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1804.

PIERSON

against Vickers.

iVood, contrà, contended that the limitation to heirs of the body of Ann Vickers, which in itself would have given her an estate tail, was controlled by the subsequent words " fons and daughters,” which are words of purchase, descriptive of what the testator meant by heirs of the body, and by the limitation to such sons and daughters as tenants in common; for, as such, they can only take by purchase and not by defcent. Then Ann Vickers takes only for life, and her children take as purchasers in fee, by reason of the word eftates, which is sufficient of itself to carry a fee to the sons and daughters of Ann Vickers: and the inten. tion of the testator that the herself fould only take for life is shewn by making her children take as purchasers. In all the other cases the devise was of lands, tenements, or hereditaments, which of themselves would not carry the fee; such was Doe d. Candler v. Smith (a), and Doe v. Cooper (6); and in neither of them were the words heirs of the body or iffue described as here to mean fons or daughters. [Lord Ellenborough. How do you get rid of the words “ in default of such illue?"] Such ifue has reference to sons or daughters, and the testator meant that if Ans Vickers left no sons or daughters living at her death, the estate should then go over, which makes the subsequent devise an executory devise, being limited after a fee. [Lawrence J. What is there in the will to confine the words “ in default of such issue” to issue living at the time of Ann Vickers' death?? Because a fee was before given to the children. [Lawrence J. These words are always construed to mean an indefinite failure of iffue, unless restrained by other words.] It is clear that the teftator meant to prefer the issue of his daughter to the issue of his ffters; and having given the latter a fee, it cannot be supposed that he meant to give the former a less estate.

Holroyd in reply observed, that if the word estates as here used would carry a fee, it would vest the fee in Ann Vickers, to whom it applied in the first instance. But it is clear that the testator did not intend that her children should take the whole; for the estate is limited over in default of her iffue. Then there are no words of limitation superadded to the devise to her children ; which distinguishes this from Doe v. Laming (c); so that unless Ann Vickers takes an estate-tail, it does not appear that her issue can have a greater estate than for life ; and there being no cross remainders the Chare of each dying would go (a) 7 Term Rep. 531. (b) i East, 229. (c) 2 Burr. 1100.

over,

[553]

over, which would be manifestly contrary to the general intent 1804. of the testator to prefer his daughter's issue to his sisters'.

PIERSON Lord ELLENBOROUGH C. J. The two cases cited of Doe d. against Candler v. Smith, and Doe d. Cock v. Cooper, seem to apply very VICKERS. strongly to the present. Though it is very doubtful in all these cases whether we do not act contrary to the real intention of the testator in giving more than a life estate to the first taker. However we shall certify our opinion.

Lawrence ). In Doe d. Candler v. Smith Lord Kenyon felt very forcibly what was the particular intention of the testator, for he says there that " beyond all doubt the testator meant that the first taker should take only an estate for life, because he has faid fo in express terms:" but as that appeared to him to be in- [ 5543 congstent with his general intent as expressed in the subsequent parts of the will, in order to give effect to such general intent, he held it necessary to enlarge the first taker's estate to an estatetail. I doubt in this case how the word estates can be construed to carry a fee, coupled as it is with words of local description, and followed by a devise of the appurtenances, which would necessarily have been included if he had meant to give a fee by the word estates.

Le BLANC J. In almost every case of this sort the rule of law has prevailed against the particular intent, in giving a larger estate than for life to the first taker.

The Court afterwards, on the 28th of November, unanimously certified in the usual form to the Master of the Rolls, that they were of opinion that. Ann Vickers, under and by virtue of the will of Gentle Morris, took an estate in tail general in the freehold premises in question.

END OF MICHAELMAS TERM.

Ee 2

AN

INDEX

OF THE

PRINCIPAL MATTERS.

ABATEMENT.

ACTION ON THE CASE.
See JOIN DER IN Action, No. 3.

charged in full satisfaction and discharge

of the afault and imprisonment : held that
ACCORD AND SATISFACTION.

this was no legal fatisfaction ; for either
1. ACCEPTANCE of a less cannot be the agreement was illegal, as ftiAing a
H a satisfaction in law of a greater

prosecution for a public misdemeanor,
lum then due: nor can it operate as an

and thereby impeding the course of jur-
extinguishment of the original cause of

tice ; or the facisfaction, if any, was

moving from the prosecutor only, and
action, though accompanied by a con-
ditional promise to pay the residue when

not from the justices; their authority
of ability. Fitch v. Sutton, T. 44 G. 3.

over the prosecution being at an end
230

after the commitment of the plaintiff,
2. The toleration act, 1 W. & M. c. 18.

