1791.

KEARS

LAKE

against MORGAN

laches by them. For if the note be paid, or if it be indorsed
over, so that it is not forth-coming again to the defendant, and
he be sued upon it by any third person, that will amount
may
to an extinguishment of the debt. The defendant has once
actually advanced the money upon the note to the maker; and,
unless he has the means of reimbursing himself again, he
ought not to pay the equivalent to the plaintiffs, by whose de-
fault he is deprived of the means of such reimbursement. If
the note were paid there could be no doubt. But, suppose it
were now in the hands of an indorsee, who had given to the
plaintiffs a valuable consideration for it; it would be very unjust
that he should recover the amount again, or that the defendant
should be bound to pay twice for it: and yet the defendant
would have no defence against such indorsee. Again, suppose
the plaintiffs had been guilty of laches in not presenting the
note for payment in time, it would be very unjust that the de-
fendant should suffer on that account. Now all these are facts
lying peculiarly within the knowledge of the plaintiffs them-
selves, and not of the defendant, and therefore they ought to be
shewn by the former. The defendant cannot know whether
the plaintiff's have indorsed the note away, or whether they pre-
sented it in time for payment, or whether they have received
the money, or whether they have lost the note. The allegations,
that the note was not presented in time, or that due notice was
not given, are merely negative allegations, which is never ne
cessary, unless the facts lie peculiarly in the knowledge of the
of
party, who is to allege them, and they are alleged by way
breach. In Rex v. Baxter (a), upon an indictment on the
22 Geo. 3. c. 58. s. 1. which makes the receiver of stolen goods
punishable, though the principal has not been convicted, except
where the person committing felony has been already convicted
of grand larceny or some greater offence; an objection was
taken that it was not alleged that the principal had not been con-
victed of grand larceny or any other greater offence; but it was
over-ruled: and Buller, J. in delivering the opinion of the Court,
said that the averment was not necessary; if it were, it would
merely be stating a negative averment, which need not be
proved by the prosecutor. Such a fact is matter of evidence to
be proved by the defendant; and which, when proved by him,
would entitle him to an acquittal. So, 2 Hawk. c. 25. s. 119.

(a) Ante, 83.

says,

says, it is a good general rule that every indictment must bring a defendant within all descriptions mentioned in the body of the act, except they are such as carry with them the bare denial of a matter, affirmation whereof is a proper and natural plea for the defendant; as where it is enacted that all persons, having no reasonable excuse to be absent, shall go to their parish church, in which case it is said that it is not necessary to shew that the defendant had no reasonable excuse; for that will come most properly from the plea of the defendant. But this plea may also be supported upon the 3 & 4 Anne, c. 9. which, having put promissory notes upon the same foot as inland bills of exchange, enacts (a), "that if any person doth accept any such "bill of exchange for and in satisfaction of any former debt or "sum of money formerly due unto him, the same shall be ac"counted and esteemed a full and complete payment of such "debt, if such person, accepting of any such bill for his debt, "doth not take his due course to obtain payment thereof, by "endeavouring to get the same accepted and paid, and make "bis protest as aforesaid, either for non-acceptance or nonpayment thereof."

He then cited the case of Richardson v. Rickman, B. R. M. 16 Geo. 3. which was an action for goods sold and delivered, and on the common counts; to which the defendant pleaded, "Ist, Non assumpsit; 2dly, That after the making of the promises, &c. to wit, on, &c. at, &c. an account was had and "stated between the plaintiff and defendant, &c. on which "the defendant was found in arrear to the plaintiff in 22. Is. "for which the plaintiff afterwards, to wit, &c. on, &c. at, &c. according to the usage and custom of merchants made his "certain bill of exchange in writing, bearing date the same "day and year last aforesaid, and then and there directed the same to the defendant, and thereby requested him, at thirty days after the date thereof, to pay to Messrs. II. or order, the "said 22. Is. and then and there delivered the said bill of exchange to the said Messrs. H.; which said bill of exchange he, the said defendant, afterwards, &c. duly accepted, accord"ing to the usage of merchants aforesaid; and by reason thereof, "and according to the usage and custom of merchants, the de"fendant became, and was, and still is, liable to pay the said 22. "Is. to the said Messrs. H. or their order, according to the tenor "and effect of the said bill, and his said acceptance thereof, and (a) Sect. 7.

« this,

1791.

KEARS

LAKE

against MORGAN.

KEARSLAKE against

MORGAN.

1794. "this, &c. wherefore," &c. To this second plea there was a general demurrer; in support of which Morgan argued that the plea went in discharge, and, therefore, amounted only to the general issue. He objected that it did not state that the defendant had paid or tendered the money. That a chose in action was no bar. Taylor v. Baker, 5 Mod. 136. And that a debt actually due could not be discharged without a release, 3 Lev. 237. Wood contrà, was stopped by Lord Mansfield, who said, "that a bill "of exchange, unless there were an agreement that it should be 66 so, was no satisfaction, but that this was a bill accepted by the party and negotiable, and that was payment. 10 Mod. 37. and 'judgment was given for the defendant. Now non constat, but "in this case the bill has been negotiated, and whether it is or not must best be known by the plaintiff."

(7T.R.713.]

[3 East. 251.1

66

Alderson, in reply, observed, that in the case last cited of Richårdson v. Rickman, it did appear upon the face of the plea, that the bill was in the hands of a third person, other than the plaintiff to whom the debt was originally owing.

The Court, being of opinion that the plea was good, recommended it to the plaintiffs to withdraw their demurrer, and reply to it; to which Alderson agreed: whereupon

Leave was given to the plaintiffs to amend. (a) (a) Vide Tapley v. Martens, post. 8 vol. 451.

