my name and family for ever, or as long as the law will permit such enjoyment of the same."

The case was argued (Nov. 14, 1871) by Philbrick, for the plaintiffs, and by J. Browne (T. Atkinson with him) for the defendants. In the course of the arguments the following authorities and cases were referred to:-Cook v. Gerrard (1); 2 Jarman on Wills, 510-522; Livesey v. Harding (2); Sutcliffe v. Howard (3); Cooper v. Jones (4); Holmes v. Meynell (5); Phipard v. Mansfield (6); Atherton v. Pye (7); Watson v. Foxon (8); Doe dem. Gorges v. Webb (9); Doe dem. Southouse v. Jenkins (10); Taafe v. Conmee (11); Powell v. Howell (12).

Cur. adv. vult.

The judgment of the Court (13) was now delivered by

COCKBURN, C.J.-The question in this case arises on the construction of the will of John Hannaford, who died on the 11th of February, 1833.

By his will, dated the 20th of February, 1830, the testator devised an estate, of which he afterwards died seised in fee, to his brother, William Hannaford, for life, and after the decease of the latter, to the four sons of the said William Hannaford, his nephews, for life, as tenants in common, and after their decease he devised the share or shares of his said nephews, respectively, to their respective eldest sons, "now living," for life, and after the decease of such eldest sons, he devised the share or shares of each of such eldest sons to the first and other sons of the

latter, successively, in tail mail. In default of issue of the eldest sons he devised

(1) 1 Wms. Saund. 180, 185.

(2) 1 Russ. & M. 636.

(3) 38 Law J. Rep. (N.s.) Chanc. 472.

(4) 3 B. & Ald. 425.

(5) T. Raym. 452.

(6) Cowp. 797.

the same share or shares to the second, third, and other sons, now living," of his said nephews, severally and successively, according to their respective seniorities, and to their issue in tail male, "in the same manner, and for the same estate and estates," as he had before given to the eldest sons of such nephews. Failing the issue of the sons then living, he devised to all and every the sons of his said nephews "hereafter to be born," in tail male. After which, the will proceeds thus: "and for default of such issue, I give and devise the same to my own right heirs for ever, it being my will and intention that the said lands shall go and remain in my name and family for ever, or as long as the law will permit such enjoyment of the same."

The testator having died in 1833, William Hannaford, the first devisee for life, took possession and enjoyed the estate till his death in 1838. His four sons, the testator's nephews, referred to in the will, survived their father. William, the eldest, died in 1844, leaving a son and three daughters. The son, William Field Hannaford, died in 1863, never having had any issue.

The second son, George Hannaford, died in 1868, having also had no issue.

Of

The third son, Peter Hannaford, died some time since, leaving two sons. these, the eldest, William Pitts Hannaford, went to sea, being then unmarried, and not having been heard of for eleven years, is presumed to be dead. The other, Henry Hannaford, is now living. The fourth nephew mentioned in the will, Thomas Pitts Hannaford, died, leaving two sons, the eldest of whom has also since died, leaving a son, Norman Field Hannaford, who, as heir in tail, of course succeeds, as tenant in common, to one fourth of the subject matter of the devise. The dispute in the present case relates to the shares of the testator's two nephews, William and George, as to whom there has been a failure of male issue. The plaintiffs are the daughters of the eldest nephew, William, and claim under the final clause of the devise in favour of the testator's right heirs in default of male issue of the devisees under the will; contending that, on failure of issue of either

K

of such devisees, the clause in question takes effect in respect of his share. On the other hand, the defendants, Henry Hannaford and Norman Field Hannaford, who, as has been shewn, are the heirs of two of the testator's nephews mentioned in the will, contend that the effect of the limitations of the will is to create by implication cross remainders between the devisees, and their respective heirs, and that, consequently, they are entitled as tenants in common to the shares of the two nephews whose male issue have failed.

