Page images
PDF
EPUB

after the estates to the daughters, are barred by the recovery, the remainder to the heirs of the testator are also barred. And though, where words are ambiguous, they may be explained by the context; here they are unambiguous. Suppose the intention had been to revive the uses of the will, could words more explicit have been used? The effect of a common recovery is to raise a new estate; but to many purposes the old uses remain. In Abbott v. Burton (a), where H., being seised of lands ex parte materna, by a deed to declare the uses of a recovery limited several estates, with remainder to the use of his right heirs, it was holden, that the heir ex parte materna should have it, being the ancient use. And that is the effect of this act of parliament. It states that the limitations are barred; but the uses are not determined. Perhaps this was a mistake; but that will not alter the effect of the words in the deed of the 26th and 27th of March. If the words are unambiguous, the parties have not used language to carry their intention into effect. The uses to the daughters are not determined, though the limitations to them have been barred.

Coleridge in reply. As to the construction of deeds, the primary rule is, to look at the intention of the parties; though with more strictness as to technical words than in the case of a will. Here, the uses to the daughters mean the estates to the daughters. The act recites that these estates are barred; if so, they are non-existing, determined, incapable of taking effect; and there is no authority for saying that uses and estates destroyed are still existing. And the recovery destroyed only the estates tail, upon the common principle of voucher and recompence; the ultimate remainder in fee is untouched,

[blocks in formation]

1832.

WORTHAM

ข.

MACKINNON.

1832.

WORTHAM

บ.

MACKINNON.

as appears by the case cited from Salkeld. The old estate reverted to E. Biscoe.

The following certificate was afterwards sent:

We have heard this case argued by counsel, and have considered it; and we are of opinion that the Plaintiffs, James Wortham and Thomas Bramall, took an estate in fee simple in the lands, hereditaments, and premises conveyed and assured by the indentures of the 26th and 27th of March 1817.

N. C. TINDAL.

J. A. PARK.

S. GASELEE.

E. H. ALDERSON.

AN

INDEX

TO THE

PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

ABATEMENT.
See PLEADING, 3. 6.

ACTION ON THE CASE.
Plaintiffs being about to furnish De-
fendant's son with goods on cre-
dit, enquired of the Defendant, by
letter, whether his son had, as he
asserted, 300l. of his own pro-
perty: Defendant answered that
he had; the fact being that De-
fendant had lent his son 300l. on
his promissory note, payable with
interest, on demand, and had re-
ceived interest on the note.

The son having afterwards be-
come insolvent: Held, that this
was a misrepresentation, for which
the Defendant was liable in da-
mages to the Plaintiffs, and a jury
having found for Defendant, the
Court granted a new trial. Cor-
bett and Another v. Brown.
Page 33

ADULTERY.

1. Adultery of the wife after sepa-
ration, no plea to a covenant to
pay a trustee a separate mainte-
nance for the wife.

2. A declaration alleging, that
by indenture purporting to be
made between Plaintiff and De-
fendant, it was witnessed that De-
fendant covenanted, Held, after
plea, sufficiently certain. Baynon
v. Batley.
Page 256

ADVOWSON.
See PRESENTATION.

AFFIDAVIT.
See PRACTICE, 13.

AGENT.
See AWARD, 2. EVIDENCE, 12.

AGREEMENT.

1. Defendants engaged Plaintiff to
write a treatise for a periodical
pub-

publication. Plaintiff commenced the treatise, but before he had completed it, the Defendants abandoned the periodical publication: Held, that Plaintiff might sue for compensation, without tendering or delivering the treatise. Planchè v. Colburn and Another.

Page 14 2. By agreement, T., an agent, was to have a commission on all sales effected, or orders executed by him; the principal to be responsible for bad debts, and the agent to draw his commission monthly. By the custom of the trade, commission was not allowed on sales which produced bad debts: Held, notwithstanding, that under the terms of this agreement T. was entitled to commission on bad debts. Bower v. Jones.

AMENDMENT.

See RECOVERY, 1.

65

1. In an action against Defendant for not obeying a subpoena, the declaration stated that the Plaintiff caused to be left with Defendant a copy of the writ of subpoena : Held, that a Judge at Nisi Prius had authority under 9 G. 4. c. 15. to allow this allegation to be amended as follows: :- a copy of so much of the said writ of subpœna as related to the said Defendant."

2. In such an action as the above, it is prima facie sufficient to allege that the Defendant was a material witness, and that his ab

sence caused the Plaintiff to be nonsuited, without averring that Plaintiff had originally a good cause of action. At all events, such allegation is sufficient after verdict. Masterman and Others v. Judson. Page 224

ANNUITY.

An annuity deed, of which there was no counterpart, was placed in the hands of R., as agent for grantor and grantee. R. received the annuity for grantee. The grantor redeemed the annuity by paying the amount of the purchase money to R., who, without express authority from the grantee, delivered the deed to grantor to be cancelled. R. having absconded without paying the grantee, and the grantee having sued grantor for arrears, Held, that he was entitled to call for an inspection of the deed. Devenoge v. Bouverie.

APPEARANCE. See PRACTICE, 12.

ARBITRATION.

[ocr errors]
[blocks in formation]
[blocks in formation]

BAIL.

See PRACTICE, 14.

BAILIFF OF LIBERTY. See PRACTICE, 1.

BANKRUPT.

See PARTNER.

1. Plaintiff having proved under a commission of bankrupt in 1816, Held, estopped to sue for the same debt after the passing of 6 G. 4. c. 16., though that statute repeals 49 G. 3. c. 121., which makes proof of a debt an election not to sue. Adames v. Bridger. Page 314 2. Defendants took goods under a second commission of bankrupt, while a former commission was subsisting Held, they could not retain them, even against a colourable title, the second commission being void. Nelson v. Cher

rill and Another.

316

3. A trader, having been denied to

a creditor who called for money, was, after a little time, seen peeping over his wife's shoulder. Upon another occasion, seeing a creditor coming, he retired behind a partition at the back of his shop, and his wife coming forward, said he was not at home:

Held, that a jury were properly directed to consider whether the trader" had kept his house: had wilfully secluded himself; that is, had withdrawn himself from a part of the house where he was likely

to

« PreviousContinue »