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by Kalkbrenner, in writing, to the present plaintiff, gave
1824. him a right from that period to put a stop to the circulation
CLEMENTI of the defendant's work. If an author immediately before
WALKER. publishiug abroad also takes steps for publishing here, whether he would be entitled to the privilege or not of an exclusive publication here during the period of time to which the statutes apply, it is not necessary for us in this case to consider, because this is not a case in which the author himself took any step for immediate publication here. The publication by the defendant was founded upon something which he had honestly obtained, not in fraud in any respect of Kalkbrenner, the original author, but in the general and ordinary course of trade; and we think it would militate most strongly against the encouragement which the legislature intended to confer upon books printed here, if we were to say that the author would at any distant period of time be entitled, by chusing himself to print here, or by authorising some other person to print for him, to supersede a fair, honest, and bona fide publication, which had taken place in the mean time. If the author himself is active in taking steps for immediate publication before any body else, he has some merit with the British public, and may be entitled to protection from British acts of parliament; but if we were to say in this case, that the plaintiff was entitled to supersede that which had been honestly published by the defendant, we should be holding that an author who : might never mean to confer any privilege on this kingdom, would be at liberty, at any time, to supersede British printing, the employment of British capital, and of British workmen, and deprive the British public of that benefit which an early publication of the work would be calculated to confer. For these reasons it appears to us, that the publication in 1814 gave neither to the plaintiff nor to Kalkbrenner any exclusive privilege, and that the defendant's publication in 1818 was not wrongful, nor in opposition to any privilege previously obtained in favor of the work in question; and on the ground that the rights
which the defendant then acquired to publish, could not be superseded by a license, on the part of Kulkbrenner, to publish at a subsequent period of time, we are of opinion, that the plaintiff did not establish an exclusive right of printing and publishing in this kingdom, and consequently that a nonsuit must be entered.
Postea to the Defendant.
Doe, on the joint and several demises of Thomas Her
BERT, JAMES SOUTHERN, and Ann his Wife, and
WILLIAM Duke v. John Selby. Testator de THIS was an ejectment for certain messuages and previses his estates to his mises situate in the parish of St. Leonards Shoreditch, in son G. “ to
the county of Middleser. The first count of the declaration hold to him my said son was on the demise of T. Herbert, J. Southern, and Ann his G. for and
wife, in her right, and W. Duke, for the entirety of the during the term of his estate, and was laid on the 1st January, 1821. Three natural life; and from and
other counts were laid on the same day, on the demises of after his de- T. Herbert, J. Southern, and Ann his wife, in her right, cease, I give and devise the and W. Duke, for an undivided third part of the premises,
severally and respectively. Plea, Not guilty. At the trial unto all and every
the child before Abbott, C.J. at the Sittings in Middlesex after last and children
Easter Term, a verdict was found for the plaintiff, subject of my said son G. lawfully to the opinion of the Court on the following case :to be begotten, and their
Thomas Herbert, being seised in fee of the premises in heirs for ever, question, made his will, duly executed and attested, so as to to hold as tenants in pass real estates, and devised as follows :—“ I give and decommon, and vise unto my said son George Herbert, two freehold houses . not as joint tenants. But in Burdett's Buildings, Hoxton, in the parish of St. if my said son G. should die without issue, or leaving issue, and such child or children should die before attaining the age of twenty-one years, or without lawful issue, then I give and devise the same estates unto my son T. and my daughter A. and my son-in-law D. and their heirs for ever, to hold as tenants in common, and not as joint tenants." Upou testator's death, his son G. suffered a recovery, and died unmarried and without issue : -Held, that the devise over was a contingent remainder with a double aspect, and was defeated by the destruction of the particular estate by the recovery.
Leonard's Shoreditch aforesaid, in the occupation of William Ames and Tabitha Kenner; also, I give and devise, &c. (other premises mentioned in the will,) to hold to him my said son George, for and during the term of his natural life; and from and after his decease, I give and devise the same'estates 'unto all and every the child and children of my said son George, lawfully to be begotten, and their heirs for ever, to hold as tenants in common, and not as joint tenants. But if my said son George should die without issue, or leaving issue, and such child or children should die before attaining the age of twenty-one years, or without lawful issue, then I give and devise the same estates unto my said son Thomas, my daughter Ann Southern, and my son-inlaw William Duke, and their heirs for ever, to hold as tenants in common, and not as joint tenants.” . After the death of the testator, G. Herbert suffered a recovery to the use of himself in fee, and afterwards, by lease and release, conveyed the premises to the defendant in fee. In January, 1818, the said G. Herbert died unmarried, without having had issue, leaving the said T. Herbert, and Ann Southern, then and still the wife of the said J. Southern named in the said will, him surviving.
