1788. DOE on Demise of DAVIES and WILLIAMS against WILLIAMS. [ *27 ] Lord LOUGHBOROUGH.-This being a case arising on a deed, is to be distinguished from those of a like nature which have arisen on wills. In general, where there is a question on the construction of a will, neither party has done any thing to preclude himself from the favour of the court. But in the present instance, the rule of law applies, that "a deed shall be construed most strongly against the grantor." For if it be determined that the lands in dispute did not pass by the release of 1781, the Defendant will be permitted, after an interval of near forty years, to invalidate his own conveyance, for the purpose of obtaining an unjust possession. GOULD, J.-This not being the case of a devise, is not governed by Rose v. Bartlett, or the others cited. But even if a devise had been made in such specific and particular words as are contained in this deed of release, I should have very little. doubt but that all lands would pass, as well leasehold as freehold. My Lord has taken a just distinction between the construction of devises and deeds of conveyance, as to the equal favour to which both parties are entitled in the former, and the strictness which ought to prevail in the latter. The word "grant" is as proper to convey leasehold as freehold property. HEATH, J., of the same opinion. WILSON, J.-The rule of construction established in Rose v. Bartlett, and the other cases, with regard to devises, does not extend to the present case of a deed. A conveyance by lease and release is certainly most properly used to pass estates of inheritance, but it may also convey a leasehold interest. If the leasehold lands had been expressed as such in this deed, they would clearly have passed; if the intention of the parties at the time was to convey them, they shall also pass. That such was their intention sufficiently appears from the circumstances of the case, and from the lands having been considered as part of the Clock Mill estate during such a number of years. The Defendant, who was one of the grantors, shall not be suffered to deny the effect of his own deed. Rule discharged. The question was, whether the son took the leasehold lands by the above words of the will, or whether they were part of the personal estate? After two arguments, Lord Mansfield delivered the opinion of the Court, "That the leasehold lands did not pass to the son, but were part of the personal estate." BALDWIN TRES 1788. BALDWIN against TANKARD and Others. RESPASS against the Defendants who were officers of the A judge's customs, for forcibly entering the Plaintiff's house, breaking locks, doors, &c. making disturbance, &c. and seizing the tom house goods, &c. to wit, one piece of printed callico, &c. Plea, not guilty. The cause was tried before Mr. Justice ASHHURST, at the Lent Assizes, 1787, at Aylesbury, and a verdict found for the Plaintiff with 100l. damages. But the judge, being applied to by the counsel for the Defendants, certified, "That there was "a probable cause for the Defendant seizing the goods." In Easter Term, 1787, a rule was obtained to shew cause why the Plaintiff should not enter up judgment for his damages and costs, notwithstanding the judge's certificate. This rule in Trinity Term was enlarged till Michaelmas following, and in that term was further enlarged till Hilary Term, when Adair, Serjt., argued that as the judge had certified on the recond a probable cause of seizure, under the statutes of 23 Geo. 3. c. 70. s. 29. and 26 Geo. 3. c. 40. s. S1. the Plaintiff was entitled to no more than twopence damages, besides the value of the goods. In support of the rule, Le Blanc and Lawrence, Serjts., argued that the statutes, and the certificate of the judge extended only to seizing the goods and not to any injuries accompanying the seizure, such as were charged in the declaration. The verdict is general, the several charges might have been distinguished, on the separate counts, but the jury have found the Defendants guilty of all, and having given above 40s. damages, the Plaintiff is entitled to them and his costs. Cur. adv. vult. (a) [So where in trespass against custom-house officers for taking Plaintiff's goods, which had been returned in a deteriorated state before action brought, a verdict was found for the Plaintiff for the difference in price between the value of the goods at the time of the seizure and the time when Rule absolute. they were returned, and the judge LEWIS certificate that a cus officer "had 46 probable "cause for "seizing "goods' does not ex tend to in juries accomseizure, so as panying such to prevent the Plaintiff from recovering dam ages and costs under stat. 23 Geo. 3.c.70. s. 29. and 26 Geo. 3.c.40. s.31. (a). 