one, or marriage, if after the decease of their parents, with furvivorship among them, if any should die before the share or fhares fhould become payable, affignable, or transferable, and a limita tion over, if there should be no child or children living at the death of the furvivor of the parents, or being fuch, all should cie before the fund fhould become fo as aforefaid payable, affignable, transferable, Whether a child attaining 21 takes a vetted intereft in the life of the parent? Quare. 5 Vef. jun. 452. Legb v. Haverfield. 1829,

or

16Vin.451. (K) Lapsed in refpect of the Settlement not being

made,

1. THE wife's portion has been decreed to the husband, though he has not made a settlement adequate to it, where the fettlement was before marriage; otherwife on a voluntary fettlement after marriage. 2 Atk. 448. Laney v. Duke of Athol. Nov. 1742.

2. The husband by marriage articles agrees to fettle an eftate, and the wife's portion is to remain in trustees, till the settlement, No fettlement is made, nor any estate applied, and the husband dies. The right to the portion furvives to her, and the iffue are not entitled to take it out of her handɛ. Vef. 376. Pyke v, Pyke. Jan. 1749.

For more of Portions, fee Charge, Devife, Marriage, Powers, and other proper titles.

(F) Privileges of Poffeffion.

1. WHERE 4. drew on B. at London, and sent bills to answer the fame, directing them to be put to a particular account, and B. became bankrupt before paying the bills drawn on him, his affignees were decreed to deliver the bills fent to him to anfwer the faid drafts; and Lord Hardwicke faid he remembered a cafe in the Common Pleas where goods, configned to a factor, were fold, and notes, inftead of money, given for them, and the principal was held to be entitled to the notes. Ex parte Du mas, 1 Atk. 232. and 2 Ves. 582. S. P. Zenk v. Walker, 2 Bl. Rep. 1154. and Ex parte Ourfell, Ambl. 297.

2. Where

2. Where a perfon, who had repaired a fhip belonging to a bankrupt, gave up the poffeffion, he was held to have loft his lien thereon; if the repairs had been in a foreign port, while on a voyage, it would have been otherwife. Ex parte Shank, 1 Atk.

234.

3. Where a miller had claims upon a bankrupt for grinding former quantities of wheat, yet he was held not to have a lien on that in his poffeffion, except for the price of grinding it alone. Ex parte Ockenden, 1 Atk. 235.

4. A packer was held to have a lien on the goods in his poffeffion for all fums due to him as fuch, although not on other goods; for, by the custom of the trade, he is in the nature of a factor. Ex parte Deeze, 1 Atk. 128. But fee obfervations on this case, 4 Burr. 2222.

5. A factor was held to have a lien on the goods in his poffeffion for the general balance. Kruzer v. Wilcox, at the Rolls, 12th March 1754, cited in 1 Burr. 494. Ambl. 252. S. P. Foxcroft v. Devon/bire, 2 Burr. 931.

6. A dyer, having cloth in his poffeffion, was held to have a lien on it only for the price of dying it, not for his general balance for dying other clothes. Green v. Farmer, 4 Burr. 2215.

7. A factor, who had become furety for his principal, fold goods for him before his bankruptcy, but did not receive the money till after; and the vendee having paid over the price to him, after notice from the affignees to the contrary, an action was brought against him; it was held that the factor had a lien on the money in the hands of the vendee for the amount of the fum for which he was furety, though not then paid; and therefore that the action did not lie. Drinkwater v. Goodwin, Cowp. 251.

8. Where a navy bill, payable to the defendant, was lodged with the plaintiff as a fecurity, and he delivered it over to the defendant in confidence that he would accept a bill drawn upon him to the amount; although the plaintiff could make no ufe of the navy bill himself, yet he was held to have a lien upon it in the defendant's hands; and he, having received the amount, was compelled to pay over the fame. Pierfon v. Dunlop, Corp. 571.

9. A vendor, before actual poffeffion by the vendee, has a lien on the goods he fends, and if he can get them in tranfitu has the benefit of that lien. Berkett v. Jenkins, B. R. 11 G. 3. cited in Cowp. 295, 296.

