ROE, on the Demise of BETTY BENDALE, against Sum In Ejectment UPON a case reserved at the assizes holden at New Sa um on 31st March 1770. The short substance of it was, That Benjamin Bendale, being possessed of a term for 99 years, if he or his daughter Betty, or John Bendale should so long live, devised the premises granted by such lease, as follows, vis. "Item, I give to my daughter Mary, after the decease of my daughter Betty, my house, &c. during the life of John Bendale." Betty was a daughter by a former wite: Mary, by the defen dant Mary Bendale, now his widow, Summerset was the tenant. The principal question was "whether Betty 66 was intitled to recover any and what part of the pre"mises, against the defendants, or either of them." Mr. Gould, for the plaintiff, argued that Betty was intitled to the whole, for her life, by implication. Mr. Ashhurst, contra, argued, that no such intention of a life-estate could take place in a chattel-interest. And he cited Moore 635, Rayman v. Gold; and Cro. James 74, Horton v. Horton. TWO judges only were present, viz. Mr. Justice WILLES, and Mr. Justice BLACKSTONE. They both held, that Betty took an estate for life, by implication; and that a strong probable implication is sufficient: it needs not to be a necessary implication. Mr. Justice WILLES Spoke slightly of the case in Moore; and Mr. Justice BLACKSTONE, still more slightly, of the case of Horton v. Horton in Cro James: (b) which, he ob served, was not determined, and was only upon a colla, teral point. He added that in these days; (c) a term (b) That is a good determination, for in Cro. Jac. 75, the second reason for it was, that it should not he con strued a devise by implication, because if it were, it would be a forfeiture; as in that case, the testator was lesse, on condition not to alien to any but his children, and if any took by implication, it must in that case have been the testator's wife, and it was on this second reason that the three founded their judgment. (c) So it might in former times: all the difference is, that in these days, there has been a greater latitude taken than formerly in collecting intentions, though not expressed from inferences, vide Vaughan 262. may be devised for life, by a construction of the intent of the testator. Ordered that the pastea be delivered to the plaintiff. 1770. ROE V. BENDALE. May 1770. DENN, on the demise of WILLIAM CRESWICK, Versus Monday 14th JOSEPH HOBSON, and seven others, (8. C. 2 Bl. 695.) EJECTMENT for messuages and lands in Wadsley, or Wadsley Hosley in the parish of Ecclesfield in Yorkshire. Remainder to the heirs of W.C.on the body of S. be gotten, the male to be 'preferred before the female, and the older before the younger creates an estate in tail male. The cause was tried at the last assizes at Winchester, before Mr. Justice GoULD. The lessor of the plaintiff claimed as grandson and heir mate of William Creswick, by Sarah his wife, formerly Dearnally. William Creswick, his grandfather, on 27th January 1730, by deed of feoffment, in consideration of his in tended marriage with Sarah Dearnally, and £150 marriage-portion, conveyed the premisses to John Dearnally (father of Sarah) and Thomas Creswick, and the survivor of them and his heirs; upon trust, as to part, that they should stand seised, from the marriage, to the use of the said William Creswick and Sarah, for their lives and the life of the survivor, in part of her jointure and dower; remainder, to the use of the "HEIRS of the said William "Creswick on the BODY of the said Sarah lawfully begotten or to be begotten; the MALE to be preferred before the FEMALE, and the ELDER before the YOUNGER. The residue of the premisses were limited to the same uses, except the use to Sarah for life. 66 There was issue of the marriage, two sons 1st. William Creswick, (the (eldest ;) who died in 1750, leaving issue Mary; who died, leaving issua William Froggatt, one of the defendants. [Qu. Salk. 56 " and see Carth: 543.] 2d. John Creswick, who vis. John Creswick his And William Creswick his After a long examination, the identity of the premisses was sufficiently ascertained. [2610 ] 1770. DENN V. HOBSON, [ 2611 ] The lessor of the plaintiff claimed as HEIR MALE, under this settlement. On the part of the defendants, it was first insisted, either that old William, the settler of the estate, took a FEE-SIMPLE under the remainder; and so the defendant William Froggatt was his heir at law, as being the son and heir of Mary, the only issue of William, the eldest son of the marriage; or, 2dly. that he was intitled as ISSUE IN TAIL general, under the settlement. But Mr. Justice GOULD thought, the lessor of the plaintiff was intitled, as heir in TAIL MALE, to the lands indorsed on the postea; (it being admitted that he was "barred as to the rest, by a fine and nonclaim.") A verdict was found for the plaintiff. Mr. Mansfield, on behalf of the defendants, moved for a new trial. The question was "whether this limitation was in tail "male; or whether it was either a limitation in tail "general, or else a void limitation, for its uncertainty, so "that Mary, the daughter of the eldest son of old Wil "liam, might claim as heir at law to old William the settler of the estate." In either of the two latter cases, the claim of the lessor of the plaintiff, as heir in tail male, would be at an end. Mr. Mansfield endeavoured to satisfy the Court, that there was nothing to hinder the descent to the heir at law, though claiming through a female. The limitation is to all the heirs of the body, &c.: and the words "the "male to be preferred before the female, and the elder "before the younger," were mere words of form, he said, and operate nothing; and may be referred to the immediate children of the marriage, to shew how they should take. But LORD MANSFIELD answered him, that if the words have any meaning, they describe an estate in tail male: and it is not to be supposed that they were inserted without any meaning at all. The other three judges, (Mr. Justice ASTON, Mr. Justice WILLES, and Mr. Justice BLACKSTONE) concurring clearly with his Lordship, it became unnecessary to hear Mr. Wallace, who was ready to shew cause, on behalf of the lessor of the plaintiff, against Mr. Mansfield's rule. The whole COURT agreed with Mr. Justice GOULD, that it was an estate in tail male." RULE DISCHARGED. 