stratrix of W. J. Lewis, and the question was whether the Exch. of Pleas, leasehold premises belonged to the personal respresentative or to the heir.

John Wilson now moved accordingly.-This case raises a question about which much doubt exists in the profession. The original lease to Wm. Lewis, the grandfather, having created a real estate pur autre vie in him and his heirs, the right of the heirs to take as special occupants could not be taken away without the use of technical language in the will sufficient for that purpose; but this will, so far from containing any words of that description, devises the premises to Wm. Lewis and his assigns,-a word which is construed to mean heir or executor according to the subject-matter of the devise; where it is real estate it goes to the heir, where personal, to the executor or administrator. This was an estate of freehold, and the defendant, being the heir, would be considered the assignee in law: Williams v. Jekyl (a). Where the designation is equivocal, it has been held that the title of the heir is preferable to that of the executor: Atkinson v. Baker (b).

PARKE, B.-It has been said that much doubt exists in the profession as to the question which has been raised in this case; but I do not see why such doubt should have existed. Originally there was a special occupant designated in the lease to William Lewis, the grandfather, his heirs and assigns; but when the grandfather devised the premises to W. J. Lewis, the son, and his assigns, he thereby defeated the title of his heirs as special occupants, and the devisee continued to hold the property to himself and his assigns for the residue of the term. The utmost that could be said is, that if W. J. Lewis the son had made an assignment of the lease, perhaps his assignee

(a) 2 Ves. sen. 681.

(b) 4 T. R. 229.

1842.

DOE

d.

LEWIS

ข.

LEWIS.

1842.

DOE d.

LEWIS

V.

LEWIS.

Exch. of Pleas, would be entitled to hold the estate as special occupant; but where, as is the case here, he makes no assignment at all, it falls within the express words of the Statute of Frauds, 29 Car. 2, c. 3, s. 12, which provides that, in case there shall be no special occupant of an estate held pur autre vie, it shall go to the executors or administrators of the party that had the estate thereof. Now here there is no special occupant, the title of the first lessee having been put an end to by the will; the land has been held under a tenancy pur autre vie to W. J. Lewis the son, and his assigns; and as he died without creating any assigns, the property goes to his personal representative. It is said, however, that although there was here no express assignment by W. J. Lewis the son, the property may go to his heir, as being the assign in law; but it must be remembered that this is a devise under the stat. 29 Car. 2, c. 3, not under the Statute of Wills, relating to an estate in feesimple; and I do not think that "assigns" can be considered as comprised under the words "heirs, executors, or administrators," used in that statute. The word "assign" does not mean "heir;" it means a person substituted for another by an act of some kind or other; and as the devisee has not done any act to appoint any assign, the property must go to his administratrix.

ALDERSON, B., and ROLFE, B., concurred.

Rule refused.

NORTON V. SCHOLEFIELD.

Exch. of Pleas, 1842.

April 19.

CASE for an injury to the plaintiff's reversionary in- In case for

terest. The declaration alleged, that before and at the time of committing the grievance, &c., the premises were in the possession of one A., as tenant thereof to the plaintiff, the reversion thereof expectant on the determination of the said tenancy belonging to the plaintiff. It then stated the right of the plaintiff and his tenants to a certain well and pump that the defendant was possessed of premises adjoining the premises of the plaintiff, and that he, intending to injure the plaintiff, &c., erected a cesspool so near the well and pump, that the water was contaminated and rendered useless by the oozing out of the soil and filth from the cesspool. The defendant had applied to Lord Denman, C. J., at chambers, for leave to plead the following pleas-first, not guilty; secondly, a traverse of the right of the plaintiff and his tenants to the use of the well and pump; thirdly, a traverse of the plaintiff's reversionary interest in the premises; and lastly, a special plea, denying that the water in the well had been contaminated by the erection of the cesspool. Lord Denman, C. J., refused to allow the last plea, on the ground that the subject-matter of that defence might be given in evidence under the plea of not guilty.

Waddington now applied to the Court for leave to plead the above four pleas, and submitted that the plea of not guilty put in issue only the fact of the erection of the cesspool.

PARKE, B.-I think the Lord Chief Justice was right in disallowing the last plea; not guilty puts in issue both the act complained of and its consequences. In actions for

erecting a cess pool near a

well, and thereby contaminating the water

of the well, the

plea of not guilty puts in

issue both the

fact of the erec

tion of the cess

pool, and that

the water was

thereby con

taminated.

Exch. of Pleas, negligence, a defendant is never allowed to plead that the injury was caused by the plaintiff's own negligence.

1842.

NORTON

v.

SCHOLEFIELD.

ALDERSON, B.-By the general issue the defendant says, "I am not guilty of erecting a building which is a nuisance."

ROLFE, B., concurred.

Motion refused.

April 19.

Trespass for

breaking and entering the

dwelling-house

of the plaintiff,
and taking
away certain
goods therein,
not alleging

them to be the
plaintiff's
goods. Plea,
not guilty by
statute. The
learned judge
at the trial
having directed
the jury to find

a verdict for
the plaintiff,
with nominal
damages, for

the trespass to

the house :

Held, that the plaintiff was not entitled to damages also for the value of the goods, as they were not alleged to be the property of plaintiff.

PRITCHARD v. LONG.

TRESPASS for breaking and entering the dwellinghouse of the plaintiff, and taking and carrying away certain goods and chattels therein, and converting and disposing of the same to his own use.

Plea, not guilty by statute.

At the trial before Cresswell, J., at the last Spring Assizes at Oxford, the trespass to the dwelling-house, and the taking the goods and selling them by auction, having been proved, it was objected by the defendant's counsel, that the plaintiff was entitled to recover damages only for the trespass to the house, as the declaration did not aver that the goods were the plaintiff's; and the learned Judge being of that opinion, directed the jury to find for the plaintiff, with nominal damages; but gave the plaintiff liberty to move to increase the damages by the amount which the goods produced on the sale.

Ludlow, Serjt., now moved accordingly.-The gist of the action was the trespass to the dwelling-house, and the taking away the goods was matter of aggravation, which the jury ought to have been directed to take into their consideration, although the goods were not alleged to be

H

1842.

PRITCHARD

บ.

LONG.

the property of the plaintiff. In the note to Taylor v. Exch. of Pleas, Wells (a), Mr. Serjeant Williams lays down the rule thus: "If the declaration were for breaking the close as well as for taking the fish, without specifying their number or kind, it seems it would be good, even upon a special demurrer; because breaking the close is considered as the principal ground and foundation of the action, and taking the fish as matter of aggravation only:"-citing Chambers v. Greenfield (b). [Alderson, B.-In that case the fish were alleged to be the property of the plaintiff.] In this case the goods were stated to be in the dwelling-house, and must therefore be presumed to be the property of the plaintiff.

PARKE, B.—I am of opinion that the plaintiff is not entitled to a rule to increase the damages. He could not maintain an action for taking the goods, without proving that they were his property; but here there is no allegation that they belonged to him, nor any admission to that effect on the record. Taking the goods is not mere matter of aggravation, but of substance. If the case had gone generally to the jury, and they had found joint damages for the trespass to the house and for taking the goods, there would be no error on the face of the record; but if there had been a special plea that the goods were not the plaintiff's, and general damages had been assessed, the judgment would be arrested, according to the case of Granvel v. Robotham (c). As the record now stands, you have no right to damages for the goods separately.

ALDERSON, B., and ROLFE, B., concurred.

Rule discharged.

(a) 2 Saund. 74. (b) 3 Wils. 292.

(c) Cro. Jac. 865.