10. Goods were delivered to a perfon claiming them wrongfully, who paid freight and other charges thereon; it was held that he had no right to retain the goods for those charges. Lempriere v, Pafley, 2 Term Rep. 485.

11. S. left by his will certain plate to trustees to the use of his wife for life, remainder over; fhe pawned the plate to the defendant, who was ignorant of the fettlement; on a claim by the remainder-man, the counfel for the defendant admitted that he could not retain. Hoare v. Parker, 2 Term Rep. 376.

12. Where

16 Vin. 458,

12. Where goods are fent to a factor, but not in his actual poffeffion, he has no lien thereon for his general balance, and the goods may be stopped in tranfitu if he becomes bankrupt. Kinlock v. Craig, 3 Term Rep. 122. 787.

(G) Sufficient for what Purposes as to Actions.

1. IN N an action by an owner of an ancient ferry against a perfoni who erects a new ferry near his, the plaintiff may declare on his poffeffion; and he need not fet forth in his declaration that he keeps boats and ferrymen fufficient to carry paffengers over. Bliffet v. Hart, Willes, 508.

2. Poffeffion is a fufficient title to the plaintiff in trefpafs vi et armis; and where any perfon is in poffeffion, this (and not trefpafs on the cafe) is the proper action for any injury done to the land or the profits of it. Harker v. Birbeck, 3 Burr. 1556.

3. Poffeffion for above fixty years of a pew in a church is not a fufficient title to maintain an action upon the case for disturbance in the enjoyment of it. Stock v. Booth, i Term Rep. 428.

4. A poffeffion for twenty years is like a defcent which tolls entry, and gives a right of poffeffion, which is fufficient to maintain an ejectment. Per Holt C. J. Vide Run. on Ejectm. 59.

6Vin. 459 (H) Sufficient as to other Purposes than Actions.

1. POSSESSION gives a right against every man who cannot fhew a good title: the party therefore who would change the poffeffion must first establish a legal title to it.

2. By one of the ftatutes of limitations (21 Jac. 1. c. 26.) none fhall make an entry on land but within twenty years after the right or title fhall firft defcend or accrue. But the act hath

the ufual favings for infants, feme-coverts, &c. Therefore in ejectments, where there hath been no poffeffion for twenty years, either in the leffor, or the plaintiff, or his ancestors, the plaintiff in this action will be nonfuited; unless he can account for it under fome of the exceptions allowed by the ftatute. Taylor in dimiff. Atkyns v. Horde, 1 Burr. 119.

3. And twenty years adverfe poffeffion is not only a negative bar to the action or remedy of the plaintiff, but takes away his right of poffeffion and gives a pofitive title to the defendant, for the plaintiff muft fhew a right of possession as well as of property, and therefore the defendant need not plead the ftatute of limitations as in other cafes. Ibid.

4. If no other title appears, a clear undisturbed poffeffion for 20 years is evidence of a fee. Runn. on EjeЯment, p. 59.

5. By the 9 G. 1. c. 16. a time of limitation is extended to the cafe of the king himself, who is thereby difabled to make title except to liberties and franchises beyond the space of fixty years, to be reckoned,

5

reckoned, backward from the time of commencing any fuit or proceeding to recover the thing in queftion. So that now a poffeffion for 60 years will be even a bar to the king's prerogative, in derogation from the ancient maxim of nullum tempus occurrit regi.

I.

(I) Pleadings. Poffeffionatus fuit.

THE plaintiff declared in trefpafs upon his poffeffion, the defendant makes a title, and gives colour to the plaintiff; the plaintiff replies de injuria fua propria, and traverses the title fet out by the defendant, and upon demurrer, the court held this a good replication, for it lays the defendant's title out of the cafe, and then it ftands upon the plaintiff's poffeffion, which is enough against a wrong-doer, and the plaintiff need not reply a title. Cary v. Holt, 2 Stra. 1238.

2. Where the plaintiff declares upon a poffeffion only, and the defendant pleads liberum tenementum, the plaintiff muft fhew a title in the replication, and must not barely rely on traversing the defendant's title. Vernon v. Goodrich, C. B. 1 Stra. 5.

