case Lord townsend and Horatio townsend versus Windham ash and his wife may  see Hicks v Sallitt de g m g SC cite Ves the plaintiff proper in come here to  have a discovery of the deed under which this title arise to have it produce  at all trial at law and to have attest copy and for a account of profit  without first establish their title at law the bill be bring for a share in  the Newriver water and for a account of mesne profit from the death of sir  James ash the father of the defendant wife on the marriage of sir James a  settlement be make of two share in the Newriver water and the same be limit to  sir James for life remainder to his wife for life and after their decease one  share be limit to such of the young child of sir James ash as be not his heir  at law or for want of such issue to the sister of sir James and their child as  sir James shall limit and appoint and the other share also to the sister and  their child as sir James shall limit and appoint but in case of no issue of  sir James ash or if he shall make no appointment the same be limit to the  sister and the child of Catharine one of the sister under who the plaintiff  claim in such manner as they be entitle to one whole share on the death of sir  jam this settlement be in the custody of the defendant they claim a right to  such share in right of the wife as the heir of her father as if no settlement  have be make atkins they also levy a fine of the two share in the three county  the water run through and receive the profit from the death of sir James ash  in till the fill of the bill in when the plaintiff discover there be such a  settlement bring this bill for discovery and to be relieve the defendant plead  the fine and nonclaim which plea be overrule to let in all the proof that can  be bring of the nature of this estate and now the whole come on to be hear the  plaintiff rely on the settlement and the defendant on the fine and nonclaim  the fine be levy in Hilary term but no claim be set up or any kind of entry  prove only that a demand of the profit be make in the office in the name of  the defendant on the that of February and the first payment be make of the  Christmas dividend before due on the d of February which be after the fine  levy and no other seize appear sir James ash die in November the first half  year become due at Christmas but not receive till after the fine be levy as  above Lord chancellor the defendant have make a great number of objection the  first objection be against the plaintiff remedy for account of the profit  insist they ought to establish their title at law as it be mere legal but I be  of opinion they be proper in come here for the remedy in order to have atkins  er p a discovery of the deed under which the title arise to have it produce at  all trial at law and to have attest copy a bare discovery therefore not be  sufficient some relief be then necessary if there be any doubt of the title I  will send they to law but the bill be to have the benefit of the settlement  and for proper direction necessary to be give concern it and therefore though  it be a matter of law yet the court will determine upon it notwithstanding for  it be not necessary for every legal question to be send to law there be  likewise another relief pray a account of rend and profit atkins in all case  where question have arise about share in waterwork the party have constant  come into this court for mesne profit for though it be a legal estate and  corporeal inheritance yet no one proprietor can receive the profit himself but  the company or their officer be the common hand to receive the profit and  there be no other way to come at it where a estate be under such a management  though the legal estate be in the proprietor it will be absurd to send the  plaintiff to law for it will be difficult to bring ejectment for a thirtysixth  part and bit of land in several county and to bring action of trespass against  the tertenants will be very extraordinary as the management be in the company  therefore in point of remedy there can be a strong case to come here for a  account of profit the next question will be as to the title first as to the  construction of the settlement second as to the fine and nonclaim as to the  construction of the settlement it have be say by the defendant counsel to be  for the benefit of the marriage I take it in another light indeed if the  estate have move from sir James ash there may have be some pretence for such a  suggestion but it move from lady ash and manifest she have a intention of act  for the benefit of her daughter and their issue as she have for the child of  that marriage for they be as much her daughter and their issue as much her  grandchild there be no limitation of these water share to any son or first son  of the marriage but to the use of all and every child and child other than  such as shall be heir at law so that as he use the singular number if there  have be only one child it will have be exclude or if there have be several  daughter as in point of law they will have make but one unite heir they will  have be exclude or if there have be both son and daughter and reduce only to  one child that child can not have take atkins a sister of sir James ashs lady  be wife of this Lord townsend grandfather and mother of the plaintiff Horace  townsend mrs Windham ash be dead without issue a moiety of the two share be  come to the issue of the other sister second as to the fine the objection be  that the party have no seize to warrant the fine and I be of opinion if they  have not court of law will not presume or strain a point to work a wrong and  no favour be allow in construction in that case then what kind of possession  have Mr Windham ash and his wife at the time of the fine both side agree it to  be a legal estate that there be no entry make and nothing but the perception  of rend and profit it have be say the entry shall be as notorious as possible  but if they have take out water or dig the soil it will not do to gain a seize  in a wrongdoer for in a wrongdoer do the act of a rightful owner be not  sufficient to gain a possession for if a man enter on my tenant he do not gain  such a possession to levy a fine thereon unless he continue in possession for  a wrongdoer to gain a possession by seize must not step on the land and  withdraw and leave the rightful owner in possession which will be sufficient  to gain a seize on a feoff but not to levy a fine smith on they dorm v  Packhurst ante next as to the rend and profit it be say the perception of they  be a sufficient seize but it be answer there be in fact no receipt till after  the fine levy if they have receive the rend in the present case before the  fine it will be a seize hob in the case of blunden versus Baugh cro car hold  by the court of king atkins er p bench that a receipt of rend from my tenant  may be a seize or not at my election but if they go on to receive the rend and  levy a fine it show quo mind hoc to make and be not a receipt as bailiff or  receiver the evidence of receipt of rend if the jury have believe it will be  sufficient possession to levy a fine and so hold in dorm versus fortescue ante  atk S c in this case it be the strong evidence of possession that can be for  none of the rightful owner receive the rend and profit from the tenant but the  corporation only but it be say the company be a kind of steward a common hand  to receive and pay the proprietor and those profit be receive by the company  at the time of the fine levy and that atkins the payment by the company after  the fine of profit due before shall have relation so as to be consider as a  payment before the levy of the fine but there be a plain answer the company  receive for the rightful owner who be the plaintiff and therefore can be no  receipt for the defendant at the time of the fine levy the law allow of  fiction and relation to support a right but never to work a wrong go to the  office and claim not sufficient but if a person have a right and be keep out  by terror a claim be sufficient the fine therefore can have no operation to  change the right of the party the next question be as to the relief I must  decree the settlement to be produce in any court of law or equity on  reasonable notice it relate to other more considerable estate there must also  be a decree of a account for rend and profit from the time the title accrue  because the settlement be in the hand of the defendant and they know the  plaintiff title and et be not disclose b sir James ash to Lord townsend in his  lifetime which be the strong ingredient in dorm versus fortescue ante SC see  the case there cite to decree the account so far back as the title accrue  another strong ingredient to decree so far back be from the nature of the  estate for none of the party be in actual possession of the land the Newriver  company have the profit in perception as some body must account it will be  hard to make the company do it who have pay it to a wrong person when that  very person be before the court and therefore as he be before I I will decree  he to pay it where a reeve or bailiff of a manor pay the rend if it be to a  wrong hand to be sure he must pay it over again but to direct the company in  this case to pay the plaintiff will a circuity because the defendant must be  likewise direct to reimburse the company and therefore the defendant ought to  be decree to pay in the first instance atkins I be of opinion too the  defendant must pay the cost I do not go upon the fraud in the concealment but  on their tenaciousness and obstinacy in carry on the suit a defence rest only  upon the plea of a fine on a title gain by seize there be no colour to support  it as a fine and nonclaim as operate upon a seize Mr Windham ash admit by a  letter which have be read that hehad the opinion of counsel he have no right  and whether they be his own or the purchaser counsel it be the same thing and  yet he persist in it Lord Hardwicke decree cost accord