opinion was the court, and the plaintiff had judgment. Webb v. Turner, 2 Stra. 1095. And. 250. S. C.-See alfo 3 Lev. 345. Carth. 251. 4 Mod. 152. These cases seem to establish this principle, that where it is pofitively and exprefsly averred in the declaration that the plaintiff has fuftained damages from a cause fubfequent to the commencement of the action, or previous to the plaintiff's having any right of action, and the jury give intire damages, judgment will be arrested; but where the caufe of action is properly laid, and the other matter either comes under a fcilicet or is void, infenfible or impoffible, and therefore it cannot be intended that the jury ever had it under their confideration, the plaintiff will be entitled to his judgment. Vide Hambleton ▼. Were, 2 Saund. 171. 8. (note 1.), Williams's edit. 8. A diftinétion has been taken, that where a new action may be brought, and fatisfaction obtained, for any duty or demand which hath arifen fince the commencement of the depending fuit, that duty or demand fhall not be included in the judgment in the former action; as in covenant for non-payment of rent, or of an annuity payable at different times, the plaintiff may bring a new action toties quoties, as often as the refpective fums become due and payable. So in trefpafs, and in tort, new actions may be brought as often as new wrongs and injuries are repeated; and therefore fhall be afligned only up to the time of the wrong complained of. But where a man brings an action of affumpfit for principal and intereft, upon a contract obliging the defendant to pay fuch principal money, with intereft from fuch a time, he complains of the non-payment of both, the intereft is an acceffory to the principal, and he cannot bring a new action for any intereft grown due between the commencement of his action and the judgment in it, and therefore both fhall be included in the judgment. Robinfon v. Bland, 2 Burr. 1087. [B] Joint Tenants (and Lenants in 14 Vin. 470. (A) On the Effect of a Difpofition to two, and the Survivor of them, and the Heirs of fuch Survivor. See Suppl. tit. Abeyance, ante. (B) Of what Eftates, Things, or Actions there may 14Vin. 471. be a Survivor. 1. EXECUTORS taking a refidue as executors are joint-tenants, ́and therefore if one die before severance his share survives. 2 Bro. Ch. Rep. 220. July 1787. Frewen v. Relfe. 2. Mr. Hargrave, in note 2. Co. Litt. 113. a., entertains the opinion, which he supports by a train of argument and authorities, that a power to fell, though in itself a mere naked authority, yet, when given to executors, eo nomine, will go to the furvivor, by reafon that it is annexed to their office and character, which itfeif furvives. (E) What fhall be faid a Severance of the Jointure. 14 Vin. 476. I. 1. A. B., previously to her marriage, was entitled to 5300% in joint-tenancy with her fifter C. D. By her marriagefettlement her real estate only was conveyed; and, with refpect to the perfonal eftate, the deed contained merely a recital, which amounted to nothing more than that she should enjoy the 5300/ for her feparate ufe; and a covenant on the part of her husband, that the should enjoy it quietly. Then came thefe words; "for "want of issue of her own body, it fhall go to the next of kin of "her own family." The question was, whether this amounted to a feverance of the joint-tenancy, in the whole, or in part? Lord Hardwicke held it did not; for, first, here was no agreement for this purpose; fecondly, if no agreement, there must be an actual alienation, and here was nothing which amounted to it, either at law or in equity; as to the words "for want of illue of "her body," that it fhall go over, had these been fufficient to make the iffue purchafers, or to give them a right to come into that court, to have the agreement carried into execution in their favour, that he should have inclined to think a feverance; but, in the cafe before him, notwithstanding these words, he thought the property ftill at large, and at the wife's difpofal. Partriche v. Powlett, 2 Atk. 54. See Moyfe v. Giles, ftated in 14 Vin. 525. pl. 9. 2. If articles amount to a feverance of the joint-tenancy, equity will decree performance against the furvivor. Hinton v. Hinton, 2 Vef. 234. 