intention is to be collected from the words of the will, or other instrument, giving the power, according to the ordinary and common acceptation of the words, and not according to any legal or technical exposition of them. A settlement on a child for life, with remainders to his first and other sons in strict settlement, is in common parlance a settlement on the child; and the general intention of persons who look forward to future settlements, is that the estate shall be tied up as long as the rules of law will allow. The question is, Whether the words used in this will suffi ciently indicate that intent?—and we are of opinion that they do. If the words "in strict settlement" had been used, the case would have admitted of no doubt; and we think the words "manner," "share," "proportion," and "transmit,” are equivalent to them. The wife having a power of settling the estate among the children in such manner as she thought fit, it is as extensive as if every manner had been expressly enumerated, or the testator had said "in strict settlement, or otherwise." Besides, the word "transmit," in our judgment, most naturally applies to a strict settlement; and means that the remote descendants of the testator, as far as the law allows, should take by the gift of the wife, and not by descent. The word "children" has been held to be co-extensive with issue; and to include grandchildren and great-grandchildren, both in law and equity; as we find in Wild's case, 6 Co.; Bendloe, 30; and 1 Ventr. 231. We think the intention of the testator in this case requires that construction; and that the testator used the term "children" as denoting the branches sprung from him. The expressions that it was his will and intention that the "estate called Vawtorts, and the other estate adjoining, should "be considered as one estate," and be "transmitted entire to his 66 family," confirm our opinion. The case of the Duke of Devonshire against Cavendish seems to us to be in point: and the language there used by the Court was, That whatever the person to whom the power was given might do with the estate if it were his own, he might do now; with this exception only, that the children were the objects. But supposing that the estate could not, under this power, be strictly settled on the issue of the children; yet we are of opinion that Moses Griffith connot make a good title to the estate. There is prima facie a contradiction in the power, which first enables the wife to give to one or more of the children in such proportions as she thought fit; and afterwards adding the re striction 1792. GRIFFITH against HARRISON 1792. GRIFFITH against HARRISON. striction that the estate should not be divided, but transmitted whole and entire to his heirs; for if the estate were always to remain entire, it could not be divided into different proportions. The only way of making the different parts of this power consistent (provided the estate cannot be limited in strict settlement) is to consider the word heirs as applicable only to more remote descendants than the children; and to confine the wife's power of appointment to the children during their lives only; in which case, whatever appointments the wife might make amongst the children, during their lives, the estate, after their deaths, would go entire to the right heir of the testator. If the testator delegated this power to the wife, merely to secure the obedience of the children to her, this construction will answer the end. In either way, we are of opinion that Moses Griffith takes only an estate for life in possession. June 15th, 1792. W. H. ASHHUrst, Saturday, June 16th. It is illegal to sell corn by any other measure than the Win chester measure. [6 T. R. 338.] THIS The KING against J. MAJOR. HIS was a conviction on the 22 Car. 2. c. 8. s. 2. & 22 & 23 Car. 2. c. 12. s. 2. for buying corn on the 23d July, 1791, at Newport, in the Isle of Wight, by a bushel different from the Winchester measure. It appeared, by the evidence set forth in the conviction, that the corn was bought by the customary measure used in the Isle of Wight, which contains a pint more than the Winchester measure. The defendant was convicted in 40s.; and 10l. 15s. being the value of the wheat sold. By the stat. 22 Car. 2. c. 8. s. 2. it is enacted, That "if any "person shall sell any sort of corn or grain, usually sold by "bushel, either in open market, or any other place, by any "other bushel or measure than that which is agreeable to the "standard marked in his Majesty's Exchequer, commonly "called The Winchester Measure, containing eight gallons to "the bushel, he shall forfeit for every such offence the sum of "40s." And by the 22 & 23 Car. 2. c. 12. s. 2. it is enacted, that "Every person who shall sell (a) or buy any corn, &c. in 06 any other manner than as is directed by the said act (22 "Car. 2.) shall forfeit and lose, beside the penalty of the former (a) No objection was made that the buyer was not liable to both the penalties under this act. act act appointed, all corn, &c. bought or sold contrary to the act, or the value thereof, &c. Bearcroft (a), against the conviction, after observing that it did not appear that these statutes had ever been enforced, and that it was a matter of public notoriety that a customary measure was used in many parts of the kingdom, said, that however they might formerly have been observed, they were virtually repealed by several modern acts of parliament; 10 Geo. 3. c. 39. 