is this plea an answer to the declaration?] It is clearly no answer to a breach of a contract like this, that the shipment the defendant expected has not taken place. The defendant has undertaken to deliver to the plaintiff 100 hogsheads of Gingelly oil "expected to arrive from Madras by the Resolute." More than 600 tons did arrive by that vessel. If, besides the double condition before adverted to, the defendants intended their liability to deliver the oil to be subject to a further condition, that the oil should be consigned to them, they should have introduced it into the contract, as was done in Lovatt v. Hamilton, 5 Exch. 639.†

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*Tomlinson, contrà.(a)—The question is, whether, by the terms of this contract, it is not to be understood that the parties contemplated as a further implied term, that the oil which was expected should be at the disposal of the defendants. It is not to be assumed that the defendants would sell goods which belonged to third persons. [JERVIS, C. J.-The question is, whether the contract must mean something in which the defendants have a property, and which they have power to deliver.] It is submitted, that, taking the whole contract together, that is the necessary effect of it. [MAULE, J.-Suppose it appeared clearly that the parties were speaking of an expectation that some oil would come into the market,-the defendants disclaiming to have any property or interest in it, but yet contracting to deliver it; would the defendants be entitled to a verdict, if it should turn out that the oil did not arrive?] Probably not. But that is not this case. Giving a reasonable construction to this contract, it refers clearly to oil which is expected, and which the parties contemplate will be subject to the power and control of the defendants. The contract contains an express warranty as to the quality of the oil; and that affords a strong presumption that no further warranty was to be implied. [MAULE, J.— The contract simply says that the defendants agree to sell to the plaintiff certain oil expected to arrive by a particular vessel. The defendants mean to abide by their contract if the oil arrives, whether there is any warranty of title or not.] If that be the true construction of the contract, undoubtedly the plea is no answer. In Boyd v. *Siffken, 2 Campb. 326, it was held, that, if there be a contract for the sale of goods by a particular ship, on arrival, this means on the arrival of the goods which the ship is expected to bring; and, if the ship arrives empty, without any default on the part of the vendor, he is not liable to the purchaser for the non-delivery. "I clearly think," says Lord Ellenborough, "on arrival means on arrival of the hemp. The parties did not mean to enter into a wager. By sold and

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(a) The points marked for argument on the part of the defendants, were, "That the contract was conditional on the arrival of the vessel, with goods of the description contracted to be sold, for and on account of the defendants; and that the defendants did not undertake to sell goods which did not belong to them, and over which they had no control."

bought in the note, must be understood, contracted to sell and to buy. The hemp was expected by this ship. Had it arrived, it was sold to the plaintiff. As none arrived, the contract was at an end." And, in Hawes v. Humble, 2 Campb. 327, n., a contract in similar terms was held by Wood, B., in like manner to be conditional,-in the absence of default on the part of the vendor. The case of Hayward v. Scougall, 2 Campb. 56, is hardly to be distinguished from the present case. [MAULE, J.-There, the hemp contracted to be sold, was hemp which. might be loaded on board certain ships by Messrs. Schmids & Co.; and it was properly held that the vendees were not entitled to more than was actually loaded by Schmids & Co.]

Tomlinson, finding the impression of the court to be against him, asked leave to amend his plea, by alleging, that, of the 100 hogsheads of oil which were expected by the Resolute, 34 hogsheads only did arrive in which the defendants had any interest, that they tendered those to the plaintiff, and that he refused to receive them.

*76]

Willes submitted that that would be an equally bad plea, inasmuch as, the contract being for 100 hogsheads expected to arrive by the Resolute, if 100 hogsheads did *not arrive, the condition was not fulfilled, and the plaintiff was not bound to take a less quantity. After a short discussion, however, the defendants had leave to amend on the usual terms, the amendment to be made within three days. Rule accordingly.(a)

(a) The amendment was not made, the defendants having assented to the construction put upon the contract by the court, and paid the damages assessed upon that footing.

