BROWNSWORD v Edward march see do they Harris v Howell barn Cress Mortimer v  Hartley Exch de g Sm discuss grey v Pearson h l c see in re sander trust lr Eq  Finlason v Tatloch r Eq consider reed v Braithwaite lr Eq plea allow to  discovery of a marriage which will subject one of the party to punishment as  to this case and plead of the same nature and as to a great variety of the  case near to the present time see Mr beam late publish excellent and  systematic work on plea in equity c and the note more especial post Harrison v  Southcote post and atk chetwynd v London post east India company and Campbell  vol also atk Chauncey v Tarhourdin atk sharp v carter p W claridge v hoar Ves  Lloyd v Passingham Ves Paxton v Douglas ibidem and Parkhurst v Lowten Meriv in  the ecclesiastical court the other be dead what averment be proper to support  a plea averment be necessary to exclude intendment which will be make against  the pleader for the court will always intend the matter charge against the  pleader unless full deny atk pale yellow see further in Bayley v Adam Ves c  and see particular beam on plea in equity demurrer question even of title  construction of will c determine on demurrer if quite clear on the face of the  bill that the determination must be on the same matter in the more protract  way at last if a plea be file to bill which be demurrable on face of it the  plea will be overrule Billing v flight mad question as to a equitable estate  tail supplement Francis Brownsword devise the premise to two person and their  heir to receive the rend and profit until that little boy common call John  Brownsword shall attain twentyone which will be October in trust in the mean  time and from time to time to place the same out at interest for the  improvement of the estate and if he shall live to attain the say age of  twentyone or have issue then to the say John Brownsword and the heir of his  body but if the say John Brownsword shall happen to die before the age of  twentyone and without issue then in the same manner he devise it to the same  person in trust till that little girl common call Sarah Brownsword shall  attain the age of twentyone which will be at such a time but if she shall  happen to die c exact in the same word as the former devise then to the other  collateral branch of his family and for want of such issue to his own right  heir for ever John Brownsword attain twentyone and die without issue have  devise all his estate real and personal to his wife the present plaintiff who  charge in her bill that the son describe in the will be the legitimate son of  the testator by the defendant whether Edward on which the relief be pray that  the say defendant may discover whether she be lawful marry to the testator at  what time in who presence and where and whether she have not issue thereby to  this discovery whether Edward put in a plea that she be not bind to answer on  this ground she aver by her plea that testator be before marry to her own  sister by who he have child who survive he and consequent if she be marry to  he afterward it will be a incestuous marriage contrary to law and subject her  to the penalty and punishment the law inflict on such a crime it be argue that  this plea must be take to be true this be a criminal matter for ever since the  statute h one can legal marry his wife sister after death of his first wife  then she vesey senior will be liable to prosecution in ecclesiastical court  for incest which be of ecclesiastical conusance it be as much a crime as any  make by the commonlaw and that it be a grievous one appear indisputable from  one of the canon law inflict a penance which in the eye of the law be look on  as a corporal punishment and when sue in ecclesiastical court her answer in  the court confess it will convict her that she will be liable Hicks v Harris  Carth sal Mod nor be a suit of that kind in ecclesiastical court put a end to  by any statute of limitation or death of either party against the plea  plaintiff right be find on the fact of legitimacy of her husband and there be  a lawful marriage between testator and defendant and every court lean in  favour of legitimacy defendant may in many instance protect themselves against  make discovery attend with penal consequence but it must be show that that  will necessary follow which do not appear in this case for this be not a  natural incest such as forbid by the law of nature but only malum to hold  before put a end to by death of either party after which a suit can be  institute n ecclesiastical court for the punishment nor do the case cite  determine that the party be subject to ecclesiastical censure only determine  that it be a matter proper for their jurisdic vesey senior er p cion on a bill  suggest the wilful loss of a ship for that the party have insure to twenty  time the value though that be make felony by the statute yet where defendant  be require to set forth what insurance he make on the ship he be never allow  to protect himself against that of which there be several instance in Wilson v  prince Pas a bill be for the earn of a ship in the east India company be  service which she may have make if she have perform her voyage charge that  defendant have insure so large that it be his interest to lose the ship and  require account of what sum be take up defendant plead that have take up pound  of the company and take a oath to trade for no more if it appear he have he  may be liable to indictment for perjury and his answer read in evidence  against he the plea be overrule if this plea shall turn out false in fact  though in general case there will be a judgement in chief against the false  pleader yet in this the court can not give that judgement so that this will  answer defendant purpose as well as if it be ever so fair and the court can  then do right to the plaintiff it may perhaps subject defendant to a small  penance whereas prevent legitimacy it be of great consequence on the other  side Lord chancellor this appear a very plain case in which defendant may  protect vesey senior herself from make a discovery of her marriage and I be  afraid if the court shall overrule such a plea it will be set up the oath ex  duty which then the parliament in the time of Charles will in vain have take  away if the party may come into this court for it the general rule be that no  one be bind to answer as to subject himself to punishment whether that  punishment arise by the ecclesiastical law of the land Ves sen atk atk brown  in case of a bankrupt smuggler the commissioner may examine he but he may  demurrer to