1798, 1.EOMINSTER Canal Company บ. COWELL. for in a cafe between landlord and tenant the diftrefs must be taken upon the premises; whereas here the boat was not taken on the avowant's premifes, but on the canal. The 11 Geo. 2. was made to remedy the difficulty landlords had in fetting out their title on the record, and only gives double cofts in cafes of avowries under that act. This is ftrongly fhewn by the cafe in 2 Wilf, where the Court refufed to extend that act to an avowry for a heriot cuftom. The words "appraised and fold in fuch manner "as the law directs in cafes of diftrefs for rent," does not apply to 11 Geo. 2. but to 2 W. & M. feff. 1. 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 fatisfied that this is not a diftrefs for rent within the meaning of 11 Geo. 2.; the diftrefs intended to be protected by that act, is a diftrefs for a certain rent directly referved by a landlord on his grant or demife of land theretofore made. In that cafe the landlord may avow generally, and is entitled to double cofts. But this is a diftrefs for rent by the Canal Act charged on the rate; it is a mere rent-charge, with a power of diftrefs given; and not at all like the case of rent reserved by tenure. A rent-charge is not within the 11 Geo. 2. Per Curiam, (a) Vide also Leominfler Cana! Company v. Norris and another, 7 Term Rep. 5co., where the fame point was contended and the fame judgment given by the Court of King's Bench. A motion had also been Rule abfolute. (a) made in this case similar to that in the King's Bench, on the ground of the insufficiency of the avowries; but was aban doned after the decifion of that Court, CLATT HOLSTEN V. CULLIFORD. Feb. 12th. 1 New Rep. 180. It is not fufficient LATTON Serjt. fhewed cause against a rule nifi for fetting afide to ftick up a no- the interlocutory judgment in this cafe, and produced an affition in the office davit of the clerk to the Plaintiff's attorney, ftating, that he had if the defendant's stuck up the notice of declaration in the office, "not knowing tice of declara Jaft place of abode is known; for it ought to be Served there. "where the defendant was to be found." The Court (after conferring with the officer) faid, that if the Defendant was not to be found after due fearch the notice of declaration ought to be ferved at his last place of abode, or at least it fhould be fworn on the part of the Plaintiff that the Defendant's laft place of abode was not known. Shepherd Serjt, for the Defendant. Rule abfolute, BURNSALL V. DAVY and others. 1798. Feb 12th. 13 Eaft, 362. 490. THIS HIS was a cafe from the Court of Chancery, the fubftance of 2 B5 Pul. which was as follows; 66 4. devifed all his freehold and leafehold eftates iffue of her body to B. and the "as tenants in fuch, if they one and without then over: held that all the to B. being con mainders in the David Burnfall deceased, being feifed in fee of and lawfully entitled unto certain freehold and leafehold eftates, by his will dated the 26th November 1791, duly executed and attefted fo as to pafs his real estates, gave and devifed as follows, that is to fay, common, but in "I do hereby give, devife and bequeath all and every my free- default of fuch “hold and leafehold eftates and all other my eftates whatsoever, or being "both real and perfonal (fubject and chargeable as therein thould all die "mentioned) after payment and difcharge of all my debts lega- under twenty "cies and my funeral and testamentary charges and expences leaving iffue" "and the expences in and about executing this my will unto "my niece Mary Owftwick otherwife Ellard and the issue of her ❝ body lawfully to be begotten as tenants in common (if more than one), but in default of fuch iffue or being fuch if they shall all "die under the age of twenty-one years and without leaving law "ful iffue of any of their bodies, then I devife the fame unto my "coufin Peter Davy and the iffue of his body lawfully to be begot“ten as tenants in common (if more than one) but in default of "fuch iffue or being fuch if they shall all die under the age of “twenty-one years and without lawful iffue of any of their bodies ❝or in cafe neither he nor any fuch his lawful iffue (if any) "fhall 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 poffeffion of the fame eftates and pro"perty by virtue of this my will, that then and in either of fuch "cafes happening the fame eftates and property fhall actually go, and I for that purpose hereby give devise and bequeath the "fame to Stephen Ganton his heirs executors or adminiftrators "for ever, but recommend and hope that he they or fome or "one of them will take upon himself herself or themselves my "faid furname of Burnfall." Power was given by the will to Mary Owftwick otherwise Ellard at any time or times during her life, and to Peter Davy at any time or times during his life, when and as they should respectively come into and be in the actual poffeffion of the said eftates and property to grant the freeholds upon building leafes for seventy years, and to grant either the freeholds or leafeholds upon other leafes for twenty-one years. barred by fine and recovery, leafehold vefted in the remain der-man on the death of B. without iffue. David Burnfall afterwards died without altering his faid will, leaving the faid Mary Owstwick otherwife Ellard (who was then the wife of the Plaintiff) his niece and heiress at law, and the faid Peter Davy and Stephen Ganton him furviving. Mary Outwick the niece is fince dead, without ever having had any iffue, but the and her husband before her death, and within two years after the death of the teftator, took upon themfelves the furname of Burnfall, in purfuance of the faid teftator's will, and by the authority of His Majefty's letters patent, granted to them for that purpofe; and foon after the teftator's death entered upon the freehold eftate and fuffered recoveries, and levied fines thereof to the ufe of fuch perfons and for fuch eftates as the faid Jofeph Ellard and Mary his wife should appoint. And for default of appointment to the ufe of Jofeph 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 affigns of Jofeph Ellard in fee. The queftions for the opinion of the Court were, ift, What eftate and intereft the faid Mary Oufiwick otherwife Ellard took under the teftator's will, and the recoveries and fines in the tef tator's freehold eftates? 