1788. Where a debt arises before bank ruptcy, but KER LEWIS against PIERCY. VERBY, Serjt., obtained a rule to shew cause why the Defendant who was in execution should not be discharged a verdict is out of custody, on the following affidavit: obtained and costs taxed after, the costs are considered as part of "That the debt arose before he became a bankrupt, but "that the verdict was obtained and the costs taxed after the "bankruptcy, though before his certificate was allowed." the original debt, and the certificate extends to both (a). Insuring in the lottery is not gaming within the stat. 5 Geo. 2. c. 30. s. 12. which will prevent a bankrupt's certificate being allowed. (a) [In order to render the certificate a bar to the costs there must have been either a debt in existence previously to the bankruptcy, or judgment for the costs must have been signed before the bankruptcy, which itself constitutes a debt, ex parte Charles, 14 East, 197. Willett v. Pringle, 1 N. R. 190. Therefore where damages were recovered in an action for seduction, and the verdict was before, but the judgment after the bankruptcy, the certificate was held to be no bar. Buss v. Gilbert, 2 M. & S. 70. The sum recovered was not a debt, but merely damages until judgment signed. So where the Defendant had a verdict, and the Plaintiff after verdict, but before judgment, became bankrupt, it was held that the costs taxed for the Defendant were not barred by the Plaintiff's certificate. Walker v. Barnes, 1 Marsh. 346. But where a debt exists prior to the bankruptcy, it is immaterial when the judgment is obtained, for the costs bear relation to the original debt, and not merely to the judgment as in the above mentioned cases, where damages only were due before the bankruptcy, or where the costs are awarded to the Defendant. Scott v. Ambrose, 3 M. & S. 326. Dinsdale v. Eames, 2 B. & B. 8. The case of Watts v. Hart, 1 Bos. & Pul. 134, is at variance with the authorities above cited. It was there held, that if a Plaintiff become bankrupt after a nonsuit at Nisi prius, and before judgment of nonsuit, the costs of the nonsuit are a debt proveable under the commission. That case how ever was reluctantly decided on the authority of Longford v. Ellis, which has been since overruled, (see the next note,) and of Hurst v. Mead, 5 T. R. 365, which rests upon no better foundation; see also ex parte Todd cited, 3 Wils. 270, and quære Beeston v. White, 7 Price, 209. Costs being in the nature of an accessory, are barred where the debt to which they bear relation is barred, for where the right to the principal is barred, the right to the accessory is barred also. Van Sandau v. Corsbie, 3 B. & A. 19. Thus where there is a judgment against the bankrupt before his bankruptcy, and it is revived by sci. fa. after the bankruptcy, the costs of the sci. fa. have reference to the judgment, and are barred by certificate. Philips v. Brown, 6 T. R. 282. So the costs of a writ of error upon a similar judgment affirmed, (ibid.) Graham v. Benton, cited 14 East, 201. And so where Plaintiff sued Defendant for a debt before the bankruptcy of Defendant, and went on with the suit after his bankruptcy, and had judgment, and the Defendant obtained his certificate and afterwards brought a writ of error which was nonprossed, and costs of nonpros in error were awarded against him, it was held that the Defendant was discharged by his certificate from these costs. Scott v. Ambrose, 5 M. & S. 326. As to proving costs, see ex parte Hill, 11 Ves. 646. R. v. Davis, 9 East, 318. Ex parte Poucher, 1 G. & J. 385. 6 Geo. 4. c. 16. s. 58.] An An application having been previously made to Mr. Justice Gould for a discharge, he directed the Court to be moved, on a suggestion of the attorney for the Plaintiff, that the costs having accrued after the bankruptcy, made a new debt.-Kerby argued that the costs were part of the original debt, and that as the Defendant had obtained his certificate, his privilege extended to both.-Bouteflour v. Coats, Cowp. 25.