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![handle is hein.slavery/ssactsengr0158 and id is 1 raw text is: THE DUKE OF ST. ALBANS V. SHORE
to trustees to preserve contingent remainders, remainder to Sarah Bishop (the intended
wife,) for life, in bar of dower, &c. remainder to the first and other sons of Richard
Williams and Sarah Bishop, in tail male, remainder to their daughters as tenants in
common in tail general, remainder to Mary Burton in fee.
The marriage took effect, and some time afterward, Henry Burton, the husband of
Mary Burton, joined with her in levying a fine sur cognizance de droit tantum with
release and warranty of her remainder in fee, to her use for life, remainder to the
use of the heirs of her body by the said Henry Burton, or any future husband in tail
general, remainder to Henry Burton in fee. Richard Williams died in the life-time
of Sarah (Bishop) his wife, but left no issue. Henry Burton also died without leaving
issue, having devised all his estates, &c. whatever, to Michael Burton, his brother and
heir at law, under whom the lessor of the plaintiff claimed. Afterwards Mary Burton
and Sarah Williams, (late Bishop,) joined in levying a fine sur cognizance de droit
come ceo, &e. of the premises, to the use of certain persons in fee, under whom the
defendant claimed.
On this case, a doubt was suggested, whether the estate tail, which Mary Burton
took by the fine sur cognizance de droit tanthim was not discontinued by the fine sur
cognizance de droit come ceo, &c., and the remainder over to Henry Burton, divested
and turned to a mere right, so as to take away the right of entry, and put the plaintiff
to the necessity of bringing a real action.
But on a subsequent day, it was admitted by the counsel for defendants (Serjts.
Adair and Runnington,) that as Mary Burton was tenant for life under the settlement,
when she joined in levying the fine sur cognizance de droit come ceo, &c. there was no
discontinuance of the estate-tail in remainder. On this point, it was stated at the Bar,
and assented to by the Bench, as a settled rule of law, that in order to work a discon-
tinuance of an estate-(270]-tail, it is necessary that the party discontinuing should be
actually seised by force of the entail. Litt. s. 637.-Bredon's case, 1 Co. 76.-Earl of
Clanricard's case, Hob. 273 (a)'. Stephens v. Britteridge, 1 Lev. 34.-1 Roll. Abr. 634.
-Gilb. Ten. 117.-Cruise on Fines, 254, 255.
THE DUKE OF ST. ALBAN'S against SHORE. Monday, June 29th, 1789.
[Commented on, Martin v. Smith, 1805, 6 East, 561. Considered, Bastin v. Bidwell,
1881, 18 Ch. D. 246.]
Where in articles of agreement under a penalty, there are mutual covenants between
A. and B. to do certain acts, and also a covenant which goes to the whole considera-
tion on each side ; to an action of debt for the penalty, brought by A. against B. on
account of the non-performance of his part, B. may plead in bar a breach by A. of
the covenant which goes to the whole consideration. So that where in articles of
agreement for the sale of lands, it was agreed that A. the seller should take in part
of payment, a conveyance of other lands belonging to B. the buyer, and it was also
agreed that all timber trees which were then upon any of the estates should be
valued by appraisers, and paid for by the respective purchasers at a given time ; to
an action of debt by A. against B. for the penalty, on his refusal to complete the
purchase, B. may plead, that A. before the time, cut down a certain number of trees,
and thereby rendered himself unable to perform, and it was impossible for him to
perform the agreement. To intitle himself to the penalty, the plaintiff must shew
a strict performance on his part. Qu. A. having covenanted to make a good title
to B. at his expence whether it be a good averment, that A. was capable, ready and
willing to make a good title, if B. would have prepared the conveyances (a)2? Qu.
Also whether a breach was well assigned, stating that B. did not, nor would accept
the title; whether it ought not to have shewn, that A. tendered a good title to him,
which he refused (b) '
Debt for 5001. the penalty of articles of agreement.
The declaration stated the agreement to have been made between the plaintiff and
(a)' S. C. 2 Danv. 577. Sir Thomas Raym. 36. 1 Siderf. 83.
(a)2 [Ferry v. Williams, 8 Taunt.. 62. 1 B. Moore, 498, S. C.]
(b) [Phillips v. Fielding, post, vol. ii. p. 123, and the note there.]
I H. BL. 27/0.](ViewImageLocal?handle=hein.slavery/ssactsengr0158&div=1&collection=&method=preview&ext=.png&size=3)