viz. that "in case any or either of the said children should happen to die without leaving any lawful issue, then, that the rents, issues, and profits belonging to such of his sons or daughter so dying, should go to and be received by the survivors or survivor." Here then is a gift over, after failure of issue of the children, which would give the first taker an estate tail. The word leaving must, it has been said, be restricted to children alive at the time of the death; but there are many cases, in which such an expression has been held to create a tenancy in tail, as in Franklin v. Lay. (7) There the devise was to John Franklyn, and to the issue of his body lawfully to be begotten, and to the heirs of such issue for ever. But if he shall die without leaving any issue of his body lawfully begotten, then over; and such devise was held to be an estate tail in John Franklyn, by the Vice Chancellor. The same point was determined in effect, in Jesson v. Wright, in error (8) [where the case of Doe d. Strong v. Goff, (9) was overruled]. The doctrine in which the Lord Chancellor there concurred, is now too well established to be shaken; and as here the estate was not to go over, until the general (7) 2 Bligh. 59. n. (8) 2 Bligh. 1. In giving his judgment in this case, the Lord Chancellor said, I will not trouble the house by going through all the cases in which the rule has been established-that where there is a particular and a general intent, the particular is to be sacrificed to the general intent. The opinion which I have formed concurs with most, though not with every one of those cases. A great many, certainly, and almost all of them coincide and concur in the establishment of that rule. Whether it were wise to adopt such a rule, might be a matter of discussion; but it has been acted upon so long, that it would be to remove the land-marks of the law, if we should dispute the propriety of applying it to all cases to which it is applicable. There is, indeed, no reason why Judges should have been anxious to set up a general intent, to cut down the particular, when the end of such decision is to give power to the person having the first estate, according to the general and paramount intents, to destroy the interest both under the general and particular intent. However, it is definitively settled as a rule of law, that where there is a particular, and general or paramount intent, the latter shall prevail, and the courts are bound to give effect to the paramount intent. (9) East. 668. failure of issue in the first takers, the plaintiff's mother had, consequently, an estate tail, and if so, he is entitled to onesixth of the property in question. This brings us to the consideration of the shares of those who died without issue; and the question is, whether four of them having so died, the plaintiff is entitled to a moiety, or whether the whole goes to the survivor. It has been insisted for the plaintiff, that cross-remainders are to be implied, to which it was answered, that such implication cannot arise between more than two parties. Still, however, it was insisted, the court might raise such an implication, if it was the manifest intention of the devisor, that his property should be so disposed of. Here, however, there is an express disposition by the testator, viz. to his first six children named in the will, and after their deaths, the shares of those so dying without issue, were to go to the survivors or survivor, that is, to the survivors for life, and, afterwards, to the last or ultimate survivor. That appears to us to be the express disposition of his estate, and on which the court is bound to act. It is unnecessary to determine as to what estate the survivor takes, as, if he does not take a fee under the will, he will take it as the heir at law. But we think the intent of the testator to be, that the accruing shares should pass to the defendant, as the survivor under the will. A case which has not been referred to in the argument, appears to bear a strong resemblance to the present, which was that of Doe d. Borwell v. Abey, (10) where the testator devised lands to his three sisters during their joint lives, and the life of the survivor, to take as tenants in common, and not as joint tenants, remainder to trustees during the respective lives of the sisters, and the life of the survivor to preserve contingent remainders; and from and after their respective deceases, and the decease of the survivor, remainder over; and the question was, what estate the sisters took, and the court held, that they either took the estate as joint tenants, to be regulated in its enjoyment as a tenancy in common, or as tenants in cominon, with benefit of sur (10) 1 M. & S. 428. vivorship. And if so, the survivor had a right to all the estate after the death of her sisters; and Lord Ellenborough there said, the words are "unto my three sisters for and during their joint natural lives, and the natural life of the survivor to take as tenants in common, and not as joint tenants. To take as tenants in common, is, correctly speaking, repugnant to taking with benefit of survivorship; but if those words are understood to mean, that they were to enjoy it as tenants in common, which they might do, with benefit of survivorship, then the only repugnancy seems to be in the words, and not as joint tenants, I would preserve the words to take as tenants in common; the words tenants in common are of a flexible meaning, and may be understood, that although they should take by survivorship as joint tenants, yet the enjoyment was to be regulated amongst them as tenants in common. The prevailing intention of the testator seems to have been, that the estate should not go over until the death of the survivor." That appears to be particularly applicable to the present case; as it was the expressed intent of the testator, that the survivors or survivor should take, that must mean the surviving children or child, and not the surviving stock or issue of such children. We are, therefore, of opinion, that the plaintiff is only entitled to