Under which construction the defendant, as claiming under the heir at law of the testator, would be entitled to 3-4th parts, three of the sisters of the testator having died without issue; and, at all events, the defendant insisted on being entitled to 1-4th part, viz. that part which would have gone to the issue of Barbara Ellison, one of the sisters of the testator, if she had had issue; because she having outlived the niece, on whose death, without issue, the remainder to Barbara Ellison's issue was to take effect, and such remainder being, as he contended, a contingent remainder, and there not being any person in esse to take at the time the particular estate determined by the death of the niece, it would go of course to the heir at law of the testator: but on an attentive consideration of the will, as stated in his special verdict, it appears to us, that the plain intent of the testator Cuthbert Ellison was to give the whole of his real estate to his niece Sarah Ellison and her issue, in the manner limited by his will; and that no part should go over to the issue of his sisters till default of issue of his niece; which gave cross remainders amoag the daughters of the niece, if there should be any such daughters; and that for default of issue of his niece, the whole estate should in like manner go to the issue of his sisters; and that no part should go over to his own right heirs while there was any issue of any of his sisters. The testator, in the cutset of the devise to his niece, gives all his lands, tenements, and hereditaments at Elly-hill, and all other his real estate whatsoever and wheresoever; and this is the subject of all the subsequent limitations, the premisses devised not being again repeated; so that it is the same as if he had repeated the word all in every imitation over. This was so held lately in Watson v. Foròn, 2 East, 36, where the testator had begun the devise by giving all that his farm and all the messuages, &c.; and after a limitation to the younger children of Mary Foxon, had, for want of such issue, devised the SAID premisses over and Lord Kenyon, in giving his judgmcut, says, "The devise over of the premisses meant all the premisses: he intended that all the estate should go over at the same time" and in another place he says, "What he meant by the said premisses is evident, and could not have been rendered clearer by saying all the said premisses." This brings it to a devise of all the testator's estate to his niece for life; remainder
ROE ex dem.
WREN & al. against CLAYTON.
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remainder to her first and other sons successively in tail; re mainder to all and every her daughters in tail, as tenants in common; and for default of such issue, then a devise of ALL his said estate to the issue of his four sisters, in the same manner as to the issue of his niece: and whatever doubts might have been entertained under the older cases, since the decision of Wright v.Holford (a), Phipard v. Mansfield (b), Atherton v. Pye (c), and the case which I lately mentioned of Watson v. Foron (d), it seems perfectly clear that there would have been cross remainders among the daughters of the testator's niece, Sarah Ellison. This brings us to consider the effect of the limitation to the issue of his four sisters in tail in such manner as he had before limited the same to the issue of his niece; and for default of such issue to remain to his own right heirs. The premisses limited are never repeated after the first mention of them in the devise to the niece, where the testator gives all his estates; those words are therefore carried forward to every subsequent limitation; and it is the same as if the testator had said, " And for default of such issue of my four sisters, all my said estates to remain to my own right heirs; that is, I mean that all my estate shall be enjoyed by the issue of my four sisters, so long as there are any such; and in default of such issue, all to go over toge ther to my own right heirs:"-and this appearing to us to be the clear intention of the testator on the face of his will, it does not seem necessary to consider in what manner the issue of the several sisters would have taken, if they had all had issue but as far as that may be material to the deter mination of the present case, in the events which have happened, we think that the estate was vested in the issue of the sister Isabella Wren, who were also living at the death of the testator. Whether in Charles Wren and his sister jointly, or in Charles Wren in tail, remainder to his sister in tail, makes no difference; as in either case, on his death, his sisters, who are the lessors of the plaintiff, became entitled. On these grounds we are of opinion, That the plaintiff is entitled to recover the 3-4th parts of the estate in question sought by this ejectment. The consequence is, that judgment must be for the plaintiff.
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2. In Prescott v. Phillips, it had been
ruled by Adair, Serjt. Chief Justice.
of Chester, in 1798, That nothing
short of a 20 years undisturbed pos
session of water, diverted from the
natural channel, or raised by a weir,
could give a party an adverse right
against those whose lands lay lower
down the stream, and to whom it
was injurious; and that a possession
of above 19, but short of 20 years,
was not sufficient. Cited. ib. 213
3. An action on the case lies for crimi-
nal conversation with the plaintiff's
wife, notwithstanding a deed, mak-
ing certain provisions for the wife,
in case of future separation, with
the approbation of trustees; the
deed containing a proviso in case of
such separation, for the attendance
and care of the mother to her chil-
dren, whereby the husband did not
give up all claim to the comfort and
assistance of the wife. (Vide Hus-
band and Wife, No. 1.) Chambers
v. Caulfield, H. 45 G. 3.
