1833. HAWKINS V. bution:" and cites several authorities in support of that position. So in Trafford v. Ashton (a), Lord Cowper held that a second son took an estate by that description, being second in order of birth, though the elder brother HAWKINS. was dead before the second was born. The case of Lomax v. Holmden (b) only shews that the first son at the time of a testator's death may take under the description of first son in a will, where a former son has died after the making of the will, in the testator's lifetime. Also, that the same person may answer the description of primogenitus and secundus. Year-Book, 9 H. 7. 25. a. Here the estate was vested in Sir Christopher, as second son in the lifetime of his brother Philip; nothing has occurred to devest that estate; and therefore it passes to his devisee. Merewether Serjt., for the Defendant, admitted that no question could arise as to the estates in Maddern and St. Erth, to which the recovery applied; but, as to the others, Alwarne, one third of the manor and barton of Trewinnard, Trewinnard Mills, and Colrogger,— contended, that the manifest intention to be collected from the whole deed of 1756 was, that the eldest son of Thomas Hawkins should never have them, being otherwise amply provided for; and Sir Christopher, having been put in the situation of eldest son upon the death of Philip without issue, could not retain lands which were clearly designed as a provision for a second son. In this respect, the present case was distinguishable from Driver v. Frank, where it did not expressly appear that provision had been made for an elder son. The following certificate was afterwards sent:- (a) 2 Vern. 660. (b) 1 Ves. 290. 3 D 4 and 1833. HAWKINS v. HAWKINS. and have considered it, and we are of opinion, that John Hawkins, the fourth son of Thomas Hawkins, father of the said Sir Christopher Hawkins, did, under and by virtue of the said indentures of lease, and release, and settlement of the 16th and 17th of June 1756, on the death of the said Sir Christopher Hawkins, and in the events which have happened, take an estate in tail general in the messuages, lands, tenements, and hereditaments called Allwarne, alias Alwerton, alias Alwarnton, alias Alwarton, and the grist-mill thereto belonging; one third of the manor and barton of Trewinnard, and the mills called Trewinnard mills; and also all that messuage or tenement called Colrogger, being part of the premises comprised in the said indentures of lease, and release, and settlement of the 16th and 17th of June 1756. N. C. TINDAL. J. A. PARK. S. GASELEE. E. H. ALDERSON. END OF EASTER TERM. AN INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. ACTION ON THE CASE. Held, that Defendant was not AFFIDAVIT TO HOLD TO See PRACTICE, 11. 2. AGREEMENT. 1. 1. Damages may be recovered 2. It is a sufficient consideration their See PRACTICE, 8. PLEADING, 7. By 1 W. 4. c. 70. s. 14., the jurisdiction of the courts of great session in Wales, as to recoveries, is transferred to the Court of C. P. The officer of the court of great session having omitted to enter of record a recovery duly suffered at bar in 1804, the Court of C. P. ordered it to be done, nunc pro tunc, under s. 27. of 1 W. 4. c. 70. which gives that Court the like power to amend a recovery of the court of great session, as if it had been suffered in C. P. Evans, Demandant; Griffith, Tenant; Jones, Vouchee. 312 grantor, but on behalf of a party who had purchased the annuity from the assignee of the grantor, an insolvent, and who raised objections to avoid completing his purchase. Faircloth v. Gurney. Page 456 3. 1. A sum contracted for, to be paid as an annuity, being partly secured by the transfer of a policy of insurance on the life of the grantor, was, in the annuity deed, increased by the amount of the annual premium on the policy, which the grantee covenanted to pay: : Held, that this covenant was not a pecuniary consideration to be specified in the memorial, and that the amount of the annuity was properly described in the memorial as a total compounded of the sum originally contracted for, with the annual premium of the policy added to it. 2. The deed by which the annuity was granted, contained a charge on a rectory, but a warrant of attorney which accompanied the deed, though it recited the deed, gave no authority to sequester the rectory: Held, that the deed was only void pro tanto, and that the warrant of attorney was unimpeachable. 3. The deed recited the consideration for the annuity to have been paid in notes and sovereigns; the memorial stated it to have been paid in notes: Held sufficient. Faircloth v. Gurney. 622 ARBITRA ARBITRATION. See COSTS, 3. AWARD, 2. 1. The Court refused to set aside an award, on the ground that the parties had been examined by consent, and that subsequently to the award the Plaintiff had discovered that the Defendant was a felon convict. It appeared, however, that the judgment of the arbitrator was formed independently of the Defendant's testimony. Smith v. Sainsbury. Page 31 2. When a verdict is taken, with damages subject to the award of an arbitrator, if the arbitrator omit to make his award within the specified time, the Court will send the cause down to a new trial. Hall v. Phillips. ASSIGNEE. See COVENANT, 2. ATTESTING WITNESS. See EVIDENCE, 6. ATTORNEY. 89 |