the interrogatory and have the opinion of the court atk vol wms  vern incest be undoubted punishable in ecclesiastical court and such a crime  be general except out of the act of pardon the ecclesiastical court have  conusance of incest in two respect to visit to look upon first to judge of the  legality of the marriage and to pronounce sentence of nullity and if they do  so proceed lawful and rightful it bind all party be the judgement of a court  have proper jurisdiction of the cause the other be to censure and punish  person guilty by ecclesiastical censure as for fornication adultery c nor be  it material what the nature of the punishment S it be a punishment which must  be perform or get rid of by commutation which be like a fine then consider the  present case the discovery whether lawful marry take in the whole whether  marry in fact and whether that marriage be lawful defendant have plead to it  which she may do and in the plea it be proper to bring in fact and averment to  support that plea whereas a demurrer can be to nothing but what appear on the  face of e bill otherwise it will be a speak demurrer averment be necessary to  exclude intendment which will be make against the pleader for the court will  always intend the matter charge against the pleader unless full deny atk pale  yellow but here it be necessary to bring in such a averment that testator be  lawful marry before to her sister and have issue which be a fact necessary to  show and that fact she have take on herself to prove the plea therefore be  regular in form and good in substance the objection to the plea be that one of  the party to the incestuous marriage be dead there can be no proceed afterward  I always take the distinction to be what be lie down in Hicks v Harris that by  the law of the land the ecclesiastical court can proceed to judge of the  marriage and to pronounce sentence of nullity after death of one of the marry  party especial where there be issue because it tend to bastardize the issue  and none after death of one of the party to that marriage be to be bastardize  but there be no rule of law stand to prevent either of the party from  punishment after death of the other suppose it be a offence of adultery or  fornication there be no rule of the civil or ecclesiastical law that after  death of one of the party the survivor may not be punish for the offence  undoubted they may either proceed ex duty by office of the ecclesiastical  judge or by promotion of a proper informant then why may not the  ecclesiastical court do it in the case of incest whether without the formality  of marriage or attend with it but it be say Hicks v Harris be no judicial  determination in the point and that all that be material before the court be  the joint jurisdiction which be true but there be a plain difference if the  court hold that the proceed and this be a answer to one part of the objection  even for the censure against the survive party will have vesey senior er p  tend to affect the legitimacy of the marriage or the issue the court of b r  will have stop there but they go on this that it can not be give in evidence  against vesey senior the issue or the plaintiff claim under that issue as be  determine solemnly in b r on a long trial at bar direct out of this court in  Hilliard v Grantham in which I be of counsel see wooddeson in that cause  during life of the father and mother there have be a proceed against both of  they in the consistory court of Lincoln for live together in fornication and  sentence give against they on the trial that sentence be offer in evidence to  prove that they be not marry the whole court be of opinion that it can not be  give in evidence because first it be a criminal matter and can not be give in  evidence in a civil cause next that it be res inter elsewhere acta and can not  affect the issue but they hold that if it have be a sentence on the point of  the marriage on a question of the lawfulness in of the marriage it be a  sentence of a court have proper jurisdiction may have be give in evidence if  indeed there have be collusion that may be show on the part of the child to  take off the force of it because collusion affect every thing but if no  collusion it bind all the world but in a proceed in a criminal way that can  not be give in evidence and that be the distinction the court go on in Hicks v  Harris but if there have not be that authority I shall not have doubt on the  nature of the thing but that the ecclesiastical court may have proceed after  death of one of the party as well for incest as fornication in which case  there be no doubt they may thus far as to the merit of the plea some  collateral argument have be use that it be not in every case the party shall  protect himself against relief in this court upon ah allegation that it will  subject he to a suppose crime it be true it never create a defence against  relief in this court therefore in case of usury or forgery if a proof can be  make of it the court will let the cause go on still to a hear but will not  force the party by his own oath to subject himself to punishment for it if  plaintiff wave the penalty defendant shall be oblige to discover vern or  whether the penalty arise from defendant own particular agreement he be oblige  to discover for or where the discover that seek be not of a fact which can  subject defendant to any penalty but connect with some other fact which may  Ves sen in a bill to inquire into the reality of deed on suggestion of forgery  the court have entertain jurisdiction of the cause though it do not oblige the  party to a discovery but direct a issue to try whether forge I remember a case  where there be a deed of rentcharge suggest to be forge it be try twice at law  and find for the deed a bill be afterward bring to set it aside for forgery  and to have it deliver up to be cancel Lord king notwithstanding the two trial  which have be in avowry and replevin direct a issue wherein it be find forge  and I remember be cancel and cut to piece in court there be several instance  of that so that the relief the party may have be no objection as to the  objection from the consequence of allow this plea if the defendant shall fail  in the proof of it that will be a objection to the allow any plea to a  discovery though it will vesey senior be no objection to a demurrer because  that must abide by the bill but all plead must suggest a fact which fact must  conduce to one single point per Lord Thurlow brown atk it must go to a hear  and if the party do not prove that fact which be necessary to support the plea  