At the close of the argument on the case, we were strongly disposed to think that the contention of the defendants was right; but the parties having agreed, on account of the smallness of the property in dispute, to abide by our decision as final, we thought it right to take time for further consideration of the language of the will; and to enable us to look into the authorities bearing on the subject. The result is that our first impression is confirmed, and that we are now satisfied that our judgment should be for the defendants.

The will in question, however complicated and clumsy may be its language, amounts to no more than a devise, after the determination of the life estates, to the issue of the nephews, in tail male, as tenants in common, with a remainder in default of issue to the right heirs of the testator. Now, the law appears to be at the present day perfectly well settled, that upon such a will, the clause in favour of the heirs general does not affect, so long as any issue of any of the devisees capable of taking as tenants in tail, survive, and that under such a will cross remainders must be implied in favour of surviving tenants in common.

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 several persons in tail, being tenants in common, with a limitation over for want 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 case of Taaffe v. Conmee (11) Lord Westbury says: "I arrive at the conclusion that the words 'in default of such issue male' in conformity with their own natural meaning, and also in conformity with the rule that must now be considered to be at length finally arrived at, must mean plainly for default of all such issue male as would take under the antecedent limitation.'" In the same case Lord Cranworth says, "I take it that the doctrine is now well established, that whether cross remainders are to be implied or not is a mere question of construction upon the whole face of the will, and wherever there are limitations in tail, or in tail male, and in default of such issue a gift over, then I take it that the presumption is that that means in default of the issue of all of them."

Such being the presumption applicable to such a limitation, we not only find nothing in the present will by which such a presumption can be rebutted or controlled, but we see in the express declaration of the testator that his intention is that the lands in question "shall go and remain in his name and family for ever, or as long as the law will permit," the strongest confirmation of the presumption of law; it being plain that if the absolute property in any part of the land passed to the plaintiffs as heirs, the intention thus declared would be liable to be defeated either by their marrying, or by their alienating the land, or disposing of it by will to some one not of the testator's name and family.

We are, therefore, of opinion that the contention of the defendants is right, and that our judgment must be in their

favour.

Judgment for the defendants.

Attorneys-G. E. Philbrick, agent for C. Kitson, Torquay, for plaintiffs; Church, Sons & Clarke, agents for W. Creed, Newton Abbott, for defendants.

Work and Labour - Local Board of Health-Execution of Work-Order of Chairman Statute of Frauds-29 Car. 2. c. 3. s. 4-Debt, Default or Miscarriage of Another-Suretyship.

The plaintiff had been employed by a Local Board of Health to construct certain main sewer works. On the 19th of March, 1866, the Local Board gave notice to the owners of certain houses to connect their house drains with the main sewer within twenty-one days. Before the expiration of the said twenty-one days, and during the construction of the main sewer, the surveyor of the board proposed to the plaintiff that he, the plaintiff, should construct the connection between the house drains and the main sewer. The plaintiff said he was willing to do the work if the board would see him paid. The owners of the houses did not proceed in any way to do the work required of them, and before the expiration of the twenty-one days, the construction of the connections was commenced by the plaintiff under the following circumstances.

Having completed the main sewer, the plaintiff was leaving the work, when the surveyor stopped him and requested him not to go away as there was more work to be done. The plaintiff asked him who was to be responsible for the payment, to which the surveyor answered that the defendant, who was the chairman of the local board, was waiting to see the plaintiff about it. The plaintiff then had an interview with the defendant, at which the defendant said, "What objection have you to making the connections?" The plaintiff said, "I have none, if you or the board will order the work, or become responsible for the payment." The defendant said, "Go on and do the work, and I will see you paid." Accordingly the plaintiff constructed and completed the connections. He afterwards applied to the Local Board for payment, but the said Local Board disclaimed all responsibility, on the ground that the board had never entered into any agreement with the plaintiff, nor

by any resolution or order authorised any officer of the board to agree with him for the performance of the work. The plaintiff then commenced an action against the defendant.

