STRONG V. TEATT. Query, if an executory devise can be expectant on the expira testator? Comyns and Sympson, in Common Pleas, Mich. 1750, Willes, C. J., Birch and Gundry, Js., were of opinion, that where an estate is particularly disposed of in a will, the reversion of it will not pass by a general residuary devise in the same will, provided there be somewhat else that passes to satisfy the general words: Burnet, J., contra. 2dly. That if he did intend to devise it, it must pass (if at all) as an executory devise; but the contingency is too remote for that purpose (p). An estate in futuro, to vest on a contingency precedent, is the de- tion of a trust to finition of an executory devise. The Courts have gone very pay debts of the far to support executory devises. They have been held good, if to take effect after one life or more in being:-or after two successive lives:-Or after one life in being, and twenty-one years after. A devise to the unborn son of a bachelor has been allowed, because the contingency must happen within one life: and one to the unborn son of A. B. when he arrives to the age of twenty-one has been also held good. But this case exceeds them all. This devise takes effect after payment of debts indefinitely, which may surpass the longest term hitherto allowed. The enquiry here is, not how soon the estate may vest, but how soon it must vest; what is the longest time that can possibly happen before it vests. The Court cannot foresee when the debts will be paid. Bagshaw and Spencer (q) in Chancery, M. 1748; a devise after payment of the testator's debts indefi- [ *202 ] nitely. Lord Hardwicke held it too remote a contingency to ground a good executory devise. Objection 1. Olivia's was only a personal power to sell; therefore the contingency must happen within a life. But this was otherwise held in Bagshaw and Spencer. Objection 2. By an Irish statute of limitations, lately made, no claim of debts is allowed, unless made within twenty years; therefore the contingency must happen within that time. But this act does not extinguish the debts. It only bars the remedy. It may, or may not, be pleaded; and if it may not, there is a possibility of the contingency's lasting longer. But if the executory devise was void at its creation, it could not be cured by any subsequent matter, as this statute is: so held 25 April, 1733, Lord Lanesborough and Morgan, in Dom. Proc. (r). Norton, for the defendant in error, argued,-1st. That the testator meant to devise the reversion, by the generality of his introductory clause, All my worldly estate; which is equivalent to the case of Beechcroft and Beechcroft, 2 Vern. 690, where all my estate in the world was held to carry a reversion. See also Moor, 341, Owen, 155. There is also no doubt but the words lands, tenements, and hereditaments are large enough to carry it; Chester and Chester (s); 2 Vern. 621 (t). 2dly. That (p) See Goodman v. Goodright, ante, 188. (q) 1 Wils. 238, 1 Ves. Sen. 142, 2 Atk. 570, 577, Fearne's C. R. 121. As to what estate a devise for payment of debts gives, see Doe v. Weston, post, 1215. (r) The case here alluded to seems to be that of Lady Lanesborough v. Fox, (s) 3 P. Wms. 56. (t) Strode v. Russel: see also Frogmorton v. Wright, post, 891, n.; Roe v. Bolton, post, 1045. STRONG บ. TEATT. this will take effect as a present use to the devisees. The payment of debts is a mere charge, and the use vests subject to that charge; at least it will operate as an executory devise, the sale for payment of debts being a mere personal trust to Olivia, and, as such, must die with the person. And the testator must very well know, from the paucity of his debts, that the devise would take effect within the time limited by law.-No debts are found by the special verdict, and therefore from the comparison of this, with the Irish statute of limitations, the law will conclude there were none; and, if so, then the estate vested immediately on the testator's death. Per Cur. Lord MANSFIELD, C. J.-The question in this case consists of two branches; 1. Whether this limitation [ *203 ] *was good by way of executory devise; 2. Whether, on the fundamental merits, the testator meant to devise the reversion by these general words. 