1770. RICE T. SHUTE. (S. C. 2 Bl. 695.) THIS was an action brought against one partner only, Upon an action upon a partnership account. broughtagainst one partner only he must plead the same in abatement, and cannot give it in evidence on the trial, that others are not joined. [See Bull. 70. 152, 5 Durn. 651. 3 East 65, 68.] At the trial, (which was before Mr. Justice BATHURST,) the defendant gave evidence that there was another partner (named Cole) who was not joined in the action, as a defendant; which he ought to have been, as the plaintiff knew the fact to be so. Whereupon, the plaintiff was nonsuited. Mr. Serjeant Burland moyed (upon the 5th of this instant May 1770,) on behalf of the plaintiff to set aside this nonsuit, and to have a new trial. So It appeared upon the judge's report, that the plaintiff could not but know of the partnership for that all the letters shewed, and it was even stated upon the very account itself, "that Cole and Shute were partners." that the plaintiff was not surprized by the defendant's producing this evidence of a partnership: on the contrary, he had brought his action in this manner against the present defendant alone, with a deliberate design to take some advantage of him. The Serieant's objection was, that this matter could not be given in evidence, but ought to have been pleaded in abatement. THE COURT gave him a rule to shew why the non- Mr. Serjeant Davy now (on this 14th May) shewed cause. He said, it would be very mischievous, if a person having a demand upon a partnership should be left at liberty to cull out one particular partner, and bring an action against him alone, leaving out the rest of the partners. In the case of Boson v. Sandford, 2 Salk. 440. the Court held that all the part-owners of the ship must be joined;" and they gave judgment for the defendant, because all the owners were not joined. This may undoubtedly be pleaded in abatement: but it is not necessary that in all cases whatsoever it must be pleaded in abatement. In some cases, and under certain circumstances, and particularly where it is within the plaintiff's own knowledge" that there are more partners,' [ 2619] 1770. RICE V. CHUTE, it may be given in evidence, without pleading it in abate, ment. Here, the plaintiff knew that Cole was partner with the defendant. He was not surprized by this evidence: he acted with his eyes open, and with a deliberate design to take an unfair advantage. If the defendant had pleaded in abatement, he must have shown who his partners were; and then the plaintiff, being thus informed who they were, must have brought a new action against them all. But in the present case, the plaintiff already knew, of his own previous knowledge, "who were the partners:" and therefore he was as much obliged to bring his action originally against them all, as he would have been obliged to bring a new action against them all, if he had come at that knowledge only by the defendant's plea in abatement. As soon as he knows who the partners are, he is obliged to bring his action against them all; however he may come at this knowledge. He cannot, after having obtained this know[2613] ledge, select one, and omit the rest. It's being pleadable in abatement shews that he can't omit any one, if in fact there are more than one. And if he does know it before he brings his action, it is more expeditious and more reasonable, that he should join them all at first. [2 Vin. 70. pl. 21. Bull. 20.] [1 Bosan, 72.] And though it may have been heretofore holden "that "it could not be given in evidence," yet that was only an opinion at nisi prius: there never has been any such determination of this Court, or any where else in your Lordship's time. And if it has been ever holden "that "it was sufficient to make the acting partners defen"dants," the rule has been since established, "that all must be joined, it known." He therefore prayed that the nonsuit might be recorded. Serjeant Burland was proceeding to support his rule ; but was stopped by LORD MANSFIELD, as not being necessary. LORD MANSFIELD It To be sure, a distinction is to be found in the books, between torts and assumpsits-" that in torts, all the tres6 passers need not be made parties; but in actions upon " contract, every partner must be made a defendant." Many nonsuits, much vexation, and great hindrance to justice, have been occasioned by this distinction must have been introduced originally from the semblance of convenience that there might be one judgment against all who were liable to the plaintiff's demand. But experience shews that convenience, as well as justice, lies The other way. All contracts with partners are joint and several: every partner is liable to pay the whole. In |