and their consent afterwards to the pro-
provides (f. 18.) that any person mali-

secutor dropping the prosecution being
cioully disturbing any diffenting congre-

a mere nullity, and no satisfaction for
gation under that act, on proof before

a prior injury, if any, received by the

plaintiff from their act. Edgecombe v.
a justice of peace, Mall find fureties in

Rodd and Others, T. 44 G. 3.
gol, or in default be committed to prison

294
till the next Sessions, and on conviction
forfeit 20l. to the Crown. To an ac ACTION ON THE CASE.
tion against magistrates tor trespass and

See AGREEMENT, CARRIER,
false imprisonment they pleaded al

I

STOCK, No. 1.
charge preterred before them for an
offence againīt that clause, and a com- 1. An action on the case for debauching
mitment for want of lureties under it to and getting with child the plaintiff's
the next sellions; and that before the daughter and servant, per quod servi.
next sessions it was agreed between the tium amisit, is not maintained by evi.
prosecutor and the now plaintiff, with dence that the daughter, though under
ihe consent of the commisting magiftrates, age, was living in another person's
(the now defendants,) that the prosecu. family in the capacity of a housekeeper,
tion should be dropped, and the plain and had no intention at the time of the
tiff be discharged at the sessions for seduction to return to her father's house,
want of prosecution ; that the plaintiff though the afterwards did return there
was accordingly then and there so dif- while within age, in consequence of the

Ee 3

Seduction,

seduction, and was maintained by her

AGENT. father. Dean v. Peel, E. 44 G. 3.

See PRINCIPAL AND AGENT, 2. No such action is maintainable unless /

Prize, No.. laid with a per quod fervitium amisit. Satterthwaite v. Duerfi, E. 2; G. 3. ; AGREEMENT.

- 47 n. 3. But though the daughter be of age,

See Passage-Money. yet the action is maintainable if she be r. For the meaning of the word Agreement, living with her father. Booth v. Cbarl.1 as it occurs in the facute of frauds, lee ton, at Lancofier, in 1789, cor. Will Fraud's, fiatute of. fon, J.

47 2. The toleration act, IW. & M. c. 18.

provides (V. 18.) that any person mali. ACTION, NOTICE OF. ciously dillurbing any diffenting con

gregation under that act, on proof beSee JUSTICES OF Peace.

fore a justice of peace, shall find sureThe stat. 39 G. 3. c. 69. f. 184. directs ties in sol., or in default be commit

that the West India Dock Company ted to prison till the next fefions, and on shall fue in the name of their treasurer convicton forfeit 20l. to the Crown. To in all actions by or on behalf of the an action againk magistrates for trespass Company, and that he shall be sued and false imprisonment, they pleaded a for the recovery of any claim or demand charge preferred before them for an ofupon, or of any damages occasioned by. fence against that clause, and a commicthe Company; and %. 185., alter exten. ment for want of sureties under it to ding the protection of the itat. 24 G. 2. 1 the next sessions; and that before the c. 44. for privileging justices of peace next sessions it was agreed between the in actions brought again it them, as such, prosecutor and the now plaintiff, wité to the lord mayor and aldermen of Lon the consent of the committing magiftrates, don acting under this act beyond the li. (the now defendants,) that the prosecumits of the city ; directs that " no ac. tion should be dropped, and the plaintiff tion shall be commenced against any be discharged at the sessions für want of person or persons for any thing done in prosecution ; that the plaintiff was ac. pursuance or under colour of this a&t, until cordingly then and there so discharged after 14 days' notice in writing, or in full satisfaction and discharge of the afafter tender of amends,” &c. : held Jault and imprisonment: held chis was no that the treasurer of the company is a legal satisfaction; for either the agreeperson within the said claule; and being ment was illegal, as Iti Ajng a prosecution sued for an act done by the Company for a public misdemeanor, and thereby imwhich induced an injury to the plaintiffs, pading the course of justice; or the satis. was entitled to such notice before the faction, if any, was moving from the proaction brought. The notice is neces. secutor only, and not from the justices; sary in actions for trespasses or torts ; their authority over the prosecution being but qu. Whether in affumpfit? Wal at an end after the commitment of the lace . Smith, Treasurer of the Weft India plaintiff, and ibeir confent afterwards to Lock Company, E. 44 G. 3. 115 the prosecutor dropping the prosecution

being a mere nullity, and no satisfaction

foz a prior injury, if any, received by AFFIDAVITS.

the plaintiff from their act. Edgecomte v.

Rodd and Orbers, T. 44 G. 3. 297 "A davits in support of or in answer to a 3. A carrier by water contracting to carry

pole for setting aside an award made a goods for hire impliedly promises that the rule of court under the stat. 9 & 10 vessel shall be tight and fit for the pure W. 3.6.19./. 1,. there being no action pose, and is answerable for damage ariprevioully brought, nor any cause in sing from leakage. And this, though court, need not be entitled. Brain he had given notice " that he would not bridge v. Houlton, E. 44 G. 3. 21 be answerable for any damage unless oce

cafioned

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