T. T. 1865. decease.
Exch. Cham.

COLTSMAN v.

And I confess it occurs to me that all the reasons which exist for holding that the general devise is enlarged by a devise

over in the event of the general devisee dying under a certain age, COLTSMAN. equally apply to a devise over in the event of the general devisee dying without issue living at his decease. Let us consider how the case would be if the first devisee was not the heir-at-law of the testator, and the devise was to A, and, in the event of his dying without issue living at his decease, then at his decease to B in fee— unless the estate of A was enlarged to an estate in fee, the result would be, that if A died without issue, the property would pass to B; but, if he left issue, the property would not go to the issue as his heir-at-law, or otherwise, but to the heir-at-law of the testator; which certainly would be attributing to the testator an intent so capricious, if not absurd, which is the reason assigned for not adopting it in the cases to which I have referred. If, therefore, in the present case, John Coltsman the devisee was not the heirat-law of the testator, it occurs to me that the principle of the cases to which I have referred, particularly Toovey v. Bassett, would apply, and enlarge his life estate to an estate in fee-simple; and it does not occur to me that the fact of the devisee being heir of the testator can vary the construction of the will and codicil; and therefore, though with some doubt, I am opinion that, for the reasons I have stated, the effect of the codicil was to enlarge the estate for life in Dicksgrove to an estate in fee.

Another view has suggested itself, namely, John Coltsman being heir-at-law of the testator; if matters had rested on the will alone, he would have taken an estate in fee in both estates, partly by descent as to Dicksgrove; so that the codicil may be considered as operating on previous estates in fee-simple in both denominations, so as to bring both cases within the rule in Doe v. Frost. This, however, is not the ground on which I think it right to rest my judgment; I merely refer to it as having occurred to me.

On the whole, however, I come to the conclusion that in both cases the devisee John Coltsman took an estate in fee, with a contingent limitation over; and, therefore, that the plaintiff has no title

to either estate; and, therefore, that the judgment of the Court of T. T. 1865. Exchequer should be affirmed as to both estates.

LEFROY, C. J.

estate.

In my opinion it is impossible to arrive at the proper and legal construction of the testamentary disposition in this case, without taking the will and codicil together. The testator by his will gives to his son John Coltsman "all those his property, lands, tenements and premises at and about Flesk Castle." Those words gave to John Coltsman junior either an estate in fee or an estate for life; but it is immaterial to the present case to decide that point. The will proceeds: "I also devise to my son John Coltsman my lands, "tenements and premises situate at Dicksgrove." Under this devise John Coltsman junior took an estate for life in Dicksgrove; for there are no words on which to ground any augmentation of the The codicil runs thus:-" And, if it should happen that my son John Coltsman die without heirs of his body lawfully begotten, "or to be begotten, in that case, and in default of such heirs, I "hereby devise that my lands at and about Flesk Castle, mentioned "in my said will, together with the plate, furniture, and library, "also my lands situate at Dicksgrove, shall, at my son's death, "descend to my grandson Daniel Cronin, his heirs, executors and assigns, for ever; the heir for the time being to add the name "of Coltsman to the name of Cronin. Also, if it should happen "that my son John Coltsman die without heirs of his body lawfully "begotten, or to be begotten, in that case, and in default of such "heirs, I give the sum of £6000 to my daughter Mary Godfrey."

I am of opinion that by the codicil the testator intended to create an estate tail in John Coltsman junior, and that such estate was duly created in both denominations. What other meaning can be given to the words "heirs of his body," and "such heirs," and to the direction that the heir for the time being should take the name of Coltsman? That being so, and John Coltsman junior having barred the estate tail, the conditional order for a new trial obtained by the plaintiff in error should be made absolute..

Exch. Cham.

COLTSMAN
V.

COLTSMAN.

H. T. 1866.

Common Pleas.

PARKER, a Minor, by his next friend, v. CATHCART.*

(Common Pleas).

Jan. 25, 30.

The

measure THIS case came before the Court on motion on the part of the of damages in

an action upon plaintiff, to show cause why a conditional order for a new trial, an apprentice

ship deed, for made on the 4th of November preceding, upon the ground of miswrongful dis

sustained by

missal, is the direction by the learned Judge who had tried the case, should not loss actually be made absolute. The case had been tried before Mr. Justice Hayes, in the county of Louth, at the Summer Assizes for 1865. venant com- The plaintiff, still a minor, had been, in the year 1861, apprenplained of up

the specific breach of co

to the time ticed to the defendant, a hardware merchant, for the purpose of

of action

such
tion, cannot,

an ac

brought; and learning his business, under a formal deed of apprenticeship; but the jury, in differences had subsequently arisen between them, which resulted therefore, take in the present action. The writ of summons and plaint coninto considerder- tained five paragraphs. In the first the plaintiff complained ation the possible injury the that, in breach of a covenant contained in the said deed of applaintiff may

