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![handle is hein.slavery/ssactsengr0026 and id is 1 raw text is: together with the negroes, &c. charged, &c. during the natural life of my said daughter.
Item, I bequeath to the heirs of the body of my said daughter Lucretia, begotten or
to be begotten, and to his or her heirs for ever, after my said daughter's decease, all
my before-named plantation, &c. ; but for want of such heirs of the body of my said
daughter, I also give and bequeath the aforesaid premisses after the decease of my said
daughter, to my own next heirs, and their heirs for ever. The reasons of the counsel
in the printed case :-It is a general rule of law, that when an estate is limited to one
for life, a limitation afterwards to the heirs of the body of that same person creates
an estate-tail ; and though this be in the case of a will, there is no reason to depart
from that rule ; for if Lucretia were [519] construed to have an estate for life only,
then the remainder to the heirs of her body would be words of purchase ; and
then though she had had several sons, yet the eldest only would have been heir; and
the younger sons would never have taken under that limitation, though it was clearly
the testator's intention that all her sons should take by his using the word heirs in
the plural number; and the subsequent clause, for want of such heirs of the body of
my said daughter, to my own next heirs and their heirs for ever, is a further explana-
tion of his meaning, that his daughter should take an estate-tail, with a remainder to
his own right heirs.-Signed, N. Fazakerly; D. Ryder.-This was heard before the
Privy Council, 18th March 1730, when it was ruled that Lucretia took an estate-tail.
The Chief Justices Raymond and Eyre assisted at the decision. Richard Morris
Appellant v. J. Ward and Others Respondents, from Barbadoes.-Judgment affirmed.-
Though the above were only the reasons of the counsel in that case, they contain as
much good sense and sound law as if they had had the authority of all the Judges of
England; and that was a stronger case than the present: for there the question arose
on a will; and in order to effectuate the intention of a devisor, a greater latitude of
construction is allowed by the Courts than in the construction of deeds ; but this is
the case of a deed ; a deed to uses, which must be construed like a common law-con-
veyance : and there is no case, from Shelley's case down to the present time, in which
it has not been holden that words in a deed, similar to those in this deed, did not
create an estate-tail. If we were to determine otherwise, we should entrench on
established rules of law, and we should defeat the intention of the parties in this and
almost every other case. Cross remainders could not be raised. The consequences of
a contrary decision were well explained by Lord Ch. J. Wilmot in the case of Roe d.
Dodson v. Grew(a)'. I am therefore clearly of opinion that, sitting in a Court of Law,
we cannot do otherwise than determine that as S. Stephens took an estate-tail under
this settlement, and as she and her husband have levied a fine, the defendant may
make a good legal title to the plaintiff, and consequently is not liable to repay the
deposit-money for which this action is brought.
Per Curiam. Postea to the defendant.
[520] CASS AND ANOTHER against LEvy. Monday, May 12th, 1800. In an affidavit
to hold to bail made by the plaintiff's clerk (the plaintiff himself residing in
England) it is not sufficient to negative a tender of the debt in bank notes to
the knowledge and belief of the clerk. [2 B. & P. 329. 1 East, 238. 2 B. & P.
389. 2 East, 24.]
The defendant having been holden to bail on an affidavit made by a clerk of the
plaintiffs', stating that the defendant was indebted to the plaintiff in 3251. and
upwards.for goods sold and delivered by the plaintiffs to the defendant, and that no
offer had been made to the knowledge or belief of the deponent to pay the plaintiffs,
or either of them, the said sum of money, or any part thereof in notes of the Governor
and Company of the Bank of England, &c.
Wigley moved on a former day in this term for a rule to shew cause why common
bail should not be accepted.
Marryat, who now shewed cause against the rule, relied on the case of Creswell v.
Lovell (a)2 ; where it was ruled that the 'defendant was properly holden to bail on an
affidavit made by a co-assignee, who positively negatived any tender of the debt to
himself in bank-notes or to the other parties interested, to the best of his knowledge
and belief; but
8 T. R. 519.
1523
CASS V. LEVY
(a)' 2 Wils. 322.
(a)2 Ante, 418.](ViewImageLocal?handle=hein.slavery/ssactsengr0026&div=1&collection=&method=preview&ext=.png&size=3)