Devise on de fault of issue of his own body, lor, is merely a conditional devise, and good if the testator dies without WELLINGTON v. WELLINGTON. S. C. 4 Burr. 2165. A CASE out of Chancery. Richard Cary, by will, 29th July, 1757, imprimis, directs all his debts to be paid: Item, “ in debeing a batche-fault of issue of his own body, devises his manor of Wilcot, "&c. to John Arrowsmith and James Simmons, and their "heirs; in trust, to pay his sister, Elizabeth Wellington, an "annuity of 1007. till his debts and legacies were paid. And, "after payment thereof, he devises it to Elizabeth Wellington "for life, with divers remainders over in strict settlement; and "makes Arrowsmith and Simmons trustees to preserve the "contingent remainders: remainder to his heir at law." The [ *646 ] *testator died a batchelor, leaving said Elizabeth Wellington and Jane Collins his heirs at law. Qu. Whether Arrowsmith and Simmons, the trustees, took any, and what estate ? ever marrying. Blackstone, for the plaintiffs, the remainder-men, argued,— 1st, That the trustees took a base fee, determinable when the rents and profits of the testator's estate should have paid his debts and legacies. If it is objected, that this devise, being after an indefinite failure of issue, is an executory devise, and the contingency too remote to support it, he answered; it is not an executory devise, but a conditional will depending on a precedent condition, upon which the testator intended the whole should take effect or otherwise. Meaning to dispose of his estate, but afraid, lest upon a change of his condition, he might die without altering his will, he revokes the whole conditionally, that he married and had issue of his body. Perhaps it was abundans cautela. The law might have done it for him. On such a change of circumstances, a will of personal estate is revoked; Lord Raym. 441; Salk. 592; 2 Show. 242. It may be the same as to land; 1 P. Wms. 304, Eq. Cas. Abr. 413. Parsons and Lane (1), in Chancery, H. 22 Geo. 2; " In case I die before my return from Ireland, I will, &c."-held a conditional will, though the testator returned, and in his last illness directed his attendants where they might find this will. "In default of issue" differs from the expression" on failure of issue." The one implies that A. never shall have issue; the other, that he shall have it and it afterwards fail. The first contingency must be determined at his own death; the latter may be suspended for ages. This conditional clause is placed at the beginning of the will, and operates over every subsequent clause, every limitation and legacy; all which would have been void in case he had married and left issue. He expresses no more than the law would probably have implied, but lest the law should not imply it, he has taken care to express it. [ *647 ] *2d, That if the will was not conditional, still the devise to the trustees is a present interest, and not an executory devise. An 66 (2) 1 Wils. 243, 1 Ves. S. 189, Ambl. 557. See Brady v. Cubitt, 1 Doug. 31; and Doe v. Lancashire, 5 T. R. 49. V. WELLINGTON. executory devise is a future interest, which cannot vest at the WELLINGTON death of the testator, but depends upon some contingency, which must happen before it can vest; Gilb. Devis. 49; Cas. Equ. Abr. 186 (m). The present devise must vest at the death of the testator or not at all. If he left no issue, they take an estate in possession; if he left issue, that issue would take an estate tail by implication, (Walter and Drew, Com. 372 (n)), and then the trustees would have a vested remainder expectant thereon. 3d, That if it be an executory devise, the contingency is not too remote to support it. "On default of his own issue," must mean issue " living at his death" (o). All the cases where executory devises, upon a general failure of issue, have been held too remote, have been, where the contingency depended on the issue of a third person, not of the testator himself. What are the trusts of this estate? To pay debts, legacies, and annuities. He could not mean to postpone them to an indefinite failure of his own issue, if he had happened to have any. His meaning was to give a present estate for these purposes, in case he died without any issue, and not otherwise; having provided for his debts (in case he left issue) by the first clause in his will. Dunning, Solicitor-General, for the defendants the heirs at law, argued, that it was an executory devise depending on the general failure of issue: because if the words " living at my decease" are not expressed in such devises, it is always understood to be a general failure of issue. That it cannot be a conditional will; because it would be nugatory to make a provision for revoking his will, in case he married and had issue; since the law would do it for him. And he insisted, that it could not, in any contingency, operate as a remainder expectant on an estate tail; because no man by his will can give an estate tail to himself. The Court afterwards certified, in the same Term, that the trustees took a base fee, determinable on the payment of the testator's debts and legacies, out of the profits of the estate: and (ut opinor) principally upon the idea of the will's being merely conditional, in case he left no issue of his body. (m) Fearne's C. R. 381 (8th ed.), 2 Wms. Saund. 