have sustained prenticeship, the defendant would not teach or instruct the plaintiff, by reason of

his wrongful nor provide him with board and lodging, but discharged him from dismissal, as

such damages his service, and would not suffer him to remain. In the second are not da

mages in the paragraph a parol agreement to maintain the plaintiff during the ordinary course of term of his apprenticeship was declared upon, and a breach thereof things flowing from the alleged. The third paragraph complained of an assault and false breach. imprisonment; the fourth was for detinue; and the fifth for money has been a mis- had and received. The defendant traversed the causes of action direction at the

Where there

trial, the Court alleged in the second and fifth counts, and paid into Court sums above has no

discretion to of £10, £1. 10s. Od., and 10s., upon those alleged in the first, refuse to set

aside the ver- third, and fourth paragraphs respectively. It appeared in evidence

dict.

that the plaintiff had been frequently ordered by the defendant not to stay out after half-past eight o'clock at night, and that having, in disobedience to those orders, stayed out one night until half-past nine o'clock, he was, on coming home, refused admittance, and was

* Coram MONAHAN, C. J., CHRISTIAN, and O'HAGAN, JJ.

Common Pleas.

PARKER

บ.

informed the next morning that he would not be permitted to H. T. 1866. return. Mr. Justice Hayes, in charging the jury, at first left the case to them generally, upon the first and third paragraphs; but afterwards, at the request of defendant's Counsel, informed them CATHCART. that they could only take into consideration the damages which had actually accrued before the commencement of the action; but also told them that they might, in estimating their damages, take into consideration the injury to plaintiff's character which had resulted from the circumstances of his dismissal. To this latter direction the defendant's Counsel objected. The jury then found for the plaintiff on the first and third counts, assessing damages at £40 beyond the sums lodged in Court, and for the defendant upon the second, fourth, and fifth counts. In answer to a question of the learned Judge, they also stated that they had estimated the damages chiefly in reference to the injury done to the plaintiff's character, which they considered ruined by the dismissal. It was then suggested that separate findings should be taken upon the first and third counts; and the jury thereupon assessed damages upon the first count at £30, and upon the third, £10.

Harrison and M'Blaine showed cause.

We do not question the authority of the case of Lewis v. Peachey (a), cited on the part of the defendant in the Court below, that the only damages that were recoverable in the present action were those which had accrued before action. The jury were, however, right in acting upon their opinion, that the damages arising from loss of character had accrued once for all, and therefore fell within that category. Injury to character, resulting from the circumstances of the dismissal, is a proper element of damages in an action upon an apprenticeship deed, inasmuch as it naturally follows from the wrongful act: Hadley v. Baxendale (b); Smith v. Thompson (c). The latter was, like the present case, an action of assumpsit.— See, also, Chitty on Contracts, 7th ed., p. 789, as to actions like the present, savouring of tort. In actions for breach of promise (6) 9 Exch. 354.

(a) 1 H. & C. 518.

(c) 8 C. B. 44.

PARKER v.

H. T. 1866. of marriage, damages of a similar kind are always given. The Common Pleas. misconduct of an apprentice does not release the master from his engagement with him: Winstone v. Linn (a). Substantial justice CATHCART. having been done, the Court should not, under any circumstances, grant a new trial: Lush's Practice, 3rd ed., p. 629; even if there have been a misdirection: Moore v. Tuckwell (b); Edmondson v. Machell (c).

Falkiner and Samuel Ferguson, in support of the rule.

This is not an action for wrongful dismissal by a servant against his master, but an action upon a covenant in an apprenticeship deed, which stands upon a very different footing: Winstone v. Linn; Philips v. Clift (d); and the case of Smith v. Thompson is not therefore in point. There is a continuing breach during each moment of the continuance of the term of apprenticeship: Lewis v. Peachey (e); Hambleton v. Veere (f). The damages given for loss of character were too remote, and were not the natural and legal consequence of the act complained of: Vicars v. Wilcocks (g); Kelly v. Parkingson (h). In actions upon contracts no damages will be given which cannot be stated specifically; and the case of a contract of marriage has always been considered an exceptional one: Hadley v. Baxendale (i); Hamlyn v. The Great Northern Railway Company (k); Williams v. Reynolds and another (1); Mayne on Damages, p. 16; M'Kean v. Cowley (m). Another reason why damages for loss of character cannot be given in the present action is, that character is not in issue upon the record, so as to have enabled us, if we had thought it advisable, to go into evidence to show that the plaintiff had no character to lose.