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1798.

THE

May 14th.
ABLETT and others v. ELLIS.

2 Eafi's Rep.

359. HE Plaintiff having declared in debt for a fum certain, for it is not necef

work and labour done, goods fold and delivered, money had fary to give bail and received, and on an account stated, “which the Defendant judgment in debt, had agreed to pay;" the Defendant let judgment go by default

, that the action and sued 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- fpecific contract. herd Serjt. having obtained a rule to shew cause why the proceedings againft them should not be stayed pending the writ of error,

Le Blanc Serjt. shewed cause, and contended, that as the declaration stated 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. Walfon, 3 Burr. 1566.; and intilted that the form of action was not sufficient to bring a case within the statute, which ought to be construed strictly.

Eyre Ch.J. The effect of obliging this Defendant to give bail in error will be to convert all those actions which for a century past have been actions of affumpft, into actions of debt; and the fame mischief will again arise which first occafioned their being turned into a simpfit. To bring a case within the statute of James, the Court must fee distinctly that a specific contract has been entered into; and though I think that the ftatute should be construed liberally, yet it does not appear to me that, on a fair construction, this form of declaring can be considered within the meaning of it.

BULLER J. The cases foem to have gone on a wrong principle, where it has been said that the Court ought to construe the act ftrictly. If that be the true construction, it ought to appear that the contract is for a specific sum payable at a certain time. But I should have thought it better for the Court to say, that this act, which is a remedial law, thould be construed liberally to prevent the mischief recited in the preamble : “ Forasmuch as his Highness's subjects are now more commonly withholden from their just debts, and often in danger to lose the fame, by means of writs of error, which are more commonly sued than heretofore® they have been,” – However we must not overturn the cases.

HEATH

1

1798.

ABLETT

ELLIS.

HEATH J. We must adhere to the rule which has been laid down; and indeed I cannot but think that the decisions have been conformable to the intention of the Legislature, as the act in question passed soon after the determination of Slade's case (a), where it was held that an action of asumpfit would lie in cases like the prefent. ROOKE J. of the same opinion.

Rule absolute (6). (a) 4 Co.92. b.

Vid. Alexander v. Biss, 7 T. R. 449.

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before appear

ance.

May 14th.
Poj, 344.
P, 383.

Fox and Another v. Money, Widow.
Таип 244.
The Defendant HEPHERD Serjt. having obtained a rule to shew cause why the

SHEPI cake advantage of an irregu

proceedings in this case should not be set aside for the followlarity in the writ, ing irregularity in the writ, viz. that it was tested the 22d May,

instead of the 22d April.

Cockell Serjt. Thewed for cause, that the Defendant had not appeared ; and therefore, not being in Court, was not competent to make the objection.

Shepherd contrà insisted that the Defendant was bound to object in the first instance.

And the Court (absente EYRE Ch. J.) being clearly of that opinion, made

The rule absolute.

affirmed.

fifters Thare and

May 15th.

Doe ex dem. GERTRUDE Baroness DACRE V. MARY 8 Term. Rep.

JANE Roper Dowager Lady DACRE. 112. Judgment Devise to the This ejectment was tried before Eyre Ch. J. at the Sittings for teftator's teven Westminster after Easter Term 1797; when the Jury found

a special verdict, fetting forth (as far as is material to be stated) share alike; on the death of any as follows: of them, her

John Trevor being seifed in fee, by will dated the 5th of April Share to go to her

1743, devised his capital mansion-house called Glynde in Suffer, sons in tail; and with the lands, &c. &c. and all his estates in Suser, to his kinfin default of such fons, to her

man Dr. R. Trevor in fee. He then gave to his fifter Mrs. Rice, daughters as tem during her life, an annuity of 300l., to be paid half-yearly out of In case of any of his estates in Middlesex, Denbigh, and Flint ; to Elizabeth Forster, dying without issue, or such issue dying under twenty.one, the surviving sisters to take her Share; and if all the fifters should die without illue, or such iffue die ander twenty-one, then over. Held, that the words in u default of such sons” did not make the semainder to the daughters contingent, which cook effe& notwithstanding the birth of a son.

formerly

firit and other

the seven lifters

1798.

Dog ex dem.

DACRE

Dacrt.