388 a. (n) Doe v. Ellis, 9 East, 382, acc. (0) Accord. French v. Caddell, 3 Bro. P. C. 257 (2d ed.); Jones v. Morgan, Id. 323, Fearne, C. R. 451 (8th ed.), and Lytton v. Lytton, 4 Bro. C. C. 441; where Ld. Loughborough, C., observed, "that the principal case, and two cases here cited, were cases, where taking the words strictly, and construing them blindly without considering the circumstances, would have been upon a general failure of issue, and therefore void; " the whole of that case should be perused. There seems to be a distinction between wills of realty and of personalty in the former, a dying [Bail taken on THE KING v. Lord BALTImore. S. C. 4 Burr. 2179. WARRANTS had been issued by Sir John Fielding and a charge of rape Mr. Kelynge to apprehend his Lordship, on the oath of Sarah under particular circumstances.] Woodcock, for a rape, and Mrs. Harvey and Mrs. Griffenburg for being accessaries before the fact. She had sworn that she was inveigled into Lord Baltimore's house in Southampton Row, where she was confined five days, during which she neither eat nor drank; and upon her still refusing to comply with my Lord's will, she was carried down by force to his house at Woodcot in Surry, where the two women forcibly lifted her into bed to Lord Baltimore, and left her there; and that he actually ravished her. On the last day of the Term, Lord Baltimore and the women surrendered themselves into Court; and Eyre, Recorder of London, now moved to admit them to bail, which was admitted to be of course with respect to the accessaries (p). He opened several affidavits from his Lordship's domestics, proving that the prosecutrix had been for five days in the house without any restraint, and behaved remarkably cheerful before and immediately after the time that the rape was sworn to; particularly the next morning at breakfast, when she made up wedding favours, with her own hands, for herself, Mrs. Griffenburg, and Mrs. Harvey; together with many other circumstances that tended to make her evidence suspicious: particularly that she declared to an attorney, (who was sent for by Lord Baltimore when the affair began to make a noise), and also signified in a letter to her father, that she wished to stay with Lord Baltimore. And, when an habeas corpus was brought before Lord MANSFIELD by her father, his Lordship could best inform the Court of what passed upon that occasion; (which was generally supposed to be, that she desired, when privately examined, to go back again with Lord Baltimore; she being then sui juris about twenty-seven years old). Lord MANSFIELD declared, that his clerk was present when he examined her, and would in due time give a proper account of it; but that the Court would not now enter into the merits, unless drove to it. He supposed his Lordship's counsel had considered the consequence of disclosing their defence, by fil[ *649 ] *ing such affidavits as had been opened. But before it went any farther, he asked the counsel for the prosecutrix, Mr. Solicitor, Serjeant Davy, and Sir Fletcher Norton, whether they opposed admitting his Lordship to bail. They declared that they would neither oppose nor consent to it, but left it to the Court, as the prosecution was instituted for public justice only. Lord MANSFIELD.-As no affidavits have been read, we do not, and cannot go into the merits. But upon the circumstances that do appear, we think there is strong reason to take bail. His Lordship's surrender is a clear proof, that he does not (p) 2 Hawk. P. C. c. 15, s. 53, acc. mean to run away. Let them therefore be discharged, upon giving bail (his Lordship in 4,000l. and four sureties in 1,000l. each; and the two women in 4007. each, and four sureties in 1007. each) to appear at the next Surry Assizes (q). N. B. They were indicted at the next Assizes, and, upon a trial of many hours, acquitted. (9) The Justices of K. B. may bail in all cases at their discretion, 4 Inst. 71; 2 H. H. P. C. 129; Com. Dig. Bail, (F 3, 4); R. v. Rudd, 1 Cowp. 333, per Ld. Mansfield; except in the case of a contempt of the House of Lords or Commons, or any other Court at Westminster; see Murray's Ca., 1 Wils. 299; Brass Crosby's Case, post, 755; R. v. Flower, 8 T. R. 314; 4 Bla. Comm. 299. And unless it sufficiently appear to the Court upon the warrant of commitment, that a felony has THE KING V. Lord BALTI MORE. 66 66 EASTER TERM,-8 GEO. III. 1768.