MICH. TERM,-8 GEO. III. 1767.-K. B. THE KING . ELKINS. S. C. 4 Burr. 2129. On attachment for rescue the defendant may AN attachment had issued against the defendant for a rescue of a person taken upon mesne process: and Sir F. Norton now moved, that the defendant might be at liberty to come in and be fined withsubmit to a fine without answering to interrogatories. out answering Per Cur'. The case of a rescue differs from most other con- interrogatories. tempts, in that here the whole fact is acknowledged, and cannot be made more certain than it is by answering to any interrogatories. The case would be the same, if an attachment were to issue for a contempt in the face of the Court. The Court in such cases wants no farther information. So granted the rule; and the defendant was the next day brought up and fined 51. (a). (a) But see R. v. Belt, Salk. 586, R. v. Horsley, 5 T. R. 362; Com. Dig. Rescous, (D 6); Bac. Abr. Rescue, (C); 2 Hawk. P. C. c. 22, s. 34; Tidd's Pr. 260 (ed. 1821); THE KING . DR. HAY. S. C. 4 Burr. 2295. to the next of kin, notwith BLACKSTONE moved for a mandamus to the Judge of the Mandamus for Prerogative Court, to grant administration of the effects of administration the late General Stanwix to Charles Connor, Esq., his nephew and next of kin, on a suggestion supported by affidavits of the standing a suit General's death; that there were then living no children, wife, depending, his or other relation in the same or any nearer degree; that he had consanguinity applied for letters of administration, but was refused on pre- nied. tence of two caveats, one entered by Mr. Holmes, and another by Mr. Stillingfleet: That Stillingfleet was only first cousin to the General, and therefore one degree more remote than Mr. not being de *Connor, but that Mr. Holmes's claim (who was brother to the [ *641 ] General's first wife) arose upon this extraordinary accident: That in October, 1766, General Stanwix, his second wife, and his daughter by the former wife, set sail in the same vessel from Dublin for England; that the vessel was lost at sea, and no account of the manner of her perishing had ever yet arrived. Whereupon Mr. Holmes, as maternal uncle and next of kin to Miss Stanwix, claimed the effects, under a notion of the civil law, that where parent and child perish together, and the manner of their death is unknown, the child shall be supposed always to survive the parent (b). But Blackstone insisted, that, supposing this to be the rule universally, and that the rule of the civil law ought to govern (b) As to this presumption, see Starkie's Evid. P. iv. pa. 1236, n. (c). THE KING ບ. DR. HAY. in this case, both which were much to be doubted; yet still that could be only a question upon the statute of distributions; whereas he moved upon the statute of administrations: and as Mr. Connor was now the indisputable next of kin to the General, he was entitled to letters of administration, being already in possession of the real estate. The Court granted a rule to shew cause, with notice to Holmes and Stillingfleet. Thurlow and Dunning shewed cause for Stillingfleet and Holmes.-1st. That Stillingfleet was in equal degree with Connor by the canon and common laws (c), and therefore no mandamus could go to take away the election of the ordinary. But per Cur'.--The computation of degrees in these cases must be according to the civil law. 2d. That there was a Lis pendens (d) in the Spiritual Court, which had competent jurisdiction of the question, wherein the interest of Mr. Connor was denied and now in a course of trial. This was allowed (if true) to be a sufficient cause, but the Court refused to hear affidavits concerning it; but required a transcript of the proceedings in which nothing more appeared but a general denial of the plaintiff's interest, as is usual in every stage of their proceedings, and not of his consanguinity as stated in his own affidavit. And therefore the Court, without hearing counsel in support of the rule, made it absolute for the mandamus, upon the ground of its being for the administration only (and not the distribution) [ *642 ] *to which Mr. Connor was clearly entitled under the statute; but had been kept out of it a twelvemonth without any apparent reason (e). (c) Mentney v. Petty, Prec. Ch. 593, 2 Ab. Eq. Ca. 424; Lloyd v. Tench, 2 Ves. 213; 2 Bla. Comm. 504. (d) See Lovegrove v. Bethell, post, 668, and R. v. Dr. Harris, ante, 430. (e) Anon. 1 Stra. 552; R. v. Bettesworth, 2 Stra. 891, 956, 1111, 1118; Stewart v. Eddy, 7 Mod. 143; Anon. Andr. 24; Smith's Ca., 2 Stra. 892. not assist, upon lation of an act HILARY TERM,-8 GEO. III. 1768.