ABLETT and others v. ELLIS. 1798. May 14th. 359. it is not neceffary to give bail in error on a judgment in debt, unl-fs it appears THE Plaintiff having declared in debt for a fum certain, for work and labour done, goods fold and delivered, money had and received, and on an account ftated, "which the Defendant had agreed to pay;" the Defendant let judgment go by default, that the action and fued out a writ of error, but did not put in bail in error. The was brought on a Plaintiff then proceeded against the bail to the action; and Shep- fpecitic contract. herd Serjt. having obtained a rule to fhew caufe why the proceedings against them fhould not be stayed pending the writ of error, Le Blanc Serjt. fhewed caufe, and contended, that as the declaration ftated an agreement to pay a fum certain, the Defendant by letting judgment go by default, had admitted that agreement, and was therefore bound to put in bail in error by 3 Jac. 1. c. 8. Shepherd contrà cited Girling v. Baker, Yelv. 227.; Bidlefon v. Whytel, 3 Burr. 1545.; and Trinder v. Watson, 3 Burr. 1566.; and infifted that the form of action was not fufficient to bring a case within the statute, which ought to be conftrued strictly. EYRE Ch.J. The effect of obliging this Defendant to give bail in error will be to convert all thofe actions which for a century paft have been actions of affumpfit, into actions of debt; and the fame mifchief will again arife which first occafioned their being turned into affumpfit. To bring a cafe within the ftatute of James, the Court muft fee diftinctly that a specific contract has been entered into; and though I think that the ftatute fhould be conftrued liberally, yet it does not appear to me that, on a fair conftruction, this form of declaring can be confidered within the meaning of it. BULLER J. The cafes feem to have gone on a wrong principle, where it has been faid that the Court ought to conftrue the act ftrictly. If that be the true conftruction, it ought to appear that the contract is for a specific fum payable at a certain time. But I fhould have thought it better for the Court to fay, that this act, which is a remedial law, thould be conftrued liberally to prevent the mifchief recited in the preamble: "Forafmuch as his Highnefs's fubjects are now more commonly withholden from their juft debts, and often in danger to lofe the fame, by means of writs of error, which are more commonly fued than heretofore they have been."However we must not overturn the cafes. HEATH 1798. ABLETT 2. ELLIS. HEATH J. We must adhere to the rule which has been laid down; and indeed I cannot but think that the decifions have been conformable to the intention of the Legislature, as the act in queftion paffed foon after the determination of Slade's cafe (a), where it was held that an action of affumpfit would lie in cafes like the prefent. ROOKE J. of the fame opinion. Rule abfolute (b). (a) 4 Co. 92. b. (b) Vid. Alexander v. Bifs, 7 T. R. 449. May 14th. Peft, 344. 2 Taun 244. The Defendant make tage of an irregu Fox and Another v. MONEY, Widow. SHEPHERD Serjt. having obtained a rule to fhew caufe why the proceedings in this cafe fhould not be fet afide for the followlarity in the writ, ing irregularity in the writ, viz. that it was tefted the 22d May, inftead of the 22d April. before appear ance. May 15th. 8 Term. Rep. 112. Judgment affirmed. teftator's feven Cockell Serjt. fhewed for caufe, that the Defendant had not appeared; and therefore, not being in Court, was not competent to make the objection. Shepherd contrà infifted that the Defendant was bound to object in the first inftance. And the Court (abfente EYRE Ch. J.) being clearly of that opinion, made The rule abfolute. DOE ex dem. GERTRUDE Baronefs DACRE V. MARY Devife to the THIS ejectment was tried before Eyre Ch. J. at the Sittings for Westminster after Eafter Term 1797; when the Jury found a special verdict, fetting forth (as far as is material to be stated) the death of any as follows: fifters fhare and fhare alike; on of them, her fhare to go to her firit and other John Trevor being feifed in fee, by will dated the 5th of April 1743, devised his capital manfion-house called Glynde in Suffex, fons in tail; and with the lands, &c. &c. and all his eftates in Sussex, to his kinfin default of fuch fons, to her man