When once the donor has used the terms "heirs," or "heirs of the body," as following on an estate of freehold, no inference of intention, however irresistible, no declaration of it, however explicit, will have the slightest effect. The fatal words once used, the law fastens upon them, and attaches to them its own meaning and effect as to the estate created by them, and rejects, as inconsistent with the main purpose which it inexorably and despotically fixes on the donor, all the provisions of the will which would be incompatible with an estate of inheritance, and which tend to show that no such estate was intended to be created; although, all the while, it may be as clear as the sun at noonday that by such a construction the intention of the testator is violated in every particular.

Such being the principle involved in the decisions of the House of Lords in the cases of Perrin v. Blake, 4 Burr. 2579, 1 W. Bl. 672, Jesson v. Wright, 2 Bligh 1, and Roddy v. Fitzgerald, 6 House of Lords Cases 823, it appears to me that we cannot give any effect to the provisions of this devise that the heirs shall take by appointment, or, in default of it, in succession, for their natural lives. If, indeed, the matter were res integra, I should entirely concur with the majority of the Court of Common Pleas in thinking that these provisions ought to be conclusive as to the intention of the testator. Speaking under the shadow of the great names of Lord Mansfield and Lord Ellenborough,

and the eminent judges of the Court of Queen's Bench who *were *500] parties to the decisions of that court in Perrin v. Blake and Doe d. Strong v. Goff, 11 East 668, and of those who in the Common Pleas decided the cases of Crump d. Woolley v. Norwood, 7 Taunt. 326 (E. C. L. R. vol. 2), and Gretton v. Haward, 6 Taunt. 94 (E. C. L. R. vol. 1), I have no hesitation in saying, that, but for the decisions of the supreme court of appeal, I should certainly have held that an arbitrary rule of law as to the effect of certain words might well be made to yield, as similar rules have in other instances been made to yield, in construing a devise, to the rule,-one of paramount importance in construing wills and devises,-that effect is to be given to the intention of the testator; conformity to which is in my opinion ill obtained by forcing on the testator a meaning directly the reverse of what he really intended. But we are, of course, bound by the decisions of the House of Lords; and, as the law has been there settled, so we must apply it.

But, although the rule thus established is inflexible to the extent I have stated, there is, nevertheless, one quarter from which it permits light to be let in and effect to be given to the real intention of the testator: this is where, by some explanatory context, having a direct and immediate bearing upon the term "heirs," or "heirs of the body," the devisor has clearly intimated that he has not used these words in their technical, but in their popular sense, namely, that of sons, daughters, or children, as the case may be. An illustration of this branch of the rule is given by Lord Brougham in his judgment in Fetherston v. Fetherston, 3 Cl. & F. 67: "If there is a gift to A. and the heirs of his body, and then, in continuation, the testator, referring to what he had said, plainly tells us that he used the words heirs of the body' to denote A.'s first and other sons, then clearly the first taker would only take a life estate."

*This appears to me to be directly applicable to the present [*501 case, with reference to the direction of the testator, following immediately on the devise to the heirs male of the body of William Jordan, that they shall take "in such parts, proportions, manner, and form, and amongst them, as the said William Jordan, their father, shall direct." We cannot reject these words: there is no authority for saying that the particular intent is to yield to the general one,-at all times an unsatisfactory rule,-to the extent that, where the testator has himself afforded a clear indication of the sense in which he has used the words, we are to reject his own interpretation, in order to preserve the legal effect of the term "heirs of the body:" on the contrary, the cases of Lowe v. Davies, 2 Ld. Raym. 1561 (per nom. Law v. Davis, 2 Stra. 849, 1 Barnard 238), of Lisle v. Gray, 2 Lev. 223, and Goodtitle d. Sweet v. Herring, 1 East 264, 3 B. & P. 628 (in which last case the judgment of the Queen's Bench was affirmed in the House of Lords), and the cases of North v. Martin, 6 Sim. 266, and Doe d. Woodall v. Woodall, 3 C. B. 349 (E. C. L. R. vol. 54), establish conclusively, that where, following on a gift to heirs of the body, the term "son or sons," "daughter or daughters," or "child or children," is used in apposition, as it were, to the term heirs of the body, the latter is to be taken in its more restricted and not in its legal sense. The cases of Pope v. Pope, 14 Beav. 591, Gummoe v. Howes, 23 Beav. 184, and Smith v. Horsfall, 25 Beav. 628, are equally in point as establishing that the same effect is produced in limiting the term "issue," which, when unexplained by the context, has, as is now well established, the same force as the term "heirs of the body." In Smith v. Horsfall, 25 Beav. 628, the Master of the Rolls says: "Issue here means children; and such is its signification in all cases where a direct reference is made to the parent of the issue. I entertain no doubt on the point; and I should be unsettling the law if I were to hold the contrary."