-K. B. CLARKE V. RYALL. The Court will ON a judgment against the defendant, who was then a primotion, the re- soner, a fieri facias was sued out by the plaintiff, and his goods taken and sold by the sheriff. The defendant still continued of bankruptcy. in prison till two months were elapsed, whereby he became a bankrupt, and a commission issued against him. And now Wallace moved, that the sheriff might pay over the money to the assignees, who were entitled (as he insisted) thereto by relation to the time when the defendant first went to prison (a). Norton (a) The act of bankruptcy relates to the time of the party's first going to prison or being in actual custody upon the arrest; or if bail has been put in, to the first day of his surrender and the day of the arrest, &c., is to be taken into the computation of the two lunar months; Barwell v. Ward, 1 Atk. 260; Tribe v. Webber, Willes, 464, Davies, 376, S. C.; Rose v. Green, 1 Burr. 437, 439; Coppendale v. Bridgen, CLARKE บ. RYALL. shewed for cause, that before the two months were expired or the commission issued, the sheriff's officer had paid the money to the plaintiff; which fact was sworn by the officer, though there appeared some suspicious circumstances to the contrary. Upon this Wallace changed his motion, and desired that it might be tried on an issue, whether the money was bona fide paid to the plaintiff before the commission issued, as the justice of the case is with the assignees, in case the fact turned out that it was paid afterwards. But by Cur'. This is a case strictissimi juris; and the relation, of which the assignees would take advantage, an odious one. Therefore we will not assist it. You could not bring an action against the sheriff for the money (b), because that would affirm the execution. As therefore * could have no advantage in the regular course of [ *643 ] law, you shall not obtain it upon it upon motion. you 2 Burr. 814; "The only distinction to be taken between this and other acts of bankruptcy is, that all the other acts of bankruptcy are complete in themselves, whereas this is a complicated matter, and is inchoate till the party has lain in prison two months, and therefore the act of bankruptcy is not complete till the expiration of that time. But I do not think that makes any difference; for as soon as the two months are expired, it relates back to the time of the arrest, and then operates, as if the arrest were a complete act of bankruptcy in itself: per Ashhurst, J., in King v. Leith, 2 T. R. 141; Barnard v. Palmer, 1 Camp. 509; Glassington v. Rawlins, 3 East, 407; Thomas v. Desanges, 2 B. & A. 586. But now by 6 G. 4, c. 16, s. 5, if a trader arrested for debt, or on an attach Rule discharged. ment for non-payment of money, shall lie (b) See Cooper v. Chitty, ante, 65 and Executions bond fide levied more than two calendar months before commission, without notice of the bankruptcy or insolvency, are now protected by 6 G. 4, c. 16, s. 81. BARNES v. FOLEY. S. C. 4 Burr. 2149. cannot demand IN an action against the Postmaster of Bath, the Court de- Postmaster in a termined that a country postmaster hath no right to demand country town money for the delivery of post letters in the town where the money for delipost office is kept, but gave no opinion concerning the duty of vering letters at such postmasters to deliver letters at private houses without private houses. any fee or reward. And therefore, upon the first point only, gave Judgment for the plaintiff (c). (c) Smith v. Powdich, 1 Cowp. 182; Rowning v. Goodchild, post, 906, acc. See 46 G. 3, c. 92, s. 2, 3. ninety years, if he so long live; remainder to the heirs of his body; and, subject to these estates and con in tail; remainder to C. in fee: The heirs of the 66 HARRIS v. BARNES and Others. S. C. 4 Burr. 2157; Ambl. 666. Devise to A. for A CASE out of Chancery. Dr. George Coningsby, by his will, dated 15th February, 1766, devised his manor of Grendon Warren, in the county of Hereford, to his kinsman," Coningsby Harris, for the term of ninety years from the testator's decease, if he should so long live; and after the determination "of that term, to the heirs of the body of said Coningsby Hartingencies, to B. "ris; remainder to Susan Elletson for ninety years from the "decease of the said Coningsby Harris, he dying without issue, if she shall so long live: And, subject to the estates body of A. take" and contingencies before mentioned, to Roger Elletson, her son, for life; with remainder to his first and other sons in tail “male, remainder to the right heirs of Susan Elletson in fee." The testator died 15th March, 1766, leaving the defendant, Barnes, his sister and heir at law. Coningsby Harris, the plaintiff, who hath at present no children, entered; Susan Elletson died, leaving the said Roger Elletson, her only son and heir at law, who