1312.

ROE, Lessee of SHELL, against PATTISON.

a

Tuesday, Nov. 10th.

Where the tesral bequests of

tator after seve

stock in the

4 per cents. devised all the remainder in

the above stucks with my freehold freehold property to M.S.:

Held that M. S.

pre

The

took a fee in

HOLROYD moved to set aside a nonsuit, and to
enter a verdict for the plaintiff, under leave reserved
by Bayley, J. upon the trial of this ejectment at the last
assizes in Northumberland. The question arose upon
will, under which the defendant claimed as heir of the
devisee, and the lessor of the plaintiff claimed as heir of
the devisor, whether the devisee took a fee in the
mises sought to be recovered, or only a life estate.
will, after making bequests to several of the testator's re-
lations out of his stock in the 4 per cent. consols, and of
all his wearing apparel, devised as follows: "and after
all my just debts and funeral expenses paid, I leave all
the remainder in the above stocks with my freehold pro-
perty to my sister Margaret Stoker, and all other monies
due to me." It was contended that the word property
was of equivocal meaning, and might denote a descrip-
tion of the interest, or only of the estate or thing devised,
according to the intention of the testator; but unless it
was clear that his intention was to dispose of all his inte-
rest, the heir at law ought not to be disinherited, and
the devisee would take only for life. In Hogan v. Jack-
son (a) it is true the words real effects were held to carry
a fee; and Lord Mansfield is reported to have said that if
effects meant property, there was an end of the question,
because it would pass a fee: but in that case there could
be no doubt from other parts of the will, that the testator
intended to part with the whole interest. Here there is

(a) Cowp. 299.

the real estate.

nothing

1812.

ROE against PATTISON.

nothing to shew that by freehold property he meant any thing more than lands.

Lord ELLENBOROUGH, C. J. I think it was clearly the intention of the testator to give as absolute an estate and interest in his freehold property as in his stock. There can be no doubt about his stock; and Lord Mansfield, in the case referred to in argument, was of opinion that the word "effects" was synonymous to property, and would carry a fee. Indeed there are no words of such an inflexible nature as will not bend to the intention of a testator, when it can be collected from the context of his will. Accordingly we have lately decided that the real estate passed under a devise of the personal estate, because it was clear that such was the intention of the testator (a). Here there is no other disposition of the real property, and it is plain the testator meant to give the same estate in the real as in the personal property.

GROSE, J. The testator meant to give all his interest in the stock, and the same in his real property.

LE BLANC, J. Property is a word large enough to carry the interest in the estate; and here it appears the testator meant to dispose of his real in like manner as his personal property.

Per Curiam,

Rule refused.

(a) 11 East, 246.

The

1812.

The KING against The Inhabitants of OXFORD

SHIRE.

Tuesday, Nov. 10th.

INDICTMENT for not repairing a bridge. The de- Indictment a

Marsack was liable

gainst a county for not repairing a bridge.

Plea, that J. S.

is liable ratione

tenuræ. The

plea not sus

tained by evidence that the

estate of J. S.

was part of a

larger estate,

which part

fendants pleaded that ratione tenure. At the trial before Le Blanc, J. at Abingdon, it appeared that the bridge had always been repaired by the Cadogan family, who were formerly owners of the estate now the property of Mr. Marsack. Mr. Marsack purchased the whole of the Cadogan estate, except about 100 acres called Dirty Coppice, which Lord Cadogan still retained, and since the conveyance to J. S purchased Marsack had continued to repair the bridge. The learned of the former Judge was of opinion that this evidence was not sufficient retained the to charge Marsack with the liability, for as Lord Cadogan hands, and as still remained owner of a part of the property, and had repaired since the parting with the estate to Marsack, it was rather to be inferred from these facts that he was still liable in respect of the portion which he retained. A verdict was therefore given against the defendants.

W. E. Taunton moved for a new trial, or for a stay of judgment against the defendants, until another indictment was tried. He said that the plea had been framed under a conception that the Cadogan family was liable in respect of the larger estate sold to Marsack; but admitting upon the evidence as it now stood that they still remained liable, it only proved that the liability subsisted not in respect of Marsack's estate only, but of the whole estate; and if so, both Lord Cadogan and Marsack would be jointly liable, and each would be chargeable with the

whole

owner, who

rest in his own

well before the purchase as

pur

since has re

paired the ridge. But where in such

case the county

was found guilty, the Court gave leave to stay the judgment upon payuntil another indictment was preferred in order to try the liability.

ment of costs

1812.

The KING against TheInhabitants

of

OXFORDSHIRE

whole repairs, although he would have his remedy against the other for contribution. Regin. v. Duchess of Buccleugh (a). At all events it is clear that the county is not liable.

LE BLANC, J. The only evidence adduced at the trial was, that Lord Cadogan, who had been formerly owner of the whole estate, had sold the greater part of it to Mr. Marsack. That before that time he had repaired the bridge, but in respect of what lands he had so done it did not appear, but only that he sold lands to Mr. Marsack. It was proved that since the sale Lord Cadogan had continued to repair the whole as he had before done; and I thought that this was not evidence to charge Mr. Marsack with the liability.

Lord ELLENBOROUGH, C. J. The defendants have not maintained their plea. It is pleaded that Marsack and all those whose estate he has have immemorially repaired. Now there is no evidence that he and those who had the estate have repaired, for it appears that since he purchased the estate another person has repaired. It would have been more correct to have pleaded that he and those whose estate he has with others have repaired, instead of which the burthen is cast on him impartibly, without giving him the benefit of a contribution from Lord Cadogan. But I should be sorry to conclude the county from bringing forward their case, as it is clear they have never repaired.

The Court directed that the rule should be drawn up for staying the judgment upon payment of the costs of (a) Salk. 358.

the

the prosecution; and Lord Ellenborough, C. J. added that if the public exigency required it, the county must repair without prejudice to their case; and Le Blanc, J. said that the county might proceed to indict the parties whom they contended to be liable.

1812.

The KING against The Inhabitants of OXFORDSHIRE

TH

COVERLY against MORLEY.

on

HIS was an action by the payee against the maker of a promissory note for 1007., dated the 8th of January 1811, payable one month after date: to which the defendant pleaded, that after the making of the promise, and before the commencement of this action, namely, on the 9th of February 1811, he became bankrupt, and that the cause of action accrued before that time; which issue was joined. The defendant, at the trial before Lord Ellenborough, C. J. at Guildhall, put in the commission, dated the 9th of February 1811, (this action having been commenced within the year after that commission issued, viz. in Hilary term 1812,) and also his certificate allowed by the Lord Chancellor, which by stat. 5 Geo. 2. c. 30. operates as a discharge of the person and future effects of the bankrupt, except in certain cases, and amongst others that of a subsequent commission of bankruptcy, in which case the future effects of the bankrupt remain liable to his creditors, "unless (by s. 9.) "the estate of such person shall produce clear, after all "charges, sufficient to pay every creditor under the "commission 15s. in the pound for their respective "debts." But this was shewn to be the second commission of bankruptcy issued against this defendant, and the plaintiff called the assignee under this commission, in

order