onesixth, and that the verdict must be entered accordingly. Verdict entered for one-sixth. EVANS V. YEATHERD. In an action against one of two partners for a private debt due from him, the other partner is not a competent witness to prove that the goods for which the action was brought were sold to the partnership firm, and were paid for by the cancelling of the debt, due from the plaintiff to that firm. Declaration-In assumpsit, for the value of ten chaldrons of coals. Plea-General issue. This cause was tried at Guildhall, at the sittings after Michaelmas term last, before Mr. Justice Burrough. The delivery of the coals, and the price, were admitted by the defendant. The defence was, that he was in partnership with one Follett, and that the coals were sold to them on a joint account, in part payment of a bill or bills of exchange, due from the plaintiff to Yeatherd and Follett. At the trial, Follett was called as a witness in support of this defence, when he was objected to by the plaintiff's counsel, on the ground of being interested, and therefore as an incompetent witness. The learned Judge, however, received his evidence, subject to the opinion of the court. A verdict having been found for the defendant, Mr. Serjeant Pell obtained a rule nisi for a new trial, on the ground that the evidence of this witness had been improperly received. Mr. Serjeant Vaughan now showed cause, and contended, that Follett was not an interested witness, inasmuch as although his evidence would tend to exonerate him from contribution as between him and his partner, on account of this demand; yet it would preclude them from claiming a sum of equal amount from the plaintiff upon the bills, so that he could, in fact, neither gain nor lose by the evidence he had given. Mr. Serjeant Pell, and Mr. Serjeant Wilde, in support of the rule, submitted, that it was not competent to the witness to prove a debt due to himself and his partner, which was virtually the effect of Follett's evidence, in this present instance; and they distinguished this case from Hudson v. Robinson, (1) where it was holden, that upon a plea in abatement in assumpsit for goods sold and delivered, where the promises were made only with the defendant's partner, the latter was a competent witness for the plaintiff. Chief Justice Best, and Mr. Justice Park. Admitting that which is stated on the part of the defendant to be true, Follett was interested, and might have been joined in this action. But for the evidence of Follett, the plaintiff must have obtained a verdict; and if he had done so, would it have affected Follett. The record, indeed, would not have been evidence to establish any claim against him, but it would show (1) 4 M. & S. 475. the amount recovered; and it is clear that Yeatherd would have been intitled to contribution from Follett. On that ground Follett was an interested witness, and ought not to have been admitted. Rule absolute. (2) EXTENT OF THE RULES OF THE FLEET PRISON. It having been represented to this court, that many of the houses within the rules of the Fleet prison have become greatly decayed and unfit for habitation, by such persons as generally obtain the benefit of the said rules, and which rules are, at present, so confined in space, as to render a residence in some parts of the same unhealthy, and also that there is no place of public worship within the same (except the prison chapel). Now, upon hearing the report of the Warden of the said prison made thereon, it is therefore ordered, that from and after the last day of this present Easter term, the rules of the said prison shall be comprised within the following bounds, that is to say, from the gate of the said prison, in Fleet-market, southward, along the east-side of Fleet-market and Bridge-street, to the end of Chatham (2) See 1 Car. N. P. Rep. 49, over-ruled. place; then crossing the road, returning northward along Chatham-place to William-street; and westward, along Williamstreet; northward, along Water-street ; westward, along Crown-court; northward, up Dorset-street, along Salisbury-square and Salisbury-court to Flect-street; along Fleet-street from Salisbury-court and Shoelane, to the end of Ludgate-hill and Bridge-street, including both sides of the way in each of the said streets, place, courts, and square, except Fleet-market; and from the said gate, northward, along the east-side of Fleet-market to Fleet-lane, up Fleet-lane, eastward, to the Old-bailey; along the Old-bailey, northward, to Ludgate-hill, up Ludgate-hill and Ludgatestreet, to the eastward, to St. Paul's Churchyard, and from thence westward, down Ludgate-street and Ludgate-hill, to the corner of Bridge-street, including both sides of the way along the streets, lane, and places last mentioned, and including the two churches of St. Bride, Fleet-street, and St. Martin, Ludgate, and the several houses in the streets, lanes, courts, alleys, and places within the boundaries before described, except Ave Maria-lane, Creedlane, and Blackfriars-gateway on Ludgatehill, which said last mentioned lanes and gateways shall not be deemed any part of the said rules. W. D. BEST. J. BURROUG II." THE END OF EASTER TERM, 1824. The Reports of Cases in Trinity Term, 1824, will be given by way of Appendix to Vol. 3. Agreement Performance of, not enforced 196 ib. Enforcement of, is entirely under the 189 of Solicitors suing out commissions of.... 177 Equitable Jurisdiction-A person assessed to See Charitable Funds. 189 Demurrer-See Parties, Impounding Money in Court-Quære as to Page 195 182 Who must be to a creditor's suit where 196 ib. See Equitable Jurisdiction. See Renewals of Leasehold. 181 191 Page 191 Renewals of Leaseholds-As between tenant KING'S BENCH. .... 183 Execution against set aside, and exone- 222 225 Liable to Costs where Indictment remo- False Return-In action against sheriff for, 'Horse Dealer-See Lord's Day. 196 204 Hundred-See Black Act, Riotuos Assemblies. .... ...... Page 212 207 204 In action for, by an Attorney as such, -Appearance, what time allowed for on Attorney-Notice of application for 221 |