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1805.

CARR

against The Earl of

ERROL

however, that the proviso had been annexed to the limitation to the trustees as well as to the other limitations, what would have been the effect of it upon this question ?] Nothing more than to shew that the testator's intention was, that the limitation to them might be forfeited in that event as well as and Others. the others. The testator on the whole of the limitations and the proviso taken together had two intents, both of which cannot be carried into effect; one, That the estate should never be possessed by any person entitled to the Earldom of Errol; the other, That all the issue male of his daughter, not Earls of Errol, should be preferred before the estate went over to Lady Charlotte Hay and her issue; which latter event could not be insured without the intervention of that estate of the trustees which is now sought to be defeated. Supposing the title had come to Wm. Hay soon after the testator' death, when by probability his daughter might afterwards have had other sons born, they would all have been excluded according to the plaintiff's argument, manifestly contrary to the testator's intent; and it would be a very strained construction of the will to say, that he intended that the limitation to the trustees should be destroyed by the operation of the proviso, when the testator anxiously omits to annex it to the limitation to them, when it is annexed expressly to the antecedent and subsequent limitations. Then, as to the subsequent words relied on in the proviso, that in the event of the devolution of the title of Errol, on any it should person to whom the estate was limited, go over, as if such person were dead without issue; as that could not be without destroying the contingent remainders, which it is evident he meant to preserve by the interposition of the estate to the trustees, those words must necessarily receive such a construction as is consistent with the other parts of the will, and with his declared intent to preserve the contingent remainders. In Roe d. Dodson v. Grew, Lord C. J. Wilmot (a) observes, that the event of George Grew's (the first taker) dyinging without issue male would not vary the construction of the will; which was to be considered in the same manner as if he had, or might have had, many sons, &c. So here

(a) Wilmot's Rep. 275. 2 Wils. 322. S. C.

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the

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1805.

CARR againsi

ERROL

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the will is to be construed as if the testators's daughter, Lady Errol, might have had many sons after the devolution of the title of Errol on Wm. Hay, all of whom it was his intenThe Earl of tion to prefer to Lady Charlotte Hay; which intent can only and Others. be secured by the trustees taking. [Lord Ellenborough, C. J. How do you argue that we, are to discover which was the primary intention of the testator? whether that, on the devolution of the title of Errol on any taker of the estate, it should immediately go over to the next in remainder, as if that person were dead without issue, or that it should in no event go over to Lady Charlotte Hay, so long as by legal possibility his daughter might have issue male capable of taking] The latter appears to be the primary intention, from the caution which the testator has used to exempt the Jimitation to the trustees alone from the operation of the proviso, and to avoid the destruction of the contingent remainders in the event which has happened. But if the intent were only doubtful, there is nothing left for the Court but to abide by the strict words; for the words of a will must prevail, unless the Court see a plain intent to the contrary, according to Lord C. J. Wilmot's opinion in the case last cited. This case is even stronger in favour of the limitation to the trustees taking effect, than that of Doe v. Heneage; for there the proviso in the terms of it applied generally to the whole will; here there is an express distinction as to the estate limited to the trustees.

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Dampier, in reply observed, That there was no occasion to subject the limitation to the trustees expressly to the proviso; because, if the estate given to Wm. Hay were to go over to the next in remainder upon the event of the title of Errol devolving on him, in the same manner as if he had died naturally without issue male, the estate never could vest in possession in the trustees for a moment, and therefore the proviso could not apply to them. The intent plainly was to substitute the devolution of the title on any possessor of the estate in the case of his natural death without issue male; in which event it cannot be denied but that the plaintiff would be entitled.

Lord ELLENBOROUGH, C. J. then said, That the case of Doe v. Heneage, appeared to bear strongly upon this, though this case was much stronger than that. It was

therefore

therefore proper, out of respect to the very learned Judge by whose advice principally that case was decided, that they should consider of the matter before they certified their opinion.

1805.

CARR against

The Earl of

ERROL

The following certificate was, in this term, sent to the and Others. Lord Chancellor :

-

"We have heard this case argued, we have considered it; and are of opinion, that the plaintiff William Holwell Carr is, under the will of the testator Sir William Carr, entitled at law to an estate in tail male in possession, in the premisses in question, subject to the trusts of the term of 1000 years created by the will of the said testator."

12th Feb. 1805.

ELLENBOROUGH.

