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1835.

EDWARDS

ARNES.

hold," without the word " estate.” When, therefore, we find at the end of the sentence the words " and all other my property whatsoever and wheresoever," I think we do no injustice, nor any violence to the language of the devise, in holding it to include the testator's copyhold property: for, if "property” can have any application to real estate, it will undoubtedly carry copyhold also. It is said that we are not at liberty to divide the sentence into three branches, which (as it is contended) we must do in order to make the word property apply to other than the personal things which immediately precede it, for then it would be necessary to interpolate "and" between goods and chattels. There is force in the argument, though something hypercritical. My opinion is, that, if the testator had been asked what other property he had besides the copyhold, he would have been extremely puzzled to find any that was undisposed of by this will. After having made a general mass or aggregate of all his property, he directs that his wise shall “ hold the same unto and for the use of his said wife, her heirs, executors, administrators, and assigns, for ever"-using words to denote that the property is to go to executors or beirs, as the case may be. Upon the whole, it seems to me that we shall adhere to the better authority of the later cases, if we say that the copyhold in question passed by this devise : and this opinion receives some confirmation from the circumstance that the testator had surrendered the copyhold to the use of his will. I am unwilling to rely on the clause that gives an annuity to Sarah Hendey; because there may be some doubt as to whether or not that annuity is charged upon the copyhold. If it was -intended to issue in part out of the copyhold, then it is perfectly clear that the devise would comprehend the copyhold.

GASELEE, J. (a).-I am of the same opinion. There

(a) Mr. Justice Park was at Nisi Prius.

1835.

EDWARDS

BARNES.

have undoubtedly been fluctuating decisions upon the point under consideration : but the later authorities have given a larger effect to the general intention of the testator. It seems to me to be impossible to distinguish this case from Doe d. Andrew v. Lainchbury, where the devise was of all the residue of the testator's money, stock, properly, and effects, of what kind or nature soever; and it was held sufficient to pass real as well as personal estate. The word “ effects” will suffice to carry real estate, provided it be the apparent intention of the testator that it shouldHogan v. Jackson, Cowp. 299; Camfield v. Gilbert, 3 East, 516. Our safest course I think will be to decide in accordance with Doe d. Andrew v. Lainchbury.

ور

BOSANQUET, J.-I think it is impossible to entertain a doubt that it was the intention of this testator to dispose of all his estate of what kind soever.

The word "property” will clearly pass real estate, unless it is manifest from other expressions in the will that the word was not intended to be used in that comprehensive sense. The argument drawn from the position of that word in this will, does not appear to me to be accurate. The testator enumerates the different kinds of property of which he professes to dispose—"all my freehold and leasehold, and all my money, securities for money, stock in government funds, goods, chattels," adding—"all other my property whatsoever and wheresoever.” It seems to me to have been the plain intention of the testator to convey by his will all his property, of whatever description. It has been contended that the sentence is not legitimately susceptible of a threefold division, and therefore, that, upon its true grammatical construction, the word property can only have relation to that part of the sentence in which things of a personal nature are described. I think, however, it would be too nice a criticism to say that the meaning of the word "property" must depend upon the presence or absence of the

1835.

copulative" and” before " chattels.” The view the court is now taking is much strengthened by the terms of the habendum. For these reasons, I concur in thinking that the copyhold in question passed by the will.

EDWARDS

BARNES.

Judgment for the defendants (a).

(a) See Powell on Devises, 3rd edit, by Jarman, pp. 151 et seq.,

where all the cases on this subject
are collected.

indorsed and delivered to the

PLIMLEY and Another v. WESTLEY.

