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my name and family for ever, or as long the same share or shares to the second, as the law will permit such enjoyment of third, and other sons, “now living,” of the same.”

his said nephews, severally and sucThe case was argued (Nov. 14, 1871) cessively, according to their respective by Philbrick, for the plaintiffs, and by seniorities, and to their issue in tail male, J. Browne (T. Atkinson with him) for “in the same manner, and for the same the defendants. In the course of the estate and estates, as he had before arguments the following authorities and given to the eldest sons of such nephews. cases were referred to:-Cook v. Gerrard Failing the issue of the sons then living, (1); 2 Jarman on Wills, 510-522; Livesey he devised to all and every the sons of his v. Harding (2); Sutcliffe v. Howard (3); said nephews “hereafter to be born," in Corper v. Jones (4); Holmes v. Meynell tail male.

tail male. After which, the will proceeds (5); Phipard v. Mansfield (6); Atherton thus : “and for default of such issue, I v. Pye (7); Watson v. Foxon (8); Doe give and devise the same to my own right dem. Gorges v. Webb (9); Doe dem. heirs for ever, it being my will and inten. Southouse v. Jenkins (10); Taafe v. Con- tion that the said lands shall go and mee (11); Powell v. Howell (12).

remain in my name and family for ever, Cur. adv. vult. or as long as the law will permit such en

joyment of the same." The judgment of the Court (13) was The testator having died in 1833, now delivered by

William Hannaford, the first devisee for COCKBURN, C.J.—The question in this life, took possession and enjoyed the case arises on the construction of the will estate till his death in 1838. His four of John Hannaford, who died on the 11th sons, the testator's nephews, referred to of February, 1833.

in the will, survived their father. William, By his will, dated the 20th of February, the eldest, died in 1844, leaving a 1830, the testator devised an estate, of and three daughters. The son, William which he afterwards died seised in fee, to Field Hannaford, died in 1863, never his brother, William Hannaford, for life, having had any issue.

, and after the decease of the latter, to the The second son, George Hannaford, four sons of the said William Hannaford, died in 1868, having also had no issue. his nephews, for life, as tenants in com- The third son, Peter Hannaford, died mon, and after their decease he devised

some time since, leaving two sons. Of the share or shares of his said nephews, these, the eldest, William Pitts Hannarespectively, to their respective eldest ford, went to sea, being then unmarried, sons, “now living,” for life, and after the and not having been heard of for eleven decease of such eldest sons, he devised years, is presumed to be dead. The other, the share or shares of cach of such eldest Henry Hannaford, is now living. The sons to the first and other sons of the fourth nephew mentioned in the will, latter, successively, in tail mail. In de- Thomas Pitts Hannaford, died, leaving fault of issue of the eldest sons he devised two sons, the eldest of whom has also since (1) 1 Wms. Saund. 180, 185.

died, leaving a son, Norman Field Hanna(2) 1 Russ. & M. 636.

ford, who, as heir in tail, of course (3) 38 Law J. Rep. (n.s.) Chanc. 472.

succeeds, as tenant in common, to one (4) 3 B. & Ald. 425.

fourth of the subject matter of the devise. (5) T. Raym. 452.

The dispute in the present case relates to (6) Cowp. 797.

the shares of the testator's two nephews, (7) 4 Term Rep. 710, (8) 2 East, 36.

William and George, as to whom there has (9) 1 Taunt. 234.

been a failure of male issue. The plain(10) 5 Bing. 469 ; s. c. 7 Law J. Rep. C.P. tiffs are the daughters of the eldest 182.

nephew, William, and claim under the (11) 10 H.L. Cas. 64.

final clause of the devise in favour of the (12) 37 Law J. Rep. (N.s.) Q.B. 294 ; s.c. Law Rep. 3 Q.B. 654.

testator's right heirs in default of male (13) Cockburn, C.J.; Mellor, J.; Lush, J.;

issue of the devisees under the will; conHanden, J.

tending that, on failure of issue of either New Series, 41.-Q.B.