3. Three fifters being joint-tenants of the premises, and having a leafehold estate vested in them abfolutely, by articles previous to the marriage of one of them, it was covenanted that her intereft in the leafehold fhould be affigned abfolutely to the hufband, and her third part of the freehold fettled to the use of the husband for life, remainder to trustees to preferve contingent remainders, remainder to the wife for life, remainder to the first and and other fons, &c.; and the hufband covenanted, if the wife fhould furvive him, or have children who fhould furvive him, to pay to the trustees 300l, a fum very inadequate to her fortune, to pay the intereft to the wife for life, and after her deceafe to divide the principal among the children. The wife had a fon, who died an infant; it was held that this covenant had not severed the joint-tenancy. Bro. Ch. Rep. 112. in notis. 1773. May v. Hook. 4. Covenant by joint-tenant to fell fevers the joint-tenancy in equity, though not at law. 3 Vef. jun. 257. Nov. 1796. Brown v. Raindle. 24Vin. 484. (K) Joint-Tenants, or Tenants in Common, by what Words, (by Devife). I. ·ONE devifes the furplus of his perfonal eftate to his four executors; this is a joint bequeft, and on the death of one fhall go to the furvivors, as well in the cafe of a legacy as a grant. 3 P. Wms. 115. Trin. 1731. Willing v. Baine. 2. Teftatrix devifes two houfes to 7. P. and J. H. generally, and then says," my meaning is, that the rents of my two houfes fhould "be EQUALLY SHARED between the faid J. P. and J. H." the devifees fhall take as tenants in common, and not as joint-tenants: and 7. H. having, on the death of J. P., taken pofft flion of the two houses, as furvivor, and enjoyed them ever fince, muft account for the rents as far back as the death of 7. P., and not from the filing of the bill. 1 Atk. 493. Hil. 1737. Prince ve Heylin. 3. Joint-tenancy is not favoured in equity, and the word res Spectively will feparate an eftate, and make it a tenancy in common. 2 Atk. 122. Feb. 1740. Heathe v. Heathe. 4. G. E., feifed of a gavelkind estate by deed-poll, in confideration of natural love and affection to his wife and children, did grant to his two daughters, Margaret and Hannah, the rents of his lands in L., equally to be divided between them, paying 51. to the mother during her life, and after her deceafe to his two daughters to hold to them and their heirs, equally to be divided between them: this is a tenancy in common. 3 Atk. 731. March 1751. Rigden v. Vallier.—2 Vef. 252. S. C. 5. Devife of refidue of real and perfonal eftate to two perfons, the teftatrix, by a codicil, revokes every legacy given to one of them: held the other took the whole. Amb. 136. Feb. 1752. Humphrey v. Tayleur. 6. Devife of profits of land in truft for his fix younger children, to be distributed amongst them in joint and equal proportions. Held a tenancy in common, at the Rolls. Amb. 656. Dec. 1767. Ettricke v. Ettricke. 7. Though the words share and share alike, in a will, generally create a tenancy in common, they cannot do fo, where there is an exprefs exprefs joint tenancy. 3 Bro. Ch. Rep. 215. Hil. 1791. Armfrong v. Eldridge.. 8. Gift of a thare over to the children of the teftator's cousins, fbare and fhare alike, at their ages of 21, is a tenancy in common; and one dying in the lifetime of teftator, her fhare lapfes. 3 Bro. Ch. Rep. 324. Aug. 1791. Martin v. Wilfon. 9. A legacy given to two or more perfons, without words of feverance, makes a joint-tenancy; therefore, where in a will as to a refidue two thirds were given to and amongst the children of A. and B., they took as tenants in common; but the remaining third being given to the children of C., they took as joint-tenants. 4 Bro. Ch. Rep. 15. July 1792. Campbell v. Campbell.