EVAN LLOYD, and ANNE his Wife, v. DAVIES. June 2. Testator by his will (made after the passing of the 7 W. 4 & 1 Vict. c. 26), devised all his real and personal estate to his "three unmarried daughters, A., B., and C.," as tenants-in-common in fee. By a codicil he declared, that, "in case one of my daughters, A., B., and C., should get married, the two then remaining single, shall, at the end of twelve months after my decease, pay to the married sister the sum of 5007. in lieu of any further claim whatsoever on my property; and the two surviving daughters then single above named, to be sole possessors of all my property named in this my last will and testament, and to their heirs for ever:"Held, that the codicil contemplated the marriage of a daughter in the lifetime of the testator,or, at all events, within twelve months after his decease.

THIS was an ejectment brought to try the title to certain premises situate at Ruthin, in the county of Denbigh.

The defendant, admitting the title of the plaintiffs to one undivided third part of the premises in question, defended as the remaining twothirds.

The cause was tried before Williams, J., at the last Spring Assizes for the county of Denbigh. The facts were as follows:-David Davies, the father of the plaintiff Anne Davies, on the 27th of October, 1843,

having then three daughters unmarried, viz., Anne (the plaintiff), Harriet, and Martha, made his will, as follows:

"In the name of God, Amen. I, David Davies, of Ruthin, in the county of Denbigh, shopkeeper, being of sound mind and memory, do make this my last will and testament in manner following, that is to say, I *give, devise, and bequeath all my real and personal [*77 estates, of what nature or kind soever (subject to my just debts, funeral, and testamentary expenses), to my three unmarried daughters, Anne, Harriet, and Martha, share and share alike, as tenants in common, and not as joint-tenants, and to their respective heirs, executors, administrators, and assigns. I nominate, constitute, and appoint my said three daughters, Anne Davies, Harriet Davies, and Martha Davies, executrixes of this my will. I advise my daughters to sell the four large houses and thirteen cottages in Borthyn, as soon as an advantageous sale can be effected: and, should they not wish to continue shopkeeping, I advise them to endeavour to sell the shop goods and stock at a valuation, rather than by auction. I desire to be buried in as plain a manner as possible; not more than six or eight to attend my funeral, besides the bearers. No scarfs to be used. In witness whereof I have hereto set my hand this 27th day of October, 1843.

"Published and declared by the testator to be his last will and testament, in the presence of us, who, in his presence, and in the presence of each other, have subscribed our names as witnesses.

"JOSEPH PEERS. T. P. OVERTON."

"DAVID DAVIES."

He afterwards, on the 23d of August, 1844, made a codicil to his will, as follows:

"A codicil to my last will and testament, made August 23d, 1844. It is my desire, that, in case one of my daughters named in this my last will, named Anne, Harriet, and Martha, should get married, that the two then remaining single shall, at the end of twelve months after my decease, pay to the married sister the sum of 5001. in lieu [*78 of any further claim whatsoever on my property; and the two surviving daughters then single above named, to be sole possessors of all my property named in this my last will and testament, and to their heirs for ever. Witness my hand, the above date.

"Published and declared by the testator to be his last will and testament, in the presence of us, who, in his presence, and in the presence VOL. XV.-10

G

"DAVID DAVIES."

of each other, have subscribed our names as

witnesses.

"JOHN PIERCE.

OWEN JONES."

The testator died on the 16th of September, 1844, without having further altered his will. Upon his death the three daughters took possession of the property, and enjoyed it as tenants-in-common down to the 14th of October, 1845, when Martha married one Thomas Roberts, the two unmarried sisters paying her on the day preceding the marriage the sum of 500l. pursuant to the terms of the codicil, and receiving thenceforth the rents and profits of the estate in moieties. In 1848, Anne Davies married the plaintiff, Lloyd; on which occasion she refused to accept the 5001. under the codicil. On the 7th of July, 1853, Harriet, the testator's remaining daughter, died, unmarried and intestate, leaving the defendant, her eldest brother and heir-at-law, who, claiming to be entitled to a moiety of the real estate of which Harriet died possessed, took possession of the premises which formed the subject of contention in this action.

