Doe dem. Grubb v. The Earl of Burlington, M. 4 W. 4. Page 507 5. A. and B. by a settlement made on occasion of their intended marriage (which afterwards took place) conveyed certain freehold estates to trustees, for the benefit of themselves and the survivor of them for life, then for the benefit of the issue of the marriage, if any, and if none, then to the use of such person as the wife by deed or last will, notwithstanding her coverture, and as if she was sole and unmarried, should appoint, and in default of appointment to the use of herself in fee. The wife at the time of the marriage was seised in tail of certain copyhold lands.

The husband and wife afterwards executed a power of attorney to C., authorising him to surrender the copyhold lands cf which the wife was seised in tail to a third person, in order to make him tenant to the præcipe or plaint in a recovery intended to be suffered in the manor court. The wife, previous to her executing the power of attorney, was examined apart from her husband, by the deputy steward of the manor. The recovery was suffered, and immediately afterwards the premises were surrendered to the same uses as those mentioned in the marriage settlement: Held, that the power of attorney was valid as the act of the husband; he having sufficient interest in his wife's copyhold lands to pass them by surrender during the joint lives of himself and his wife; and that the recovery (which had stood unreversed for twenty years) was therefore well suffered.

After the above surrender, the wife was admitted to other copyhold lands, which were not surrendered to the use of her will. By her will, made in 1802, she devised her real and leasehold

estates to certain persons therein named. At the date of her will and of her death she was seised of freehold estates: Held, that the will was a valid disposition of the copyhold which had been surrendered to the use of her will, though it did not refer to the surrender in which the right of disposition was reserved, and though it was made after she ceased to be a feme covert:

Held further, that the copyholds which had not been surrendered to the use of the will, did not pass by the general devise of the real estate, the will having been made before the 55 G. 3. c. 192. Doe dem. Smith v. Bird and Another, M. 4 W. 4. Page 695

by them was invalidated by collateral matters, they might shew that it was void, because it was executed contrary to the provisions of the act of parliament:

Held, secondly, that a clause in the act of parliament, whereby the company were authorised, at any general or special general assembly, to order and dispose of the custody of their common seal, and the use and application thereof, empowered them to make rules and regulations for its custody, but did not require their concurrence in each particular act of sealing, and that a bond to which the seal had been affixed by the company's clerk, under a general authority from the directors, was valid.

By another clause it was enacted, that the clerk should, in a book provided by the company, keep an account of all acts, proceedings, and transactions of the company of proprietors, and that every proprietor should have liberty to inspect the same, and take copies of the entries: Held, that entries of the proceedings in the book so kept by the clerk were not admissible in evidence, against one of their own members suing them. Hill v. The Manchester and Salford Water Works' Company, M. 4 W. 4. Page 866

COSTS.

See ATTORNEY, 1, 2. EJECTMENT, 2, 3. INDICTMENT, 2. MANDAMUS, 8. PRACTICE, 5. 7, 8, 12. PROHIBITION, 1. SLANDER, 2.

CO-SURETY.

See BANKRUPt, 3.

COURT.

See COPYHOLD, 3.

COURT MARTIAL.

See PROHIBITION, 2.

COVENANT.

See LEASE, 3. 5. PLEADING, 5.

Declaration stated that by indenture between defendant and J. W., reciting that defendant for certain considerations had agreed to pay off certain mortgages and debts of J. W., defendant covenanted to and with J. W. to save, protect, defend, keep harmless, and indemnify J. W. his heirs, executors, administrators, &c., from the payment of the said debts, and from all actions, &c. in respect of them. Breach, that 5007. of an annuity for payment of which J. W. had bound himself, his heirs, executors, and administrators, became in arrear, and remained so after J. W.'s death, and that defendant did not pay the same, nor protect or indemnify J. W., his executors, administrators, &c, by reason whereof the annuity bond became forfeited, and the grantee recovered against the plaintiff, administratrix of J. W., and had judgment for 20., the amount of assets admitted to be in hand, and for the residue, judgment of assets quando: Held, that looking to the whole of the deed declared upon, there appeared a covenant by the defendant, not only to indemnify, but to pay the debt.

Semble, per Parke J. and held by Patteson J. that if the express covenant to protect and indemnify had stood alone, a sufficient breach of that covenant appeared (Little dale J. dubitante): Held, that the plaintiff might recover the whole arrears, for which she was liable, as administratrix, to the grantee of the annuity, though she had

only

Mortgagor granted, bargained, sold, released, and confirmed to mortgagee (in his possession then being by a previous bargain and sale) an iron-foundery and two dwelling-houses, &c. and the appurtenances; together with all grates, boilers, bells, and other fixtures in and about the said two dwelling-houses;" and all trees, houses, cottages, commons, &c. easements, profits, &c. to the said foundery, messuages, and lands appertaining. There were cranes, presses, a steam engine, and other fixtures in the foundery, used for the purposes of the business carried on there, and valued at 6007.: Held, that the specification of the grates and other fixtures in and about the dwelling-houses, shewed that those in the foundery were not intended to pass, though they would have passed if the others had not been mentioned.