—See also Morley v. Bird, 3 Vef. jun. 628. S. P. and Stewart v. Bruce, 3 Vef. jun. 632. S. P. See Suppl. tit. Devise (E. d), ante. (L) In what Cafes they fhall be Joint-tenants or Te- Vin 487. nants in Common. [By Deed, &c.] 1. A. B. executed a deed, whereby, in confideration of natural love and affection, and for fettling his real and perfonal eftate on his wife and children atter his deccafe, he gave, granted, and confirmed to his two daughters C. and D. (int. al.) the rents and profits of certain lands during the life of his wife, equally to be divided between them, paying 51. per annum to his wife; and after her deceafe, his faid two daughters to have the fame lands to them and their heirs for ever, equally to be divided between them. Lord Hardwicke, after declaring his opinion, that the inftrument Operated as a covenant to ftand feifed, held that the daughters took by it as tenants in common; and his lordship, after adverting to a pofition which had been advanced, and combated, in the courfe of the argument, that deeds to uses were to be conftrued with lefs ftrictnefs than common law conveyances, obferved, that although they must be conftrued alike as to words of LIMITATION, yet he faw no harm in conftruing the former with greater latitude, as to words of regulation or modification of the eftate, as the words "equally to be divided" were. Rigden v. Vallier, 2 Vef. 252-7. 3 Atk. 371. S. C.-See Marryat v. Townley, ftated in Suppl. tit. Devife (E. d), ante. 2. A. B., by leafe and releafe, conveyed lands to trustees, to the ufe of himself and his wife, for their lives, remainder to their children, as A. B. fhould appoint; and in default, &c. to the ufe of all and every the children of A. B. and their heirs, equally to be divided between them. A B. died, leaving children, and without making any appointment. The court of B R. were of opinion, upon the authorities of Fiber v. Wigg, and the anon, cafe in Ventr. (both stated in pl. 33. of the fiction to which this is a funplement), that the words "equally to be divided," in a deed of ufes, as as in the prefent cafe, created a tenancy in common. Goodtitle v. Stokes, Wilf. 341. See Cox's note 1 P. Wnis. 14. 3. By deeds of leafe and releafe, lands were conveyed to truftees, in truft, after the marriage of the releafor, to permit him to take the profits for 99 years, if he should fo long live; and after his decease, in truft to permit his intended wife to take the profits for her life for her jointure; and after the deceafe of the furvivor, in truft to permit the children to take the profits to them and their heirs, in fuch fhares, &c. as the fett'or thould appoint and for want, &c. in truft to permit all and every fuch child and children to take the profits, &c. to them and their heirs for ever; but, in cafe there should be no fuch child, or in cafe fuch child or children fhould be all dead without child or children of their bodies living at the deceafe of the furvivor of the husband and wife, then the truft for the heirs and affigns of the fettlor. There were several children of the marriage, and the husband died without making any appointment. It was decreed by Lord Ch. Thurlow; in 1783, that the children took by the limitation as joint-tenants. From this decree a petition of appeal was preferred in 1787; and, on behalf of the appellant, it was argued, that the ultimate difpofition to the fettlor was inconfiftent with the idea of a joint-tenancy, fince the heirs of the fettlor were not to take till all the children were dead without iffue; and therefore the children of a child who should die in the lifetime of the fettlor or his wife, fhould be let in to take; in order to effectuate which purpofe; the children must take as tenants in common, fince other wife the furvivors would take in exclufion of fuch issue. And the word "every" in the limitation was ftrongly relied upon, as implying feveralty. The object of the conveyance was alfo urged; and the before-ftated diftinction between conveyances at common law, and to ufes adverted to. But Lord Thurlow continued of his former opinion; and did not seem inclined to favour the latitude of construction which was contended for in conveyances to uses. Stratton v. Beft, 2 Bro. Cha. Ca. 233. 4. Settlement of leafehold eftates, by articles previous to marriage, upon the fettlor for life, and after his decease to “ the chil"dren of" the fettlor, to be begotten on the body of his intended wife. The children were held to take as joint-tenants. Staples ▼. Maurice, (B) 7 Bro. Parl. Ca. 49. See Devife (F: a), antè. 14 Vin. 484 (I) In what Cafes, and to what Purposes the Inheritance fhall be faid to be executed in the Life of the Parties. WE WHERE land is given to two, and the heirs of one of them, he in the remainder cannot grant away his fee Gmple." Co. Litt. 184. b. Mr. |