ments of Holroyd and Littledale, JJ. ('); and the reasoning of all the judgments is quite as applicable where the defendant takes from the plaintiff through mesne assignments as where he takes directly.]

The reasoning would also apply to the case of an under-lessee. [BLACKBURN, J. No; because the under-lessee has never come under any obligation to the lessor; but here the defendant, by taking the same estate which the plaintiff had, has become liable to the same obligation.]

It was for the plaintiff to protect himself by taking proper covenants from his assignee; and he has in fact taken such covenants from Bartley.

[BLACKBURN, J. That is a very imperfect remedy; the immediate assignee may become bankrupt.]

If the plaintiff's contention is well founded an ultimate assignee might become liable, who had expressly entered into limited covenants with his assignor.

[BLACKBURN, J. Why not? How can he alter his obligation to the lessee by his contract with another person? He cannot protect himself from liability to the lessor; why should he any the more be able to protect himself from liability to the lessee?]

To maintain the plaintiff's claim it must be shown that he is surety for the defendants; that is the ground on which it is put in the dictum in Wolveridge v. Steward. (2) But his position is not that of surety, for he is the person originally liable to the lessor.

*[WILLES, J. Nevertheless he comes within the general [103 principle, that where two persons are under an obligation to the same performance, though by different instruments, if both share the benefit which forms the consideration they must divide the burden; if one only gets the benefit he must bear the whole: Dering v. Earl of Winchilsea. (3)

BLACKBURN, J. Humble v. Langston (1) was later than. Wolveridge v. Steward (6), and it therefore adds weight to the dictum in the latter case, especially as Parke, B., who delivered the judgment in Humble v. Langston (1) was a member of the Court which decided Wolveridge v. Steward. (9]

() 5 B. & C., at pp. 606, 608. () 1 C. & M., at p. 659.

() 2 B. & P., 270.
(1) 7 M. & W., 517.

(5) 1 C. & M., 644.

Cole, Q.C. (Merewether with him), for the plaintiff, cited Penley v. Watts (') and Neale v. Wyllie. () [He was stopped.]

COCKBURN, C.J. I am of opinion that the judgment of the Court of Exchequer is right, and that it must be affirmed. The defendants are the ultimate assignees of a lease, and the plaintiff, who is suing them for indemnity against the consequence of a breach of a covenant contained in that lease, is the original lessee. There is no doubt that the breach of covenant is one in respect of which the defendants, as such assignees, are liable to the lessor, and that they have acquired by virtue of mesne assignments the same estate which the plaintiff originally took. And I think that taking this estate from the assignee of the plaintiff, their own immediate assignor, they must be taken to have acquired it, subject to the discharge of all the liabilities which the possession of that estate imposed on them under the terms of the original lease, not merely as regards the immediate assignor, but as regards the original lessee.

Another ground on which the judgment below may be upheld, and, as I think, a preferable one, is that, the premises which are the subject of the lease being in the possession of the defendants as ultimate assignees, they were the parties whose duty it was to perform the covenants which were to be performed upon and in respect of those premises. It was their 104] immediate duty to keep *in repair, and by their default the lessee, though he had parted with the estate, became liable to make good to the lessor the conditions of the lease. The damage therefore arises through their default, and the general proposition applicable to such a case as the present is, that where one person is compelled to pay damages by the legal default of another, he is entitled to recover from the person by whose default the damage was occasioned the sum so paid. This doctrine, as applicable to cases like the present, is well stated by Mr. Leake in his work on Contracts, p. 41: "Where the plaintiff has been compelled by law to pay, or, being compellable by law, has paid money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability; under such circumstances the defendant is held indebted to the plaintiff in the amount." (1) 7 M. & W., 601, 608. (*) 3 B. & C., 533.

Whether the liability is put on the ground of an implied contract, or of an obligation imposed by law, is a matter of indifference: it is such a duty as the law will enforce. The lessee has been compelled to make good an omission to repair, which has arisen entirely from the default of the defendants, and the defendants are therefore liable to reimburse him.

WILLES, J. I am of the same opinion, on the ground that where a party is liable at law by immediate privity of contract which contract also confers a benefit, and the obligation of the contract is common to him and to the defendant, but the whole benefit of the contract is taken by the defendant; the former is entitled to be indemnified by the latter in respect of the performance of the obligation.

BLACKBURN, J. I am of the same opinion, for the reasons given by my Brother Channell in the court below.

MELLOR, BRETT, and GROVE, JJ., concurred.

Judgment affirmed.

Attorneys for plaintiff: Robinson & Preston.
Attorney for defendant: H. D. Roberts.