29 Geo. 3. c. 58. and 31 Geo. 3. c. 30.; which direct returns to be made of the average price of corn, and expressly mention the customary as well as the Winchester measure. The 10 Geo. 3. c. 39. s. 1. directs justices to order weekly returns of the prices of corn to be made; and the 4th section enacts, That "the "justices shall cause a standard Winchester measure bushel of "eight gallons to be provided and kept at each market-town, "from whence such return shall be directed to be made; and "such return shall be the average prices of wheat, &c. by the "customary measure of each respective market, and also the "average prices by the standard or Winchester bushel." By the 17 Geo. 3. c. 40. the above act is continued for seven years, and from thence to the end of the then next session of parliament. The 29 Geo. 3. c. 58. s. 20. after the appointment of inspectors of the prices of corn, directs millers, factors, &c. being buyers of corn for sale, to deliver to the inspector an account in writing, signed by them, of the quantities received by them during the week, with the prices, and by what measure or weight the same was bought, under a penalty of 107.; and by sect. 24. the inspectors are directed in their returns to compute the quantities of corn by the Winchester bushel. And by the 31 Geo. 3. c. 30. s. 83. every inspector is required to make a comparison between the Winchester measure and the measure commonly used in the city or town for which he is appointed inspector; and, within a month after his appointment, to affix in some conspicuous place in the market or town-hall, a statement in writing of such comparison, and return a copy of the same to the receiver of corn-returns. The Legislature has therefore recognized and adopted the customary as well as the Winchester measure in these several acts; and particularly in the 29 Geo. 3. c. 58.; otherwise they would be requiring the buyer to criminate himself by delivering an account in writing of the corn bought by him by an illegal measure. (a) This was argued in Hilary Term last. 1792. The KING Marryatt, 1792. The KING against J. MAJOR. Marryatt, contrà.-Notwithstanding it has been usual in many parts of the country to sell by a customary measure, it is illegal. The cases of Noble v. Durell (a), and Hockin v. Cooke (b), proceeded on the ground that only one measure was permitted to be used throughout the kingdom. The statutes of Car. 2. which create this offence, are expressed in the most positive terms, and are not repealed by the modern acts alluded to, which were made for other purposes. All the provisions in these latter acts have one object in view, the ascertaining of the quantity of corn in the kingdom, and its price; which could not be effected by directing the returns to be made according to the measure in each particular place if those measures varied. It therefore became necessary to direct the inspectors to distinguish in their returns between the one measure and the other: but it cannot be inferred from thence that the Legislature meant to sanction the use of any different measure from that mentioned in the statutes of Car. 2.; but, on the contrary, the policy of abiding by those statutes is apparent even from the modern acts. The object of the statutes of Car. 2. was to have only one measure throughout the kingdom; the object of the modern acts was to ascertain the exact quantity of corn in the country. But as, notwithstanding the penalties inflicted by the former, persons continued to sell by different measures, the purposes of the latter acts would have been frustrated, if the Legislature had not adapted the provisions of them to the customs of the country: but still the latter acts left the persons selling by customary measure open to the penalties of the statutes of Car. 2. Neither is there any foundation for the argument, that by this construction millers and factors are compelled to criminate themselves, by making a return of corn bought by customary measure; because they have the option of buying by statute-measure. The Court said, that as this was a question of very general concern, they would take time to consider of it. Lord KENYON, Ch. J. now delivered the opinion of the Court. We have hitherto delayed giving judgment in this case, in the hope of discovering that the farmers in general have been acting under a mistake; for it is a matter of notoriety that in different parts of the country corn is sold by different measures, some greater and others less than the Winchester measure. This question depends on the stat. 22 Car. 2. c. 8. and the 22 and (e) Ante, 3 vol. 271. (6) Ante, 314. 23 Car. 23 Car. 2. c. 12. The former imposes a penalty of 40s. on any person who shall sell corn or grain, usually sold by bushel, by any other bushel or measure than the Winchester measure. The stat. 22 & 23 Car. 2. c. 12. recites the former act; and, in order to enforce it, subjects both the buyer and seller to an accumulative penalty, the value of the corn sold. These acts of parliament are expressed in the most positive terms; and it was admitted in the argument that there was no subsequent law which directly repealed them. But several other statutes for the regulation of the corn-trade were referred to, directing returns of the average price of corn to be made, and noticing in those returns a customary measure. These, it was argued, obliquely, though not directly, repealed the statutes of Charles the Second. We have considered this matter very fully, and are of opinion that the argument does not lead to that concluWe cannot get rid of those positive laws by a reference to subsequent statutes, which were passed for another purpose, and which leave the former ones still in force. sion. 1792. The KING against J. MAJOR. Conviction affirmed. WILSON against Rastall. THIS Monday, June 18th. This Court will grant a new 2 [3 Vez. & B. 41. count of a mis take or misdirection of the judge. If any matter be disclosed to an attorney in the cause, he cannot be permitted to give it in evidence, either in other action. It is the privilege that or any of the client and not of the attorney: but such privilege is consolicitors and fined to counsel, attornies, when acting in their Two of The wit- respective chathat was objected racters. |