1833. DOE dem. PILKINGTON against SPRATT. class of cases; there is no inconsistency in adopting the general rule; there is nothing to shew that the testator did not mean, by the words "heir male at law," what the law would, strictly speaking, intend, heir male at law at the time of his death. The words are not necessarily confined to any particular time, nor does the case furnish any certain inference that they were so limited. They merely raise a conjecture that this testator, as other ignorant persons usually do, looked to the period of the actual possession, and not the vesting of the estate in remainder, and had in his contemplation the person who would be his heir at law at that time. In the cases relied on for the defendant, an intent contrary to the general rule was shewn. Thus in Doe v. Frost (a), where the devise was to W. F. (the testator's eldest son and heir at law) and his heirs for ever; and if he should have no children, child, or issue, the said estate, on the death of W. F., to become the property of the heir at law, subject to such legacies as W. F. might leave by will to any of the younger branches; it was held that the executory devise over vested in the person who would be heir at law at the death of W. F. without issue living at his death; for it is clear that W. F. himself could not be meant as the heir at law, as then the devise over would be nugatory, and the power of leaving legacies unnecessary. Again, in Phillips v. Deakin (b), where the devise was to the testator's daughter for life, remainder to her first and other sons in tail male, with remainder over to his niece, her sons and daughters severally and successively in tail, and for default of such issue, to such of the uses, (a) 3 B. & 4. 546 (b) 1 M. & S. 744. and and subject to such limitations declared by the will of Thomas Vernon, as shall be then existing, or capable of taking effect, or as near thereto as the deaths of parties will then admit, it was held that T. S. Vernon, who would have been tenant in tail in possession under the will of Thomas Vernon, took no vested estate under the will in question, for the use of the word then clearly shewed that until failure of issue of the niece, the person to take should not be determined. In Marsh v. Marsh (a), where there was a bequest of the interest of stock to the testator's son for life, and from and after his decease to his eldest son and his heirs, and in case of their death without issue, to the testator's nearest relation, Lord Loughborough held (as appears by Mr. Belt's note) that the nearest relation, when the event happened, must have been intended, because it was impossible to suppose he meant his son to whom he had given the previous estate. The last case mentioned was Lord Cholmondely v. Clinton (b), in which the intention to be collected from the recital and other parts of the deed itself was clear, that the limitation to the right heirs of Samuel Rolle was not intended to vest in the settlor himself. The verdict therefore which has been entered for the plaintiff must stand. (a) 1 Bro. Ch. Ca. 293. Judgment for the plaintiff. (b) 2 Meriv. 171. 2 B. & A. 625. 2 Jacob & W. 113. 1833. Dox dem. PILKINGTON against SPRATT. 1833. Tuesday, Vendor covenanted under seal to vendee, that he would on or before the 30th of November then next, deduce a RIPPINGHALL, Clerk, against LLOYD. COVENANT. Declaration stated that on the 23d day of October 1827, by articles of agreement under seal, the defendant agreed with the plaintiff to sell him the fee-simple and inheritance in possession of certain freehold and leasehold property for 21,0207.; and that defendant would on or before the 30th day of October then instant, at his own expense, make and deliver to good title to the premises sold; and would on or before the 8th of January execute a proper conveyance for conveying the fee-simple; and it was stipulated that the conveyance should be prepared by and at the expense of the vendee; and further, that if the vendor should not verify the title to the vendee or his agent, by production of deeds, &c. at Norwich, Lynn, or London, before the 30th of November, the agreement should be void. In an action of covenant by the vendee, two breaches were assigned: first, that the vendor did not on or before the 30th of November, deduce a good title; secondly, that the defendant did not on or before the 8th of January execute a proper conveyance. Plea first, that the vendor did before the 30th of November produce and shew divers deeds, in part deducing a good title, and that until and upon that day he was ready and willing to produce and shew to the vendee other deeds, completing such title, and would on or before that day have produced such deeds to the vendee or his agent attending, whereof the vendee had notice, but that he would not by himself or agent attend: Held, on special demurrer, that the plea was bad, inasmuch as the vendor's covenant was general, and therefore the facts stated were no excuse: And that if the covenant could be read as qualified by the subsequent stipulation as to place, the plea ought to have averred notice to the vendee, at which of the three places the vendor would be ready to produce his deeds. Plea, secondly, to the first breach, that by a subsequent agreement made before any breach