An assignee is not liable without assignment. Townsend v. Scholey, 42 express covenant for a breach before the N. Y., 18.

February 4, 5, 1872.

*[IN THE EXCHEQUER CHAMBER.]

Law Reports, 7 Exchequer, 105.

PICKWELL V. SPENCER and Others.

Will before 1838-Fee given without Words of Limitation.

[105

By a will, dated before 1838, the testator gave lands to his wife without words of limitation. He also made her executrix and general legatee. And (1) he provided that if his wife should marry again, an inventory should be taken of all the land, goods, &c., before mentioned by certain persons, whom he appointed

guardians of his children, with power to take away the goods, &c., and to “reserve" them and the land for the benefit of his children, until the two youngest should have arrived at an age capable of providing for themselves, and then to sell the whole, and divide the proceeds equally amongst his surviving children; (2) he directed that "my executrix shall pay my eldest son W. P. the sum of 51. a year for wages so long as he shall continue to labor on the farm after my de

Held, affirming the judgment of the Court below, that the widow took the fee. By Cockburn, C.J., Willes, and Grove, JJ., on the ground that clause 1 disclosed an intention that she should take the fee, subject to the limitation over on her marrying again.

By Blackburn, J., on the ground that the direction to pay 57. a year to W. P. in clause 2 enlarged the estate to a fee.

By Mellor and Brett, JJ., on both grounds.

ERROR brought by the plaintiff upon the judgment of the Court of Exchequer in favor of the defendants, on a special case stated in an action of ejectment.

The plaintiff claimed copyhold land as customary heir to Matthew Pickwell, who, by his will dated the 26th of March, 1821, devised as follows:-"I give and bequeath to my beloved wife, Mary Pickwell, all those my copyhold closes, which I have surrendered to the use of my will, situate, &c. I also give and bequeath to my said wife, Mary Pickwell, all the land which may fall to the said closes by the inclosure of the High Moor. Also I give and bequeath to my said wife, Mary Pickwell, all my money, goods, chattels, and effects, of what nature or kind soever and wheresoever the same shall be at the time of my decease. And I do nominate, &c., my said wife executrix of this my last will." The testator then directed that "if my said wife, Mary Pickwell, marry again," an inventory should be taken of all the land, goods, &c., before mentioned by certain persons, whom he appointed guardians of his children, with power to 106] take away the goods, chattels, and *effects, and to "reserve" them and the land for the benefit of his children, until the two youngest should have arrived at an age capable of providing for themselves, and then to sell the whole and divide the proceeds "equally amongst my surviving children. It is also my will that my executrix shall pay my eldest son, William Pickwell, the sum of 51. a year for wages as long as he shall continue to labor on the farm after my decease."

The testator died shortly after making his will. In 1832 Mary Pickwell sold the lands in question to Richard Snow, who

died in 1857, having devised them to trustees for his wife during her life, and after her death to the defendants, as tenants in

common.

Richard Snow's widow died, and the defendants were admitted in 1865.

Mary Pickwell died in 1870, without having married again. The question for the opinion of the Court was, whether Mary Pickwell took any larger estate in the land than a life estate.

The Court below gave judgment for the defendants ('), and the plaintiff brought error.

Field, Q.C. (J. J. Aston with him), for the plaintiff. It cannot have been the intention of the testator to put it in the power of his wife to alienate this property, which he has expressly limited over in the event of her marriage.

[BLACKBURN, J. The title of the purchaser would be a defeasible title.]

The evidence of intention to benefit his children by the devise is so strong that it cannot be supposed the testator should be willing that in any case the land should be alienated from them.

[COCKBURN, C.J. But by your construction the testator will not benefit his children in the event which has happened, but will only benefit his heir.

GROVE, J. In effect the testator disinherits his heir if his wife marries, but not if she dies.]

It is not necessary for the plaintiff to show an intention not to confer an estate in fee on the widow; on the contrary, it is for those claiming under her to show an intention to disinherit the heir. Two grounds are relied on in favor of the defendants. *First, it is contended that the limitation over in the event [107 of marriage implies a gift of the fee in the alternative event. But this is an inference only made where the one alternative is that of death under twenty-one; and the rule is not extended to any other cases: 2 Jarman on Wills, 3d ed., p. 251. [Field also argued, on the authority of Browne v. Hammond (2), that a limitation over of the fee to "the trustees for the benefit of all the children," was to be implied upon the death of the widow unmarried; but the Court pointed out that the case had no application, for that there the first limitation was expressly of (1) Law Rep. 6 Ex., 190. (2) Johns., 210.