1804. FLINT ዓ. BRANDON. shews either that it was not the original meaning of the parties to give such a right to the lessee, or that it was intended to be done away by the memorandum. It is then further agreed that Clutton may dig for gravel in any part of the within demised land, he covenanting to pay 20l. per acre for every acre which he shall so break up, and to make it good. These words are as general as those by which the lessor is empowered to let. And can it be supposed that if the lessee had a right by the lease to dig gravel in the two acres in question for nothing, he would have covenanted in such general words, and would not have introduced an exception as to these two acres. It seems to me, therefore, that according to the true and only rational construction the memorandum amounted to a perfectly new agreement as to digging sand, gravel, &c. and that there is no pretence for setting up an éxception as to any part of the ground. As to the exception itself it is part of the covenant of the lease, which, if doubtful, must be taken most strongly against the covenantor. It is not necessary to determine what would have been the effect of the Defendant's-eovenant if the lease and memorandum between Penton and Clutton could have been construed in a different manner from that which I have stated. But as the memorandum only speaks of making the ground good, and that memorandum is in general terms, there might have been strong ground to contend that the Plaintiff was only bound to look at that part of the agreement between Penton and Clutton which related to the subject of making the ground good. On this point, however, it is unnecessary to give any opinion, since by the construction which I have given to the lease and memorandum taken together the covenant of Clutton, to make the ground good, applies to all the premises demised. HEATH It HEATH J. In an instrument so obscurely worded it may be difficult to find the meaning of the parties with certainty. But we must proceed to construe according to the principles of law and the rules of grammar. By the common law the lessee was not entitled to dig. was therefore necessary to give him a power to do so. But in the lease no such power is given respecting the two excepted acres, for such a power could not be given by way of exception. Then, as to the memorandum, it is an agreement between both parties, by which each was to receive some advantage not given by the lease. The lessor was to have the liberty of letting the land to make bricks on paying 31. per acre only, and the lessee as a compensation for this, instead of paying 10s. per load for every load of gravel dug, &c. was to pay 201. per acre for every acre which he should break up, and to make it good. This new agreement is in general terms, and therefore extends to every part of the land demised. ROOKE J. I am of the same opinion. CHAMBRE J. I am entirely of the same opinion. The covenant on which the action is brought clearly refers t the memorandum, and the construction which has been adopted appears to me to be the only safe line to pursue. Had the covenant in the lease to Clutton been clear in its own terms, and could it have stood consistently with the memorandum, there might perhaps have been more difficulty, and we must have endeavoured to put such a construction on all the parts as to make them consistent with each other. But here the memorandum is quite a uew agreement. Rule discharged. FARRER . The Countess Dowager of GRANARD. INDEBITATUS assumpsit for the use and occupătion of certain ready furnished lodgings; and also for money paid, money had and received; and on an ac count stated. Plea, that the Defendant, at the time of making the promises, &c. was, and yet is, the wife of the Rev. Samuel Little, D.D. which said S. L. is now living, to wit, at the parish aforesaid, in the county aforesaid, and this, &c. wherefore, &c. Replication that before and at the time of the making of the said several promises and undertakings in the said declaration mentioned, and continually from thence hitherto the said S. L. in the said plea mentioned lived and resided in parts beyond the seas, that is to say, in that part of the United Kingdom of Great Britain and Ireland called Ireland; and that during all that time the said Defendant lived in this kingdom separate and apart from the said S. L. as a single woman, and that the said Defendant made the said several promises and undertakings in the said declaration mentioned as such single woman, to wit, at, &c. To this there was a general demurrer and joinder therein. Best Serjt. was called upon to support the replication. It may be admitted that a mere temporary absence of the husbaud from this country will not make the wife liable for debts contracted by her; but the averment in this replication that the husband lived and resided in Ireland at least calls upon the Defendant to shew that the absence of the husband was merely temporary. Besides, the re plication avers that the Defendant lived separate and apart from her husband as a single woman, which shews that she was not separated from him for a time only, but had assumed a character different from that which she would would have derived from him while she lived as his wife. The case of De Gaillon v. L'Aigle, 1 Bos. and Pull. 357. is precisely in point; the replication there was in terms the same as this; for the averment that the Defendant carried on the business of a merchant as a single womair could make no difference, as the trade was not carried on within the city of London. The case of Walford v. The Duchesse de Pienne, 2 Esp. N. P. Cas. 554. is also a strong authority for the Plaintiff, in which case Lord Kenyon intimated that the principle of the old common law, where the husband had abjured the realm, applied to a case in which the husband had left the kingdom for four years. Sir JAMES MANSFIELD Ch. J. The terms of the replication are perfectly consistent with a mere temporary absence. They might be applied to the case of every man who goes for a short time to live in Ireland or Scotland, and whose wife in the mean time contracts debts here. HEATH J. The case of De Gaillon, v. L'Aigle proceeded much upon the ground of the Defendant's husband being a foreigner. Judgment for the Defendant. Sellon Serjt. was to have argued in support of the demurrer. 1804. FARRER V. The Countess 1801. Devise to the use and behoof of the testator's niece S. C. and his two nieces E. G. and A. C. and the survivor and survivors of them, and the heirs of the body of such survivor and sur vivors as tenants in common, and not as joint tenants. Held that under this devise S. C. E. G. and A. C. took as tenants in common. ISAAC GARLAND and ELIZABETH his Wife, JOHN THR HE following case was sent by the Master of the Robert Clarke gentleman, being seised of, and entitled to, certain freehold estates at Lavington in the county of Somerset, by his will duly executed and attested for devising real estates, bearing date the 5th day of March 1789, gave and devised unto the Defendants Rees Thomas and James Leach (and one Henry Pain, since deceased)all those his freehold farms, lands, tenements, and hereditaments, with their appurtenances, at Lavington aforesaid, to hold to them the said Rees Thomas, James Leach, and Henry Pain, their heirs and assigns, upon trust as to one undivided moiety or half part thereof, the whole into two equal parts to be divided, to the use of his the said testator's nephew Richard Clarke, for life, without impeachment of waste; remainder to the said trustees and their heirs to preserve contingent remainders; remainder to the use and behoof of the first son of the body of his said nephew Richard Clarke,lawfully begotten, in tail; remainder to the use and behoof of the second, third, fourth, fifth, sixth, seventh, and every son and sons of the body of his said nephew Richard Clarke, lawfully begotten, severally and successively, in tail; remainder to the use and behoof of all and every the daughter or daughters of the body of the said testator's nephew Richard Clarke, lawfully begotten, in tail; and for want of such issue, to the use and behoof of his the said testator's niece Susannah Clarke, and his two nieces, the |