over upon the event which has happened, of George having no children, was a limitation, not by way of executory devise, but of a contingency with a double aspect, and George, having destroyed the particular estate upon which the ultimate remainders were to depend, destroyed those contingent remainders, and consequently the lessors of the plaintiff are not entitled to recover. HOLROYD, J.-I am also of opinion that the plaintiffs are not entitled to recover in the event which has happened. The testator gave to his son George an estate for his life, with a contingent remainder to such children as he should have, and their heirs, together with a contingent remainder, with a double aspect, to his son Thomas, his daughter Ann, and his son-in-law William Duke, upon the event of George having no issue. If there had been issue, and the issue had not attained twenty-one, then the limitation over might have operated as an executory devise, but that event has not happened. The limitation is expressly first to George, for life, then unto all the child and children of George, lawfully to be begotten, and their heirs for ever, to hold as tenants in common, and not as joint tenants. It is clear from these words, that the child or children would take an estate in fee, assuming that there was nothing else stated in the will. But the will goes on, "but if my said son George should die without issue," which I take not to refer to an indefinite failure of issue, but, coupled with what immediately follows, to refer to a dying without issue living at his death; for the will says, " or leaving issue, and such child or children should die before attaining the age of twentyone years, or without lawful issue." Now unless we construe that passage of the will to refer to issue living at the time of the testator's death, the other case mentioned immediately afterwards could not happen; because if it meant dying without issue at any period of time," the other contingency provided for, namely, the coming of age, could not take effect though he should die without issue living at the time of the testator's decease. It is admitted that the words or without lawful issue," must be read " and without lawful issue," so as to limit them to the time of the death of the children. It is argued, however, that in consequence of the limitation over being to persons who would be heirs-atlaw, the children of George would take an estate tail, and consequently the children could not be said to die without heirs. But it is to be observed, that the limitation over is not given upon the regular determination of the preceding estate given to the children; it is given over upon the assumption that the children would take, but if they never did take, then the gift over could not take effect. Then it is argued, that assuming the gift over not to restrain the pre-existing estates so as to make them estates tail, then it would operate as an executory devise. The event, however, that has happened, clearly proves that this was not an executory devise, according to the cases of Doe v. Burnsall and Crump v. Norwood, in which case the observations of Gibbs, C. J. are expressly in point. In this case the estate is given over upon the happening of either of the two contingencies, one of which is George's dying without issue living at his death. That event has happened, and but for the destruction of the particular estate, the remainder over would have taken effect as a contingent remainder; but inasmuch as the particular estate had been previously destroyed, that remainder was thereby defeated, and therefore the lessors of the plaintiffs have no right to recover. LITTLEDALE, J.—The case of Crump v. Norwood is, in my opinion, not distinguishable from this. The only dif ference between the two cases is, that here the words are, "6 or without lawful issue," whereas the words there are, "6 or leaving any such;" but that makes no substantial difference. The case of Doe v. Burnsall is also in point, with this difference only, that there the words were, "if all such issue should die under twenty-one, and without issue." Here the word "or" is used; but I take it, that must be read" and." It is true that in that case, the question whether the will would operate as an executory devise, was not brought under consideration; but in the case of Crump v. Norwood, where that question was agitated, Gibbs, C. J. mentions Doe v. Burnsall, and treats it as an express authority. I think these cases are quite decisive of the present, and that the lessors of the plaintiffs are not entitled to recover. Judgment for the defendant. Chitty afterwards, on a subsequent day in the Term, applied to have the case re-argued, or to have a new trial, upon a suggestion that it had been discovered that Thomas Herbert was heir-at-law of the testator; but the Court refused the application, leaving the parties to bring a fresh ejectment if they thought proper. 