2dly, What estates the faid Mary Owfiwick otherwife Ellard took under the teftator's will, in the faid teftator's leafehold eftates? 3dly, What estate the Defendant Peter Davy took under the faid will in the teftator's freehold eftates? 4thly, What eftate the Defendant Peter Davy took under the faid will in the teftator's leafehold eftates? This cafe was argued in Eafter Term laft 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 abfolute estate in the leafehold property. It is manifeft that both kinds of property were intended by the devifor to go together to the fame description of perfons; it is therefore only neceffary to eftablish, that an eftate tail in the freehold paffed, and an abfolute eftate in the leafehold will follow of course. The intereft of P. Davy in the freehold being contingent, is at all events barred by the recovery, whether M. Owstwick took an eftate for life or in tail. If fhe took an estate tail the contingency is manifeft. But suppose it to be an estate to M. Owftwick for life, remainder to her children for life, ftill the intereft of P. Davy would not be abfolute on the determination of those estates; for if one 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 decifion between these parties, 6 Term Rep. 34.; it is for the purpose of the leafehold only, that it becomes neceffary to discuss what etate M. Owstwick took. The prefatory words "all my freehold and leafehold estates" are not fufficient to give an estate in fee to the children; for though great stress has been laid upon fuch words, where a queftion has arifen between the devifce and the heir at law in cafes where all has been devifed by fuch prefatory words, and fomething remained undifpofed of by the particular claufes of the will, yet in this cafe every thing has been devised away, and the only queftion is, Whether A. or B. fhall have a particular part of it. The only cafes where the word "iffue" can be conftrued to be a word of purchase, are, ift, where an exprefs eftate for life is given to the anceftor, remainder to his iffue and the heirs of fuch iffue; in which cafe the term "iffue" denotes fome individual, because the subsequent words of limitation are inconfiftent with the ancestor's taking the whole eftate. 2dly, Where a perfonal estate is given to the ancestor for life and to his iffue without any difpofition over; but there is no inftance of fuch a conftruction being put upon the word "iffue" in cafes of freehold eftates without fubfequent words of limitation. The Courts have conftrued fuch words as appear to give an eftate for life only, as giving an eftate of inheritance, where the property would otherwife go to a different family from that which was intended to take, Roe v. Grew and others, 2 Wilf. 322. Robinfon v. Robinson, 1 Burr. 38. and in Doe v. Applin, 4 Term Rep. 82, where the devife was to W. D. of a freehold eftate for life, and after his decease to and among ft his iffue, and in default of iffue then over, the Court went fo far as to reject the words "and amongft" in order to effectuate the general intention, and held that W.D. took an eftate tail. On the fame ground the Court in this cafe may, if neceffary, 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 iffue. Here if the word "iffue" be understood fully, that is including all defcendants, it must be confidered as a word of limitation: if it be confidered as defignating one or more persons only it muft be confined to iffue born in the life of the devifor, Cook v. Cook, 2 Vern. 546. But the fame word cannot be conftrued to mean two things in the fame breath: if the iffue of M. O. would take 1798. BURNSALL v. DAVY. 1798. BURNSALL V. DAVY. take by purchase, the words "lawful iffue of their bodies" muft be confined to iffue to be born within a limited time, to the exclufion of their general defcendants. But to fay that it is an eftate for life to M. O. and then over, would be directly contrary to all the cafes where the general intention of the teftator has been adopted, notwithstanding particular words which feem to contradict it. Williams Serjt. contrà. I fhall 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 vefted remainder. This is with a view to the freehold, and if I canestablish a right to that the leafehold will follow of courfe. The general intention of the teftator may be effected, without giving an eftate tail to M. O., for if she take an estate for life with croís remainders to her iffue in tail, the remainder to Peter Davy will not take effect till all her iffue is extinct. The words of the will are 66 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 neceffary to the intention of the teftator, the Court will imply them. In Doe v. Wainewright, 5 Term Rep. 427., Lord Kenyon faid, "No technical precife form of words is neceffary to create crofs remainders." Here the intention is manifeft from the words "if they fhall all die under the age of 21 years, and without leaving lawful iffue of their bodies." The ground of the decifion in Doe v. Applin was, that no crofs 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 cafe. In the next place, the iffue of M. O. would have taken an eftate tail, in which cafe Peter Davy took a vested remainder. In Luddington v. Kime, 1 Ld. Raym. 203, 1 Salk. 224. 3 Lev. 431. it was held, that where the mefne eftates are particular eftates, the remainder limited over may veft. In this cafe the teftator gives an estate "to the iffue of the body of M. O. as tenants in common, if more than one;" now it is clear that if the will had ftopped there, the children could have taken only an eftate for life, and the remainder to Peter Davy would be vefted: and the fubfequent words only fubject that remainder to be devefted by iffue. But admitting the fubfequent words to be words of inheritance, it is impoffible that they should give a fee: for even fuppofing that the de vife had been to the iffue of M. O. and their heirs, the fubfequent words "without lawful iffue of their bodies" would reftrain |