Dr. R. Trevor in fee. He then gave to his fifter Mrs. Rice, during her life, an annuity of 300l., to be paid half-yearly out of In cafe of any of his eftates in Middlefex, Denbigh, and Flint; to Elizabeth Forfter, daughters as te nants in common. the feven fifters dying without iffue, or fuch iffue dying under twenty-one, the surviving fifters to take her fhare; and if all the fifters should die without iffue, or fuch iffue die ander twenty-one, then over. Held, that the words “in ❝ default of fuch fons" did not make the remainder to the daughters contingent, which took effect notwithftanding the birth of a fon. formerly 66 formerly his nurfe, an annuity of 50l. for her life charged on the fame eftates; to his nephew George Rice and his niece Lucy Rice, children of his fifter Mrs. Rice, a legacy of 1000l. each; and to his coufin Robert Trevor, brother of Dr. Richard Trevor, a like legacy of 1000l. charged in default of his perfonal eftate upon his said eftates in Middlefex, Denbigh, and Flint. He then devised "all his manors, meffuages, tithes, lands, tenements, and here"ditaments lying and being in the faid counties of Middlefex, Denbigh, and Flint, or elsewhere not before difpofed of, fubject to the charges before mentioned, unto and amongst his "dear fifters Grace Trevor, Mary Trevor, Ann the wife of the "Honourable G. Bofcawen, Margaret Trevor, Ruth Trevor, "Gertrude Trevor, and Arrabella Trevor, during their natural "lives refpectively share and share alike, and from and after the "decease of any of them, then the part or fhare of her or them "fo dying, to go to the firft and other fons of fuch of them fo dying, and the heirs of his and their bodies fucceffively, and "in default of fuch fons then to and amongst the daughters of "his faid fifters fo dying as tenants in common, and not as "joint-tenants and the heirs of their respective bodies iffuing, "but in cafe any of his faid feven fifters laft-mentioned should "die, without leaving any iffue of her body begotten, or that "fuch iffue fhould die before he or she should attain his or her "age of twenty-one years, and without iffue, then he gave her "fhare to and amongst the furvivors or furvivor of his faid "feven fifters and their iffue, to go and defcend in like manner 66 66 as before is mentioned as to the fhares, parts, or proportions "before given to them respectively." Then having given the overplus of his perfonal eftate, plate, and jewels, after debts and legacies paid, to be divided amongft his said seven fifters, he proceeded thus: "And I do further will and appoint that in cafe all "my faid feven fifters fhall happen to die without iffue, or leaving ❝iffue, fuch iffue fhall all die before he, fhe, or they shall attain the age of twenty-one years and without iffue, that then my faid eftate in Middlefex and Wales (fubject as aforefaid) fhall go to " and be enjoyed by fuch perfon or perfons who fhall then be "entitled to my eftate in Suffer hereinbefore devifed." The teftator died the 9th September 1743. On the 27th of July 1744, Gertrude Trevor, one of the feven fifters, married the Honourable Charles Roper, and had iffue two fons, Trevor Charles Roper (afterwards Baron Dacre) and Henry Roper (who died), and alfo a daughter Gertrude (now Baronefs Dacre, and leffor of the Plaintiff). 1798. DOE ex dem. V. DACRE. 1798. DACRE บ. DACRE. Plaintiff). The Honourable Charles Roper died leaving Gertrude a widow. Ruth and Margaret, two of the feven fifters, died without iffue, whereby the other five fifters became each feifed for life of one-fifth of thefe eftates. On 2d of March 1773, Trevor Charles Roper the fon of Gertrude, one of the feven fifters, married Mary Jane Fludyer, and previous to fuch marriage a recovery was fuffered of the one-fifth of which his mother was feifed for life, with remainder to him in tail, and the fame was fettled on the iffue of that marriage, with remainder to his wife for life, remainder to himself in fee; which remainder paffed by his will to his wife the Defendant. (So that as to that one-fifth . the Plaintiff laid no claim.) Afterwards by the death of Mary Trevor, unmarried and without iffue, in' March 1780, her onefifth became divided among her four furviving fifters Grace, Ann, Gertrude, and Arrabella, each taking thereby one-fourth of her one-fifth