"titled to any costs whatsoever." The 12th section provides, "That this act, or any thing herein contained, shall "not extend to any debt where any title of freehold, &c. "shall come in question, or to any debt by specialty, &c, nor to any other debt that shall arise by reason of any "cause concerning testament or matrimony, or any thing "concerning or properly belonging to the ecclesiastical "court, albeit the same respectively shall not exceed "51." &c. 1804. SANDBY against MILLER, Wigley shewed cause, and relied principally on the ground that this, being a demand in respect of tithe, came within the exception of the 11th section, as "a thing concerning or "properly belonging to the ecclesiastical court," and therefore not within the jurisdiction of the Court of Requests. It is enough under these words that the subject matter of the action is one that concerns, or properly belongs to, the ecclesiastical court; it is not necessary that the suit or action should specifically, and in form, be brought for the thing. Now here the action is in substance for the single value of the tithe, the jurisdiction of which properly belongs [196] to that court. The verdict was taken upon a count upon an implied assumpsit for the value of the tithe, estimated indeed by the rate of the former composition, which was then in dispute; considering it as an agreement by the vicar to let the defendant have the tithe, without specifying at what value. The title to the tithe and freehold might have come in question in such an action; which would be enough to oust the jurisdiction of the Court of Requests, according to Woolley v. Cloutman (a), though the action there was on an implied assumpsit for use and occupation. Marryat, in support of the rule, said, that it was clear from the bill of particulars, that the original demand was under 5., and that jurisdiction was given to the London Court of Requests over all causes not particularly excepted. That the title to the freehold could not have come in ques◄ tion; for unless a contract had been proved, the value of the tithe could not have been recovered in assumpsit. Then the action cannot be said to have been brought for any thing which concerned or properly belonged to the ecclesiastical (a) Dougl. 244. court; 1804. SANDEY against. MILLER. [197] [ 198 ] contract. The court; for the plaintiff could not have sued there on this Cur. adv. vult. Lord ELLENBOROUGH, C. J. now delivered the opinion of the Court. This was a motion for leave to enter a suggestion on the roll to exclude the plaintiff (who had [obtained a verdict in an action in this court, establishing on his part an original demand of less than 57., and reduced by a tender to 7s. 6d.) from his costs, under stat. 39 & 40 Geo. 3, c. 104, on the ground of the defendant's being resident and liable to be summoned within the jurisdiction of the Court of Requests for the city of London; and that the original debt sued for did not exceed the sum of 51. The count in assumpsit upon which the question arises, was upon a quantum palebant, for the value of tithes due to the plaintiff, as vicar of St. Giles, Camberwell, from certain tenements in the occupation of the defendant, and alleged to have been taken and retained by and at the request of the defendant. plaintiff resisted the motion for leave to enter this suggestion, upon the ground of the following proviso, contained in the 11th section of the act; viz. "That this act should not ex"tend to any debt that should arise by reason of any cause "concerning testament or matrimony, or any thing con"cerning or properly belonging to the ecclesiastical court; "albeit the same shall not exceed 57.;" conceiving that the subject matter of this action was "a thing concerning or "properly belonging to the ecclesiastical court." But we are of opinion that the subject of this action, being the recovery upon a promise of an equivalent for tithes retained, is not a thing which can properly be said in its nature to concern the ecclesiastical court itself, in respect of the general rights, functions, or subjects of jurisdiction of that court, nor a thing which can be said properly to belong to it; being neither more nor less than a civil contract collateral to the right of tithes (which the count assumes to be admitted) suable properly and peculiarly in a court of law, and which has no further connection with the ecclesiastical court than as the general object of suit, viz. " tithes," is in certain cases a matter properly cognizable in that court, as it also is in other cases properly cognizable in the courts of law: it cannot therefore be said so far "properly to belong to the ecclesiastical court" as to the oust the jurisdiction of the London Court of Requests in sums not exceeding 5. within the meaning meaning of that proviso; and particularly in a case, as here, where no right to tithes comes in question. We are therefore of opinion, that as the action in this case should have been brought in the Court of Requests, the defendant is entitled to make his rule absolute for entering this sug gestion upon the roll. 1804. SANDBY against MILLER SEAWARD against WILLOCK, Friday, vise "to A. for life, and "after him te "his eldest or any other "him for life, " and after them to as many of his "issue male "as shall be "descendants "heirs of his or their "down to "the 10th "generation THIS 'HIS was an action against the defendant, an auctioneer, employed by the assignees of Thomas Southcomb, a bankrupt, in the sale of an estate of the bankrupt by auction, to recover ISO., the deposit money paid by the plaintiff, who was the highest bidder at such auction, with interest son after and costs. The defendant at the time of the sale entered into the following undertaking in writing, at the foot of the conditions of sale: "If the title is not satisfactory, the de"posit, interest, and costs to be returned by John Willock." The declaration contained a special count upon this undertaking, and the common counts for money paid, had, and received, and on an account stated; to which there was a "bodies, plea of the