RICHARDSON. 1791. traverse tendered by the plaintiff is a matter of law; and secondly, Because it is immaterial. The first is answered by saying, The Mayor, that, this is to be supported by evidence, and is not mere mat&c. of ORFORD ter of law; and as to the other ground, the rule of pleading has against RICHARDSON. been truly stated, that, if the first traverse tendered be immaterial, the adverse party may add another traverse. Then with regard to the materiality of the plaintiff's traverse, the fair question might have been as well tried on the first as on the second traverse; for one party is to prove that this is an arm of the sea, in which prima facie every subject has a right to fish; the other is to establish a prescriptive right, which destroys the general right. And if the point in litigation come directly to be tried on either of these issues, it must be tried on that traverse which is first tendered. It is like the case of a traverse where the life or death of another person is to be put in issue; if the first traverse tendered be, that the party is dead, issue must be taken on that; or, vice versâ; because either of these traverses will bring the same question to trial. The case cited from Hobart (a) is distinguishable from the present: There the defendant tendered an immaterial traverse; the cutting down the trees was the wrong, and it was immaterial to the merits of that case whether the tenant had or had not sold them. GROSE, J. declared himself of the same opinion. Judgment for the plaintiffs (b). (a) This was not the principal case in Hobart, but is only cited from 5 Ed. 4. 100. B. And Hobart, Ch. J., in commenting upon it, said, "This first traverse was not material, nor to a point material, for the plaintiff might have declared of the felling only, and the "other point was mere surplusage: and therefore, though perhaps if the plaintiff had "joined issue upon it, and it had been found for him, he should have had judgment, yet "clearly he was not bound to take issue on the plea, as not final to the action; and there "fore the plaintiff might have demurred upon the defendant's plea, as resting upon a thing "not material." (b) This judgment was reversed in the Exchequer-chamber. Vide post. 5 vol. 367. and 2 H. Blac. 182. A Thursday, Nov. 17th. witness may ON be asked whe ther he has not The KING against E. EDWARDS. N an application to bail the prisoner, who was charged with grand larceny, one of the bail was asked whether he had been in the pil- not stood in the pillory for perjury? This question was objected to, as tending to criminate him; but lory for perjury. The Court over-ruled the objection; saying, there was no impropriety in the question, as the answer could not subject him to any punishment; and the bail admitting the fact, he was of course rejected. BEACHCROFT BEACHCROFT and Others against BROOME. THIS 1791. Friday, Nov. 18th. to A. and his die with set or without is HIS was a case sent from the Court of Chancery for the opinion of this Court. M. Wymondsold, by will, dated 12th June, 1748, devised his estate in Berkshire (except what were si- Under a devise tuate at Coxhill and Lambourne, and the tithes of Grove) to his heirs, but if he son Francis Wymondsold and his heirs, &c.; and the rest of his thing or dispos estates (of which the premises in question are part) to his son ing of the same, Charles and his heirs, &c.; and if either Francis or Charles sue, then over, should die without having settled, or otherwise disposed of, the the estate in A. may settle estates so devised, or without leaving issue of his or their respec- and defeat the tive body or bodies lawfully begotten; or having such issue, such limitation over. issue should die before his or their age or ages of twenty-one, and without leaving lawful issue, he willed that the premises so given to such of his sons Francis and Charles so dying, should go, and he gave the same unto the survivor of them, his heirs, his lifetime, &c. for ever; and if the survivor should die without having set- 1791. BEACHCROFT against BROOME. solute and indefeasible estate of inheritance in fee-simple in the premises in question. Russel, for the plaintiff, said, That it had been contended in the Court of Chancery that, as the estate in question was given over if Charles, the son, died without having disposed of it, or without leaving issue in the disjunctive, it was vested in Green's heir, because both those events had not happened: but he insisted that that question did not arise here, because the estate was first given to Charles in fee, and was only to be defeated by his not disposing of it and dying without issue, which necessarily implied the power of disposing of it in his lifetime: and, as he actually conveyed it in 1759, the devise over to Green's heir never took effect. But even if the former question could be gone into, the word "or" might be construed "and," in order to effectuate the devisor's intention. Pollexf. 