When there is a demise for life, with remainder in contingency, the fee descends to the heir till (B) OF A REMAINDER. 1. PLUNKET V. HOLMES. M. T. 1664. Raym. 28; S. C. 1 Lev. 11; 1 Sid. 47. A. devised lands to B. his heir, for life; and if B. should die without issue living at his death, that then the same should remain to C. in fee; but if B. should have issue living at his death, then the fee should remain to the right heirs of B.; it was resolved that B. took an estate for life, with remainder in fee in contingency; and it was the contingency said by Wyndham and Twisden, and agreed by the other judges, happen, and is that the fee descended to B. as heir, till the contingency happened, not in abeyance. though not so as to confound his estate for life, and was not in abeyance; that in relation to C., B. took only an estate for life; but in the mean time, by operation of law, he had the fee in such sort as that there should be an hiatus to let in the contingency when it happened. So where there is a devise in re See Archer's case, 1 Co. Rep. 66. 2. PUREFOY V. ROGERS. 1670. K. B. 2 Saund. 380; S. C. 1 Lev. 39; 3 Keb. 11. S. devised lands to his wife for life; and if it should please God to bless her with a son, and she should call that son by the testator's mainder in fee christian and surname, he gave the inheritance of the lands to him in contingency; after his mother's life; and if he died before he came to twenty-one, then the testator gave the inheritance of his lands to his, the testator's, heirs for ever. Before any son was born, the heir of the testator conveyed the estate to the wife and her second husband by fine. It was urged that the contingent remainder to the son was not destroyed; for that at the time of the fine, the heir of the testator had no reversion or estate in him, for that an estate for life was devised to the wife, and the remainder in fee was devised to her son upon a contingency; so that till it could be known whether such contingency would happen or not, the reversion must be in abeyance and not in the heir, and then his conveyance gave no estate to the husband and wife, but they were only tenants for life of the wife as before. But Hale, Ch. Justice, interrupted the counsel, and said, it mence. The law also does not favour the abeyance of the fee-simple, for in that case was clear that the reversion was in the heir of the testator by descent, and not abeyance, and accordingly it was adjudged that the contingent remainder was destroyed.* See Fortescue v. Abbott, Pollex, 479; S. C. T. Jones, 79; Wood v. Ingersole, Cro. Jac. 260; Kent v. Harpool, 1 Vent. 306; Ca. Temp. Hard. 16. 3. CLARKE V. SMITH. T. T. 1697. C. P. 1 Lutw. 793. Per Cur. In all cases of executory devises the estate descends till the contingency happens. See Pay's case, Cro. Eliz. 878; Gore v. Gore, 2 P. Wms. 28; Hayward v. Stilling fleet, 1 Atk. 422; Fearn, Cont. Rem. 395. 7th ed. 4. Or where there is an executory devise ; DAVIS V. SPEED. H. T. 1691. Carth. 262; S. C. 4 Mod. 153; 5 id. Or a feoffment 143; 2 Salk. 675; Show. Par. Ca. 104. to uses.† Per Holt, C. J. Where a feoffment is made to the use of A. in tail, remainder to the use of the right heirs of T. S. who is then * This opinion of Lord Hale is agreeable to what had been before determined in a case where the testator devised land" to his eldest son, Thomas, for life; and if he died, without issue living at the time of his death, to Leonard, another son, and his heirs; but if Thomas had issue living at his death, then the fee should remain to the right heirs of Thomas for ever: it was adjudged that Thomas took only an estate for life, with a contingent remainder to Leonard in fee; and it was said by Wyndham and Twysden, Justices, and agreed to by the other judges, that the fee descended to Thomas, as heir, until the contingency happened, and was not in abeyance; that in relation to Leonard, Thomas took only an estate for life; but in the mean time, by operation of law, he had the fee in such sort that it should not merge the estate for life, but there should be an hiatus to let in the contingency when it happened; and it was compared to Archer's case, 1 Rep. 66. b; where, though Robert took an estate only for life by the will, yet, by operation