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![handle is hein.slavery/ssactsengr1013 and id is 1 raw text is: WINDHAM v. CIETWYND
4th objection. The conclusion with an averment, is right; and gives an opportunity
to try the fact by the country, if the defendant in error chooses it: which is all that
is requisite.
[413] So much as to the form. And
As to the merits-it is extremely clear that a remainder-man ought to have this
chance to the benefit of the entail: viz. to see that all the proper and requisite forms
should be gone through, before he is barred of it.
It is plain that judgment ought not to be given against any man, after he is dead.
And there could have been no judgment against the tenant to the prmeipe in a
common recovery, without a judgment likewise over, in value against the vouchee:
they are all entered at one and the same time, and are part of the same proceeding.
Mr. Just. Denison concurred-
1st. This general allegation is sufficient, surely, in the writ: he needs not shew
a complete title. Nay, even in a formedon, I do not know that the title needs to be
completely and fully set out in the writ. And Wynn v. Wynn is an authority, on this
head.
2dly. A scire facias to the heir was not necessary; nor any warning to him: the
recoveror has the legal right; and must be taken by the Court, to have the real
interest.
3dly. The death of the vouchee, before judgment, is error in a common recovery;
and may be assigned for such. Vynn v. Wynn was in point, as to this.
4thly. The case in Yelv. 58 is so far true, (and can mean no more than) that it
ought to be put in a method of being tried by a jury. And here the plaintiff in error
has done so: he says he is ready to verify it. So that the defendant in error might
have put it in issue, if he had pleased. But he has chosen to plead in nullo est
erratum : which confesses the fact, and puts the matter of law upon the judgment of
the Court.
As to the merits-the remainder-man has a right, both in law and justice, to
reverse the recovery, if it be erroneously suffered.
Mr. Just. Foster and Mr. Just. Wilmot declared their clear concurrence in opinion
with Lord Mansfield and Mr. Just. Denison.
Per Cur. clearly and unanimously judgment reserved.
[414] WINDHAm, ESQ. versus CHETWYND, ESQ. Friday, 25th November 1757. A
will of land attested by three interested witnesses good. [S. C. 1 Black. 95.
Bull. 265.]
Pasch. 28 G. 2, Rotlo. 53.
A special verdict upon a will of land, dated the 14th of May, 1750, and a codicil
of the same date, made by Walter Chetwynd late of Grendon, Esq.
The special verdict-at which day, before our lord the King at Westminster come
as well the said William Wyndham, Malachi Lindon, Catherine Lindon, Thomas
Stephens, alias Walter Paris, alias Walter Chetwynd, Susannah Blachnell, Henry
Perrot, George Huddleston, and James Crofts by their attorney, as the said William
Henry Chetwynd by his attorney. And the jurors, &c. being summoned, &c. do
come, &c. and being elected, &c. do find, as to the first issue joined between the said
parties, that the said Walter Chetwynd was, at the time of making the said writings,
importing to be his last will and codicil, of sound mind. As to the third issue, they
find that the testator did not, by the said writing importing to be his last will, devise
to the aforesaid William Wyndham and his heirs any lands or tenements in the county
of Warwick, in trust or for the benefit of the said Thomas Stephens, alias Walter Paris,
alias Walter Chetwynd. And as to the fourth issue, the jury find that the testator did
not, by the said writing, importing to be his last will, devise to the said Catherine,
now Catherine Lindon the wife of the said Malachi Lindon, an annuity of 2001. by
the year, for the term of her natural life. And as to the second issue, the jury
find that the testator was in his life-time seised in fee, of certain lands, tenements,
&c. in the several counties of Warwick and Stafford, of the yearly value of 31001.
and being so thereof seised, he the said Walter Chetwynd, in his life-time, signed,
sealed, and published a certain paper-writing bearing date the 14th of May, 1750,
purporting to be his last will and testament, and likewise another paper-writing
purporting to be a codicil indorsed on the said first-mentioned paper-writing, and of
I BURR. 413.
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