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for in a case between landlord and tenant the distress must be takert upon the premises; whereas here the boat was not taken on the avowant's premises, but on the canal. The 11 Geo. 2. was made to remedy the difficulty landlords had in setting out their title on the record, and only gives double costs in cases of avowries under that act. This is strongly thewn by the case in 2 Wilf., where the Court refused to extend that act to an avowry for a heriot custom. The words “appraised and sold in such manner " as the law directs in cases of distress for rent,” does not apply to ni Geo.2. but to 2 W. & M. Sel1. c.5. which first enabled the party to fell what was a mere pledge at common law.

EYRE Ch. J. (ftopping Williams.) We need only look at the Leominster Canal Act to be satisfied that this is not a distress for rent within the meaning of u Geo. 2.; the distress intended to be protected by that act, is a distress for a certain rent directly reserved by a landlord on his grant or demise of land theretofore made. In that case the landlord mayavow generally, and is entitled to double costs. But this is a distress for rent by the Canal Ad charged on the rate; it is a mere rent-charge, with a power of distress given; and not at all like the case of rent reserved by tenure. A rent-charge is not within the u Geo. 2. Per Curiam,

Rule absolute. (a)

(a) Vide allo Leominfler Canal Company made in this case similar to that in the v. Norris and another, 7 Term Rep.3co., King's Bench, on the ground of the insuf. where the fome point was contended and ficiency of the avowries; but was abanthe same judgment given by the Court of doned after the decision of that Courta King's Bench. A motion had also been

Feb. 12th.

HOLSTEN V. CULLIFORD. 1 New Rep. 180. do is not sufficient CLAYTON Scrjt. Phewed cause against a rule nis for setting aside

the interlocutory judgment in this case, and produced an affirice of declaration in the office davit of the clerk to the Plaintiff's attorney, stating, that he had if the defendant's stuck up the notice of declaration in the office, “not knowing Jast place of abode js known; for it

“ where the defendant was to be found.”. ought to be Served there.

The Court (after conferring with the officer) said, that if the Defendant was not to be found after due search the notice of declaration ought to be served at his last place of abode, or at least it should be sworn on the part of the Plaintiff that the Defendant's last place of abode was not known. Shepherd Serjt, for the Defendant.

Rule absolute.

1. devised all his

" as tenants in Coinmon, but in

one and without

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1798. BURNSALL V. Dave and others.

Feb 12th.

13 E 2f, 362. THIS was a case from the Court of Chancery, the substance of 2 Boj o Puli

490. which was as follows; David Burnfall deceased, being feised in fee of and lawfully freehold and entitled unto certain freehold and leasehold eftates, by his will to B. and the dated the 26th November 1791, duly executed and attested to as illue of her body to pass his real estates, gave and devised as follows, that is to fay, "I do hereby give, devise and bequeath all and every my free- default of fuch “ hold and leasehold estates and all other my estates whatsoever fuch, if they “ both real and personal (subject and chargeable as therein thould all die

under twenty "mentioned) after payment and discharge of all my debts lega“cies and my funeral and testamentary charges and expences leaving illue" " and the expences in and about executing this my will unto held that all the “my niece Mary Owstwick otherwise Ellard and the issue of her limitations sub

sequent to that " body lawfully to be begotten as tenants in common (if more than

to B being conone), but in default of such issue or being such if they shall all tingent, the re

mainders in the die under the age of twenty-one years and without leaving law- freehold were ful issue of any of their bodies, then I devise the fame unto my barred by fine “ coufin Peter Davy and the issue of his body lawfully to be begot- but that the “ ten as tenants in common (if more than one) but in default of

leasehuid vefted * fuch issue or being such if they shall all die under the age of der-inan on the “ twenty-one years and without lawful issue of any of their bodies death of B. “or in cafe neither he nor any such his lawful issue (if any) “ shall take upon himself or themselves the furname of Burnfall “ in virtue of an act of parliament or other legal method to be " made or taken for that purpose within the space of two years “after coming into the possession of the same eftates and pro“perty by virtue of this my will, that then and in either of such “cases happening the fame eftates and property shall actually

go, and I for that purpose hereby give devise and bequeath the “same to Stephen Ganton his heirs executors or administrators “ for ever, but recommend and hope that he they or some or “one of them will take upon himself herself or themselves my “ faid surname of Burnfall.

Power was given by the will to Mary Owstwick otherwise Ellard at any time or times during her life, and to Peter Davy at any time or times dnring his life, when and as they fhould respectively come into and be in the actual poffesfion of the faid eftates and property to grant the freeholds upon building leases for seventy years, and to grant either the freeholds or leaseholds upon other leases for twenty-one years.

David

in the remain

without issue.

P4

1798.

BURNSALL

Davy.

David Burnfall afterwards died without altering his said will, leaving the said Mary Owstwick otherwise Ellard (who was then the wife of the Plaintiff) his niece and heiress at law, and the said Peter Davy and Stephen Ganton him furviving.

Mary Oxftwick the niece is fince dead, without ever having had any issue, but she and her husband before her death, and within two years after the death of the teftator, took upon themselves the surname of Burnfall, in pursuance of the said teftator's will, and by the authority of His Majesty's letters patent, granted to them for that purpose; and soon after the testator's death entered upon the freehold eftate and suffered recoveries, and levied fines thereof to the use of such persons and for such eftates as the said Joseph Ellard and Mary his wife should appoint. And for default of appointment to the use of Joseph Ellard, for the joint lives of himself and his wife, and after the decease of either to furvive for his or her life, with remainder to the heirs and assigns of Jofeph Ellard in fee.

