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tion that the said lands shall go and remain in my name and family for ever, or as long as the law will permit such enjoyment of the same.'
The testator having died in 1833, William Hannaford, the first devisee for life, took possession and enjoyed the estate till his death in 1838. His four sons, the testator's nephews, referred to in the will, survived their father. William, the eldest, died in 1844, leaving a son and three daughters. The son, William Field Hannaford, died in 1863, never having had any issue. The second son, George Hannaford, died in 1868, having also had no issue. The third son, Peter Hannaford, died some time since, leaving two sons. Of these the eldest, William Pitts Hannaford, went to sea, being then unmarrie.d, and not having been heard of for eleven years, is presumed to be dead. 118] The other, Henry Hannaford, *is now living. The fourth nephew mentioned in the will, Thomas Pitts Hannaford, died, leaving two sons, the eldest of whom has also since died, leaving a son, Norman Field Hannaford, who, as heir in tail, of course succeeds, as tenant in common, to one-fourth of the subjectmatter of the devise.
The dispute in the present case relates to the shares of the testator's two nephews William and George, as to whom there has been a failure of male issue. The plaintiffs are the daughters of the eldest nephew, William, and claim under the final clause of the devise in favor of the testator's right heirs in default of male issue of the devisees under the will; contending that on failure of issue of either of such devisees the clause in question takes effect in respect of his share. On the other hand, the defendants, Henry Hannaford, and Norman Field Hannaford, who, as has been shown, are the heirs of two of the testator's nephews mentioned in the will, contend that the effect of the limitations of the will is to create by implication crossremainders between the devisees and their respective heirs, and that consequently, they are entitled, as tenants in common, to the shares of the two nephews whose male issue have failed.
At the close of the argument on the case, we were strongly disposed to think that the contention of the defendants was right; but the parties having agreed, on account of the smallness of the property in dispute, to abide by our decision as final, we thought it right to take time for further consideration of
the language of the will, and to enable us to look into the authorities bearing on the subject. The result is that our first impression is confirmed, and that we are now satisfied that our judgment should be for the defendants.
The will in question, however complicated and clumsy may be its language, amounts to no more than a devise, after the determination of the life estates, to the issue of the nephews, in tail male, as tenants in common, with a remainder in default of issue to the right heirs of the testator. Now, the law appears to be at the present day perfectly well settled, that, upon such a will, the clause in favor of the heirs general does not take effect so long as any issue of any of the devisees, capable of taking as tenants in tail, survive, and that under such a will cross-remainders must be implied in favor of surviving tenants in common.
After a review of all the cases on the subject, Mr. Jar- (119 man (2 Jarman on Wills, 526) draws from them the following conclusions:- First, “that under a devise to several persons in tail, being tenants in common, with a limitation over for want or in default of such issue, cross-remainders are to be implied among the devisees in tail;” secondly, “ that this rule applies whether the devise be to two persons or a larger number, and though it be made to them “respectively."
In the case of Taaffe v. Conmee (), Lord Westbury says: “I arrive at the conclusion that the words for default of such issue male,' in conformity with their own natural meaning, and also in conformity with the rule that must now be considered to be at length finally arrived at, must mean plainly “for default, of all such issue male' as would take under the antecedent limitation."
In the same case Lord Cranworth says: “I take it that the doctrine is now well established, that whether cross-remainders are to be implied or not is a mere question of construction upon the whole face of the will, and wherever there are limitations in tail, or in tail male, and in default of such issue a gift over, then I take it that the presumption is that that means in default of the issue of all of them.”
Such being the presumption applicable to such a limitation, we not only find nothing in the present will by which such a
(1) 10 II. L. C., 81.
presumption can be rebutted or controlled, but we see in the express declaration of the testator that his intention is that the lands in question “shall go and remain in his name and family for ever, or as long as the law will permit,” the strongest confirmation of the presumption of law; it being plain that if the absolute property in any part of the land passed to the plaintiffs as heirs, the intention thus declared would be liable to be defeated either by their marrying, or by their alienating the land, or disposing of it by will to some one not of the testator's name and family.
We are, therefore, of opinion that the contention of the defendants is right, and that our judgment must be in their favor.
Judgment for the defendants. Attorney for plaintiffs : Philbrick. Attorneys for defendants : Church, Sons, g Clarke.
Nov. 22, 1871. 120]
FELL V. WHITTAKER.
Law Reports, 7 Queen's Bench, 120. Landlord and Tenant- Excessive Distress, Right of Action for — Special Property
in Goods distrained.