hath also at present no issue. The question stated, by the Court of Chancery, is, "Whether the heirs of "the body of the plaintiff Coningsby Harris take any, and "what estate, under the said testator's will?" an estate tail by executory de vise. [ *644 ] 66 *Salisbury Jones, for the plaintiff, argued, that such heirs take an estate tail as purchasers; not by way of contingent remainder, for want of an estate to support it, but by way of executory devise. The time during which an executory devise may expect, is now settled; a life or lives in being and twentyone years after: This within the rule. It must be known on the death of Coningsby Harris, whether he will leave heirs of his body. This is not a present and immediate, but a future and executory devise; and notwithstanding the idle distinctions formerly made between verba de præsenti, and de futuro, if a future estate be intended, the Court will not now regard the grammatical nicety of the words. But even were it meant as a remainder, if it cannot take effect as such, it shall enure as an executory devise: So held, in Hopkins v. Hopkins (d). In the mean time the freehold descends to the heir at law; Carter and Barnardiston, 1 P. Wms. 505; Plunket and Holmes, 1 Lev. 11 (e); Gore and Gore, 2 P. Wms. 28. And he relied on the Case of Doe v. Carlton (ƒ), B. R. T. 1745, almost in terminis the same case with this; wherein the Court held, that the heirs of the body took an estate tail by executory devise, and that, in the mean time, the fee descended to the heir at law. Blackstone, for the defendant, argued, that the question was inaccurately stated; viz. what estate the heirs of the body of Coningsby Harris now take, who is living, and can therefore (d) Ca. temp. Talbot, 44. (e) S. C. T. Raym. 30, where this point is mentioned. (f) 1 Wils. 225, and see Gulliver v. Wicket, Id. 106. HAR RIS บ. BARNES. have no heir, and hath no child, and can therefore, under the present state of the case, have no heir of his body. But supposing it to mean what estate such an heir, in case he ever exists, will take, it is incumbent on us to contend that he will take nothing. For though it seems the intent of the testator to give him an estate tail, yet that intent cannot be carried into execution consistently with the rules of law. 1st, He cannot take it as a contingent remainder, for want of a freehold to support it; Goodright and Cornish (g); Gore and Gore, first certificate expressly, second certificate impliedly. 2d, Not as an executory devise; because, first, the contingencies are too numerous and too remote: first, that Coningsby * Harris shall [ *645 ] have issue; next, that he himself shall die during the term of ninety years; lastly, that the issue shall survive the term. But, principally, because no interim estate descends to the heir at law to support the executory devise. This is absolutely necessary, else the freehold would be in abeyance till the contingency happens or fails; and no act of parties can put a freehold in abeyance. In Gore and Gore, the limitation over was, "in default of such issue;" so that the remainder-man's estate did not commence till the default happened: and therefore the Court held, in the second certificate, that an interim estate descended to the heir at law. But here the devise is immediate to Roger Elletson, &c. subject to these estates and contingencies." It vested in him therefore by purchase at the death of the testator; and being once so vested by purchase, it cannot be devested by a future contingency, as it might have done had it vested by descent: according to the known distinction between estates which vest by descent and purchase: 3 Rep. 61 b, Lincoln College Case; 1 Rep. 95, Shelley's Case. But afterwards, in the same Term, the Court declared that they should certify (h), that the heir of the body of Coningsby Harris would take an estate tail by executory devise; the contingencies not being too remote, as they must all determine at the death of Coningsby Harris. They also held, that while the contingencies subsisted the freehold was undisposed of, and descended to the testator's heir at law (i). It is the same case as that of Robert de Mandeville, Co. Litt. 26 (k). 66 (g) 1 Salk. 226, and Scatterwood v. Edge, Id. 229. (h) See the certificate, 4 Burr. 2162; by which it appears, that the Court were of opinion that the only determination of the ninety years' term in the testator's view was the death of C. H., and that the clear manifest intent of the testator was to give an estate tail to such person as should be heir of the body at the death. This case is cited by Mr. Fearne as an autho rity to shew, that the distinction between (i) See Fearne, C. R. 351 (8th ed.); (k) Fearne, C. R. 40, 80. |