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![handle is hein.slavery/ssactsengr0997 and id is 1 raw text is: DE. TERM. SANCT. MICi'. 7 GEO. I.
The plea was over-ruled.
N.B. There was afterwards an appeal to the House of Lords, but the matter was
compounded.
(1) It is laid down in Mr. Powell's useful Treatise on Mortgages, vol. 1, p. 128,
that the right of redemption is considered in equity as inseparably incident to every
contract founded on a mortgage, and can no more be restrained than the power of
tenant in fee simple, to alien generally, or of tenant in tail to suffer a recovery ; it
being a maxim, that the same estate or interest cannot be a mortgage at one time,
and at another time cease to be so.
CASE 177. FOWLER vers. BLACKWELL & AL'. IN C. B.
No one shall take against the heir without an express devise to him.
Vin. Abr. tit. Devise (C. b.), pl. 17. 3 Burr. 1620.
In an action of ejectment tried at the Essex Assizes before Justice Eyre, upon the
demise of one Edward Pate, the case was this: Richard Warner seised in fee of the
lands in question had two soils Richard and George, and by his will devised in these
words, (viz.) I give to my wife Jane all my freehold lands in Canenden in the county
of Essex, being the lands in question) and after some other bequests he says, I give
to my son George my freehold lands in Canenden after my wife's decease', and if it
shall happen that my son George should die before he attain the age of 21 years,
then the said lands shall descend to'my son Richard and his heirs for ever; Richard
was the eldest son and heir of the testator, George was his younger son by a second
wife; George attained his age of 21, and by his will devised the lands to his sister,
the wife of the defendant, and her heirs, and then died in the life of Jane his mother.
The lessor of the plaintiff claimed under Richard; and it was referred to Mr.
Justice Eyre, whether George had an estate in fee or only for life; and it was insisted
that George took a fee, for if he had only an estate for life he took nothing, and the
devise that Richard his heir should take if George died under age, imports that he
should not take if he did not die under age; and so was the opinion of Saunders
2 Saund. 388. A devise to the heir after the death of B. gives an estate to B. by
implication. 13 H. 7, 13 b. Vaugh. 264. 1 Leon. 257. Dal. 44. 3 Leon. 55.
But by J. Eyre here is no devise to the heir of George, and no one shall take
against the heir without an express devise to [354] him.
Judgment was given for the plaintiff.
CASE 178. PICKERING vers. APPLEBY. IN C. B.
Whether a contract for ten shares of stock, is within the Stat. 29 Car. 2, which enacts
that no contract for the sale of any goods for the price of 101. or upwards shall be
allowed to be good except the buyer shall accept, &c. 2 Eq, Abr. 50, pl. 27, S. C.
Vin. Abr. tit. Contracts (H.), pl. 46, Stock (A.), p. 12. 2 P. Wins. 307. Sel. Cases
in Chan. p. 41.
This was an action of assumpsit, for 5801. for ten shares in the stock of the
Governors and Company of the Copper-Mines in England, transferred and sold by the
plaintiff to the defendant.
And there was another count in the declaration for goods and merchandises sold
and delivered.
And another count, that the defendant, in consideration that the plaintiff took
upon himself to deliver and transfer ten shares of the said stock to the defendant the
next transfer day, super se assumpsit solvere 5801. super translation. inde, &c.
The defendant pleaded non assumpsit; and upon the trial there was proof made
of a contract for ten shares of the said stock for 5801. But there was no memorandum
in writing of the contract or any earnest paid ; and there was a doubt upon the words
of the Stat.(a)' 29 Car. 2, whether the plaintiff should recover. The statute says,
that no action shall be brought to charge any person upon any agreement in
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