of law, he had the fee also. Sir T. Raym. 28; Plunkett v. Holmes, 1 Lev. 11; 1 Sid. 47. S. C. Lord Hale's opinion has been also recognized in a subsequent case, where Sir M. A. devised to E. for life, and in case E. should have issue male, then to such male and his heirs for ever, and after the death of the said E. in case he should leave no issue male, then to T. S. in fee. After the testator's death, E. before he had any issue male, suffered a common recovery of the lands to himself in fee, it was held that the remainder to T. S. was contingent, and destroyed by the reco very; and then the question was, whether the remainder in fee to T. S. was in abeyance, or did descend to the testator's heir at law. Sir Joseph Jekyll, then Master of the Rolls, held that the fee was in abeyance; but on appeal to Lord Chancellor Parker, he was of opinion that it was not in abeyance, but descended to the testator's heir at law; for wherever a remainder is devised in contingency, the reversion in fee descends to the heir at law in the mean time, and whatever estate is not disposed of by the testator descends to the heir, and cited the above case of Purefoy v. Rogers, and the beforementioned case of Plunkett v. Holmes, as in point; and therefore he held that the heir of the testator, having the reversion in fee descended on him, had a right of entry commencing upon the forfeiture which the tenant for life had incurred by suffering the recovery. See 1 P. Wms. 506. Carter v. Barnardiston; Loddington v. Kime, 1 Salk, 224; S. C. 1 Ld. Raym. 203; 3 Lev. 431; 2 Bro. Ca. Parl. 15; Hopkins v. Hopkins, 1 Atk. 590; Chapman v. Blisset, Ca. Temp. Talb. 151; Watkins, Desc. 202; Fearn, Con. Rem. 355. 7th ed. In the case, however, of Vich v. Edwards, 8 P. Wms. 372. which was a devise to A. and B. and the survivors of them, and the heirs of such survivor, in trust to sell, Lord C. J. Talbot held, that the fee was in abeyance, it being uncertain which would be the survivor: that the trustees joining in a fine, might make a good title to a purchaser by way of estoppel, and that the heirs joining would have no other effect than that of supplying the want of proving the will. Vich v. Edwards, 3 P. Wms. 372; see observations upon this case in Fearn's Con. Rem. 356; 2 Cruise, Dig. 448. + It may perhaps be now safely stated, as a general proposition, that the fee simple, during the suspense of a contingent remainder, remains in the grantor, and is not in ance between all the co-heirs except one, such heir becomes living, the fee simple is not in abeyance, nor in the feoffees, but results to the feoffor, and remains in him till the contingency, viz. the death of T. S. happens. See Fearn, Cont. Rem. 353; Prest. Est. 103. (C) OF A TITLE OF DIGNITY. SIR RICHARD VERNEY'S CASE. E. T. 1693. Skin. 432; S. C. Coll. 322. Where a dignity Sir Richard Verney, Knight, claimed the barony of Broke, as falls into abey- lineal heir to Sir Robert Willoughby, who was summoned to parliament 7 Hen. 7. the writ being directed to Robert Willoughby de co-heirs; whenever there is a Broke, Chevalier, to whom succeeded Sir Robert Willoughby, who was determination of summoned to parliament by the same title, and sat accordingly in the the co-heirship reign of Hen. 8; from him the barony descended to Lady Elizabeth by the death of Greville; (she having survived her two sisters, who died without issue ;) from whom it descended to her grandchild and heir, Sir Foulk Greville, Knight; (who was created Lord Broke, to him and his heirs male ;) but who dying without issue, the barony descended to Margaret, Lady Verney, the petitioner's grandmother. The attorneygeneral argued against this claim, 1st. That a summons by writ did not create an estate in fee; for that anciently several had been so summoned, and yet their sons had never been summoned after them; nay, sometimes the very person first summoned had afterwards been omitted to be summoned. But he did not design to urge that any further; but chiefly insisted, that even in the time of King Henry 7. when Sir Robert Willoughby was first summoned, it was not considered as an estate in fee; urging Latimer's case; and of later times, Abergavenny's case, and Paget's. 2d. That if it did descend, it was extinguished in the co-heirs of Lady Margaret Greville, urging the Earl of Oxford's case. entitled to the dignity as a matter of right.