YOUNG v. LINDSAY. [ *411 ] [ *412] tainly of some nicety, but on which I express no opinion, namely, whether the notice given on the 19th of November in London would be sufficient to invalidate a payment made by their agent in Canton, on the 12th of December following. It is obvious, if the payment had been made at a place where notice could have been given to the agent not to pay it, that the notice of the 19th of November to Lindsay & Co. would have invalidated any payment made by them or their agent on the 12th of December. Whether it would invalidate a payment made by an agent of theirs in China, where it was impossible to give the agent notice in time, I do not think it necessary to inquire, because I am convinced that the person in China who paid the money was no agent of Messrs. Lindsay, *and that no privity existed between them; it was a payment made by a stranger, of which they seek to claim the benefit, and which I am of opinion they are not entitled to. Then comes the next question, whether the notice was given by the plaintiffs in due time, for hitherto I have been assuming that the notice had been given at once. This is a question of great importance, but I am of opinion, having regard to the terms of the charter-party, that the notice was given in time. The terms of the charter-party have, in my opinion, an important bearing on this question; it is necessary to ascertain from them where the second half of the freight was payable. It was not payable until after "the delivery of a certificate to the charterers, signed by the consignees, of the right and true delivery of the whole cargo agreeably to the bill of lading," and everybody had notice of that fact. The coals could not arrive at Hong Kong until November, according to the ordinary length of the voyage, and they did arrive in that month. In the same month the plaintiffs gave notice to the charterers, and the freight was not to be paid until after they received a certificate of the delivery of the coals, and accordingly, in the correspondence between the plaintiffs and Lindsay & Co. such is treated to be the case, and I do not find there is anywhere a dispute or doubt as to their liability to pay the amount of the freight, and it is not till April that they dispute their liability to pay it. All they say, on the 11th of March, 1858, is, that they have got no advice of the certificate. I am of opinion that this delay does not constitute such laches as can deprive the plaintiffs of their right. It would, no doubt, have been better if the plaintiffs had given notice earlier, but they gave notice to the charterers *in November, at the time the coals were delivered, not to pay any freight until they were paid, and the document on which they advanced their money showed, that the second half of the freight was from that, that the freight was supposed to be payable in I am of opinion, that the plaintiffs are entitled to the amount of the freight, with costs. To avoid misapprehension on the subject, I wish to state my opinion, that if at Hong Kong Messrs. Russell had been the agents of Messrs. Lindsay, and had, prior to the notice of November, 1857, received and paid the money to the agent of Hicks, the defendants would have been entitled to have deducted that as a payment which they had bonâ fide made; but, in my opinion, the facts are otherwise. Messrs. Lindsay must be at liberty to use the name of Messrs. Young in any action they may be advised to bring against Hicks, for the purpose of recovering the amount paid by Messrs. Lindsay & Co. to the plaintiffs; indemnifying the plaintiffs against costs. 1859. July 4. Rolls Court. ROMILLY, [413] [ *414 ] RHODES . RHODES. (27 Beav. 413-417.) It is a canon of construction, that where a testator has affixed a particular meaning to a word in one part of his will, it shall be construed as having the same meaning in all other parts of it, unless it violates the sense (1). 64 The word issue was used in a will on several occasions as equivalent to "children," and the issue were, in some instances, spoken of in reference to their "parent" Held, that "issue" must receive the same construction throughout the will. THE testator devised and bequeathed his residuary real and personal estate, upon trust to sell, convert and invest, and pay the interest of 5,000l., part of the money, to his wife for life, and afterwards unto his children, as his wife should by will appoint, and if she should make no disposition, then the whole 5,0001. equally amongst his children living at the time the same should become divisible, and the lawful issue of such of them as shall be then dead, share and share alike," so as such issue take no greater share of the said *money than his, her or their deceased parent or parents would have taken, if living. 66 He then gave other pecuniary legacies to the children when they attained twenty-one, "but if any of my children shall die under the age of twenty-one, leaving lawful issue, then I direct his or her legacy, and accumulated interest thereof, to be paid equally amongst such children, when and as they shall attain the age of twenty-one years." He gave the residue of his trust money to his children equally, but declared the interest of each child's share should be paid to such child for life, "and on the death of any child to pay the share of such child equally amongst the issue of such child, share and share alike, when and as they shall attain the age of twenty-one years, with benefit of survivorship to the others in case any of such issue shall die under twenty-one years of age without issue, and in the meantime to apply the interest thereof in the maintenance of such issue. And in case any of my children shall happen to die under the age of twenty-one years without leaving lawful issue, or leaving such and all of them shall happen to die under the age of twenty-one years and without issue, then I direct that the share of such child so dying of and in the said residue of the said trust moneys shall be held by my said trustees for the equal benefit of the survivors of my said children, upon the like trusts and to the like uses and purposes (1) This was stated by Lord Sr. LEONARDS, in Ridgeway v. Munkittrick, 58 R. R. p. 222 (1 Dr. & War. p. 93), as a rule applicable "unless there appear a clear intention to the contrary," but it is a "dictum asserted perhaps too positively as a general rule of construction," per judgment of Privy Council, Edyvean v. Archer [1903] A. C. 379, 384, 72 L. J. P. C. 85, 89 L. T. 4. And see In re Birks, Kenyon v. Birks [1900] 1 Ch. 417, 69 L. J. Ch. 124, 81 L. T. 741, C. A.; reversing [1899] 1 Ch. 703; and In re Warren's Trusts (1884) 26 Ch. D. 208, 53 L. J. Ch. 787, 50 L. T. 454.