the plaintiff be not to lose the benefit of his discovery but the court may  direct a examination on interrogatory in order to supply that the plea  therefore ought to be allow next as to the demurrer of Sarah Brownsword for  that plaintiff have not make out a title the defendant remainder be vest and  her claim be on failure of that estate tail in John Brownsword for plaintiff  these limitation must be take to be executory devise such as rest in suspense  and contingency and on the event which happen the subsequent limitation can  never arise for both event must first happen videlicet John must die before  twentyone without issue whereas he attain twentyone nor be there sufficient to  warrant the turn this executory devise into a remainder the testator mean to  create a temporary trust to have continuance till John come of age and then  that it shall vest absolute in he or if he die before twentyone leave issue  then it shall go to that issue so that it be to be take distributive that this  construction have be make in similar case videlicet that both event of die  without issue and before twentyone must happen before the contingent devise  over take place see Eq ab and side in any other construction the testator have  vesey senior er p omit what he never can intend to do the provide for the  event of John die under age leave issue Lord chancellor as this be a question  upon the legal title to a estate on the construction of a will if there be any  doubt I shall not determine it on demurrer but will notwithstanding the  inclination of my opinion may be in favour of defendant overrule the demurrer  without prejudice to defendant insist on the same matter by way of answer so  that it may more full come before the court at the hear this the court  sometime do on the construction of will but if the opinion of the court be  that as on the face of the bill plaintiff have no title and the will be set  forth verbatim in the bill it be just and more for the benefit of the party to  cut it short on the demurrer since it must be still determine just on the same  matter as be before the court on the demurrer Prec Chan brown parliament Cas  in these case of will the govern rule vesey senior of construction be the  intent of testator though prior word in a will express control subsequent one  yet to comply with testator intention the subsequent word shall take effect  and restrain the prior brown Durnf east which the court be to find out by his  word and to construe conformable thereto so far as it be possible consistent  with the rule of law Durnf east Ves sen the intent here be plain here be two  child testator consider as his own whether legitimate or not I enter not into  the question on this demurrer I must take they to be legitimate he have a mind  to make a provision for they and the material point be that it be a limitation  to they in tail and if their issue fail he intend plain to give it over to the  other collateral branch of his family and for want of such issue to his own  right heir for ever the question be whether I can by construction or on the  strict literal meaning of the word but in the right heir of testator so as to  defeat all the subsequent limitation this will be plain contrary to his intent  but if the force of the word be such as that the intent can be comply with the  rule of law must take place it be say he have give nothing over but on the  contingency of John die without issue under age consider what necessity there  be from the word to construe it in that manner which will be to defeat his  intent have first give the whole legal fee to trustee and their heir be do not  intend either of these two child shall have any thing vest till twentyone or  the have issue and then to have a estate tail consequent as soon as John  attain twentyone or have issue though he die before twentyone that defeat and  determine the estate in law give to the trustee and vest a fee tail in he he  do attain twentyone and therefore have a entail as he will if he die before  twentyone but have issue then the construction can not be as insist for  plaintiff as with a double aspect if he attain twentyone then to vest in he a  estate or if he die before leave issue then to give it to that issue that be  not the construction of the will but it be to give a estate tail in either  event so that such issue will take as heir of the body of his father a estate  tail from he in who in point of law it vest which estate will defeat the fee  in the trustee then as to the subsequent word if the court be compel to make  the construction the plaintiff insist on the court will do it but however in  the construction of will the court have construe the word conformable to the  intent of the testator as much as possible range in a different order and  transpose they to comply therewith Ves sen Ves sen there be no necessity to do  either in this case or to supply material word but there be a plain natural  construction upon these word videlicet if the say John shall happen to die  before twentyone and also shall happen to die without issue which construction  plain make the vesey senior die without issue to go through the whole and full  answer the intent which be in that manner have the first devise be to John and  his heir this construction I believe can not be make for where there be such a  contingent limitation I do not know that the court have change heir into heir  of the body to make it so throughout but much strong construction have be make  than this in devise Cr c and other case in croak as in devise to one and his  heir and if he shall die before twentyone or without issue then over the court  have say it be not the intent to disinherit the issue and therefore shall be  construe and but if the first limitation have be in tail there will be no  occasion to resort to that but the court will have make the construction I do  now videlicet if he die without issue before twentyone then over by way of  executor devise if lie die without issue after twentyone when the estate have  vest in he it will go by way of remainder because he have make his original  devise capable of a proper vesey senior er p remainder in which case the court  will always construe it a remainder a estate tail be capable of a remainder  and it be natural to expect a remainder after it it be contrary to his intent  to let in this remainder to the right heir to defeat all the intermediate  limitation to his family this be the intent of testator and well warrant by a  easy construction of the word of the will the demurrer therefore must be allow  Reg lib a fol