3. If the defendant, committing the tort, be owner of the foil, the plaintiff muft fhew a title; but the declaration is good with the allegation of any title in the plaintiff, if the defendant be a ftranger; for poffeffion is fufficient in this cafe to maintain the action for the plaintiff. Stroud v. Birt, 1 Com. Rep. 7.

4. A custom, to take a profit in alieno folo, is bad; such a right can only be claimed by prescription. And per Afbhurst J. When a plaintiff in poffeffion brings an action on the cafe again't a wrongdoer, it is fufficient to declare against him upon poffeffion generally, without difclofing any title; but where it becomes neceffary to justify under a right in a plea, fuch right must be fet out formally. Grimftead v. Marlowe, 4 Term Rep. 718.

5. In an action upon the cafe for the disturbance of rights of common, &c.there is this diftinction; where the action is brought against a wrong-doer, it is fufficient for the plaintiff to ftate in his declaration, that he was poffeffed of a houfe or lands, &c. and by reafon of his poffeffion thereof, was entitled to the right in the exercife of which he has been difturbed: but where the plaintiff would lay any charge or fervitude on the land or property of another, he muft fet forth his title fpecially in the declaration. Vide Waring v. Griffiths, 1 Burr. 440. 1 Stra. 5. 4 Term Rep. 718. But fee 3 Term Rep. 768.

6. Cafe for disturbing the plaintiff in his pew. The declaration stated that the plaintiff had a right to this pew, without laying it to be appurtenant to a meffuage in the parish. At the trial of this caufe betore Buller J. the plaintiff did not fet up any claim under a faculty from the bishop, or thew any enjoyment in respect of any houfe, but offered evidence of poffeffion for above 60 years, and would have derived a regular title from one Chappel, to whom the minifter and churchwardens in the year 1718 gave their con

fent

16 Vin. 459.

fent in writing to build the pew in queftion. The judge being of opinion that this did not entitle the plaintiff to recover, directed a nonfuit. A motion was made to fet afide this nonfuit, but the rule was difcharged. The plaintiff mutt prove a prefcriptive right, or a faculty, and should claim it in his declaration af • appurtenant to a meuage in the parifb. Per Buller J. This is an action on the cafe, and not an action of trefpafs. Trespass will not lie for entering into a pew, because the plaintiff has not the exclufive poffeffion, the poffeffion of the church being in the parfon. The word poffeffion' must always be understood fecundum fubjectam materiam. Therefore in an action on the cafe tor diftu bing the plaintiff in his pew, for which trefpafs will not lie, the plaintiff must prove a right either by prefcription, or by faculty. Stocks v. Booth, Term Rep. 428.

7. In declaring for wrongs to perfonal property, the plaintiff muft ftate his right, as in trefpafs for taking goods, that they were his own goods; or in trover, that he was poffeffed of them. Franklyn v. Reeve, 2 Stra. 1023. 1 Ld. Ray. 239. 2 Ib. 895. acc.

8. In an action for disturbing plaintiff in his pew, the fingle queftion was, Whether the plaintiff can maintain this action without proving repairs done to the pew? Lee C. J. It is objected for the defendant, that as repairs were laid in the declaration and not proved at the trial, the poftea ought to be delivered to the defendant; but we are all of opinion, that this being a pofory action against a stranger, and a mere wrong-doer, the plaintiff was not obliged to prove any repairs done by himself or others whofe eftate he hath for it is a rule in law that one in poffeffion need not fhew any title or confideration for such possession against a wrong-doer. But it is otherwife where one claims a pew, or an aifle in a church against the ordinary, who undoubtedly has prima facie the difpofal of all the feats in the church; and against him a title or confideration must be fhewn in the declaration and proved, as the building or repairing, &c.; and this is the true diftinction. Kenrick v. Taylor, B. R. 1 Wilf. 326.

9. In an action on the cafe against a wrong-doer for not repairing a private road leading through the defendant's clofe, it is fufficient to allege that defendant, as occupier of the ground, is bound to repair.

10. Every plaintiff in ejectment muft fhew a right of possession as well as of property: and therefore the defendant need not plead the ftatute, as in the cafe of other actions. 1 Burr. 119.