At the trial, the jury returned a verdict for the plaintiff, but the Court of Queen's Bench subsequently made a rule absolute to set that verdict aside, and enter a nonsuit instead thereof. The plaintiff having appealed to this Court, the question was raised on the appeal, whether or not the defendant was entitled to have the nonsuit entered:

Held, reversing the judgment of the Court of Queen's Bench, that there was evidence to go to the jury of the personal liability of the defendant, and that the defendant was not entitled to have a nonsuit entered.

The report of the case when in the Court below may be found 39 Law J. Rep. (N.S.) Q.B. 275.

The following CASE is stated pursuant to the 39th section of the Common Law Procedure Act, 1854, by way of appeal by the plaintiff from a decision of Her Majesty's Court of Queen's Bench, making absolute a rule of that Court obtained by the defendant, calling on the plaintiff to shew cause why the verdict obtained on the trial of this cause should not be set aside, and a nonsuit entered instead thereof on the ground that there was no evidence of an original liability on the part of the defendant to the plaintiff, for the work to be done.

1. This action was commenced on the 24th of November, 1869.

2. The declaration as originally framed was as follows: John Paltridge Mountstephen sues Thomas Lakeman, for that the defendant was, at the time of the accruing of the cause of action hereinafter mentioned, the chairman of the local board of health for the district of Lower Brixham, and in consideration that the plaintiff' would do and provide certain work and materials to be used in drainage and other works for the said local board of health for the district of Lower Brixham, at the request of the defendant, as and assuming to be the agent of the said local board, the defen lant promised the plaintiff that be was duly authorised by the said local

board to make such request for them as their agent, and the plaintiff, relying upon the said promise, did the said works and provided the said materials for the said local board at the request of the defendant, and all conditions were performed, and all things happened, and all times elapsed, necessary to entitle the plaintiff to a performance of the said promise of the defendant, and to maintain this action for the breach thereof hereinafter alleged; yet the defendant was not authorised by the said local board to make such request for them as their agent, by reason whereof the plaintiff was and is unable to compel the said local board to pay the price and value of the said work and materials.

And the plaintiff also sues the defendant, for that the defendant was, at the time of the accruing of the cause of action hereinafter mentioned, the chairman of the local board of health for the district of Lower Brixham, and in consideration that the plaintiff would do and provide certain work and materials to be used in drainage and other works for the said local board of health for the district of Lower Brixham, at the request of the defendant, as and assuming to be the agent of the said local board, the defendant promised the plaintiff to obtain for the plaintiff from the said local board of health a contract, whereby the said local board should be, in a lawful and proper manner, bound to the plaintiff, to pay him a reasonable price for the said works and materials; and the plaintiff, relying upon the said promise, did the said works and provided the said materials for the said local board, at the request of the defendant; and all conditions were performed, and all things happened, and all times elapsed necessary to entitle the plaintiff to a performance of the said promise of the defendant, and maintain this action for the breach thereof hereinafter alleged; yet the defendant did not obtain for the plaintiff from the said local board such a contract as aforesaid, or any contract whatever; by reason whereof the plaintiff was and is unable to compel the said local board to pay the price and value of the said work and materials.

And the plaintiff also sues the defendant for money payable for work done,

materials provided by the plaintiff for the defendant at his request, and for money found to be due from the defendant to the plaintiff on accounts stated between them.

At the trial the above declaration was by leave amended under the circumstances hereinafter stated, and the following count was added:

And the plaintiff also sues the defendant for that the defendant was at the time of the accruing of the cause of action hereinafter mentioned, the chairman of the local board of health for the district of Lower Brixham aforesaid, and in consideration that the plaintiff would do and provide certain work and materials to be used in drainage and other works for the said local board at the request of the defendant, the defendant promised the plaintiff that he would pay the plaintiff a reasonable price for the said work and materials, if at any time thereafter the said local board should refuse to pay the plaintiff a reasonable price for the same, and the plaintiff, relying on the said promise, did the said work and provided the said materials for the said local board at the request of the defendant; and afterwards the said local board refused and still refuse to pay the plaintiff a reasonable price or any price whatever for the same, and all conditions were performed, and all things happened, and all times elapsed necessary to entitle the plaintiff to a performance of the said promise of the defendant, and maintain this action for the breach hereinafter alleged; yet the defendant did not pay the plaintiff a reasonable price for the said work and materials or any price whatever for the same, but wholly refused so to do; whereby the plaintiff has lost the moneys he has paid, and been deprived of the profits he ought to have made in and by doing the said work and providing the said materials.