* The counsel for the petitioner replied that, 1st. As to the baronies of Latimer and Abergavenny, those honours followed the entail of abeyance, as well in common law conveyances, as in conveyances by way of use and dispositions by will. Fearn, 362. in support of this position, cites the following case-A. makes a lease for life, on condition that if the lessee has issue in his life the land shall remain to W. in fee. A. recovers against the lessee in a writ of waste, and has execution. Lessee has issue, and dies. No action of formedon accrues to W. because the fee remained in A. until the lessee had issue, and then the recovery in waste defeated the first limitation. Brook, Read. on Stat. Lim. 84. And the same rule obtains with regard to powers of appointment; (Cave v. Holford, 3 Ves. 657; Cox v. Chamberlain, 4 Ves. 631; Maundrell v. Maundrell, 10 Ves. 246;) for if a person limits to such uses as he shall appoint, and in the mean time, and until be makes an appointment to the use of himself and his heirs, or in case he limits it to the use of himself for life, and after his decease to such use as he shall appoint, for want of appointment to the use of his right heirs, in both these cases the fee simple remains in him, subject to be diverted by the exercise of his power of appointment. It is, however, in the power of the crown, during the continuance of the co-heirship, to terminate the abeyance or suspension of the dignity, by nominating any one of the co-heirs to it. Such nomination operates, not as a new creation, but as a revival of the ancient dignity, for the nominee becomes entitled to precedence according to the date of the dignity. 8 Cruise, Dig. 249. The abeyance terminates as a matter of course whenever there remains, by the death of some of the co-heirs, but one heir; but the attainder of one of two co-heirs does not determine the abeyance. Dignities are not within the statutes of limitations, and may consequently be claimed at any distance of time; and there are instances of claims being recognized after the dignities had been dormant for some centuries. 3 Cruise, Dig. 254. 261. 1172. the lands, as baronies by tenure. As to the resolutions in the Earl of Oxford's case, touching the baronies of Bulbeck, Sandford, and Badlesmere, that they were in his Majesty's disposition; they allowed that the king might dispose of them to which of the co-heirs he pleased during the co-parcenership, but not to a stranger, nor to the heir male collateral, who had no right thereto, so long as there were heirs general. The House of Lords resolved, that the petitioner had no right to a summons to parliament. See 3 Cruise, Dig. 254. 255; Collins, 322. 412; 2 Dugd. Bar. 367; Lords' Journ. 15 vol. 634. 643; 21 vol. 266. 339; and on the subject of titles of honour being in abeyance generally, see 2 Cruise, Dig. 245. to 274; Co. Lit. 165. a. and note; 3 Thomas's Co. Lit. 115. n; 3 Com. Dig. 468; Chit. Junr. on the Prerogatives of the Crown. Abiding by Plca. (A) IN THE KING'S BENCH, p. 91. (A) IN THE KING'S BENCH. 1. ANON. M. T. 1695. K. B. 2 Salk. 515. Before joinder in demurrer the defendant may Before joinder in demurrer the defendant may wave his special plea, and plead the general issue; but if he be ruled to abide by his strike out his plea, and then pleads specially, as he may, and the plaintiff demurs, special plea and the defendant cannot wave his special plea and plead the general issue. plead the general See R. T. 5 & 6 Geo. 2. b; 1 Wils. 29; 1 Sellon, 311; Imp. issue, unless he K. B. 340; 1 Tidd, 701. 7th ed.; 1 Andr. K. B. 124. 