The plaintiff was tenant and the defendant landlord of a house occupied by the former, his wife, and a trustee. Goods therein had been assigned to the trustee on trust for the plaintiff's wife. Rent being in arrear to the amount of 91. only, the defendant, by his bailiff, distrained for 181. and costs, seizing 1001. worth of the goods. The rent actually due was tendered to the bailiff, with expenses, but refused, and he remained in possession until an undertaking was given on behalf of the plaintiff for payment of the whole demand, and a part amounting to 21. 78. was paid, whereupon the distress was withdrawn.
The plaintiff having brought an action for an excessive distress, and on the money counts, was nonsuited when the deed of assignment was produced at the trial :
Held, that, although he was neither the legal nor the equitable owner of the goods distrained, yet he had, from his mere enjoyment of the use of them, a special property which entitled him to maintain the action.
DECLARATION that the plaintiff was tenant to the defendant of a messuage at a certain rent payable by the plaintiff to the
defendant, and the defendant wrongfully distrained for certain arrears of the said rent the goods of the plaintiff of much greater value than the amount of the said arrears, and of the charges of the said distress, and of the appraisement and sale thereof, although part of the said goods was of sufficient value to have satisfied the said arrears and charges, and might then have been distrained by the defendant for the same, and the defendant thereby made an excessive and unreasonable distress for the said arrears, contrary to the statute, &c.
Pleas: 1. To the first count, not guilty, by statute 11 Geo. 2, 19, s. 21. 2. To the money counts, never indebted. Issue thereon.
This action was brought in the Salford Hundred Court of Record at Manchester. On the trial the plaintiff gave the following evidence:-“I pay rent to John Henry Whittaker.” [He produced receipts for certain amounts.] “I was out of town. Upon my return I found a distress in my house. The man in possession had this warrant." [Put in evidence.] “ Distress for 181. *and costs. A quantity of goods had [121 been seized. The value of the goods 100l. about. I sent for Mr. Evans” (plaintiff's attorney], " and he made an arrangement with the bailiff; Mr. Evans offered for me to pay a sum of money, viz., 9l., the rent due and expenses. The bailiff refused to take it. Mr. Evans undertook to bring the necessary, on the following day. Mr. Evans gave a personal undertaking to pay the amount. 21. 78. was paid as part of the money. Great annoyance to us.” [Cross-examined.] “I have been distrained upon before by request. There was an execution out against me at this time. I have been bankrupt. This is my deed.” [Put in evidence.] “An assignment of all property in the house. One of my trustees lives in the house."
The learned judge then nonsuited the plaintiff, reserving leave to move for a new trial.
A rule was obtained to set aside the nonsuit, and for a new trial, on the ground that there was evidence to go to the jury that the property in the first count of the declaration was the property of the plaintiff; secondly, that the plaintiff was entitled to recover on the other count of the declaration.
Herschell showed cause (1). The first count of the declaration alleges an excessive distress “ of the goods of the plaintiff.” But he was neither the legal nor equitable owner (2), nor was he even a bailee of the goods. This action could only be maintained by the owner of the goods. If the plaintiff had any special interest in them that was affected, he should have stated what his interest was. Distraining for more rent than is due gives no right of action : Tancred v. Leyland (3).
[Lush, J. There the goods were sold; here they were kept until money was paid.]
In French v. Phillips () a count alleged a tenancy, and that the defendant wrongfully seized and sold goods of the plaintiff to the value of 301., as distress for 13. claimed as arrears of rent, whereas, in fact, 9. only was due. The plaintiff obtained 122] a verdict, *but the Court of Exchequer Chamber held that the count disclosed no cause of action.
[Lush, J. . It did not appear that the goods, when sold, realized more than the true amount in arrear; so there was no wrong.]
In Glynn v. Thomas (R) there was a seizure, but no sale, the defendant having remained in possession until his excessive claim was satisfied, and it was held in the Exchequer Chamber that a count alleging a wrongful distress whereby the plaintiff was compelled to pay a larger sum than was due for rent, disclosed no cause of action, because, as the distress was lawful, the defendant was entitled to tender of the amount really due, and upon his refusal to accept that sum the plaintiff's course was to replevy the goods. The present plaintiff suffered no legal damage from the seizure of the goods. He would enjoy the use of the furniture as well as before. Nor was he injured by the fact of more goods being distrained than were needed to satisfy the demand, for they were the goods of others. The trustees might have paid the rent, and have afterwards recovered the amount from the plaintiff.
[HANNEN, J. Exall v. Partridge (2) is an authority for saying that he was under a legal obligation to pay his rent, and that if
(') In the Bail Court before Lush and (3) 16 Q. B. 669 ; 20 L. J. (Q. B.), 316. Hannen, JJ.
(0) 1 H. & N. 564; 26 L. J. (Ex.), 82. (*) It was admitted and taken as a O) 11 Ex., 870 25 L. J. Ex., 125. fact that the trusts of the assignment (0) 8 T. R., 308. were for the plaintiff's wife.