part. In July 1780, Gertrude Roper died; whereby as well her one-fifth of the whole, of which a recovery had been fuffered on her fon's marriage, as her one-fourth fhare of her fifter Mary's one-fifth, defcended to Trevor Charles Roper her fon. Afterwards, in 1789, Arrabella Trevor died unmarried; whereby her one-fifth part of the whole, and her one-fourth part of her fifter Mary's one-fifth, became divided among her only furviving fifter Grace, Mr. Bofcawen the fon of Ann Trevor, and Trevor Charles Roper, fon of Gertrude Trevor, in thirds. By which means Trevor Charles Roper (then Lord Dacre) became feifed in tail (befides the one-fifth of which the recovery had been fuffered) of one-fourth of one-fifth, being his fhare of Mary's fifth part, and of one-third of one-fifth, and one-third of one-fourth of one-fifth, being his share of Arrabella's part. On the 3d of July 1794, Trevor Charles Roper Baron Dacre died without iffue, leaving the Defendant the Dowager Lady Dacre his widow, (who was without doubt entitled to one-fifth of the whole eftate, of which the recovery was fuffered and fettlement made previous to her marriage with him, and to whom by will he had devifed the premifes in queftion,) and the leffor of the Plaintiff the Baronefs Dacre, his only fifter. The leffor of the Plaintiff, under the words "in default of fuch "fons," claimed the one-fourth of one-fifth, one-third of one-fifth, and one-third of one-fourth of one-fifth of the whole eftate, being the late Lord Dacre's fhare of his aunts Mary and Arrabella's shares, which came to him on their deaths after the recovery fuffered, and of which, at the time of his death, he was feised in tail. This cafe was twice argued, once in Trinity Term laft by Williams Serjt. for the Plaintiff, and Shepherd Serjt. for the Defendant, and again in this Term by Le Blanc Serjt. for the former, and Cockell Serjt. for the latter. Arguments for the Plaintiff. It will be contended on the other fide, that as the words "in default of fuch fons" introduce the limitation to the daughters, that limitation is contingent, and the contingency having happened by the birth of a fon, all the fubfequent remainders are deftroyed. But those words do not create a contingency, being only a continuation of the preceding limitation to the fons, and mean the fame as if the teftator had faid "on failure of the preceding limitation." This conftruction is warranted by the general intent of the teftator appearing on the face of the will. The furvivorship between the seven fifters being to take place only in cafe of the death of any of them without leaving any iffue of their bodies begotten, or the death of such iffue before he or she shall attain the age of twenty-one and without iffue, fhews that the teftator had it in contemplation, that all the iffue of his feven fifters, both male and female, would take, independent of any contingency; and the limitation to Dr. Trevor, being to take place only in cafe there fhould be no iffue of any of the fifters, proves the fame intent. Moreover the teftator by his will has excluded his fifter Rice; but if the words in queftion fhould be held to make the remainders over contingent, the cross-remainders to the fifters, and the reverfion to Dr. Trevor, would be put an end to by the birth of a fon of any one of the feven fifters, and the excluded fifter would take with the others as co-heirefs. Indeed the very fituation of thefe words, placed as they are between the two limitations, fhews that they were intended to connect them, and to give to the daughters on failure of iffue male. The Court will do in this cafe what they have usually done, namely, conftrue the subsequent words by the preceding limitation, Tuck v. Frencham, Moore 13. Dyer 171. 1Anderfon 8. Co. Litt. 21. a. note 126. ed. 15. Claxton v. Glazier, cited by Mead J. Moore 124. and in Cro. Eliz. 16. by the name of Glover and Clatche's cafe. Now the preceding limitation being to the fons in tail general, the fubfequent words, "in default of "fuch fons," may be read, " in default of the preceding limi"tation." Where a teftator in creating a remainder has used fhortnefs or incorrectnefs of expreffion, the Court will not on that account conftrue the remainder to be contingent. Nicholas Lee's 1798. DOE ex dem. V. DACRE. cafe, |