1827. MORRANT and บ. GOUGH and another. should be held that a chattel (a) interest only vested in the trustees. Then has the liability ceased?—In order to pay the 207. a year during the life of the widow, and to enable the trustees to select what estates they should retain after T. Sandy, the son, became of age, it was necessary that the fee should continue in them. It is true that the necessity for such retention was obviated, by the fact of the wife's having died in the life-time of the testator, but the effect of the clause, as denoting the quantity of estate which the testator meant to devise to these trustees, is the same. But supposing that only a chattel vested in the trustees, the whole interest of the devisee must be liable to the specialty debts of the devisor absolutely, and not merely during the continuance of the estate; as otherwise a party · indebted in a sum to be paid in futuro, and by instalments, might defeat his creditors, or might materially lessen their remedy, by creating a number of successive estates by devise. This is shewn by the present pleadings, which admit a surplus in the hands of the defendant Gough, arising from the real estate of the obligor, and which surplus, if no devise had been made, would have been assets in the hands of the heir for the payment of this debt; whereas it is here contended, that such surplus belongs to the personal representative of T. Sandy, the son. The trust can make no difference as between the creditor and devisee, and the latter, according to the doctrine contended for, would be equally entitled to retain such surplus to his own use. Carter, in reply. There was no breach of the bond, during the continuance of the defendant's interest. (a) See Warter v. Hutchinson, 3 D. & R. 58, 1 B. & C. 721, in which this Court certified to the Vice-chancellor, that the devisees under circumstances nearly similar took a chattel interest only. After this case it seemed hopeless to contend that an estate in fee passed by the devise; but it was necessary to obtain the judgment of the Court on this point, lest after suffering it to pass sub silentio, the plaintiff might be told upon the trial of the issue of riens per descent, that it was open to the heir to contend that the fee was in Gough. case BAYLEY J.-It seems to me that the plea is good, and that the replication is no answer to it. This is not the of a common bond; this bond contains no penalty. In the case of lands descended, as the estate passes from one heir to another, the liability descends with it. If a man devises to trustees to do something for a given person, when that purpose is at an end, the estate ceases. This will is to be construed as if the provision respecting the wife had been left out, she having died in the life-time of the testator. As soon as the interest of the devisee ceased, his liability ceased also. HOLROYD J.-It is perfectly clear that there was no estate in fee in the devisees. This is not the case of a common bond. The profits were not to be kept to meet the growing payments. LITTLEDALE J.-The devisee took only a particular estate, and a devisee of a particular estate is only liable for profits accruing during his own time. If this had been a bond with a penalty, the land would have been immediately liable. If all arrears accruing in the life-time of the testator, and during the particular estate were paid, the defendant is not liable. This is not a debt accruing in the lifetime of the testator. The devise would be fraudulent if it operated to prevent the creditor from recovering, as against the heir. If we were to hold the defendant liable there would be a difficulty as to the mode of issuing execution. In an action against the heir, the land would have been liable by extent only (a);, here there can be no judgment against the land. Judgment for the defendant Gough. (a) By 3 & 4 W. & M. c. 14, , 3, it is provided, that "for the means that such creditors may be enabled to recover their said debts in the cases before men- 1827. MORRANT and v. GOUGH and another. 1827. MORRANT and WIFE บ. GOUGH and and specialties against the heir and heirs at law of such obligor or obligors, and such devisee or devisees, jointly, , by virtue of this act ; and such devisee or devisees, shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended." The facts stated in the plea of the defendant Gough being admitted by the replication, no general judgment charging the defendant personally, as in cases where the heir pleads a false plea, 2 Saund. 76, could have been pronounced, in respect of the allegations in the plea. But in Henningham's case, Dyer, 344, the reporter, Sir James Dyer, J., says, that if the profits of the land descended a morte patris usque ad diem brevis, amount to sufficient to satisfy the debt, and the plaintiff will shew that to the Court, the plaintiff shall have general judgment and execution immediately. Though every contract of a devisor by which his heir would have bound, had the assets been suffered to descend, appears to be within the mischief pointed at in the preamble (ante 45, note (d)); yet, as the third section of this statute gives an action of debt only, the remedy against the devisee has been considered to be confined to those cases in which that form of action is maintainable. Thus it has been held not to extend to a covenant for title entered into by the devisor upon the sale of an estate, Wilson v. Knubley, 7 East, 128; 3 Smith, 123, S. C.; 2 Wms. Saund. 