Chitty, for the lessors of the plaintiff. From the frame of this will, it is manifest that it was the intention of the testator to give his son George a life estate only; and if George should leave no children, or none who should attain the
age of twenty-one years, and become capable of conveying away the estate or doing with it as they thought fit, then to give it over to the present lessors of the plaintiff, two of whom were as nearly related to him as George, and the others being his children by marriage. The testator never intended that George should have an absolute power of parting with the estate, and defeating the gift over; and unless the Court is restrained by some inflexible rule of law, it will give effect to his real intention. Probably it will be contended on the other side, that the remainder over
was a contingency with a double aspect, and that by the destruction of the particular estate, the remainder over was defeated, according to Loddington v. Kime(u) and other cases of that class. Upon examination, however, it will be found that this is perfectly distinguishable from those cases. The argument in support of the plaintiff's right to recover is, that this was either an executory devise, or a vested remainder in the lessors of the plaintiff, defeasible only in the event of a son being born to George who should attain the age of twenty-one. In either view of the case, the destruction of George's life estate would not defeat the remainder, and consequently the plaintiffs are entitled to recover. Mr. Fearne, in his Essay on Contingent Remainders (6), after referring to instances of limitations after a preceding vested fee simple, says, “ And even where there is a limitation after a devise in fee simple, though such antecedent devise in fee be not vested, but contingent; yet if the ulterior devise is limited so as to take effect in defeasance of the estate first devised, on an event subsequent to its becoming vested, it has been held to operate as an executory devise. Thus in Gulliver v. Wicketl(c) the testator devised lands to his wife for life, and after her death to such child as she was then supposed to be enceinte with, and to the heirs of such child for ever; provided that if such child as should happen to be born should die before the age of twenty-one years, leaving no issue of its body, the reversion should go over, The Court held it to be a devise to the wife, remainder to the child in contingency in fee, with a devise over, which they held a good executory devise, as it was to commence within twenty-one years after a life in being; and that if the contingency of a child never happened, then the last remainder was to take effect upon the death of the wife.” In the present case that rule of construction will apply. Here there is a devise to George for life, remainder to his children in contingency in fee, with a devise over; and therefore it is a good executory devise, as it is to cominence within twenty
(W) 1 Lev. 431. (6) 6th Ed. 396. (c) 1 Wils. 105.
one years after a life in being; and as the contingency of George's child never happened, then the last remainder took effect upon his death. The estate to George's children was a defeasible estate in fee, and not an absolute fee, because the words are, “ but if my son George should die without issue, or leaving issue, and such child or children should die before attaining the age of twenty-one years, or without lawful issue,” then over. It is uncertain, therefore, whether they had a perfect estate, inasmuch as it is not until their attaining twenty-one, that such estate can become vested. The interposition of the words, “ or leaving issue,” makes all the difference between this and the cases which may be cited on the other side. [Bayley, J. If the word “or” be not read as “ and," the remainder over will be too remote.] The case of Gulliver v. Wickett is similar to this in all its circumstances, and is an authority for shewing that this is an executory devise. [Bayley, J. Is not this case very like Loddington v. Kime?] That case was never finally decided, as appears by the case of Gulliver v. Wickett(a), and Goodright v. Dunham (6). If then this be an executory devise, and not a contingent remainder, it is perfectly clear that it cannot be defeated by the recovery suffered by George. But supposing it to be a contingent remainder, still if the contingency had happened, namely, that of George dying leaving a child, still if that child died under age, without issue, it is clear that the devise over would take effect. This circumstance shews, that this cannot be construed as a contingent remainder, but must operate as an executory devise. For this Pells v. Brown (c) and Due d. Smith v. Webber (d), are also authorities. But again, it might be fairly argued, that the children of George would take only an estate tail, inasmuch as the devise is to them and their heirs for ever; but as the devise over is in the event of their dying without issue, their interest, according 10 Doe v. Reason, cited in Doe v. Holmes (e), would be (a) 1 Wils. 105.
(d) 1 B. & A. 713. (6) 1 Doug. 264.
(c) 3 Wills. 244. (c) Cro. Jac. 5.90.