general issue. The cause was tried at Exeter summer assizes 1803, before Lord Alvanley, C. J., when a verdict was found for the plaintiff with damages 2007., subject to the opinion of the Court on the following case: On the 23d of March 1753, Lewis Southcomb, cleik, being seised in fee of the remainder of the estate in question after the determination of the life-estate of George Portbury, in his will of this date duly executed and attested, devised as follows: "To my son John I leave the entire guardianship of Thomas, the son of my son Thomas Southcomb, and also of my grand-daughter Elizabeth his sister. guished from To him the said Thomas (a) I do give my estate of Holcomb intent to give the particular Burnel (being the estate in question) during his natural life, an estate for as soon as it shall fall (6); but to his trustee in his behalf taker, but a shall be committed the profits of the said estate until he shall arrive at the age of 21 years; and after him I do give during their "natural "lives;" held, that A. than a life estate; for took no more here is no ge neral intent to create an es contradistin tare tail, as life to the first single intent succession of to create a life estates to persons not in esse, which it the law will not allow. *[ 199 ] 1804. it to his eldest or any other son after him, during his natural life; and after them to as many of his descendants issue male against as shall be heirs of HIS or THEIR bodies, down to the tenth WILLOCK. generation during their natural lives." The devisor died at SEAWARD the end of 1753, or beginning of 1754, leaving his grandson, the devisee, his heir at law. George Portbury, the tenant for life, died in 1763; and upon his death the devisee Thomas Southcomb entered into the possession of the estate, and continued in such possession until his bankruptcy, as hereinafter mentioned. On the 28th of November 1798, a commission of bankrupt issued against the said Thomas Southcomb, who was a trader, was indebted to the petitioning creditor in a sum sufficient to support the commission, and had committed an act of bankruptcy; in consequence of which he was duly declared a bankrupt; and on the 6th of November 1802, a bargain and sale of his real estate was duly made to Jackson and Chamber, who had been duly chosen assignees of his estate and effects. On the 9th of November 1802, the defendant, by the direction of the assignees, put the estate up to sale by auction; and by the conditions the purchaser was to pay down a deposit of 107. per cent. and the residue on or before Lady-day 1803, on having a good title; the conveyance to be at his own ex[200] pence. The plaintiff was the highest bidder, and paid the deposit; but on the abstract being delivered, in which it did not appear that the bankrupt was the heir at law of Lewis Southcomb, nor was any document stated to prove the death of Geo. Portbury, which it was insisted on by the assignees must, from the length of time in which he had been shewn to be in existence, be presumed, refused to complete the purchase; alleging that a good title could not be made; and insisted upon a return of the deposit, &c. on that ground. The bankrupt who, as is before stated, was the heir at law of Lewis Southcomb, has no children, and is willing to join the assignees in any act that shall be thought necessary to make a good title and conveyance; but neither of these circumstances was stated in the abstract, or communicated to the plaintiff or his attorney until a fortnight before the assizes. The question for the opinion of the Court was, Whether the plaintiff were entitled to recover? If the Court should should be of opinion that he was, the verdict was to stand; if not, the verdict was to be entered for the defendant. Courtenay, for the plaintiff, after premising that in the decision of this question the Court would look to no other facts than what were contained in the abstract of the title delivered to the plaintiff by the vendor, or such at least as were made known to the plaintiff before the action brought, stated the question arising on the words of the will to be, Whether the devisee Thomas Southcomb, since become bankrupt, took an estate for life or in tail? (If in tail, he admitted that the bargain and sale of the commissioners would pass a title to the assignees: but not if for life; for the bargain would only operate to pass that estate which the bankrupt lawfully might, and not that which could only be perfected by operating as a forfeiture of his estate) (a). It is clear, that the testator only meant that Thomas Southcomb should take an estate for life. But it will be argued, that as the general intent of the testator was, that all the male descendants of T. S. should take, down to the tenth generation, that can only be effectuated by giving an estate in tail male to the first taker: but this would be doing violence to the words as well as to the intent of the will; for the estate is given after him, not to his issue, but to his eldest and any other son; which is a word of purchase and not of limitation: and when the testator has expressly declared that such eldest or other son of T. S. should only take for life, it would be a forced construction to imply from thence a general intent that even the first taker should have a greater estate. The only words of limitation afterwards used, viz. his descendants issue male as shall be heirs of his or their bodies, from whence any intention to create an estate tail can be implied, must refer to the eldest or other son of T. S. And the general intent may be effectuated as far as by law it may, by giving an estate for life to the first taker, with successive remainders in tail to his eldest and other sons as purchasers. And he referred to Archer's case (b), Wyld's case (c), Ginger v. White (d), Goodtitle v. Woodhull (e), and Somerville v. Lethbridge (f); the last of which came nearest to the present case, to shew that T. S. took only an estate for life. (a) Vide 4 Leon. 124. (d) Willes' Rep. 348. (1) Rep. 66. (c) 6 Rep. 16, b. 1804. SEAWARD against WILLOCK. [ 201 ] Gaselee, |