The questions for the opinion of the Court were, ift, What estate and interest the said Mary Owstwick otherwise Ellard took under the teftator's will, and the recoveries and fines in the tertator's freehold estates ? 2dly, What estates the said Mary Owsitwick otherwise Ellard took under the testator's will, in the faid teftator's leasehold estates ? 3dly, What estate the Defendant Peter Davy took under the said will in the testator's freehold eftates? 4thly, What eftate the Defendant Peter Davy took under the faid will in the testator's leasehold eftates ?

This case was argued in Easter Term last by Palmer Serjt. for the Plaintiff, and Williams Serjt, for the Defendant.

Palmer Serjt. Mary Owstwick took an eftate tail in the freehold, and an absolute estate in the leasehold property. It is manifeft that both kinds of property were intended by the devisor to go together to the fame description of persons; it is therefore only necessary to establish, that an estate tail in the freehold passed, and an abfolute eftate in the leasehold will follow of course. The interest of P. Davy in the freehold being contingent, is at all events barred by the recovery, whether M. Ow/twick took an eftate for life or in tail. If the took an estate tail the contingency is manifeft. But fuppose it to be an estate to M. Owstwick for life, remainder to her children for life, fill the interest of P. Davy would not be abfolute on the determination of thofe eftates; for if

one

1798.

one of the children had arrived at the age of twenty-one or had
left iffue, P. Davy could not have taken any thing. If we were
merely contending for the freehold, we need only cite the decision
between these parties, 6 Term Rep. 34.; it is for the purpose
of the leasehold only, that it becomes necessary to discuss what
eftate M. Orostwick took. The prefatory words “all my free-
hold and leasehold estates” are not sufficient to give an estate in
fee to the children ; for though great stress has been laid upon
fuch words, where a question has arisen between the devifee and
the heir at law in cases where all has been devised by such pre-
fatory words, and something remained undisposed of by the
particular clauses of the will, yet in this case every thing has been
devised away, and the only question is, Whether A. or B. shall
have a particular part of it. The only cafes where the word
<iffue" can be conftrued to be a word of purchase, arc, ift,
where an express estate for life is given to the anceftor, remainder
to his iffue and the heirs of fuch issue; in which cafe the term
“iffue" denotes fome individual, because the subsequent words of
limitation are inconsistent with the ancestor's taking the whole
eftate. 2dly, Where a personal eftate is given to the ancestor for
life and to his issue without any disposition over ; but there is no
inftance of such a construction being put upon the word “issue
in cases of freehold eftates without subsequent words of limitation.
The Courts have construed such words as appear to give an
eftate for life only, as giving an estate of inheritance, where the
property would otherwise go to a different family from that which
was intended to take, Roe v. Grew and others, 2 Wil: 322. Ro-
binson v. Robinson, i Burr. 38. and in Doe v. Applin, 4 Term
Rep. 82, where the devise was to W. D. of a freehold eftate for
life, and after his decease to and amongst his issue, and in default
of issue then over, the Court went so far as to reject the words
" and amongst” in order to effectuate the general intention, and
held that W. D. took an eftate tail. On the same ground the
Court in this case may, if necessary, reject the words “ tenants
in common.” In Doe v. Applin, Lord Kenyon thought that the
general intention would fail for want of limitation to the issue.
Here if the word " iffue” be understood fully, that is including
all descendants, it must be considered as a word of limitation:
if it be considered as defignating one or more persons only it
must be confined to issue born in the life of the devisor, Cook v.
Cook, 2 Vern. 546. But the fame word cannot be construed to
mean two things in the same breath: if the issue of M. O. would

BURNSALL

Dave,

take

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are

take by purchase, the words " lawful issue of their bodies” must be confined to issue to be born within a limited time, to the exclusion of their general descendants. But to say that it is an estate for life to M. O. and then over, would be directly contrary to all the cases where the general intention of the teftator has been adopted, notwithstanding particular words which seem to contradict it.

Williams Serjt. contrà. I shall contend that M. Owstwick took an estate for life with contingent remainders to her children in tail, and that the remainder over to Peter Davy was a vested remainder. This is with a view to the freehold, and if I canestablish a right to that the leasehold will follow of course. The general intention of the teftator may be effected, without giving an estate tail to M. O., for if the take an estate for life with cross remainders to her issue in tail, the remainder to Peter Dary will not take effect till all her issue is extinct. The words of the will

as tenants in common if more than one.” Now, cross remainders may be intended here, for, if on the face of the will they appear neceflary to the intention of the teftator, the Court will imply them. In Doe v. Wainewright, 5 Term Rep. 427., Lord Kenyon said, “ No technical precise form of words is neceffary to create crofs remainders." Here the intention is manifest from the words “ if they shall all die under the age of 21 years, and without leaving lawful illue of their bodies.” The ground of the decision in Doe v. Applin was, that no cross remainders could be implied: and there Mr. J. Buller faid, that in rejecting the words “ and amongst,” the Court would be going farther than they had gone in any former case. In the next place, the issue of M. O. would have taken an eftate tail, in which cafe Peter Davy took a vefted remainder. In Luddington v. Kime, i Ld. Raym. 203. 1 Salk. 224. 3 Lev.431. it was held, that where the mesne estates are particular estates, the remainder limited over may veft. In this case the teftator gives an estate “ to the issue of the body of M. O. as tenants in common, if more than one;" now it is clear that if the will had stopped there, the children could have taken only an eftate for life, and the remainder to Peter Davy would be vested: and the subsequent words only subject that remainder to be devefted by issue. But admitting the subfequent words to be words of inheritance, it is impoflible that they should give a fee: for even fuppofing that the devife had been to the issue of M. O. and their heirs, the fubsequent words “ without lawful issue of their bodies” would

restrain

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