[*502 It is quite plain, according to these authorities, that if, in the present devise, the devisor, after the gift to the heirs male of the body of William Jordan, had gone on to say, "the said sons of the said William Jordan to take in such parts, &c., as the said William Jordan shall appoint," this direction must have had the effect of giving to the term heirs male of the body the more limited meaning of sons. Now, this, although in another form, the testator has to all intents and purposes done: for, what possible difference can there be between speaking of the heirs of the body as the sons of the first taker, and of the first taker as the father of the heirs? Instead of using the one form of expression, the testator has used the correlative and corresponding one, and one altogether equipollent in effect. He has given his own key to the meaning of the words "heirs of the body of William Jordan," namely, those heirs of the body of William Jordan of whom William Jordan is the father, that is, the sons of William Jordan. The authorities are as strong for giving effect to such an exposition of a testator's meaning of the term "heirs of the body," where it exists, as for enforcing the technical meaning where it does not. We have no right, as it seems to me, to reject these words, or to hold them to mean something else, so as to give to William Jordan an estate tail; more especially as all the other provisions of the devise lead only to the conclusion that the testator never entertained the intention to give him any such estate.

Nor am I embarrassed by the use of the words "in default of such issue," which follow in the ensuing limitation. The word "issue" is, as every one knows, a flexible term: if the term "heirs of the body" can be controlled by an explanatory context, the term "issue"

*503] cannot be less susceptible of being modified in like manner. The "issue" here spoken of are plainly the same as were previously spoken of as "heirs male of the body.' If the latter are shown by the context to have been the sons of William Jordan, such also must be the meaning of the term "such issue."

The judgment of the House of Lords in the case of Roddy v. Fitzgerald, which was pressed on us in the argument, does not, as it appears to me, conflict with this view. It was not at all intended by that decision, as I read the judgments of Lord Cranworth and Lord Wensleydale, to overrule the numerous cases at common law and in equity to which I have last referred; or all that class of cases (collected in 2 Jarm. Wills 273-277), in which the term "issue" has been cut down to mean sons, daughters, or children, by the testator having used one or other of those terms in the context of the will. Lord Cranworth expressly says, "Where the testator shows upon the face of his will that he must have used technical words in another than their technical sense, there is no rule that prevents us from saying that he may be his own interpreter:" and again, "The word 'issue, when used in a will, is primâ facie a word of limitation; but, if the context makes it apparent that the word is not so used, then it may be treated as a word of purchase." The question in the case, as put by Lord Cranworth, was, whether in a devise to testator's son William for life with remainder to his issue, in such manner, shares, and proportions as he should appoint, and, in default of such appointment, then to the issue equally, if more than one, and, if only one child, to the said child; and on failure of issue, over, there was anything in the context to control the ordinary effect of the term "issue." And the House of Lords held that there *504] *was not. "Issue," being, as was pointed out by Lord Wensleydale, primâ facie equivalent to heirs of the body, the direction that the heirs should take according to the appointment of the ancestor, or, in default of appointment, in equal shares, was altogether inoperative, as settled by the authority of Jesson v. Wright. The further provision, which seems to have been added by the testator unnecessarily and ex nimiâ cautelâ, that, in the event of there being but one child, that child should take the whole, did not appear to their Lordships strong enough to control the larger sense of the word "issue." But there is nothing to show, that, if the context had been sufficiently clear and strong for that purpose, their Lordships would not have given effect to it. On the contrary, as I have pointed out, Lord Cranworth's language is a clear recognition of the existence of the rule as I have stated it farther back. Looking at that language, I cannot but think, that if, in Roddy v. Fitzgerald, the testator had, as in the present instance, described the first taker as the father of those whom he spoke of as his issue, effect would have been given to so striking an exposition of his meaning. I find no intimation of any intention to overrule the numerous cases already referred to in which the more general terms "heirs of the body" and "issue" have been restricted by words used in juxtaposition importing issue in the first generation only, to the latter more limited meaning.

Nor can I suppose that their Lordships would have overruled such a series of authorities silently, and, as it were, by implication, or without a clear intimation of their intention to do so. I therefore consider them as still in force and binding upon us.

[*505

Being, then, of opinion that the devisor has afforded a clear indication of the sense in which he has used *the term "heirs male of the body," namely, that of sons, from which, of course, it would follow that no estate of inheritance was created, and that consequently William Jordan took only an estate for life,-I hold, but on this ground alone,-that the judgment of the Court of Common Pleas should be affirmed.

The Court being thus equally divided, the Lord Chief Justice intimated, that, if the parties wished to carry the case further, one of its members would withdraw his opinion, so that the judgment of the Court of Common Pleas might stand

Affirmed.

FITZJOHN v. MACKINDER. Feb. 8.