1824. DOE V. SELBY. THOMPSON v. MACIRONE. a Friday, June 18. joined in assumpsit for goods sold, the plaintiff added special count livering a bill of exchange, and having recovered on for not de THE affidavit of debt in this case was for goods sold and After issue delivered, upon which the defendant was held to bail, and bail above was put in and perfected. After issue joined, a special count was added for not delivering a bill of exchange. At the trial before Abbott, C. J. at the adjourned Middlesex Sittings, after last Michaelmas Term, it was proved that the defendant had given an order for the goods; that they were prepared according to his order; that they remained upon the plaintiff's premises by desire that the bail of the defendant; that they were reasonably worth the sum of 1447.; and that the defendant ultimately brought away a trifling part of them, amounting only in value to 27. 10s. value of 1441. (a) Vide Caswell v. Coare, 2 Taunt. 107. 1 Saund. 211. 227. and Edge v. Frost, ante, 243. that count only: Held, charged (a). were dis Where goods to the were made Cowp. pursuant to order, but continued, by the desire of the vendee, upon the premises of the vendor, excepting a part, to the value of 21. 10s. which the former took away: Held, that there was no delivery and acceptance of the goods within the meaning of the 17th sect. of the statute of frauds. 1824. THOMPSON v. MACIRONE. The defendant had agreed to give a bill of exchange for the amount of the goods, but never did so; and the plaintiff obtained a verdict, upon the special count, for 1447. Scarlett having, in the course of last Term, obtained a rule nisi for entering an exoneretur on the bail-piece, on the ground that the plaintiff had obtained a verdict upon the special count only, and therefore that the bail were discharged, Marryatt and Nicholl now shewed cause. The evidence at the trial was sufficient to warrant a general verdict for the plaintiff; and if so, there is no ground for this motion. The defendant actually took part of the goods away, and the residue remained in the possession of the plaintiff by the desire of the defendant. There was therefore a delivery and acceptance of the goods within the meaning of the 17th sect. of the statute of frauds; for a delivery and acceptance of part, in the name of the whole, is sufficient. These, therefore, were goods sold and delivered, so as to support the affidavit of debt; for the vendor had, by parting with some of them, enabled the vendee to take possession of the whole whenever he chose so to do; which it was held by Holroyd, J. in the case of Smith v. Chance (a), entitled him to maintain the action for goods sold and delivered. ABBOTT, C. J.-It is quite clear that there was not a delivery and acceptance of these goods within the meaning of the statute. The buyer, it is true, gets possession of a small part, but he could not obtain the remainder without paying the value, or giving security for it; and it was plain, upon the evidence, that the plaintiff never intended to give possession until he had received either his money or sufficient security for it. BAYLEY, J.-I am of the same opinion. We cannot, on (a) 2 B. & A. 755. the present motion, inquire upon the merits, whether there was or was not originally a good ground for holding the defendant to bail. But bail above are not liable unless the plaintiff recovers upon the same cause of action which is disclosed in the affidavit of debt. Here he did not, for the affidavit of debt is for goods sold, and the verdict is obtained upon a special count for not delivering a bill of exchange. The bail, therefore, are exonerated, and this rule ought to be made absolute. With respect to the statute of frauds, it is plain that there was no delivery and acceptance here within the meaning of the 17th section, for the vendee got possession of a very small part only, and was not permitted, nor had any right to take the rest, until he paid, or gave security for, the value of the whole. Rule absolute (a). (a) See Wheelright v. Jutting, 1 J. B. Moore, 51. 7 Taunt. 304. S.C. and Baldey v. Parker, ante, vol. iii. 220. 1824. THOMPSON v. MACIRONE. BURWOOD T. FELTON. Saturday, not liable, un der the 5G. 2. c. 30. s. 25. to repay the mes the commis sion, the costs incurred by him previous to the appointment of the assignee. ASSUMPSIT for work and labour, with the money counts. An assignee of Plea, non assumpsit, and issue thereon. At the trial before a bankrupt is Abbott, C. J., at the adjourned Middlesex Sittings, after last Michaelmus Term, the facts of the case were these: The plaintiff was messenger, and the defendant sole assig- senger under nee, under a commission of bankrupt, which had issued against one Farquharson. The plaintiff claimed of the defendant two sums, of 851. and 287. for fees due to him as messenger; the former having become due before, and the latter after the appointment of the defendant as assignee; and which latter sum the defendant had paid into Court. It was objected for the defendant, that upon the true construction of the statute 5 Geo. 2. c. 30. s. 25. the assignee of a bankrupt was not liable to repay the messenger any costs incurred by him previous to the appointment of assig |