N. GROSE.

S. LAWRENCE.

S. LE BLANC.

WOOTTON against HARVEY, Clerk.

or

IN trespass for seizing and taking a horse of the plaintiff on
the 28th of November, 1803, and detaining it till he paid
51. 17s. 4d., it appeared at the trial before Runnington, Serjt.
in Kent, that one J. Broad, who had been a servant of the
plaintiff, was drawn for the army of reserve; and certain wages,
being due to him for the time * he had served with the plain-
tiff, which the latter refused to pay, he applied to the de-
fendant, a magistrate of the county of Kent, who, after sum
moning the plaintiff, and hearing the complaint, by his
der of the 8th of August, 1803, directed such wages to
paid by the plaintiff. Against this order the plaintiff ap-
pealed to the next Sessions, which confirmed the order on
the 7th October following. In the intervening month of
September, Broad's mother, who was examined as a witness
in this cause (Broad himself being absent with his regiment)
(admitting that her son had not left any directions with her
to receive the wages, but saying that before his departure he
had gone with her to the defendant's house for the purpose

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peal dismissed before the warrant of distress issued, the magistrate was warranted in issuing such order of distress without proof of any demand subsequent to the appeal.

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1805.

WOOTTON 4gainst HARVEY.

[77]

of receiving them from (a) him) having met the plaintiff in Ramsgate, asked him if he had paid her son's wages; to which he answered in the negative, and that he did not in, tend to pay them unless he was forced. The constable then proved, that after having carried several notes from the defendant to the plaintiff to pay the wages of his late servaut Broad, which he, the defendant, had ordered him to do, he received from the defendant the warrant of distress, dated 28th November, 1803, under which he distrained the plaintiff's horse till payment of the money; having previously to the making the distress demanded the money of the plaintiff, which he refused to pay. The warrant of distress stated, that it appearing to the defendant that the plaintiff had had due notice of an order which he (the defendant) had made on the 8th of August preceding for the payment of wages to J. B. his late servant, it therefore authorized the constable to distrain for their non-payment. On this evidence, it was contended for the plaintiff, that under the stat. 42 Geo. 3, c. 90, s. 61 (b) a demand of the wages adjudged by the order of the justice should be made by the party himself, or some person properly authorized by him to receive them, previous to the issuing of any warrant of distress: and that here there was no evidence of such a demand by any person so autho rized to receive the wages. The learned Serjeant, however, held, that no such demand was necessary under the statute; and that even if it were, in general, the necessity of making it had been waved in this instance by the proof of an absolute refusal to comply with the adjudication. The plaintiff was thereupon nonsuited, with leave to move the Court to set aside the nonsuit, and enter a verdict for the plaintiff, if

(a) The mother also swore that her son had desired Mr. Harvey to receive the wages for him. But the Court considered that as mere hearsay, and no evidence; it was no part of the res gesta, as contended for by the defendant' counsel, but a relation of what the son had before said.

(b) The stat. 42 Geo. 3, c. 90, enacts, s. 62, That if any servant shall be enrolled as a militia-man under that act, it shall not vacate his contract with his master, &c but there shall be an abatement from his wages in propertion to his absence, to be settled by a justice of peace. "And it shall be lawful for such justice, on complaint, to examine upon oath every such servant, &c. and to make such order for payment of so much wages, &c. as the case may require, &c. And in case of refusal or non-payment of any sums so ordered to be paid by the space of 21 days next after such determination, such justice may and shall issue forth his warrant to levy the same by distress and sale," &c. But it also gives an appeal to the Sessions. This and other provisions of that statute are by stat. 43 Geo. 3, c. 82, s. 44, applied to the army of reserve; out of which this transaction arose.

the

the nonsuit were wrong. A motion to that purpose was accordingly made in last Michaelmas term, on the ground that there ought to have been a new demand of the money after the order of Sessions upon the appeal, before the distress was taken. And a rule nisi having been granted,

Shepherd, Serjt. and Marryat now shewed cause; and referring to the words of the act, said, That there was no occasion in this case to make a demand after the hearing of the appeal, even if in any case that were necessary, as the appeal, when dismissed, and the original order confirmed, was the same as if there had been no appeal; for here there were more than 21 days elapsed after the confirmation of the or der of Sessions before the distress was taken; and the distress is given in case of refusal or non-payment of the money ordered to be paid for twenty-one days.

Garrow and Lawes, in support of the rule. There was no evidence of any demand made for the money before the distress, by any person authorized by the party himself to whom the money was to be paid, which ought to have been shewn (a). A demand by a stranger is a nullity. The party complained of ought to be regularly demanded to do the thing required of him, before he is distrained upon for the non-performance of it. After the order is made, it is to be presumed that he will obey it when called upon; and, therefore, before any distress taken, there ought to be evidence of a demand and refusal. When an appeal is given, that supersedes the original order; and if the money be adjudged to be paid upon appeal, the same presumption arises that the party, after he has ascertained by due course of law, that the money is legally demandable of him will pay it upon demand; and, therefore, before it was levied there ought to have been a demand after the Sessions. Where money is awarded to be paid, there must be a demand before the Court will lend its assistance in a summary way. A distress is a summary proceeding, and is always required to be preceded by a demand. At all events, there should have been an application proved to have been made to the magistrate by the party grieved, and evidence laid before him to shew that there had been either a refusal to pay on demand after

(a) Coore v. Callaway, 1 Esp. N. P. Cas. 115.

1805.

WOOTTON against HARVEY.

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