M. sued F. in the county court for a debt. F. claimed a set-off, in answer to which M. produced his ledger containing an acknowledgment signed, as he swore, by F. F. denied the signature, which he averred to be a forgery; but the judge, induced partly by the statement of M. and partly by the conduct of F. before him, disbelieving F.'s denial, committed him for trial for perjury, under the 14 & 15 Vict. c. 100, s. 19, and bound M. over to prosecute. F. was accordingly tried for perjury, and acquitted.

F. then brought an action against M. for maliciously and without probable cause causing him to be prosecuted on an unfounded charge:

Held, by Cockburn, C. J., Bramwell, B., and Channell, B., on appeal,-reversing the judgment of the court below, and contrary to the opinions of Wightman, J., and Blackburn, J.,-that the action was maintainable; the committal of F., and his prosecution for perjury, being the result of the wrongful and malicious act of M.

THIS was an appeal by the plaintiff, under the provisions of the Common Law Procedure Act, 1845, 17 & 18 Vict. c. 125, s. 34, against the decision of the Court of Common Pleas in discharging a rule of that court granted in this cause on the 5th of November, 1859, to set aside the nonsuit entered on the trial of this cause, and instead thereof to enter a verdict for the plaintiff with 2001. damages, upon a point reserved at the trial.

The declaration contained two counts.

The first count stated that the defendant falsely and maliciously, and without any reasonable or probable cause, at the county court of Rutlandshire holden at *Oakham, in the said county, before Robert [*506 Miller, Esq., serjeant-at-law, judge of the said county court, went and appeared before the said judge in support of a certain action in contract then pending in the said county court, in which the said now defendant was the plaintiff and the said now plaintiff was the defendant; and the said now defendant then and there falsely and maliciously, and without any reasonable or probable cause, caused and procured the said county court judge to direct the said now plaintiff to be prosecuted for perjury in certain evidence given by him before the said county court judge in the said action, and then falsely and maliciously, and without any reasonable or probable cause, caused the said county court judge to commit the now plaintiff so directed to be prosecuted as aforesaid, until

the next assizes for the said county of Rutland, then and there to take his trial for the said alleged offence, unless the said now plaintiff should enter into a recognisance with one or more sufficient surety or sureties conditioned for the appearance of the said now plaintiff at such then next assizes for the said county, and that he would then surrender and take his trial, and not depart the court without leave.

The second count stated that the said now defendant afterwards falsely and maliciously, and without any reasonable or probable cause, indicted and caused the said now plaintiff to be indicted for wilful and corrupt perjury; that the now defendant afterwards falsely and maliciously, and without any reasonable or probable cause, prosecuted and caused to be prosecuted the said indictment against the said now plaintiff, until the said now plaintiff afterwards, to wit, at the said then next assizes for the said county of Rutland holden at Oakham, in the said county of Rutland, in and for the said county, at a day and time now *507] past, *was in due manner and by due course of law tried and acquitted of the premises in the said indictment charged upon him, by a jury of the said county of Rutland, and it was afterwards considered that the said now plaintiff should depart thereof without day; and that the said prosecution of the said now plaintiff for the said offence was duly ended and determined before the commencement of this suit, and that thereupon the said now plaintiff was afterwards discharged out of custody upon the said charge, fully acquitted thereof as aforesaid: by means of which said several premises the said now plaintiff had been and was injured in his name and credit, and had suffered great pain and anxiety of mind and body, and was prevented thereby from attending to his lawful affairs and business; and also by reason of the premises the plaintiff necessarily incurred large expenses in defending himself against the said prosecution and proceedings, and in relation to the premises and otherwise, and was and is thereby otherwise injured: Claim, 5007.

The defendant pleaded not guilty, whereupon issue was joined.

The now plaintiff was a farmer residing at Oakham, in the county of Rutland, and the now defendant was a seed-merchant and farmer also residing at the same place. In December 1858, the now defendant brought an action against the now plaintiff in the county court of Rutlandshire holden at Oakham, to recover a sum of money for goods supplied by the now defendant to the now plaintiff; and the now plaintiff, in answer to the last-mentioned claim, gave notice of a set-off to a larger amount for certain soil supplied to the now defendant by the now plaintiff in the year 1852; and, on the 8th of December, 1858, this lastmentioned action came on to be tried at the said county court at Oakham, before Miller, Serjt., the judge thereof, when the now plaintiff and *the now defendant were both sworn and examined as witnesses, *508] and no other witnesses were called on either side. The now plaintiff did not on the trial of the last-mentioned action dispute his liability to the now defendant's claim therein, but relied on his set-off, and stated it was true. The now defendant in answer said,-"Why, that was settled between us years ago;" and that they had had a settlement of accounts years ago, and that the claim for this soil was settled; and that, knowing Fitzjohn to be a difficult person to deal with, he had taken care to have his name attached to the settlement at the time: and