The plaintiffs by their writ claimed to be entitled to the whole property, upon the ground that Anne and Harriet were not tenants-incommon, but joint-tenants; insisting that the effect of the codicil was, to create a joint interest in the two daughters Anne and Harriet, *upon the marriage of Martha, in which case Anne, as the sur*79] vivor, would be entitled to the whole; and that, assuming that the codicil left the two sisters tenants-in-common, the defendant could only be entitled to a moiety, instead of the two-thirds he claimed, and consequently, unless the codicil was to be considered as altogether inoperative, the plaintiffs were at all events entitled to recover something.

For the defendant, it was insisted,-first, that, in the events which had happened, the codicil was altogether inoperative, inasmuch as it contemplated the marriage of one of the daughters in the lifetime of the testator, or within twelve months after his decease, and consequently that Martha, notwithstanding her marriage, continued to be entitled as tenant-in-common with her sisters,-secondly, that, if the codicil operated at all, it merely affected the interest of the marrying daughter, leaving that of the other two as before; in other words, that the effect of the codicil was, not to alter the quality, but only the quantity of the estate.

A verdict having been found for the plaintiffs, with a reservation of leave to enter a verdict for the defendant, or a nonsuit, on the points made at the trial,—

Beavan, in Easter Term last, obtained a rule nisi accordingly.

Welsby and Morgan Lloyd now showed cause.-It being conceded that the plaintiffs are entitled to one third of the property in question,

--

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and the defendant appearing and defending in respect of two-thirds, the plaintiffs will be entitled to a verdict if they can establish their right to more than the one-third. In no view can the defendant be entitled to more than a third. The argument on the part of the defendant will be, first, that the codicil has no operation, in the events *which have happened, because it contemplated the marriage of one of the three daughters in the testator's lifetime, or within twelve months after his death, secondly, that, if it has any operation at all, it merely operated to affect the interests of the daughter marrying, leaving the interests of the other two as they stood before. Neither of these positions, it is submitted, can be maintained. In the first place, it is manifest that the codicil was intended to operate, although the contemplated marriage did not take place in the lifetime of the testator, or within twelve months after his decease. The will bearing date after the statute 7 W. 4 & 1 Vict. c. 26, no contrary intention appearing upon the face of them, the will and codicil must be taken to speak from the death of the testator, and to have reference to events which were to happen after that time. The expression as to the marriage, in the codicil, is general: the only limitation in point of time refers to the period of payment of the 5007., which in that event is to be made within twelve months,-evidently meaning that the two daughters remaining single shall have the same period for the payment of that money as they would as executrixes have for the payment of any other demand. [JERVIS, C. J.-What is to happen if they do not pay it? The testator does not say that the estate shall vest in the two upon payment of the 5007. MAULE, J.-If your construction of the codicil be correct, the property never could be sold.] In all probability, the testator was providing for an event which he knew was not very distant. Suppose two of the daughters had married in the lifetime of the testator, in that case clearly the codicil could have had no operation at all. [CROWDER, J.-Does not the codicil contemplate that the marriage shall take place during the testator's lifetime, or within twelve months after his death? It is submitted that that is not the true construction. The period of marriage is left altogether at [*81 large. [CROWDER, J.-When is the 500l. to be paid?] On the marriage; or, if it takes place within twelve months after the testator's decease, the sisters who remain single are not to be compelled to pay the money until the expiration of the twelve months. [MAULE, J.-If the codicil is to be construed as pointing at a marriage at any time, it would follow, that, if one of the three sisters should marry fifty years after the death of the father, the other two remaining single, she would have been enjoying her share of the estate as a tenant-in-common with her sisters for all that period, and then receive 5007. I think that shows, that, in order to effectuate the intention of the testator, the 5007. must be taken to be payable in such a time as that it may be in lieu of all but the 5001. The codicil contemplates such a marriage only as