formerly his nurse, an annuity of gol. for her life charged on the same 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 cousin Robert Trevor, brother of Dr. Richard Trevor, a like legacy of 1000l. charged in default of his personal estate upon his faid eftates in Middlefer, Denbigh, and Flint. He then devised “ all his manors, messuages, tithes, lands, tenements, and here" ditaments lying and being in the said counties of Middleser, Denbigh, and Flint, or elsewhere not before disposed of, fub

ject 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 respectively share and share alike, and from and after the “ decease of any of them, then the part or share of her or them “ fo dying, to go to the first and other fons of such of them fo

dying, and the heirs of his and their bodies successively, and in default of such 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 issuing, “ but in case any of his faid feven fifters last-mentioned should “ die, without leaving any issue of her body begotten, or that “ fuch issue should die before he or the should attain his or her

age of twenty-one years, and without islue, then he gave her “ fare to and amongst the survivors or survivor of his faid " seven fifters and their issue, to go and defcend in like manner

as before is mentioned as to the shares, parts, or proportions " before given to them respectively.” Then having given the overplus of his personal estate, plate, and jewels, after debts and legacies paid, to be divided amongst his faid feven fifters, he proceeded thus: “ And I do further will and appoint that in case all

my faid seven sisters shall happen to die without issue, or leaving “ iflue, such issue shall all die before he, she, or they shall attain the “ age of twenty-one years and without issue, that then my faid “ estate in Middlesex and Wales (subject as aforesaid) shall go to “ and be enjoyed by such person or persons who shall then be “ entitled to my estate in Sussex hereinbefore devised.”

The testator died the oth September 1743. On the 27th of July 1744, Gertrude Trevor, one of the seven fitters, married the Honourable Charles Roper, and had ifiue two fons, Trevor Charles Roper (afterwards Baron Dacre) and Henry Roper (who died), and also a daughter Gertrude (now Baroness Dacre, and lessor of the

Plaintiff').

.

DACRE.

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1798. Plaintiff). The Honourable Charles Roper died leaving Gertrude

a widow. Ruth and Margaret, two of the seven lifters, died D E ex dem. without iffue, whereby the other five fifters became each seifed

for life of one-fifth of these estates. On ad of March 1773, Tre-
vor Charles Roper the fon of Gertrude, one of the seven lifters,
married Mary Jane Fludyer, and previous to such marriage a
recovery was suffered of the one-fifth of which his mother was
feised for life, with remainder to him in tail, and the fame was
settled on the issue of that marriage, with remainder to his wife
for life, remainder to himself in fee; which remainder passed 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 issue, in March 1780, her one-
fifth became divided among her four surviving fifters Grace, Ann,
Gertrude, and Arrabella, cach 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 son's marriage, as her one-fourth share of her
sister 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 surviving fifter Grace, Mr. Bofcawen the son of Ann Trevor,
and Trevor Charles Roper, son of Gertrude Trevor, in thirds. By
which means Trevor Charles Roper (then Lord Dacre) became
fifed in tail (besides the one-fifth of which the recovery had been
fuffered) of one-fourth of one-fifth, being his share 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 issue,
leaving the Defendant the Dowager Lady Dacre his widow, (who
was without doubt entitled to one-fifth of the whole estate, of
which the recovery was suffered and settlement made previous to
her marriage with him, and to whom by will he had devised the
premises in question,) and the lessor of the Plaintiff the Baroness
Dacre, his only fifter.

The lessor of the Plaintiff, under the words “ in default of such
“ 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 share of his aunts Mary and Arrabella's
shares, which came to him on their deaths after the recovery fuf-
fered, and of which, at the time of his death, he was feised in tail

.

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DACRE

This case was twice argued, once in Trinity Term last by 1798. Williams Serjt. for the Plaintiff, and Shepherd Serjt. for the Defendant, and again in this Term by Le Blanc Serjt. for the Dobex dem. former, and Cockell Serjt. for the latter.

DACRE, Arguments for the Plaintiff. It will be contended on the other side, that as the words “ in default of such fons” introduce the limitation to the daughters, that limitation is contingent, and the contingency having happened by the birth of a fon, all the subsequent remainders are destroyed. But those words do not create a contingency, being only a continuation of the preceding limitation to the fons, and mean the same as if the testator had said “on failure of the preceding limitation." This construction is warranted by the general intent of the teftator appearing on the face of the will. The survivorship between the seven fifters being to take place only in case of the death of any of them without leaving any issue of their bodies begotten, or the death of such issue before he or she shall attain the age of twenty-one and without iflue, fhews that the teftator had it in contemplation, that all the issue of his seven fifters, both male and female, would take, independent of any contingency; and the limitation to Dr. Trevor, being to take place only in case there should be no issue of any of the fifters, proves the same intent. Moreover the teftator by his will has excluded his fifter Rice; but if the words in question should be held to make the remainders over contingent, the cross-remainders to the fifters, and the reversion to Dr. Trevor, would be put an end to by the birth of a son of any one of the seven fifters, and the excluded filter would take with the others as co-heiress. Indeed the very situation of these words, placed as they are between the two limitations, thews that they were intended to connect them, and to give to the daughters on failure of issue male. The Court will do in this case what they have usually done, namely, conftrue the subsequent words by the preceding limitation, Tuck v. Frencham, Moore 13. Dyer 171. 1 Anderson 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 case. Now the preceding limitation being to the fons in tail general, the subsequent words, “ in default of “ such fons,” may be read, “ in default of the preceding limi6 tation.” Where a teftator in creating a remainder has used shortness or incorrectness of expreslion, the Court will not on that account conftrue the remainder to be contingent. Nicholas Lee's

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