1812.

LOE, dem.

GIGG, against BRADLEY

and Sarah Knight the elder, and as they should severally
die, during the residue of the said term; as to one
undivided moiety in trust for the said Sarah Knight the
younger, her executors, &c. during the residue of the
said term; and as to the other moiety, upon certain
trusts mentioned therein, being for the benefit of the
said Gigg, his wife, and their children. Susannah Staple
died very shortly after the execution of this deed. Sarah
Knight, the younger, being about to marry Henry Bradley,
the defendant, by a deed made before such marriage,
dated 15th October 1771, conveyed to trustees her un-
divided moiety of the said tenement, to hold to the
trustees for the residue of the said term, in trust for
Sarah Knight, the younger, till after the marriage, and
after the marriage took effect, in trust for Henry Bradley
for life, with divers remainders over. The marriage
took effect : Sarah Knight, the elder, died in the latter
end of 1771; Sarah Bradley died in 1773, leaving one
child, Sarah, now the wife of William Smith, John
Gigg, the husband of Joan, died some time about the
year 1801; Joan Gigg afterwards died, leaving nine
children, eight of whom are the lessors of the plaintiff,
the ninth, named John, having died; Robert Gigg, John
Gigg, (since dead,) and Susannah Wakely, were born in
the life-time of the testator, C. Swetland; the other six
lessors of the plaintiff, and the daughter of Sarah
Bradley, were born after his death. From the death
of Sarah Knight the elder, who survived Susannah
Staple, to the death of Joan Gigg, a moiety of the
rents of the premises were received by Henry Bradley,
and the other moiety by John Gigg, during his life, and
afterwards by Joan Gigg, his widow. Henry Bradley
is now in possession of the moiety of the premises con-

veyed

)

1812.

Doe, dem.

Gigg, against BRADLEY.

veyed by the settlement of the 15th October 1771. The question was whether the lessors of the plaintiffs, or either of them, were entitled to any and what part of that moiety? If they were, the verdict to be entered for the whole, or such part of the said moiety as the Court should direct; if they were not entitled to any part of that moiety, a nonsuit to be entered.

This case was argued in last Trinity term by Moore, for the lessors of the plaintiff, and Burrough for the defendant; on which occasion Co. Lit. 9. d. Wild's case (a), Oates v. Jackson (b), and Armstrong v. Eldridge (c) were cited. The Court took time to consider, and on this day,

Lord ELLENBOROUGH, C. J. delivered the judgment. This case depends upon the effect of a limitation in the will of Charles Swetland. The limitation is of a term for years, and by way of remainder, and it is “to his daughter Sarah Knight's children, to be equally divided between them, share and share alike, and to the survivor of them and their children.” Sarah Knight had then two children, Joan Gigg, the mother of the lessors of the plaintiff, and Sarah Knight, who afterwards married the defendant, and under this limitation the lessors of the plaintiff contend, Ist, that the survivor of Sarah Knight's children, (which their mother was,) was entitled to the whole of this estate by way of survivorship; or if not, that the words “and their children” are words of purchase, and that the grand-children of Sarah Knight were entitled, upon Sarah Knight's death, to divide the estate per capita. The objection to the first

(a) 6 Rep. 16. b.

(6) Str. 1172.

(c) 3 Br. Ch. Rep. 215.

ground

1812.

Doe, dem.

GIgG, against BRADLEY.

ground of claim is, that it rejects the words " and their
children;" or reads them as though they “ had been the
children of such survivor,” and instead of an equal distri-
bution between Sarah Knight's children, which the words
“ share and share alike" seem to have intended, it gives
the whole in the end exclusively to one, without divid-
ing it into shares at all; and it is not matter of attach-
ment or predilection which is to determine who that one
shall be, but it is left entirely to the effect of chance,
the accident of survivorship. The objection to the se-
cond ground of claim is, that if Mrs. Knight had had
a third child before the remainder vested in possession,
though such child would have been clearly intitled to
have taken with Mrs. Gigg and Mrs. Bradley, (Baldwin
v. Karver, Cowp. 309., and Meredith v. Meredith,
10 East, 503.) the issue of such child would have been
excluded; a limitation which is to make the child of a
yet unborn person take by purchase being too remote;
and the only way by which such third child and her
issue could have been put upon a footing with Mrs. Gigg
and Mrs. Bradley, and their issue, is by treating the words
“ and their children" as words of limitation. And it
seems to us that the true construction of this will is to
treat these words as words of limitation; and then Mrs.
Knight's children will take the absolute interest in this
property, share and share alike, subject only to a survi-
vorship between them for life. This gives effect to
every word in the devise, and produces a certain, equal,
and rational disposition of the property, instead of one
which is uncertain, unequal, and to depend upon ac-
cident. The estate goes to all Mrs. Knight's children,
as tenants in common, so long as all remain alive; it
passes to the survivor for life, when they are reduced to a

survivor;

1812

LOE, dem.

GIgG, against BRADLEY.

survivor ; and subject to that survivorship, each as tenant in tail of a term of years, has the power of disposing of the absolute interest in her share. The consequence is that the lessors of the plaintiff have no right to any part of the moiety now claimed, and that the postea must be delivered to the defendant.

Friday, Nov. 27th.

The King against Read.

THE

By 1 G. I. c 47. THE defendant was convicted before Bayley, J. at upon an infor. mation filed in the last assizes for Northumberland, on a record out this court for persuading sol- of this Court, upon an information founded on the diers to desert, 1 G. 1 c. 47. for persuading soldiers to desert. There and tried at the assizes, this were two counts charging separate offences in respect of court is the proper court

two soldiers. Hullock for the defendant, who was now to award punishment, and brought up to receive the sentence of the Court, reif they award ferred to the 1st section of the act, which imposes a peimprisonment, besides the pe- nalty of 401. upon every person convicted of the ofthey are bound fence, and then enacts, “that if it shall happen that also to award the pillory.

any such offender hath not any goods, &c. to the value of 401. to satisfy the same, or that from the circumstances and heinousness of the crime, it shall be thought proper and convenient, the court before which the said conviction shall be made, shall award the offender to prison, there to remain for any time not exceeding six months, without bail or mainprize, and also to stand in the pillory for the space of one hour, &c." He submitted first, that the words of the act which direct the court before which the conviction shall be made to award the offender to prison, &c., seemed to point out that the punishment should be awarded at the assizes, where the trial and conviction took place; but he ad

mitted

1812.

The KING against Read.

mitted that he had been informed by the officer that there were several instances where sentence had been passed by this Court upon similar convictions. He then submitted that if the Court should be disposed to inflict a punishment beyond the forfeiture of the 401. the act left it in their discretion to do so by awarding imprisonment without the pillory.

But The Court said, that the question as to the discretionary part of their power to award punishment had been considered in a former case before the Court; and they were of opinion that if they felt it necessary to award farther punishment than for the 401., they were bound to pass sentence for the pillory as well as imprisonment; and that as to the other objection, this being a record out of this Court, it must be taken to be a conviction before the Court, the Judge at nisi prius, before whom the trial was had, being for that purpose the minister of the Court.

The defendant was sentenced on the first count to a month's imprisonment, and to the pillory; and on the second to a fine of 401.

VOL. XVI.

Ee

Roe,