-K. B. THE KING V. BUTLER and Others. * The Court will a Sunday.] corporate hath MOTION to quash an appointment of the defendants to be overseers of the poor of the town of Guildford in Surry, made by James Goodyer and John Pecke, two of the corporation justices, on Easter Monday, 20 April, 1767: there being another appointment made by William Savage, the Mayor, and Thomas Parker, one of the county justices, of two other persons, on Easter Sunday, 19 April, which was insisted on to be the only valid appointment, as being prior in point of time, though alleged by the defendants to have been made clandestinely and fraudulently, at one o'clock in the morning. The statute 43 Eliz. c. 2, was also strongly relied on in favour of Mayor or head the Mayor's appointment; which, in sect. 8, enacts, that, officer in towns Mayors, bailiffs, or other head officers of every town cor- not the sole apporate, being justices of the peace, shall have the same au- pointment of thority within their respective jurisdictions, either in Sessions overseers. " or out of it, as is given by the said act to any two justices of "the peace; and no other justice or justices to enter or meddle "there." This, Dunning, Solicitor-General, argued, was to be confined to the Mayor or other presiding officer only, and that he alone has the power of appointing overseers; especially as, by the same section, aldermen of London are invested with the same power in their respective wards. In sect. 9, accounts are to be made up before the said head officer in the singular number. By sect. 10, in case no appointment of overseers be made in a town corporate, the penalty of 57. is laid upon the mayor, alderman, (viz. of London), or head officer only; whereas in counties it is laid upon every acting justice of the peace. And, in sect. 11, the warrant for recovering the penalties is also grantable in the same manner. But by Lord MANSFIELD, C. J.-Cui bono is this application now made to quash the appointment after the year is expired? Upon this ground alone the rule must have been discharged. But I would [not] have it thought, that I put it off upon this ground, because I have any doubt of the question. The doctrine endeavoured to be maintained is a very strange one. What, shall a mayor of a town corporate (r), (where there may be a dozen parishes, where the right of voting for members perhaps may be by scot and lot, and he the returning officer), shall he alone appoint all the overseers in the town? Had such a power been ever dreamt of before, it must have been contested over and over, and would long since have been corrected by Parliament. The statute only means to give justices in corporations and head officers, where there are no justices, the same power as justices in counties; in Sessions, (where there ] *are justices), as well as out of it. Quod omnes justic. concesserunt. Qu. Is there any determination that an appointment on a Sunday is good? ASTON, J.-I have a note from Mr. J. Bathurst, of K. and Clerkenwell (s), P. 13 Geo. 1, that an appointment made on Easter Sunday shall be good, it being a work of charity. (Vide Foley, 4. Determined on another point, because not said to be substantial householders). Lord MANSFIELD.-Notwithstanding that reason, I should think, that an appointment on a Sunday is prima facie clandestine and bad (t). YATES, ASTON, and WILLES, Js., agreed, that the (r) See 50 G. 3, c. 49, s. 4. (s) Foley, 4; 1 Bott, 17. An appointment made bona fide and without collusion on a Sunday is good; and if such appointment be prior to one made by other justices on the same day, it will be the valid one; R. v. Merchant and Allen, 1 Bott, 21. "There is a distinction between ministerial and judicial acts, for the first may be done upon the Sabbath day, but judicial acts may not. Per Montague, C. J., in Waite v. Inh. of Stokes, Godb. 280; Swann v. Broome, ante, 496, 526. (t) So where there being a contest between two adverse sets of borough justices, each set met before midnight of Easter Eve, and each began making their appointments the instant the clock had struck twelve, and so continued for two hours; and one set made a fresh appointment at 8 o'clock on Sunday morning, Lord Mansfield said, "I do not know that there is any authority Rule be discharged. which says, that an appointment made on a Sunday is good; but it certainly is not a day for such purposes as these; and therefore I will not give my sanction to any of the appointments: let all the appointments be set aside, and a mandamus be directed to make a new one; R. v. Bridgewater, 1 Cowp. 139. After the magistrates have made an appointment at one meeting, they are functi officio, and no other magistrates can appoint another overseer in the place of one claiming to be exempt, but such overseer must appeal to the Sessions; R. v. Great Marlow, 2 East, 244. At that time the appointment was required to be made early in Easter week, or within one month after Easter, by 43 Eliz. c. 2, s. 1. But now, by 54 Geo. 3, c. 91, the appointment is to be made on March 25th, or within 14 days next after. See R. v. Sparrow, 2 Stra. 1123, 1 Bott, 17. A dyer has no lien on goods GREEN V. FARMER. S. C. 4 Burr. 2214. TROVER for 2000 yards of serge. Verdict for the plain delivered to him tiffs, on this special case. Messrs. Henzleman purchased from |