Friday,

Nov. 13th. This

was an action on a promissory note: the decla- The defendant ration also contained a count for goods sold and delivered. By consent of the parties, the following case was sub- plaintiffs, in

payment for mitted for the opinion of the court:

goods, a pro

missory note The defendant being indebted to the plaintiffs in the made by one H. sum of 211. 16s. for goods sold and delivered, indorsed payable to R. &

W.(without the and delivered to them, and they took, on or about the words “ or or10th February, 1834, on account of such debt, a promis- dorsed by R. & sory note for 211. 16s. made by Robert Holden, payable by K. to the detwo months after date to Messrs. Ryton & Walton, with- fendant: The out the words " or order," but indorsed by Messrs. Ryton honored by the

maker:-Held, & Walton, and John Knight & Co.; from the latter of that the plainwhom the defendant had received it for a valuable consi- tiffs were enti

tled to sue the deration. When the note became due, viz. on the Ith defendant for

the original March, 1834, it remained in the hands of the plaintiffs; consideration, but it was not presented for payment until the 18th March, ing no notice of being nine days after it became due. It was dishonored, the dishonor had

been given-the and was never paid. On the 25th March, 1834, the defen. instrument not

being negotidant received from the solicitor of the plaintiff's a letter requesting payment of the amount, on the ground that, the note not being negotiable for the want of the words " or order," the holders had no claim upon any of the parties to it except the defendant, from whom they received it. The

able.

1835.

PLIMLEY

v. WESTLEY.

If

defendant refused to pay the note, or the debt for which it was indorsed to the plaintiffs, upon the ground that he was discharged by their laches. Ryton & Walton and Knight & Co. respectively refused to pay the note, on the ground that they were discharged from liability by the neglect to present the note for payment, and their not having received due notice of the dishonor.

The question for the opinion of the court was, whether the defendant was liable to the plaintiffs upon the promissory note, or for the original debt for which it was indorsed to them; or was discharged from all liability. the court should be of opinion that he was liable to the plaintiffs, either upon the note or for the original debt, then a judgment was to be entered for the plaintiffs by confession for 1001. immediately after the decision of the case, or otherwise, as the court might think fit: and if the court should be of opinion that the defendant was not liable either on the note or for the original debt for which it was indorsed to the plaintiffs, then judgment of nolle prosequi was to be entered for the defendant immediately after the decision of the case, or otherwise, as the court might think fit.

S. B. Harrison, for the plaintiffs.-Undoubtedly the plaintiffs in this case have been guilty of such laches in regard to the note as would in the case of an ordinary security have discharged the defendant. But, the note not being transferrable by reason of the absence of the words " or order” (Bayley on Bills, 5th edit. 120; Hill v. Lewis, 1 Salk. 132, S. C. nom. Tassell and Lee v. Lewis, 1 Lord Raym. 743), it was mere waste paper in the hands of the plaintiffs. They could not even sue the defendant as upon a new contract in respect of his indorsement (Penny v. Innes, 1 C. M. & R. 439), for, in that case, a new stamp would have been requisite. [The court called on

1835.

PLIMLEY

v. WesTLEY.

Talfourd, Serjeant, for the defendant.--The contract on the part of the defendant with the plaintiffs, on the delivery of the note, was, to pay the amount on the default of the maker. It is true that no notice of dishonor need be given to one who can suffer no injury from the want of a notice. But here the defendant was by the laches of the plaintiffs deprived of his remedy on the note. Where a bill is drawn for the accommodation of an indorsee, and neither such indorsee nor the drawer has any effects in the hands of the acceptor, a subsequent indorsee, in order to entitle him to recover against the drawer, is bound to give notice of nonpayment--Cory v. Scott, 3 B. & A. 619; Norton v. Pickering, 8 B. & C.610; 3 M. & R. 23.

TINDAL, C.J.-It appears to me that the plaintiffs are entitled to judgment on the count for goods sold and delivered, being the original consideration for the note declared on. The only question is, whether or not the original debt was satisfied or extinguished by the delivery of the note. We must therefore see whether the plaintiffs had any means of enforcing payment of the note, or whether it was in their hands a mere piece of blank paper. It is perfectly clear, since the case of Hill v. Lewis, that the indorser of a bill of exchange is not discharged without actual payment, unless there has been some neglect or default in the indorsee: and the case of Smith v. Kendall, 6 T. R. 123, shews that promissory notes are placed upon the same footing in this respect. Here the promise was simply a promise to pay to Ryton & Walton, and to nobody else: the payee had no authority to indorse; consequently, neither the present plaintiffs nor the defendant, as indorsees, could have sued the maker upon it. I do not therefore perceive that the defendant has sustained any injury from the want of notice of the dishonor. Lewis is an authority to shew that “ every indorsement is

Hill v.

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