K

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of such devisees, the clause in question In the case of Taaffe v. Conmee (11) Lord takes effect in respect of his share. On Westbury says: “I arrive at the conthe other hand, the defendants, Henry clusion that the words 'in default of such Hannaford and Norman Field Hannaford, issue male' in conformity with their own who, as has been shewn, are the heirs of natural meaning, and also in conformity two of the testator's nephews mentioned with the rule that must now be conin the will, contend that the effect of the sidered to be at length finally arrived at, limitations of the will is to create by im- must mean plainly for default of all such plication cross remainders between the issue male as would take under the devisees, and their respective heirs, and antecedent limitation.'” In the same case that, consequently, they are entitled as Lord Cranworth says, “I take it that the tenants in common to the shares of the doctrine is now well established, that two nephews whose male issue have failed. whether cross remainders are to be im.

At the close of the argument on the plied or not is a mere question of concase, we were strongly disposed to think struction upon the whole face of the will, that the contention of the defendants was and wherever there are limitations in tail, right; but the parties having agreed, on or in tail male, and in default of such account of the smallness of the property issue a gift over, then I take it that the in dispute, to abide by our decision as presumption is that that means in default final, we thought it right to take time for of the issue of all of them." further consideration of the language of Such being the presumption applicable the will; and to enable us to look into the to such a limitation, we not only find authorities bearing on the subject. The nothing in the present will by which such result is that our first impression is con- a presumption can be rebutted or confirmed, and that we are now satisfied that trolled, but we see in the express deour judgment should be for the de. claration of the testator that his intention fendants.

is that the lands in question “shall go and The will in question, however com. remain in his name and family for ever, or plicated and clumsy may be its language, as long as the law will permit,” the amounts to no more than a devise, after strongest confirmation of the presumption the determination of the life estates, to the of law; it being plain that if the absolute issue of the nephews, in tail male, as property in any part of the land passed to tenants in common, with a remainder in the plaintiffs as heirs, the intention thus default of issue to the right heirs of the declared would be liable to be defeated testator. Now, the law appears to be at either by their marrying, or by their the present day perfectly well settled, alienating the land, or disposing of it by that upon such a will, the clause in favour will to some one not of the testator's name of the heirs general does not affect, so long and family. as any issue of any of the devisees capable We are, therefore, of opinion that the of taking as tenants in tail, survive, and contention of the defendants is right, and that under such a will cross remainders

that our judgment must be in their must be implied in favour of surviving favour. tenants in common.

Judgment for the defendants. After a review of all the cases on the subject, Mr. Jarman (2 Jarman on Wills, 526) draws from them the following conclusions : "first, that under a devise to

Attorneys–G. E. Philbrick, agent for C. Kitson, several persons in tail, being tenants in

Torquay, for plaintiffs ; Church, Sons & Clarke,

agents for W. Creed, Newton Abbott, for de. common, with a limitation over for want

fendants. or in default of such issue, cross remainders are to be implied among the devisees in tail ;” secondly, " that this rule applies whether the devise be to two persons or a larger number, and though it be made to them respectively."

. }

(IN THE EXCHEQUER CHAMBER.] by any resolution or order authorised any (Appenl from the Court of Queen's Bench.) officer of the board to agree with him for the

performance of the work. The plaintiff 1871.

MOUNTSTEPHEN V. LAKEMAN. then commenced an action against the de. Nov. 28, 29.

fendant. Work and Labour Local Board of

At the trial, the jury returned a verdict Health Execution of Work Order of for the pluintiff, but the Court of Queen’s Chairman-Statute of Frauds—29 Car. 2.

Bench subsequently made a rule absolute c. 3. 8. 4— Debt, Default or Miscarriage of to set that verdict aside, and enter a nonAnother-Suretyship.

suit instead thereof. The plaintiff having

appealed to this Court, the question was The plaintiff had been employed by a raised on the appeal, whether or not the Local Board of Health to construct certain defendant was entitled to have the nonmain sewer works. On the 19th of March, suit entered:1866, the Local Board gave notice to Held, reversing the judgment of the Court the owners of certain houses to connect of Queen's Bench, that there was evidence their house drains with the main sewer to go to the jury of the personal liability of within twenty-one days. Before the expira- the defendant, and that the defendant was tion of the said twenty-one days, and not entitled to have a nonsuit entered. during the construction of the main sewer, the surveyor of the board proposed to the The report of the case when in the plaintiff that he, the plaintiff, should con- Court below may be found 39 Law J. struct the connection between the house drains Rep. (N.s.) Q.B. 275. and the main sewer. The plaintiff said The following Case is stated pursuant he was willing to do the work if the board to the 39th section of the Common Law would see him paid. The owners of the Procedure Act, 1854, by way of appeal horises did not proceed in any way to do the by the plaintiff from a decision of Her work required of them, and before the ex- Majesty's Court of Queen's Bench, making piration of the twenty-one days, the con- absolute a rule of that Court obtained by struction of the connections was commenced the defendant, calling on the plaintiff to by the plaintiff under the following circum- shew cause why the verdict obtained on stances.

