1831. MILLER V. GREEN. under the lease of the 7th of May; and, consequently, that the estate remained in the lessor, and that the grant of the annuity, and the power of distress to Hodgson by the indenture of the 25th of September, was a grant capable of taking effect. But it is contended by the Plaintiff below, that if the grant of the 7th of May cannot take effect as a lease at common law, at all events it is good to pass the estate to Fletcher as a bargain and sale under the operation of the statute of uses. It is undoubtedly true, that where a deed may enure to divers purposes, he to whom the deed is made shall have election which way to take it, and may take it in that way as shall be most for his advantage (Sheph. Touchst. 83.); and therefore if a man for money demises, grants, bargains, and sells to J. S. his land for years, J. S. has election to take it, either by demise at the common law, or by bargain and sale, Heyward's case (a): so that Fletcher in this case, or any person claiming under Fletcher, and in privity with him, might at any time elect to claim under the deed which way they would. But the Plaintiff below who pleads this grant is, so far as appears upon the record, a stranger to it; and therefore the Plaintiff below is not competent to elect for Fletcher, whether the grant to him shall operate the one way or the other; nor indeed does the Plaintiff shew that any election has been made by any one that the deed shall be held to operate under the statute. It is not even stated, as was before observed, that Fletcher ever executed the deed, so as to assent to take any estate under it for any thing that appears to the contrary, he is as much a stranger to it as Green the Plaintiff below. Under these circumstances, we consider the Court cannot be called upon to exercise an election for (a) 2 Rep. 35 b. the the grantee, at the request of a stranger, for the purpose of defeating a subsequent grant of an annuity for a valuable consideration. The grant, therefore, must be left to such operation as it will have as a lease at common law, which, we have already seen, will not be sufficient to create an estate in the lessee for want of an entry; and we therefore think the term of years set up under that grant forms no answer to the cognizance under the subsequent annuity deed. Although, however, the Defendant below had the right to distrain for the arrears of his rent-charge, yet, upon the due consideration of the power of distress contained in the deed, we think it did not extend to the growing and standing crops which have been taken under it. At common law it is well known the distresses taken for rent arrear were not saleable, but could only be kept as a pledge for the rent. But by the stat. 2 W. & M. goods and chattels distrained for rent due under a contract may be kept and sold in the manner pointed out by that statute. It was not until the 11 G. 2. c. 19. that landlords had power to distrain corn, grain, or other produce growing on the land demised. The grantee of the rent-charge is empowered by the deed to detain, manage, sell, and dispose of the distresses in the same manner in all respects as distresses for rents reserved upon leases for years, and as if the said annuity was a rent reserved upon a lease for years; and we think these words are fully satisfied by holding them to grant the powers which were given to landlords under the stat. W. & M., without extending them to the new subject of distress first granted by the statute of Geo. 2. A power like the present ought at all times to be construed strictly, and more especially when it is sought to bring within it the growing crops of a person who is a stranger to the deed. Upon 1831. MILLER V. GREEN. 1831. MILLER ย. GREEN. Upon the whole, therefore, we think that the present judgment should be several, and that judgment should be entered for the person making cognizance for a return of the cattle, goods, and chattels which were taken in distress, and for that part of the distress only; with a judgment for the Plaintiff for damages for taking and detaining the standing crops. Judgment reversed. Nov. 25. Defendant ex- ASSUMPSIT ecuted, 28th of of assurance to, touch, and stay at, any places whatso ever, to load, unload, reload, and for all ne cessary purposes whatever. The ship sailed from London MOUNT V. LARKINS. SSUMPSIT on a policy of insurance on ship Aquila, at and from Sincapore and Batavia, both either, to the ship's port of discharge in Europe, with liberty to sail to, touch, and stay at any ports and places whatsoever and wheresoever, particularly at the Cape of Good Hope, St. Helena, or elsewhere, to load, unload, and reload goods and passengers or otherwise, and for all or any other necessary purposes whatsoever. The policy was declared to be on freight, and valued, and a loss was averred by perils of the sea on the voyage from Sincapore to London. By a special verdict it was found that the policy of insurance was made and entered into between the Plaintiff and the Defendant, on the 28th of February 1824; that the ship sailed from England in the beginning of September 1823, having on board thereof divers passengers and goods, bound for and deliverable the captain for at the Cape of Good Hope, Van Dieman's Land, and in September 1823, and having been detained by his own pur poses at Van Dieman's Land, did not arrive at Sincapore till the 30th of March 1825; she sailed thence on the voyage insured the 3d of May 1825: Held, that by so long a postponement of the risk the Defendant was discharged, a jury having found the delay unreasonable. Sydney, Sydney, New Holland, and was under the command of Joseph Thomas Watson, the master thereof; that by charterparty, dated the 26th of May 1823, the ship, after discharging her cargo at New Holland, was to proceed to Sincapore, and from thence to Malacca and Penang, both or either, or to Batavia only, to take on board a cargo for Europe, on account of the freighters; and that before the ship sailed from England as aforesaid, the Plaintiff caused instructions to be delivered to the said J. T. Watson, the master of the said ship, of which the following was a copy: "You having the command of the ship Aquila, bound on a voyage to the Cape of Good Hope, Van Dieman's Land, and New South Wales, and from thence to Sincapore and other ports of lading as per charterparty, and having shipped twenty-four hogsheads of stout and a quantity of deals, consigned to yourself for sale on my account, copy of invoice at back of this, -you will please dispose of them to the best account, taking care not to leave them behind you unsold. As you have a small quantity of goods to deliver at the Cape, should you be able to procure any goods and passengers from that place to New Holland, &c., to the amount of not less than from 300l. to 400l., and at the same time to be able to dispose of my investment at about the invoice price, by detaining the ship not more than ten days, you will use your own discretion, but think it will answer your purpose so to do. On your arrival at Van Dieman's Land, as you will have a very considerable sum of money to receive as freight and passage money, beg your particular attention to the same. You will please to caulk the half deck and between decks as soon as convenient, fearing any leak might damage the cargo stowed below; and think the less water there is used for washing below the better, fearing the consequences above stated. After 1831. MOUNT บ. LARKINS. 1831. MOUNT V. LARKINS. will proceed After leaving Van Dieman's Land you to New Holland, making every exertion in your power at that port to enable you to proceed to Sincapore, at which port hope and trust you will be fully loaded; and on your arrival at said port or ports you will give the earliest information to commence your lay days; and let me beg of you to make all the interest you can with the merchants for heavy goods, to extend from 200 to 300 tons, your ship requiring a large proportion, and will prove a great advantage in point of freight; and as you are not likely to get many passengers home, and should suppose you will have a large proportion of light goods, you will make the best you can with your accommodation, and, if necessary, take down the aft bulk heads, but the after cabin would advise you not to disturb; proportion of cabin freight you will of course be entitled to. Shall be happy to hear from you at every convenient opportunity, at sea or in port. Richard Mount." The ship arrived at the Cape of Good Hope on the 3d of December 1823, and sailed the 24th of the same month. On the second day after the ship anchored at the Cape of Good Hope, part of her cargo belonging to the said J. T. Watson was discharged. At the time of making the said policy of insurance the ship was at Hobart Town, Van Dieman's Land, having arrived there on the 4th of February 1824. Part of the outward cargo of the ship and three of the passengers were landed at Hobart Town, and some delay was occasioned at Hobart Town by the difficulty in getting at different parts of the cargo. The ship sailed from Hobart Town on the 27th of March 1824, arrived at George Town, Port Dalrym ple, in Van Dieman's Land, on the 6th day of April |