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Roe, Lessee of Shell, against Pattison.
Tuesday, Nov. 10th.
the real estate,
HOLROYD moved to set aside a nonsuit, and to Where the tes
enter a verdict for the plaintiff, under leave reserved ral bequests of by Bayley, J. upon the trial of this ejectment at the last stock in the
4 assizes in Northumberland. The question arose upon a
devised all the will, under which the defendant claimed as heir of the the above
stucks with my devisee, and the lessor of the plaintiff claimed as heir of
freehold prothe devisor, whether the devisee took a fee in the pre- Held that M. s.
perty .: mises sought to be recovered, or only a life estate. The took a fee in will, after making bequests to several of the testator's relations 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 property 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 description 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 interest, the heir at law ought not to be disinherited, and the devisee would take only for life. In Hogan v. Jackson (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.
nothing to shew that by freehold property he meant any thing more than lands.
RoE against PATTISON.
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,
(a) 11 East, 246.
The King against The Iuhabitants of OXFORD
Tuesday, Nov. 10th.
NDICTMENT for not repairing a bridge. The de Indictment afendants pleaded that
gainst a county
for not repair ratione tenuræ. At the trial. before Le Blanc, J. at ing a bridge.
Plea, that J.S. Abingdon, it appeared that the bridge had always been is liable ratione
tenuræ. The repaired by the Cadogan family, who were formerly plea not sus
tained by evi. owners of the estate now the property of Mr. Marsack.
dence that the Mr. Marsack purchased the whole of the Cadogan estate, estate of J.S. except about 100 acres called Dirty Coppice, which larger estate,
which part Lord Cadogan still retained, and since the conveyance-to J. Marsack had continued to repair the bridge. The learned of the former Judge was of opinion that this evidence was not sufficient retained the
rest in his own to charge Marsack with the liability, for as Lord Cadogan hands
, and as
well before the still remained owner of a part of the property, and had
purchase as repaired since the parting with the estate to Marsack, it since has re
paired the was rather to be inferred from these facts that he was fridge. But
where in such still liable in respect of the portion which he retained. case the
case the county
was found guilA verdict was therefore given against the defendants.
ly, the Court gave leave to
stay the judgW. E. Taunton moved for a new trial, or for a stay of ment upon payjudgment against the defendants, until another indictment until another was tried. He said that the plea had been framed under indictment was
preferred in or. a conception that the Cadogan family was liable in respect der to try the
liability. 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
1812. whole repairs, although he would have his remedy against
the other for contribution. Regin. v. Duchess of BucThe King against
cleugh (a). At all events it is clear that the county is not Thelnhabitants
liable. of OXFORDSHIRE
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
the prosecution; and Lord Ellenborough, C. J. added 1812. that if the public exigency required it, the county must
The KING repair without prejudice to their case; and Le Blanc, J. against
The Inhabisaid that the county might proceed to indict the parties
OXFORDSHIRE whom they contended to be liable.
der a second
estate has pro
Tuesday, Coverly against MORLEY.
Nov. Icth. TH THIS was an action by the payee against the maker of In an action
against a bank a promissory note for 1001., dated the 8th of Janu- rupt who has ary 1811, payable one month after date: to which the de
certificate un fendant pleaded, that after the making of the promise, der a
commission, the and before the commencement of this action, namely, certificate is no on the 9th of February 1811, he became bankrupt, and bar unless it apthat the cause of action accrued before that time; on
tively that his which issue was joined. The defendant, at the trial duced 15s. in the
pound; evi. before Lord Ellenborough, C. J. at Guildhall, put in the dence that it commission, dated the 9th of February 1811, (this action probably will
much is not having been commenced within the year after that com
sufficient. mission 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