—O. A. S. as their original share of the said residue is before limited. But in case any of my children, having attained the age of twenty-one years, shall die without leaving lawful issue, or any issue of such issue, then I direct my said trustees to pay his or her share in the residue money as such child should by will appoint, and in default to his legal personal representatives *in a due course of administration. "Provided also, and in case all my children shall depart this life without having attained the age of twenty-one years, and without leaving lawful issue, or any issue of such issue, then I direct my said trustees to pay to my said wife, if she shall be then living, the rents and interests of all my said estates and moneys during her natural life, and, after her decease, pay the sum of 15,000l., part of the said moneys, to such person as she shall by will appoint; and as to all the residue of the said trust moneys, and also my said real estate, upon trust to convey, release and assign over the same unto such of my brothers and sisters as shall be then living and the lawful issue of such of them as shall be then dead, and their respective heirs, share and share alike, so as such issue take no larger share thereof than his, her or their deceased parent or parents would have taken if living.' The plaintiffs, who were grandchildren of the testator, insisted that no issue more remote than children of the testator's children were entitled to any beneficial interest in the trust moneys, by virtue of the trusts in the will contained and declared for the issue of the testator's children. The defendants Ann Charlotte Cooper, Marian Gertrude Streatfeild and Richard James Streatfeild, being great-grandchildren of the testator, claimed, under the limitations of the will, the share of their mother, Charlotte Brown, deceased. The case was not affected by the Wills Act, 1 Vict. c. 26. Sibley v. Perry (1), Williams v. Teale (2). Mr. Rasch, for a trustee. Mr. Lloyd, Mr. E. Smith, Mr. R. Palmer, Mr. Bonham Carter, Mr. Shapter, Mr. Prior, Mr. Selwyn and Mr. Freeman, for the defendants, cited Ridgeway v. Munkittrick (3), Edwards v. Edwards (4), Pope v. Pope (5), Roddy v. Fitzgerald (6), Head v. Randall (7), Ross v. Ross (8), Carter v. Bentall (9), Hedges v. Harpur (10), Dalzell v. Welch (11). (1) 6 R. R. 183 (7 Ves. 522). R.R.-VOL. CXXII. (7) 60 R. R. 128 (2 Y. & C. C. C. (8) 109 R. R. 573 (20 Beav. 645). 80 RHODES V. RHODES. [415] [416] THE MASTER OF THE ROLLS: issue" means children." I am of opinion, that the word "issue" I admit the proposition, that the primary meaning of the word "issue" includes every possible class of issue to the remotest generation, and that the burden of proof lies on those who ask to restrict its ordinary meaning; but I think the plaintiffs have discharged that obligation on the present occasion. In the bequest of the 5,000l., it is clear that the word "issue" has reference to "his deceased parent," and that the word is in that gift restricted to children. In the second paragraph he says, that if any of his *children shall die under twenty-one leaving lawful issue, then his legacy is to be divided "amongst such children." It is clear that the "lawful issue" means children in this sentence also. He afterwards, on two occasions, speaks of the death of his children without leaving lawful issue, or any issue of such issue." There again it is clear that the word "issue" is restricted to children. Again, in the ultimate gift to his brothers and sisters living, and the lawful issue of such of them as should be dead, he says 'such issue" are to take the share of "their deceased parent," in which case also, by the reference to the parent, the word "issue" is necessarily restricted to children. 66 I find, therefore, on five separate occasions, the testator uses the word "issue" as equivalent to children. It is a canon of construction, that where the testator has affixed a particular meaning to a word in one part of his will, it shall be construed as having the same meaning in all other parts of his will, if it do not violate the sense. In this residuary clause, therefore, the word "issue" must, in the last sentence as in the previous ones, be read as synonymous with "children.” I am of opinion, that he has used it in the same sense throughout his will, possibly because he did not like the constant. repetition of the word "children." IN RE WILDER'S TRUST (1). (27 Beav. 418-421.) By his will, the testator gave a legacy "equally between my brothers and sisters now living; and he directed that their shares should not lapse by their deaths in his lifetime, but should go to their executors. By a codicil of the same date, he bequeathed another legacy "between my brothers and sisters in like manner as I have directed by my will:' (1) See Pigott v. Wilder, ante, p. 38; 45 L. J. Ch. 378, 34 L. T. 240; Giles but a bequest in the same manner v. Melsom (1873) L. R. 6 H. L. 24, 42 may import a limitation in remainder : L. J. C. P. 122, 28 L. T. 769.-O. A. S. Sweeting v. Prideaux (1876) 2 Ch. 413, |