committed, the time for deducing title had been enlarged; and that the vendor was ready to deduce title within such enlarged time. Thirdly, the defendant pleaded a similar agreement after breach, and that plaintiff accepted such agreement as a substitution for the former, and as a satisfaction of the damages resulting from the breach; and that defendant was ready to fulfil such agreement, but plaintiff refused, &c. : Held, on special demurrer, that the second plea was bad, in not stating the new agreement to have been under seal. Leave given to amend the third plea by stating the new agreement to have been in writing; but, quære, if it were so, whether the facts amounted to a good accord and satisfaction. Plea to the second breach of covenant, that the vendor until and on the 8th of January, was ready and willing to execute proper conveyances, and would have executed the same if the plaintiff would have prepared and tendered them, but that he did not do so. Replication, that the vendor did not deduce a good title, wherefore the vendee did not prepare the conveyances. Rejoinder, that although the vendor within a reasonable time before the 8th of January, was ready and willing, and offered to deduce a good title, so that the vendee might before the 8th of January have prepared and tendered conveyances, whereof the vendee had notice, yet the vendee refused to have such title deduced, and discharged the defendant from deducing such title. Surrejoinder, that the vendor was not ready and willing to deduce, &c. On general demurrer, Held, that, upon this breach the matter pleaded by the vendee was no answer to the pleas of the vendor, and that the latter was entitled to judgment. the the plaintiff, or his agent, an abstract of his, defendant's, title to the premises; and would, on or before the 30th November then next, deduce and shew forth a good and clear title thereto, and to every part thereof (except a certain right of free warren) to the plaintiff, and also that defendant would on or before the 8th day of January then next, on receiving the 21,0201. from the plaintiff, execute the proper conveyance for conveying and assuring the fee simple and inheritance of and in the said freehold premises to the plaintiff, his heirs and assigns for ever, and also for conveying, assigning, and assuring, all the interest in the leasehold premises to the plaintiff; and it was further agreed, that the said conveyances should be prepared by and at the expense of the plaintiff. Averment that the plaintiff was always ready and willing to have accepted a proper conveyance at his own expense, on having a good and clear title deduced and shewn; and also, on having such title as aforesaid, and having such conveyance made, to have paid the defendant 21,020., whereof the defendant had notice, and was requested by the plaintiff to shew forth, deduce, and make such good title, and to execute such conveyance. Breach, first, that the defendant did not nor would, on or before, &c. or at any time, &c. deduce or shew forth, or make a good and clear title to the said premises. Secondly, that the defendant did not nor would, on or before the said 8th day of January, or at any time, &c. execute a proper conveyance as aforesaid. The agreement was set out on oyer, containing the covenants stated in the declaration, (viz. to deliver an abstract on or before October 30th, to deduce a good title on or before November 30th, and to execute a conveyance on receiving the 21,0207.); to which was added 1833. RIPPINGHALL against LLOYD. 1833. RIPPINGHALL against LLOYD. added a further agreement, that the conveyance should be prepared by or at the expense of the said S. F. Rippinghall; and further, that if the said J. Lloyd shall not deliver a full abstract of his title to the said several hereditaments and premises to the said S. F. Rippinghall or his agent before the said 30th day of October instant, and shall not verify the same by the production of all the deeds, evidences, and writings in support thereof, to the said S. F. Rippinghall, or his agent at Norwich, Lynn, or in London, before the said 30th day of November instant, and shall not deduce and shew forth a good and marketable title to the said several hereditaments and premises herein-before mentioned, on or before the said 30th day of November next, and shall not, on or before the 8th day of January next, by himself and all other proper and necessary parties, have executed the said conveyances at Norwich, at Lynn, or in London, and have delivered the same to the said S. F. Rippinghall on receipt of the said purchase-money, then and in any or either of the said cases, and immediately after the said 30th day of October, or the said 30th day of November, or the said 8th day of January, as the case may be, this present agreement shall be utterly void to all intents and purposes whatsoever, and the jurisdiction of equity wholly barred. The defendant after pleading three pleas, which it is unnecessary to notice, pleaded, fourthly, to the first breach of covenant, that he did before the said 30th of November, to wit on, &c., by his agents, (an abstract of the title of the defendant to the said premises having been theretofore delivered by the defendant to the plaintiff), produce and shew forth unto agents of the plaintiff |