1st. We shall give no opinion on the first, because the second will make a total end of the question. However, I think the Case of Bagshaw and Spencer is not applicable to the pre sent case. 2d. The general words are certainly sufficient to carry the reversion, if there were no particular reasons to the contrary. Indeed, had he mentioned estates in possession, then the reversion would not have passed; and those words may be supplied by the Court, if they believe it agreeable to the testator's intention. And his intention is very apparent from other express words in his will; the provisionary clause in particular, whereby he directs, that the lands devised shall go over to Theophilus, in case the settled estate shall come to James. Every part of this clause speaks, that he had no intention of devising the reversion. Let us suppose two cases that might have happened under this settlement. If Henry's wife had died without issue male, and he had married again and had issue; then if the reversion be here devised, the son of Henry and heir at law of the testator must be disinherited of the whole. Again, if Henry and Audley both die without issue male; then, on this construction, James must forfeit the whole estate comprised in the deed of 1711, and yet the testator plainly supposes, that if the estate in settlement descended to James, it would be more advantageous than the estate devised. This construction would be therefore absurd, in case of these two events; and the construction must be uniform in case of all events. Wherefore it is demonstrable, that the testator did not intend to cover the reversion by these general words. Probably he did not know the reversion was devisable by him. Every other word throughout the whole will restrains the generality of the words to those estates, of which he was seised in fee in possession. 1. Locality; his expressing the place where the lands lie; place is properly applicable to lands only, not to incorporeal heredita[ *204 ] ments, as remainders and rever*sions. Thus devises of lands have been held to pass only a man's lands; but devises of one's estate will convey the whole interest: Yet where locality is an STRONG V. TEATT. nexed to the word estate, it has been restrained to the lands in possession only (v). 2. When a man intends to devise a remainder or reversion, he usually expresses them by those names, and does not leave it to be collected from the general expression of seised in fee-simple. But these are only additional strengthening arguments; it being clear in this case, that the testator did not mean to devise the reversion, and therefore we shall supply the words, in possession, which are wanting (u). Such supplying is not without example. In Coryton and Hillier (w), a devise was for 99 years, omitting the words if he should so long live; Lord Hardwicke, Chancellor, thought from the nature of the settlement, that this was the intent of the testator, and that these words should be supplied to correct, qua- 1760. This lify, and restrain that general devise. This case is much judgment of restronger; because, there the intent was collected only by impli- versal was afcation; here it is collected from the express words of the tes-firmed in Dom. tator. FOSTER and WILMOT, Js., accord.; DENNISON, J. (absent at the argument through indisposition) gave no opinion (x). (v) See Countess of Bridgewater v. Duke of Bolton, 6 Mod. 106; Berry v. Edgeworth, 2 P. Wms, 522; Tuffnell v. Page, 2 Atk. 37; Goodwyn v. Goodwyn, 1 Ves. S. 226; Holdfast v. Marten, 1 T. R. 411; Fletcher v. Smiton, 2 T. R. 656, & 659 n; Roe dem. Child v. Wright, 7 East, 259; Chichester v. Oxendon, 4 Taunt. 176; Bailis v. Gale, 2 Ves. S. 48. See also Doe v. Rout, 7 Taunt. 79; Doe v. Pigott, Id. 553, 1 B. Mo. 274; Harding v. Gardiner, 1 Brod. & B. 72, 3 B. Mo. 565. (u) See Freeman v. Duke of Chandos, 1 Cowp. 363; Atkyns v. Atkyns, 2 Cowp. 808; Goodright v. Marq. of Downshire, 2 Bos. & P. 600, where Lord Alvanley observes, that in the principal case, "the Court did not proceed upon the argument of presumption of an intention to exclude, but upon the inconsistencies and absurdities, which would arise from including the estate in question. See also Smith v. Saunders, post, 736. (w) 2 Cox, 340; cited in 2 Burr. 923, 2 Ves. S. 195; Fearne, 590. (x) This case is recognized in Doe dem. Reade v. Reade, 8 T. R. 118. "The common expression in the books, that an heir shall not be disinherited, except by express words, or necessary implication, is not correct; the proper terms of the rule are, that the intent of the testator ought to appear plainly in the will itself, otherwise the heir shall not be disinherited:" Per Willes, C. J., in Moone dem. Fagge v. Heaseman, Willes' R. 140. And where there is no Judgment reversed. ambiguity, a devisee is as much favour- 8th of May, Proc. Promise of a bribe to a bailiff to take bail, is illegal, and will not maintain an action on assumpsit. SMITH V. STOTESBURY. S. C. 2 Burr. 924. ERROR from the Court of Stepney. The plaintiff was a sheriff's bailiff, and had arrested one Redshaw at the suit of one Stanton, on a capias from the Common Pleas for 2507. Redshaw had procured the defendant Stotesbury to be bail for him, for which he was to give him fifteen guineas; and, in order to influence Smith to accept of his bail, Stotesbury agreed to give him six guineas and a half, when Redshaw paid him the 157., which he soon after did. But Stotesbury failing in his promise to Smith, he brought an action on the case in Stepney Court, setting forth this matter in his declaration, and also counted on a general indebitatus assumpsit. On non assumpsit [ *205 ] pleaded, and issue joined, the jury found a general verdict for the plaintiff, with 47. 