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after the estates to the daughters, are barred by the 1832. recovery, the remainder to the heirs of the testator are
WORTHAM also barred. And though, where words are ambiguous, they may be explained by the context; here they are MACKINNON. 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,
as appears by the case cited from Salkeld. The old estate reverted to E. Biscoe.
The following certificate was afterwards sent:-
N. C. Tindal.
CONTAINED IN THIS VOLUME.
ration, no plea to a covenant to
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
See PRACTICE, 13.
publication. Plaintiff commenced sence caused the Plaintiff to be the treatise, but before he had nonsuited, without averring that completed it, the Defendants Plaintiff had originally a good abandoned the periodical publica cause of action. At all events, tion: Held, that Plaintiff might such allegation is sufficient after sue for compensation, without ten verdict. Masterman and Others dering or delivering the treatise. v. Judson.
Page 224 Planchè v. Colburn and Another.
ANNUITY. 2. By agreement, T., an agent, was
An annuity deed, of which there was to have a commission on all sales
no counterpart, was placed in the effected, or orders executed by
hands of R., as agent for grantor him; the principal to be respon
and grantee. R. received the sible for bad debts, and the agent
annuity for grantee. The grantor to draw his commission monthly. By the custom of the trade, com
redeemed the annuity by paying mission was not allowed on sales
the amount of the purchase money which produced bad debts: Held,
to R., who, without express aunotwithstanding, that under the
thority from the grantee, delivered terms of this agreement T. was
the deed to grantor to be cancelentitled to commission on bad
led. R. having absconded withdebts. Bower v. Jones.
out paying the grantee, and the grantee having sued grantor for
arrears, Held, that he was entitled AMENDMENT.
to call for an inspection of the See Recovery, 1.
deed. Devenoge v. Bouverie. 1 1. In an action against Defendant for not obeying a subpæna, the
APPEARANCE. declaration stated that the Plaintiff caused to be left with Defend
See PRACTICE, 12. ant a copy of the writ of subpæna : Held, that a Judge at Nisi Prius ARBITRATION. had authority under 9 G. 4. c. 15. | 1. A submission to refer a cause, to allow this allegation to be
and the subject-matter thereof, amended as follows:-"a copy
and the issue therein, to the award of so much of the said writ of sub
of a barrister, does not authorize pæna as related to the said De him to order a verdict to be enfendant."
tered up. Hutchinson v. Black2. In such an action as the above, well.
331 it is primd facie sufficient to 2. Held, that a reference to arbitra. allege that the Defendant was a tors to balance accounts and settle material witness, and that his ab- all matters in dispute respecting
the leaving and occupying of two corn-mills and dwelling-house, did
BAIL. not authorize them to decide on
See Practice, 14. the costs of an action for fixtures, at least up to the time of paying money into court, when the sub
BAILIFF OF LIBERTY. mission was entered into. Strat
See PRACTICE, 1. ton v. Green.
commission of bankrupt in 1816, ASSIGNEES.
Held, estopped to sue for the same See PLEADING, 1.
debt after the passing of 6 G. 4.
c. 16., though that statute repeals ATTORNEY.
49 G.3. c. 121., which makes proof
of a debt an election not to sue. See Costs, 4.
Adames v. Bridger. Page 314
2. Defendants took goods under a AWARD.
second commission of bankrupt, 1. Upon reference to a surveyor of
while a former commission was a cause and all matters in differ
subsisting : Held, they could not ence, an award that Defendant
retain them, even against a cohad overpaid Plaintiff 341., Held,
lourable title, the second commisnot sufficient to entitle the Plain
sion being void. Nelson v. Chertiff to enforce the award by at- will, and Another.
316 tachment. Thornton v. Hornby. 3. A trader, having been denied to
a creditor who called for money, 2. Plaintiff remitted to Defendant
was, after a little time, seen peepthe price of some hay he had sold
ing over his wife's shoulder. Upon for Defendant, before the money
another occasion, seeing a creditor had been paid by the purchaser,
coming, he retired behind a partiand then sent Defendant's servant
tion at the back of his shop, and with the hay to the purchaser.
his wife coming forward, said he The servant having been cheated
was not at home : of the hay before he arrived at
Held, that a jury were properly the purchaser's, Held, the De
directed to consider whether the fendant was liable to refund the
trader “ had kept his house : bad money remitted. Gingell v. Glas
wilfully secluded himself'; that is, cock.
had withdrawn himself from a part of the house where he was likely