Friday, Jun. 7th.

A. a grandfather after the marriage of his

had two

children

DOE on the Demise of JouN TANNER the Younger against
WILLIAM DORVELL.

THE defendant appeared and defended for the entirety of a

certain close called the Common, and for four fifths of a

son B. who certain estate at Hornblotton, in the county of Somerset. The jury found a verdict for the defendant as to the former, and for then living, the plaintiff as to the residue, subject to the opinion of this veyed lands Court on the following case :

bydeed con

to trustees to the use of himself for life,remainder to B.

George Dorvell, being seised in fee of the premises now in question, by lease and release dated 5th and 6th of December 1760, in consideration of 5s. and of natural love and affection for his mainder to wife and children, conveyed the same to John Pippen and his

for life; re

trustees, &c.

remainder to the use of such child or children of B. and in such shares, &c. as B. should appoint, and in default of such appointment," to the use of all and every the children of B. and the heirs of their several and respective bodies as tenants in common, but if only one such child, to the use of such only child and the heirs of his or her body;" remainder to the right heirs of A. in fee. Then 4. conveyed the reversion in fee to C. Afterwards B. had other children, and died without appointing. Held that B.'s children took vested interests as tenants in tail, and that on the death of each child without issue, his share fell into the reversion conveyed to C.-Cross remainders cannot be implied in the construction of a deed. [1 East. 416.]

heirs to the use of himself the said George Dorcell for life, remainder to the use of Mary Dorcell his wife for life, remainder to the use of H. Gould, for 100 years (upon trusts that did not arise); remainder to the use of John Dorvell, son of the said George and Mary Dorcell for life; remainder to the use of John Pippen and his heirs to preserve contingent remainders during the life of John Dorvell; remainder to the use and behoof of such child or children of John Dorcell by him lawfully begotten, or to be begotten, in case there should be more than one such child, in such shares and proportions, and for such estate and estates, either in fee-simple or otherwise, as John Dorvell by any deed or instrument in writing, &c. or by will, &c. should limit, direct, or appoint the same; and for want of such appointment, &c. to the use of all and every the children of John Dorvell lawfully begotten, or to be begotten, and the heirs of their several and respective bodies; lawfully issuing, as tenants in common, and not as joint-tenants; but in case only one such child, to the use of such only child and the heirs of his or her body lawfully issuing; and for and in default of all such issue as aforesaid, to the use of the right heirs of George Dorvell, for ever. George Dorvell, by lease and release, dated 2d and 3d March 1792, conveyed the reversion in fee in the premises to his son W. Dorvell, the defendant, his heirs and assigns for ever. George Dorvell, Mary Dorvell, and John Dorvell, are all dead. John Dorvell made no appointment under the power reserved to him in the indentures of the 5th and 6th December 1760. John Dorcell had six children; Jane, who was born and died an infant and unmarried, before the 5th of December 1760; Jane, born after the death of the former Jane, and before the 5th of December 1760: she survived her father, John Dorcell, and afterwards died an infant and unmarried; Mary, born before the 5th of December 1.60; she survived her father, John Dorvell, and afterwards intermarried with one John Tanner, had issue the lessor of the plaintiff her eldest son and heir, and is since deceased; and Anna, Nancy, and George, who were born after the date of the indentures of the 5th and 6th of December 1760; and who died infants and unmarried in the lifetime of their father, John Dorcell.

Tripp, for the lessor of the plaintiff, admitted, that as the question arose on the construction of a deed, where cross remainders cannot be raised by implication, the plaintiff could not claim the whole of this estate; but contended that be was entitled to an undivided

3

1794.

Dor den.
TANNER

agamst

DORVELL

1794.

DOE dem.

against

DORVELL.

undivided moiety, on the ground that the limitations to the grandchildren of the settlor were not vested but contingent TANNER during the lifetime of their father, and only become vested in the two surviving children on their father's death, in the event of his not having made any appointment. This case is distinguishable from that of Doe d. Willis v. Martin (a), where it was held that the limitations to the children were vested, liable only to be devested by the appointment of their father; because that was a settlement previous to marriage, and good against creditors. There no children were in esse when the limitations were created, in which case the law supposes that all the children of the marriage are to take as purchasers under the settlement; and there were no trustees to support contingent remainders. Whereas this was a settlement made after marriage, and was so far voluntary that it would be set aside, in favour of creditors, as fraudulent; and in this case there were two children in esse when the settlement was made; and here were also trustees to preserve contingent remainders. It is a general rule, that a deed to uses shall be construed like a will, according to the manifest intention of the parties, provided it do not contravene any rule of law; and in considering the intent it is necessary, as was said by Buller, J. in Doe v. Perryn (b), to take the whole deed into consideration. Now this was a limitation in default of appointment to the use of all the children of John Dorvell, and the heirs of their several and respective bodies, as tenants in common: but if only one child, to the use of such only child and the heirs of his or her body. At the time of making this settlement, John Dorvell had two children living. The parties could not therefore mean that those two children should take vested interests during their father's lifetime; because then the limitation to "an "only child" would be absurd. The intention was, that the limitations to the grandchildren should not be vested until after the death of their father, and in default of his appointment. And this construction will not contradict any rule of law. If the words had been "to the use of the children of J. Dorvell living "at the time of his death," there would have been no doubt, but that the deed would have received the construction now contended for, then the subsequent limitation to an only child may supply the want of those words, because the insertion of that limitation, equally evinces that to have been the intention of the parties. [In answer to a question from Lord Kenyon, in the event (b) Ante, 3 vol. 484.

(a) Ante, 4 vol. 39.

of