4. Where the plaintiff complained of
a plea of trespass, for that the de-
fendant, with force and arms, as-
saulted and seduced the plaintiff's
wife, whereby he lost the comfort of
her society, &c. against the peace,
&c. to his damage, &c. whether this
be trespass or case (and former au-
thorities have considered it to be
case) at any rate, a plea of not guilty
infra sex annos is good on general
demurrer. Macfadzen v. Olivant,
E. 45 G. 3.
387
5. An action on the case by the own-
ers of a market, who had a pre-
scriptive right of toll on all corn
brought into the market to be sold,
and there sold; alleging, That the
defendant intending to deprive them
of their toll, fraudulently bought
corn in the market by sample, know.
ing that the commodity was not
there in bulk at the time of the sale,
whereby the plaintiffs were pre-
vented from taking their toll, is not
sustained by evidence of the mere
fact of such purchase by sample in
the market, though with know-
ledge of the plaintiffs claim of toll,
coupled with the fact of not paying
the toll on demand afterwards, when
the corn was delivered to the de-
fendant in the same borough, but
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out of the market; for non constat,
that the corn would otherwise have
been brought into the market, or
that the defendant did any act to
induce the owner of it not to bring
it there in the first instance. Nei-
ther will the fact of such purchase
by sample in the market, though
coupled with the subsequent deli-
very out of the market, sustain a
count for toll as for corn brought
into the market, and there sold. The
Bailiffs, &c. of Tewkesbury v. Dis-
ton, E. 45 G. 3.
starch of the vendor, then lying at
the warehouse of a third person, at
so much per cwt. by bill at two
months; which starch was in papers,
but the exact weight not then as
certained, but was to be ascertained
afterwards; and 14 days were to be
allowed for the delivery; and the
vendor gave a note to the vendee,
addressed to the warehouse-keeper,
directing him to weigh and deliver
to the vendee all his starch: held,
That under this contract the abso-
lute property in the goods did not
vest in the vendee before the weigh-
ing, which was to precede the de-
livery, and to ascertain the price;
and that part of the starch having
been weighed and delivered to the
vendee by his direction, the vendor
might, notwithstanding such part
delivery upon the bankruptcy of
the vendee, retain the remainder,
which still continued unweighed in
the warehouse, in the name and at
the expence of the vendor. Han-
son and another, Assignees of Wal-
lace and Hawes, Bankrupts, v.
Meyer, T. 45 G. 3.
614
Where the grantor of an annuity ap-
plied to have it set aside on motion,
and to vacate a judgment which had
been irregularly entered up on a
warrant of attorney, which was
given for entering up judgment on
a bond in another court to secure
the annuity, and which warrant of
attorney was improperly described
in the memorial; and the Court ac-
cordingly set aside the judgment:
held, That the grantee might re.
cover back the consideration-money
in assumpsit, and was not put to his
action on a bond, which was also
given for securing the annuity, and
which bond was not ordered to be
cancelled, though voidable in plead-
ing, by virtue of the annuity act.
Scurfield v. Gowland, H. 45 G. 3.
1. The stat. 42 G. 3, c. 90, s. 61,
enables a magistrate to make an or-
der for payment of servants' wages
in certain cases; and directs, that in
case of refusal or non payment of
any sum so ordered, for 21 days
after such determination, he may
issue his warrant of distress; but
it gives an appeal to the Sessions:
held, that 21 days having elapsed
between the making of such order
before the appeal, and also 21 days
after such appeal 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. Wotton v. Hurvey, Clerk,
11. 45 G. 3.
2. There lies no appeal to the sessions
from a conviction by two justices,
upon the stat. 42 G. 3, c. 38, s. 30,
for wetting corn in a certain stage of
the process of malting; for the clauses
of appeal in former excise laws, to
which there is a general reference in
this act, extend not to convictions
for penalties by two justices. Rex. v.
Skone, T. 45 G. 3.
APPRENTICE,
See Immessing.
ASSAULT,
See Pleading. No. 4.
See Fire Insurance; Joinder in Ac-
tion, No. 1.
1. Where the grantor of an annuity
applied to have it set aside on motion,
and to vacate a judgment which had
been irregularly entered upon a war-
rant of attorney, which was given
for entering up judgment on a bond
in another court to secure the annui-
ty, and which warrant of attorney
was properly described in the me-
morial; and this Court accordingly
set aside the judgment: held, that
the grantee might recover back the
consideration money in assumpsit,
and was not put to his action on a
bond which was also given for se-
curing the annuity; and which bond
was not ordered to be cancelled,
though voidable in pleading by vir-
tue of the annuity act. Scurfield v.
Gowland, H. 45 G. 3.
241
2. An auctioneer was e..
ployed to sell
an estate, the lowest price of which
was fixed by the owner, and written
down by him on a piece of paper,
which was put under a candlestick
at the time of sale, with the privity
of the auctioneer; but not signed by
the owner, nor any notice in writ
ing given to the auctioneer of the
price so set down; nor had the
auctioneer given the previous no-
tice of the sale to the collector of
the duty, as required by the acts of
the 19 G. 3, c. 56, and 28 G. 3, c.
37; but being asked at the sale,
Whether he had taken the proper
precautions to avoid the duty in case
there were no sale? he said, That
it was his mode to fix a price under
the candlestick; and if the bidding
did not come up to that price, it was
no sale or duty: held, That the duty
having attached, though there were
no sale, for want of taking the pre-
cautions required of the owner by
the statutes under such circumstan
ces, and the auctioneer having been
sued for the duty on his bond to the
crown, and compelled to pay it, he
could not recover it over against the
owner; he having in effect war-
ranted that proper precautions had
been taken to prevent the duty at
taching in the event, though both
parties were mistaken in the law.
Cupp. v. Topham, E. 45 G. 3. 392
3. In assumpsit, by the vendor against
the vendee of land, for not accepting
it and paying the purchase-money,
the plaintiff averred, That he was
seised in fee of the land; and that
the defendant agreed to purchase it
on having a good title; and that his
title to the land was made good, per-
fect, and satisfactory to the defend.
ant; and that he, the plaintiff, had
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