2. be ruled to abide by the former; FOSTER V. SNOW. E. T. 1758. K. B. 2 Burr. 781. This was an action on a policy of insurance; the declaration was Or ordered by a delivered in Hilary Term, on the 8th of February. The venue was judge in vacation laid in the county palatine of Lancaster. The defendant's attorney to plead such a plea as he will applied to Lord Mansfield, and obtained an order from his lordship elect to abide "for ten days' time to plead, the defendant pleading an issuable plea, by. and consenting to take short notice of trial, if necessary, for the next assizes." The defendant had filed a bill in Chancery, to which no answer had been put in, and being desirous to ascertain what answer would be made to his application to the Court of Equity before he pleaded, endeavoured to put off the common law trial till after the then approaching assizes, in order to accomplish this he pleaded a sham plea "of a judgment recovered in another court." On his pleading this sham plea the plaintiff's attorney immediately applied (it being then vacation time) to Mr. Justice Denison, who made an order," That the defendant should plead such plea as he would stand by." It was objected, "that such an order ought not to have been made by a judge at his chambers." The plaintiff's attorney put in a replication of nul tiel record, and In term time this is a motion of course, requiring only counsel's signature. made up and delivered the paper book with the common rule endorsed thereon "to return it within four days, otherwise a writ to issue." The defendant's attorney returned the paper book within the four days, but at the same time gave notice that he would move the Court "that the judge's order might be discharged, and that the defendant might be at liberty to wave his plea." And he afterwards made an affidavit of all the above circumstances, and also " that he verily believed, from what evidence he was already possessed of, together with such further evidence as he expected to arise from the plaintiff's answer to the bill in Chancery, that the defendant would be able to make a good defence at the trial of the common law cause;" and offered to bring all the money demanded into court. The Court all agreed in considering the order made by Mr. Justice Denison, not only as being correctly granted under the circumstances, but as being such a one as might be properly made by a judge at his chambers. 3. WEBB V. HOLT. T. T. 1743. K. B. 2 Stra. 1234. If the defendant, The defendant having pleaded a sham plea, the plaintiff obtained after being ruled the common rule, that the defendant should plead peremptorily on to abide by his the morrow, and that such plea should not be waved; and served it plea, elect to do on the defendant's attorney, who, taking no notice of it, the plainso, the plaintiff cannot sign judgtiff, after the expiration of the time limited, signed judgment, ment as for want which the Court, on the master's report, held to be irregular, the first of a plea, but plea being valid until the defendant chose to avail himself of the must proceed to opportunity given him of substituting another. make up the issuc; Unless he can obtain leave of the Court to sign judgment. And obtaining a rule to abide is not such a recognition of the plea by the plaintiff as to preclude him from making 4. DRAYCOTT V. PIKINGTON. M. T. 1816. K. B. 1 Chit. Rep. 565. n. S. P. DUBERLY V. PHILLIPS. M. T. 1816. K. B. 1 Chit. 565. n. This was an action of debt on bond, to which the defendant had pleaded a set-off of money due on bond, and recognizance and simple contract. The plaintiff, after ruling him to abide by his plea, treated the plea as a nullity, and signed judgment. It was contended in support of the judgment, that the rule made no difference, and that the pleas being fictitious defences, he was entitled to sign judgment. On the other hand it was submitted, that the plaintiff, by obtaining a rule that the defendant should abide by his plea, admitted that there was a plea on the record, and that it could not, after such a recognition, be treated as totally inoperative, and that the plaintiff had acted irregularly in signing judgment without applying to the Court. Per Cur. The Court entertains no doubt but that this is a sham plea; and if it had not been for the rule on the defendant to abide by his plea, we should have deemed it a nullity; but as against a party who has treated the plea as a valid one, we are precluded by the terms of the rule from saying that it is no plea. See 1 B. & C. 286; S. C. 2 D. & R. 661. 5. THOMAS V. VANDERMOOLEN. M. T. 1818. 2 B. & A. 197. The defendant had pleaded judgment recovered and payment to an action of assumpsit. The plaintiff ruled him to abide by his plea; an application. and afterwards, without applying to the Court, the plaintiff signed |