though, upon a reference to the record in arguing a later case (a), they were found not to be in the will; but here the testator nec voluit nec dixit. Nothing is more usual than for a man to forget or omit provisions in a will, which it might have been prudent for him to have inserted, especially in such a case as the present for it is much out of the ordinary course of things that a man should marry, die, and leave issue, before he attains 21. But, if there be such an omission, the Court cannot supply it. If the testator meant the estate to descend to J. R. M. W.'s child in such a case, why has he left the rents and profits to Henry, upon J. R. M. W.'s death before 21? It is not necessary to answer the cases cited on the other side; they may all be admitted, and are not at variance with the present case. In those cases no condition was annexed to the devise, and the single question was, whether an estate vested or no; there were no words to raise the point, whether a dying before 21 would devest that estate. Brownsword v. Edwards (b) is very like the present case; and Bromfield v. Crowder (c) seems in point for what is now contended. So, Doe d. Hunt v. Moore (d), Hodgson v. Ambrose (e), and Hay v. Earl of Coventry (f), show that the words of a devise cannot be extended by implication. As to the other points, it may be admitted that the first taker of an estate tail would be entitled to the heirlooms, and that the trustees would not take a greater estate than would suffice for their executing the various trusts under the will. In reply, it was urged, that Bromfield v. Crowder, and Doe d. Hunt v. Moore, turned on the particular provisions of the wills on which they were decided, and (a) Bromfield v. Crowder, I N. R. 313. (b) 2 Ves. 243. (c) 1 N. R. 313. (d) 14 East. 601. (e) Doug. 323. (f) 3 T. R. 83. thus 1820. WARTER V. WARTER. 1820. WARTER v. WARTER. thus did not apply to the present case, if the two sets of provisions in Thomas Meredith's will were, as they must be, taken together. All the reasoning on the other side rested on the separation of these provisions, and the construing them singly; a construction which the Court would never make, but would rather seek to discover the intention from the contents of the whole will taken together. If so, the cases cited at first were directly in point. The following certificate was afterwards sent: This case has been argued before us by counsel; we have considered it, and are of opinion, First, That, upon the death of John Richard Meredith Warter, under the age of 21 years, Margaretta Elizabeth Meredith Warter, his only child, became, and is now, entitled to the devised estates and premises, as tenant in tail male of the legal estate; and that she was entitled to the possession of the said premises immediately on the death of her father, subject, however, to the annuities, debts, and legacies charged by the will of Thomas Meredith. Secondly, That the articles directed to pass as heirlooms, being personalty, vested absolutely in the said Margaretta Elizabeth Meredith Warter, on the death of her father, and that she was then entitled to the possession thereof. Thirdly, That the personal representative of the said John Richard Meredith Warter is entitled to the savings of the rents and profits of the estates, accrued in the life-time of the said John Richard Meredith Warter, subject, however, to the said debts and legacies. Dec. 7, 1820. R. DALLAS, J. A. PARK, J. BURROUGH, 1820. DALY v. BRooshoft. Nov. 20. ONE of the bail brought up to justify in this case, A turnkey can was a turnkey of the King's Bench prison. He not be bail. was opposed, as falling within the rule of Hil. 7 Geo. 2., which forbids sheriff's officers, and others concerned in the execution of process, from becoming bail; and the Court being of opinion that he fell within the rule, he was rejected. Lawes Serjt. for the Defendant. HANDFORD v. PALMER. Nov. 20. stated, that in Plaintiff would, at the request of Defendant, lend him a THE Plaintiff declared, that in consideration he 1. The dewould, at the request of the Defendant, deliver and claration lend the Defendant a certain horse, from the 10th of consideration November to Lady-day, the Defendant undertook and promised that he would take proper care of the horse, and would, at Lady-day, return him to the Plaintiff in as good a condition as he was in at the time of the Defendant's making that promise; or that, on failing to do so, he would pay the Plaintiff 15l. 15s. that Defendant did not take care of the horse; Breach, nor did horse, Defendant promised to take proper care of the horse, and return him to Plain tiff in as good a condition as he was in at the time of the promise, or pay fifteen guineas; the contract proved was, in addition to these terms, that the Defendant should find the borse meat for his work: Held, that the contract was sufficiently stated in the declaration, and according to its legal effect. A party who borrows a horse is bound to keep it, unless an agreement is made to the contrary. he, he, at Lady-day, return the horse in as good a condition as he was in at the time the promise was made; nor did the Defendant pay the 15l. 15s. At the trial, before Burrough J., Wells Summer assizes, 1820, the contract proved was, in addition to the terms above stated, that the Defendant should find the horse meat for his work. Verdict for the Plaintiff. Lens Serjt. having obtained a rule nisi for a new trial, on the ground of a variance between the contract stated in the declaration and that given in evidence, urged, that it did not appear, from the declaration, whether the Plaintiff or Defendant was to feed the horse during the time of the loan, and that, therefore, the whole of the consideration for the bargain was not stated. Pell Serjt., for the Plaintiff, answered, that the consideration was set out in substance and effect; and that a promise to take care of a horse, is a promise to feed him, if nothing is shown to the contrary. DALLAS C. J. If it had been part of the contract that the Plaintiff should feed the horse during the time of the loan, and he was not properly fed, the Defendant would not have been liable for that. Every contract must be truly stated, and according to its legal effect; but it is sufficient, if it be stated according to its legal effect. The point then, is, whether this contract is set out according to its legal effect; and we must, therefore, enquire what the law will imply on such a contract; and the natural presumption and intendment of law is, that a party who borrows a horse is bound to keep it, unless, at the time, something is said to the contrary. But independently of this, the rule as to setting out contracts is, that it is sufficient to set out such such parts of them as are relevant to the consideration and breach, and will entitle the Plaintiff to recover. The Plaintiff, here, does set out that which will entitle him to recover. He does not complain that his horse has not been fed, but that he has not been returned in good order. PARK J. expressed himself of the same opinion, and referred to Cotterill v. Cuff (a), Tempest v. Rawling (b). BURROUGH J. It is a rule in pleading, that you need not set out what the law implies, and it implies here that the Defendant should feed the horse; if the Defendant did not feed him, how could he return him in as good a condition as he received him? RICHARDSON J. It may not be necessary, in all cases, to set out the whole contract, but only so much as makes the consideration for the promise. I think the engagement to find meat was no part of the consideration for the Defendant's promise. If the converse had been the case, and the Plaintiff had engaged, it might have been so. Sufficient appears on the declaration, to show the consideration for the Defendant's promise. If a horse is lent, surely, the law, where nothing is agreed to the contrary, casts on the borrower the obligation of feeding the horse. But, in effect, the contract is so stated, when it is said, the Defendant promised to take care of him. 1820. HANDFORD v. PALMER. Rule refused. (a) 4 Taunt. 285. (b) 13 East, 18. |