3. The defendant pleaded, first, to the first and second counts that he did not, assuming to be the agent of the said board, promise as alleged. Second, to the third count, that he never was indebted as alleged. And third, to the first and second counts, that the plaintiff did not do the said several works and provide the said

materials for the said board at the request of the defendant as alleged. The plaintiff joined issue upon all the defendant's pleas.

To the count added at the trial, the defendant pleaded pleas similar to the first and third, whereupon issue was joined.

The cause came on to be tried before the Right Honourable the Lord Chief Baron, at the Spring Assizes, 1870, held at Exeter, in and for the county of Devon, when the following facts were proved:

5. The defendant is chairman of the local board of health at Brixham, and has been so since 1862.

6. The plaintiff, who is a contractor and builder, was employed in 1866 by the said board to construct certain main sewage works in the town of Brixham.

7. On the 19th day of March, 1866, notice was given by the board, under the provisions of the Public Health Act, 1848 (11 & 12 Vict. c. 63. s. 69), to the owners of certain houses in the town of Brixham to connect their house drains with the main sewer within twenty-one days, and on the same day the following resolution was passed by the board: "That Mr. Mountstephen, the contractor, be requested to procure 1,300 ft. of 6 in. Jennings's patent drain pipes for the junctions in King Street, and 100 ft. of 9 in. ditto, also 50 ft. of 6 in. syphon pipes."

8. In pursuance of the above resolution, Mr. Robert Adams, the surveyor of the local board, delivered to the plaintiff a written order for the junction pipes in the handwriting of the clerk to the local board, and the said pipes were subsequently sent for by the plaintiff, and delivered to and paid for by him, and he afterwards deposited them in the local board yard, where they remained till after the conversation hereinafter referred to, and where some of them now are.

9. Before the expiration of the twentyone days, and during the construction of the main sewer, the said Robert Adams, the surveyor of the said local board, proposed to the plaintiff that he, the plaintiff, should construct the connection between the house drains and the main sewer. The plaintiff said that he was willing to do the work if the board would see him paid.

10. On the 5th day of April, that is to

say, before the expiration of the twentyone days specified in the notice given by the board to the owners of the houses, the construction of the aforesaid connections was commenced by the plaintiff.

11. At the trial the plaintiff was called as a witness, and stated in evidence that on the day on which the construction of the connections was commenced, and at an hour previous to the commencement, he was leaving Brixham with his carts and men after the completion of the main sewer, when the said Robert Adams, the surveyor, stopped him and requested him not to go away as there was more work to be done. That the plaintiff asked him. who was to be responsible for the payment, and that the surveyor said that the defendant was waiting to see the plaintiff about it. That he, the plaintiff, then had an interview with the defendant, at which, according to the plaintiff's evidence, the following conversation took place: The defendant said, "What objection have you to making the connections?" I said, "I have none, if you or the board will order the work, or become responsible for the payment." The defendant replied, "Go on, Mountstephen, and do the work, and I will see you paid."

12. The plaintiff constructed and completed the connections in question in the months of April and May, 1866, under the general superintendence of the surveyor of the Board. The defendant knew that the said surveyor was superintending the work.

13. After the completion of the work the plaintiff, on the 5th of December, 1866, sent in an account to the Local Board, in which the work was debited to the "Local Board of Health, Brixham, for work done by the order of the surveyor, Mr. Adams, in King's Street and Ranscombe." Subsequently, at the request of the Board, he supplied separate bills for the work of the main sewerage, and for the work of the connections, the first of which was paid by the Board.

14. Payment for the work of the connections was, after some delay and repeated applications on the part of the plaintiff, refused by the Local Board. The said Local Board disclaimed responsibility, on the ground that the Board had never