the trial of this cause should not be set Having completed the main sever, the aside, and a nonsuit entered instead thereof plaintiff was leaving the work, when the on the ground that there was no evidence surveyor stopped him and requested him of an original liability on the part of the not to go away as there was'more work to be defendant to the plaintiff, for the work to done. The plaintiff asked him who was to be be done. responsible for the payment, to which the 1. This action was commenced on the surveyor answered that the defendant, who 24th of November, 1869. was the chairman of the local board, was 2. The declaration as originally framed waiting to see the plaintif about it. The was as follows: John Paltridge Mountplaintiff then had an interview with the stephen sues Thomas Lakeman, for that defendant, at which the defendant said, the defendant was, at the time of the accrn“What objection have you to making the ing of the cause of action hereinafter menconnections ?" The plaintiff said, I have tioned, the chairman of the local board of none, if you or the board will order the health for the district of Lower Brixham, work, or become responsible for the pay- and in consideration that the plaintiff would ment.The defendant said, Go on and do do and provide certain work and materials the work, and I will see you paid.Accord- to be used in drainage and other works ingly the plaintiff constructed and completed for the said local board of health for the the connections. He afterwards applied to the district of Lower Brixham, at the request Local Board for payment, but the said Local of the defendant, as and assuming to be Board disclaimed all responsibility, on the the agent of the said local board, the ground that the board had never entered defen tant promised the plaintiff that be into any agreement with the plaintiff, nor was duly authorised by the said local

6

board to make such request for them as materials provided by the plaintiff for the their agent, and the plaintiff, relying upon defendant at his request, and for money the said promise, did the said works and found to be due from the defendant to provided the said materials for the said local the plaintiff on accounts stated between board at the request of the defendant, and them. all conditions were performed, and

all At the trial the above declaration was things happened, and all times elapsed, by leave amended under the circumnecessary to entitle the plaintiff to a per- stances hereinafter stated, and the followformance of the said promise of the defend. ing count was added : ant, and to maintain this action for the And the plaintiff also sues the defendbreach thereof hereinafter alleged; yet ant for that the defendant was at the time the defendant was not authorised by the of the accruing of the cause of action said local board to make such request for hereinafter mentioned, the chairman of the them as their agent, by reason whereof local board of bealth for the district of the plaintiff was and is unable to compel Lower Brixham aforesaid, and in conthe said local board to pay the price and sideration that the plaintiff would do and value of the said work and materials. provide certain work and materials to be

And the plaintiff also sues the defendant, used in drainage and other works for the for that the defendant was, at the time of said local board at the request of the the accruing of the cause of action herein. defendant, the defendant promised the after mentioned, the chairman of the local plaintiff that he would pay the plainboard of health for the district of Lower tiff a reasonable price for the said work Brixham, and in consideration that the and materials, if at any time thereafter the plaintiff would do and provide certain work said local board should refuse to pay

the and materials to be used in drainage and plaintiff a reasonable price for the same, other works for the said local board of health and the plaintiff, relying on the said profor the district of Lower Brixham, at the mise, did the said work and provided the request of the defendant, as and assuming said materials for the said local board at to be the agent of the said local board, the request of the defendant; and afterthe defendant promised the plaintiff to

wards the said local board refused and obtain for the plaintiff from the said local still refuse to pay the plaintiff a reasonboard of health a contract, whereby the able price or any price whatever for the said local board should be, in a lawful same, and all conditions were performed, and proper manner, bound to the plain and all things happened, and all times tiff, to pay him a reasonable price for the elapsed necessary to entitle the plaintiff to said works and materials; and the plain- a performance of the said promise of the tiff, relying upon the said promise, did defendant, and maintain this action for the said works and provided the said