19s. damages, (the jurisdiction of that Court not extending to 57.) and judgment was entered for the plaintiff. But in the King's Bench the Court were all of opinion, that this was an illegal consideration, and reversed the judgment with much indignation (y). * (y) Bridge v. Cage, Cro. Jac. 103; Badow v. Salter, W. Jon. 65; Featherston v. Hutchinson, Crok. Eliz. 199; 1 Roll. Abr. Action sur Case (T) pl. 2, 3, 4, pa. 16. See 23 H. 6, c. 9; 2 G. 2, c. 22, s. 1; 32 G. 2, c. 28, s. 1, and Rogers v. Reeves, 1 T. R. 418. take notice in a collateral way of return. sheriff who has acted dishonestly. TIMBRELL V. MILLS. Court will not ACTION against the sheriff of Gloucestershire for a false The case was, that Timbrell had recovered 921. damages against one Hinton; and the under-sheriff, by his bailiff, on 27th September, 1757, executed a fieri facias for the same, and, on 10th of October following, the bailiff paid the money to the under-sheriff, who kept the same for near a year; when being called upon for a return of the writ, he (in Trinity Term, 1758) returned, that the goods remained in his hands pro defectu emptorum; which being false in fact, this action was thereupon brought against the high-sheriff, and judgment was had by default; and in August, 1759, a writ of enquiry was executed (which assessed 927. damages) without any defence on the part of the defendant. Pending this suit, viz. 27 February, 1759, a commission of bankruptcy was taken out against Hinton, the original defendant, and an act of bankruptcy proved 22 September, 1757, previous to the execution of the fieri facias, whereupon the defendant, the high-sheriff (the undersheriff being run away) paid the money 9th June, 1759, into the hands of the assignees. And upon these circumstances, Serjeant Nares and Mr. Norton moved, to stay all proceedings against the sheriff, as the money levied was clearly the property of the assignees, according to the doctrine laid down in Cooper and Chitty, M. 30 G. 2(2). But the whole Court declared, that it was allowed in that Case, that if the sheriff levies the money and pays it to the plaintiff, before any commission issued and without notice of the act of bankruptcy, he will at all events be safe (a). The TIMBRELL V. MILLS. And in the present Case it was ruled by Lord MANSFIELD, C. J., et tot. Cur', that no difference can be made between [ *206 ] the sheriff and under-sheriff: That where an officer acts fairly, and is under real difficulties how to conduct himself, the Court will endeavour to help him as far as possible: But here the behaviour of the officer (i. e. the under-sheriff) is most unjustifiable, dishonest, and contrary to the duty of his office. delays made by him at first were trivial. And even after these, when called upon, he might have put the bankruptcy in issue, by returning nulla bona. Instead of which he makes a notoriously false return. When an action is brought for this, then a commission is taken out; and the sheriff, to save the costs of the suit, makes a bargain with the assignees, pays them the money, and then applies to this Court to be assisted and protected. We will not interpose to protect an officer who has thus misbehaved. Let him take the consequence of his false return. Had he made a true one, or paid the money into Court, we would have protected him. We are strangers to this act of bankruptcy and the proceedings thereon, which, for aught we know, may be fraudulent; and it is now too late for us to take conusance of it upon this action. (z) Ante, p. 65, and see the cases there cited; and Clarke v. Ryall, post, 642. Rule was discharged. (a) S. P. Hitchin v. Campbell, post, 829; and see Howard v. Jemmett, post, 400. The KING . The Inhabitants of WEYHILL, Hants. S. C. Burr. Sett. Ca. 491. MR..Norton moved to quash an order of Sessions confirming Contract of 66 hiring shall not be presumed. a removal of a pauper from A. to B. It stated, "that it appeared from the pauper's evidence, that about forty-eight years ago, being then about eight years old, he lived six "years with one Mr. Pike, upon charity, in B., and ran of er"rands, &c.; but that no contract was entered into between "Pike and the pauper, nor any wages ever passed between "them. Whereupon the justices declare, that at this distance "of time, a contract must be presumed between Pike and the parish, or the father of the pauper, and adjudge it accord"ingly, and that the pauper was settled in the parish of B." Mr. Gould, in support of the order, argued, from the Case of Crediton and Wincanton, A.D.1749 (c), that a hiring shall be sum*ed from a general service; because there a hiring for a year [207 ] was presumed from a general hiring. And he insisted, that there was no necessity for the contract to be between the par pre |