Plaintiff at the trial produced a deed of mortgage, executed to him by defendant. The latter proved that on executing it he handed it to his own agent, intending it, as he alleged, to remain as an escrow, till the performance of a certain agreement by another party to the mortgage: Held, that the possession of it by the plaintiff was primâ facie evidence that it had been delivered to him as a deed. Hare v. Horton, M. 4 W. 4. Page 715

DEPOSIT.

See BANKER, 1, 2.

DEVISE.

1. Testator devises as follows: "As touching my worldly estate, I give, devise, and dispose of the same in the following manner: first, I give to my wife, Ann, the whole of my estates, goods and chattels, living stock, and debts, during her widowhood, and no longer, but demeatly to go to my dear children, as I have appointed and disposed to them in lots and money," He then, after giving to his eldest son a sum of money, left to his second son a lot of land (therein described) to him and his lawful heirs for ever; and if no heirs, to his next brother and his lawful heirs for ever. Then followed four other devises in similar terms to four other sons, and then he gave to his son John a dwelling-house, and piece of ground, &c; also his goods and living stock. He then devised to his daughter a house and gardens, and to her son and his lawful heirs for ever: Held that John took a life estate only in the house and ground devised to him. Doe. d. Gwillim v. Gwillim, T. 3 W 4. Page 122 2. Lands were devised, to the use, among others, that M. A. F. should take from and out of the same premises an annuity or yearly rent charge of 500l. a year, to be paid clear of all taxes and deductions, remainder to S. for life, subject to the annuity: Held that the annuity was to be paid clear of legacy duty, and was a charge upon the land; and consequently that S. who had entered into possession under the devise to him, and been compelled to pay the legacy duty on the annuity pursuant to the 45 G. 3. c. 28, s. 5. could not recover it again from

the annuitant. Stow v. Davenpor↳ T. 3 W. 4. Page 359 3. Testator being seised in fee of lands, devised to trustees in fee, upon trust, as to part, to permit his eldest son to receive the profits for life, and as to other parts to permit his two daughters to receive the profits for life; and also upon trust, during the lives of his said children, to preserve contingent remainders.

And after the decease of any or either of his said children, he devised the estate to him or them limited for life as aforesaid, unto all and every his, her, or their child or children living at the time of his, her, or their parents' decease, or born in due time afterwards, for their lives as tenants in common; but, nevertheless, with an equal benefit of survivorship among the rest of the said children, if more than one, and any of them should die without leaving issue, the child or children of each of his said sons and daughters taking the rents and profits of his, her, or their parent's estate only.

And from and after the decease of all the children of each of his said sons and daughters without issue, he devised the estates to them respectively limited as aforesaid, unto and among all and every the lawful issue of such child or children (during their lives) as tenants in common, and to descend in like manner to the issue of his said sons and daughters respectively, so long as there should be any stock or offspring remaining:

And for default or in failure of issue of any of his said sons and daughters, he devised the estates so limited to him, her, or them dying without issue, unto the survivors of his said sons and daughters, during their respective lives, in equal shares as tenants in common; and after their respective

deaths,

deaths, he devised the same to the children of the survivor of his said sons and daughters, during their respective lives, as tenants in common, with such benefit of survi. vorship as aforesaid; and after the decease of all of them, to the issue of such children, in like manner as he had before devised the original estate of each of his said sons and daughters.

And for default or in failure of issue of all his said sons and daughters except one, he devised all his said estates unto his only surviving son or daughter in fee:

Held that under this will, the eldest son of the testator did not take an estate tail (unless in remainder) but an estate for life; that his children took estates tail in undivided shares as tenants in common.

The doctrine that, in construing a devise, the general intent is to be preferred to the particular intent, is incorrect and vague; the true rule of construction is, that technical words, or words of known legal import, must have their legal effect, even though the testator use inconsistent words; unless the inconsistent words are of such a nature as to make it clear that the technical words are not used in their proper sense. Doe dem. of J. A. Gallini v. F.

4. Gallini, M. 4 W. 4. Page 621 4. A. devised copyhold lands to his son D. S. and his wife, and J. H. and his wife, or the survivor of them, for their lives; and after the decease of all of them, to the male heir at law of him the testator, his heirs and assigns for ever; he then bequeathed legacies to three other sons, and afterwards died leaving five sons and one daughter, three by his first wife, and three by the second: Held that the fee vested at the testator's death, in the person who was then his male VOL. V.