8. So youcher, warrantia charta, annuity, &c., would no doubt be considered as falling within the rule. It has however been held, that by the giving of this specific remedy by action of debt, the courts of Equity are not precluded from relieving the creditor against the devisee under this statute, Eq. Ca. Ab. 149. 3 Bac. Abr. 461, Heir and Ancestor (F). in marg. 1827. BISHOP and another v. PENTLAND. THIS Policy on goods warranted free from average, unless general, or the ship be stranded." On the voyage, the ship was driven by ne cessity into a harbour, dry every title, be found; and being sharp built, she was lashed to the pier by rope from her mast head, which the mate insisted The action is brought upon a policy of insurance on goods warranted free from average, unless general, or the ship be stranded. The defendant has paid into Court the sum of 497. 11s. 11d., being the amount of the general average on the goods. The plaintiffs claim for a parti- where she was moored along cular average, and partial loss, under the following circum- the quay, in stances. On the 21st November, 1824, the ship, in which the place usual for ships the goods were loaded, was, while proceeding on her of her burthen, and in voyage from Liverpool to Gibraltar, necessarily obliged as safe a situato go into the harbour of Peel, in the Isle of Man, which tion as could is a tide harbour, and dry every tide. She was brought in by some fishermen belonging to Peel, who had gone out to her assistance, and under whose directions she was moored along the quay, where ships of her burthen and build, coming into the harbour of Peel, usually are moored, and in as safe a situation as could be found. was a very sharp built ship, which rendered it in addition to the usual moorings, to lash her, by a tackle fastened to the mast, to posts upon the pier, to prevent her falling over upon the tide leaving her. For this purpose one of the fishermen, and acting as pilot, named John Sayle, asked the mate of the vessel for a rope, who gave him one, and which rope one of the witnesses stated that the mate informed him was a new rope, though the witness did not see it. The fisherman objected to it, The ship necessary, to be sufficient, though it was objected to by the pilot who had brought the ship in. When the tide ebbed, the rope broke, and the ship bilged, and the goods in fell over, and consequence were damaged. If the rope had not broken, the accident would not have happened:-Held, that the ship was stranded, within the meaning of the policy. Stranding, is where a ship, by an accident, and out of the ordinary course of her voyage, gets upon the strand, and receives injury in consequence. Negligence of the crew does not discharge the underwriters, if the loss is occasioned by one of the perils insured against. -1827. BISHOP v. PENTLAND. . stating that it was insufficient for the purpose intended; to which objection, the mate replied, "that it was sufficient to drag the mast out;" and the rope was thereupon made use of in lashing the vessel to the pier. The state of the harbour where the vessel lay would have had no effect upon the vessel, if she had been properly lashed, and the vessel would have sustained no damage in the harbour, if the rope and lashing had not given way; and which rope was used contrary to the opinion of the said John Sayle, On the morning of the 23rd November, when the tide was out, the tackle, by which the ship was lashed to the posts, broke, and the ship fell over upon her side, by which she was stove in and greatly injured. But for the breaking of the tackle, the ship would have remained in the same situation that ships usually are in Peel harbour, during ebb, and no accident would have occurred. The question for the opinion of the Court is, whether the situation of the ship, after her falling over, constituted a stranding, within the meaning of the policy. If the Court shall be of opinion that there was such a stranding, the verdict is to be entered for the plaintiffs; if otherwise, for the defendant. F. Pollock, for the plaintiff. This was a clear case of stranding, within the meaning of the policy. The situation of the vessel must be considered without reference to the sufficiency or insufficiency of the rope by which she was lashed to the quay. The crew may have been guilty of negligence in furnishing an insufficient rope, and the damage to the goods may have been remotely occasioned by that negligence; but that circumstance will not affect the plaintiff's right to recover against the underwriters, if the ship was stranded, and the damage was immediately occasioned by perils of the sea. For this position there are two decisive authorities; Busk v. The Royal Exchange Assurance (a), where it was held, that in an action on a (a) 2 B. & A. 73. |