-Graham v. Benton, 1 Wils. 41. (a) GOULD and WILSON, Justices, (Lord Loughborough and Heath, Justices, not being in Court,) said that the certificate seemed to them to extend to the costs as well as the debt itself. Bond, Serjt., on shewing cause, did not urge that the costs were not to be considered as part of the original debt, but produced an affidavit stating that "within twelve months before "the bankruptcy, the Defendant had lost 5007. by insurance in "the English and Irish lottery" which he said was within the statute 5 Geo. 2. c. 30. s. 12. and therefore deprived the Defendant of any benefit of a certificate. But The Court were clearly of opinion that insuring in the lottery was not gaming within the statute, and made the Rule absolute for the Defendant's discharge. B. R. East. 25 Geo. 3.-LONGFORD against ELLIS (6). This was an action of slander. Verdict for the Plaintiff. Law had obtained a rule to shew cause why the Defendant should not be discharged out of the custody of the Sheriff of Leicestershire, upon comnion bail, as to this action, he having obtained his certificate under a commission of bankrupt, and in the mean time all proceedings be stayed. The facts were, That the action was brought for words spoken of the Plaintiff in his trade, tried at the last Summer Assizes at Nottingham, and a verdict for the Plaintiff and 107. damages. That on the 28th of September 1784, between verdict and judgment, the Defendant became bankrupt. 1788. LEWIS against PIERCY. On the 9th of December 1784, final judgment was signed, and increased [ 30 ] costs taxed at 45l. 10s. On the 27th of January 1785, the Plaintiff sued out a test. ca. sa. into Leicestershire, upon which the Defendant was taken. Balguy, against the rule contended that this action sounded merely in damages, and therefore that it does not become a debt until it be ascertained (a) [S. C. 2 Str. 1196. 14 East, 200. (n.)] (b) [S. C. 14 East, 202. (n.) Over VOL. I. D ruled by ex parte Charles, 14 East, by 1788. LEWIS against PIERCY. by judgment, and could not be proved under the commission, and if so, could not be discharged by the certificate. Law, for the rule, cited the case of Graham v. Benton, 1 Wilson, 41. where it is holden that a bankrupt getting his certificate after judgment, shall be discharged on motion; and contended that in this case the debt became ascertained by the verdict. He also cited Blandford and Foot, Cowp. 138. to shew that if the cause of action arises before bankruptcy, interest and costs accrued after, are likewise discharged by stat. 12 Geo. 3. c. 4. s. 2; and he also contended that the costs followed the verdict. Balguy replied, that the cases cited were founded on actions brought for an existing debt, at the time of bringing the action; which was not the case here, for even at the time of the bankruptcy there was nothing but a mere right to recover damages. WILLES, J.-There is no distinction between a tort and a contract, where a judgment follows the verdict. See Cooke's Bank. Laws, p. 227. last Edit. Rule absolute. ROE, on the Demise of PERRY, against JONES and A possibility THIS coupled with an interest is devisa ble (a). others. IIS was an ejectment to recover a house and garden, &c. at Ivelchester, tried at the Summer Assizes 1787, at Bridgewater, in which a special verdict was found as follows: “John Lockyer being seised! in fee of the premises in question, on the 13th of June 1734 made his will, and after charging all his lands and hereditaments with the payment of certain annuities, devised in the following manner: "And my said lands and hereditaments, thus charged as "aforesaid, I give unto my brother Thomas Lockyer, until his son John, or any other of his younger sons, shall attain the age "of twenty-one years, which shall first happen; and in case he "shall have no younger son that shall live to attain the said age, "but shall have only one son that shall live to attain the said 66 age, then until such only son shall attain the said age, in trust "that the clear rents, issues, and profits of the premises, after "all charges, and reparations deducted (except my now dwell"ing-house at Ivelchester, and the garden and orchard thereto (a) [Affirmed on error in K. B. 3 T.R. 88. See Goodtitle dem. Gurnall v. Wood, Willes, 212. But a mere possibility, like that which an heir has from his ancestor, is not devisable, (3 T. R. 93.) nor is a possibility devisable where the person who is to take it is not ascertained. Doe d. Calkin v. Tomkinson, 2 M. & S. 165. Fearne Cont. Rem. 371.] " belonging, |