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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,

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1832.

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

WORTHAM

MACKINNON.

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..

ADULTERY.
See PLEADING, 3. 6. | 1. Adultery of the wife after sepa-

ration, no plea to a covenant to
ACTION ON THE CASE. pay a trustee a separate mainte-

nance for the wife.
Plaintiffs being about to furnish De-

2. A declaration alleging, that
fendant's son with goods on cre-

by indenture purporting to be
dit, enquired of the Defendant, by

made between Plaintiff and De-
letter, whether his son had, as he

fendant, it was witnessed that De-
asserted, 300l. of his own pro-

fendant covenanted, Held, after
perty: Defendant answered that

plea, sufficiently certain. Baynon
he had; the fact being that De-

v. Batley.
fendant had lent his son 3001. on

Page 256
his promissory note, payable with

ADVOWSON.
interest, on demand, and had re-

See PRESENTATION.
ceived interest on the note.
The son having afterwards be-

AFFIDAVIT.
come insolvent: Held, that this

See PRACTICE, 13.
was a misrepresentation, for which
the Defendant was liable in da-

AGENT.
mages to the Plaintiffs, and a jury | See AWARD, 2. EVIDENCE, 12.
having found for Defendant, the
Court granted a new trial. Cor-

AGREEMENT.
bett and Another v. Brown. 1. Defendants engaged Plaintiff to
Page 33 write a treatise for a periodical

pub-

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.

Page 14

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

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.

Page 437

BANKRUPT.
ARREST.

See PARTNER.
See PRIVILEGE. PRACTICE, 9. 1. Plaintiff having proved under a

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

13

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.

Page 86

had withdrawn himself from a part of the house where he was likely

to

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