the breach hereinafter alleged; yet the materials for the said local board, at the defendant did not pay the plaintiff a rearequest of the defendant; and all condi. sonable price for the said work and tions were performed, and all things hap- materials or any price whatever for the pened, and all times elapsed necessary to same, but wholly refused su to do; whereentitle the plaintiff to a performance of by the plaintiff has lost the moneys he has the said promise of the defendant, and paid, and been deprived of the profits maintain this action for the breach there- he ought to have made in and by doing of hereinafter alleged; yet the defendant the said work and providing the said did not obtain for the plaintiff from the materials. said local board such a contract as afore- 3. The defendant pleaded, first, to the said, or any contract whatever ; by reason first and second counts that he did not, whereof the plaintiff was and is unable assuming to be the agent of the said board, to compel the said local board to pay the promise as alleged. Second, to the third price and value of the said work and count, that he never was indebted as materials.

alleged. And third, to the first and second And the plaintiff also sues the defend- counts, that the plaintiff did not do the ant for money payable for work done, said several works and provide the said materials for the said board at the request say, before the expiration of the twentyof the defendant as alleged. The plaintiff one days specified in the notice given by joined issue upon all the defendant's pleas. the board to the owners of the houses, the

To the count added at the trial, the de. construction of the aforesaid connections fendant pleaded pleas similar to the first was commenced by the plaintiff. and third, whereupon issue was joined. 11. At the trial the plaintiff was called

The cause came on to be tried before the as a witness, and stated in evidence that Right Honourable the Lord Chief Baron, on the day on which the construction of at the Spring Assizes, 1870, held at Exeter, the connections was commenced, and at in and for the county of Devon, when the an hour previous to the commencement, following facts were proved :

he was leaving Brixham with his carts 5. The defendant is chairman of the and men after the completion of the main local board of health at Brixham, and has sewer, when the said Robert Adams, the been so since 1862.

surveyor, stopped him and requested him 6. The plaintiff, who is a contractor not to go away as there was more work to and builder, was employed in 1866 by the be done. That the plaintiff asked him said board to construct certain main who was to be responsible for the paysewage works in the town of Brixham.

ment, and that the surveyor said that the 7. On the 19th day of March, 1866, defendant was waiting to see the plaintiff notice was given by the board, under the about it. That he, the plaintiff, then had provisions of the Public Health Act, 1848 an interview with the defendant, at which, (11 & 12 Vict. c. 63. s. 69), to the owners according to the plaintiff's evidence, the of certain houses in the town of Brixham following conversation took place : The to connect their house drains with the defendant said, “What objection have you main sewer within twenty-one days, and to making the connections ?” I said, “ I on the same day the following resolution have none, if you or the board will order was passed by the board : “ That Mr. the work, or become responsible for the Mountstephen, the contractor, be requested payment.”

payment." The defendant replied, to procure 1,300 ft. of 6 in. Jennings's on, Mountstephen, and do the work, and I patent drain pipes for the junctions in will see you paid.” King Street, and 100 ft. of 9 in. ditto, 12. The plaintiff constructed and comalso 50 ft. of 6 in. syphon pipes.”

pleted the connections in question in the 8. In pursuance of the above resolution, months of April and May, 1866, under Mr. Robert Adams, the surveyor of the the general superintendence of the surlocal board, delivered to the plaintiff a veyor of the Board. The defendant knew written order for the junction pipes in the that the said surveyor was superintending bandwriting of the clerk to the local the work. board, and the said pipes were subse- 13. After the completion of the work quently sent for by the plaintiff, and de- the plaintiff, on the 5th of December, livered to and paid for by him, and he 1866, sent in an account to the Local afterwards deposited them in the local Board, in which the work was debited to board yard, where they remained till after the “ Local Board of Health, Brixham, the conversation hereinafter referred to, for work done by the order of the surveyor, and where some of them now are.

Mr. Adams, in King's Street and Rans9. Before the expiration of the twenty- combe.” Subsequently, at the request of one days, and during the construction of the Board, he supplied separate bills for the main sewer, the said Robert Adams, the work of the main sewerage, and for the the surveyor of the said local board, pro- work of the connections, the first of which posed to the plaintiff that he, the plaintiff, was paid by the Board. should construct the connection between 14. Payment for the work of the connecthe house drains and the main sewer. tions was, after some delay and repeated The plaintiff said that he was willing to applications on the part of the plaintiff, do the work if the board would see him refused by the Local Board. The said paid.

Local Board disclaimed responsibility, on 10. On the 5th day of April, that is to the ground that the Board had never

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