645. 2 Str. 1175. Atk. 390. and Wright v. Kemp, ante, 3 vol. 470. And that such was his intention is manifest from the devise in question; for otherwise, if Charles had died leaving issue, but had not settled or disposed of the estate, it would have gone over to Green's heir, and the issue of Charles would not have taken. Chambre was to have argued on the other side; but candidly confessed, in answer to a question from the Bench, that he had no hopes of success. Lord KENYON, Ch. J.-It is impossible to raise any serious doubt in this case. I take it for granted that this case was sent from the Court of Chancery as a matter of course, on its being suggested there that a question would arise on the will, fit to be determined in a Court of law. It seemed to me as if the parties had considered that a question wonld be made, Whether this were or were not an estate-tail? If it had turned on that question, I should have thought it extremely clear that, on failure of the first limitation, the second might have taken effect as an executory devise. In truth, the real question is, What was the intention of the devisor? and if that can be collected from the words of the will, it must be carried into execution, provided it be not contrary to the rules of law. Now he has said in express terms, "I give one estate to one son and his heirs, and ano"ther to another son and his heirs; and if either of them die with"out having settled or disposed of the estates, or without issue, "then that it should go over." But the son Charles has settled and disposed of the estate given to him, and there is no doubt but that the devisor intended that he should have the power so to do. And The Court afterwards certified accordingly (a). (a) Vide Doe v. Rivers, post. 7 vol. 276. 1791. BRADSHAW against Lawson. Friday, Nov. 18th. HIS was an action of debt, to recover 2s. 6d.; in which if the lord of a THIS a customary tenant, he can. not reserve to himself the an cient services. by reason of the statute Quia emptores, must then hold of the superior lord. To con stitute a court baron, it must be holden be for at least. [2 M. & S. 175.】 fore two free sum the defendant had been amerced for not attending, in manor convey respect of a customary estate, a court baron held for the manor estate to the of Halton, of which the plaintiff was lord, At the trial several objections were taken by the defendant's counsel, when it was agreed that a case should be reserved for this Court; and if they for the tenant, should be of opinion that either of the objections were well founded, a nonsuit should be entered. The special case, as far as respects the principal question, stated these facts: That the plaintiff is seised of the manor of Halton for life; that the defendant is seised of fourteen acres of land, parcel of the estate mentioned in the deeds after stated. Till the reign of queen Elizabeth all the lands within the manor (except the lord's demesnes) were of customary tenure of inheritance, passing by customary deeds and admission of the lord. Several of those estates remain customary, unaltered in point of tenure. The defendant's estate was until the 2d October, 18 Jac. 1. parcel of one of those customary estates; when by an indenture of feoffment, with livery of seisin indorsed thereon, the then lord of the manor, in consideration of 801. granted, aliened, enfeoffed, and confirmed it to C. Barwicke and his heirs and assigns in fee-farm, reserving the yearly rent of 17. 4s. 11d. (there stated to be the ancient yearly rent) for all manner of other rents, suits, services, exactions, and demands whatsoever. The case then set forth another deed of the 14th May, 1 Car. 1.; by which, after reciting that upon the agreement of the above conveyance, and as part of the consideration given or reserved upon the sale of the estate, it was agreed between the parties that Barwicke, and all other persons who should hold his estate, should grind their corn at the lord's mill, and should do suit and service at the lord's court baron for the above estate, E. Barwicke (the son of the above C. Barwicke) covenanted for himself and his heirs, that they would at all times be suitors, and do suit and service, and appear in person at all the courts baron, &c. as formerly; and should be subject to pay such fines and amerciaments as should be assessed or found due by the homage or jury within the manor: and this deed also contained a covenant by E. Barwicke, that if he and his heirs and assigns, owners |