1822. Dos dem. sold and equally divided. Now what was to be sold? That expression applies to real property peculiarly, Then taking the whole will together, it is clear the testator meant to include in this part of it, real property, If so, the moiety of Elizabeth's real estate comes under the will to Ann, and the defendant being entitled under the will to a life estate in that property, is entitled to the judgment of the Court, ABBOTT C. J. There is considerable obscurity and confusion in this will; but, upon the whole, I am of opinion, that the residuary clause and the gift over apply both to the real and personal property of the testator, and are not confined to the latter. The primary intention of the testator seems to have been, that all his property should be divided equally amongst his three daughters, and that their respective issue, if they had any, should inherit their mother's share. He does not leave them the whole property as tenants in common, but assigns certain specific portions of it to each daughter, and then leaves the residue "equally, share and share alike to them, to be paid at 22, their equal share." Then comes the provision, that in case of the death of any one of them before she arrived at 22, or in case she died single, her portion should be divided equally between the two survivors, share and share alike, or their heirs. Now, it seems to me manifest, that the word portion in this part of the will is not confined to the personal estate of the testator, but applies to his real property also. The will then proceeds to state, that in case two of his daughters die without heirs, the whole should devolve "to the survivor and her heirs in case no husband is living, if so, they enjoy the property property during life only, and afterwards her or their fortune go to the heirs of their sister as heirs at law.' And in case all three die without issue" and leave no husband living, or at the decease of such husband, should it happen such then exist at their decease," he gives certain legacies out of "the before mentioned estates,' and all the residue of the estates to be sold and equally divided among his three brothers, share and share alike. Now it seems to me, that the word estates is large enough to comprehend, and is most properly applicable to real property, and the direction that the estates shall be sold confirms that opinion. The provision in the will respecting the husband, is not an unusual provision. Although, therefore, there are no express words giving an estate for life to the husband, yet, as it appears from the will, that the heir at law is not to take till after his death, it seems that the husband by necessary impli cation takes an estate for life. The defendant is therefore entitled to our judgment. BAYLEY J. If an estate be given to the heir at law expressly after the death of A., A. takes an estate for life by implication. Now that is clearly the case here, unless the latter part of the will be confined to the personal property alone: and taking the whole will together, it seems to me, that it is not so confined, but that it extends to the real property also. HOLROYD and BEST JS. concurred. Judgment for defendant. 1822. Dor dem. against BOWLING. 1822. The KING against CLARK. SAME against SAME, Defendant be. BINGHAM moved for a rule, calling upon the officer the 8th of June, of the crown-office, who had estreated, the defend ing taken up on upon an indict entered into a recognizance to ment for a libel, ant's recognizances in these cases, to shew cause why the estreat should not be set aside for irregularity, and why he should not pay the cost occasioned thereby. It appeared that the defendant was taken up under a Judge's warrant, issued against him upon an indictment appear and plead, within the first eight days of Trinity term, and to try the cause at the sittings after that term. The defendant pleaded not found by the grand jury in this court in Easter term last, for publishing a blasphemous libel, and that he, on guilty, but did the 8th June last, entered into the usual recognizance, himself in 801. and two sureties in 401. each, to appear up the record, and plead within the first eight days of the then next Trinity term, and to try the cause, at the Middlesex sit not give notices of trial or make either for the sittings after Trinity or Michaelmas term, nor were the recognizances respited. The prosecutors gave notice of nity and Mi tings after that term, and personally to appear upon the return of the postea, if convicted, and, in the mean time to be of good behaviour. To this indictment he trial after Tri- pleaded not guilty, on the 23d June. On the 29th June, another indictment having been found against him by the grand jury in this court for a subsequent publication of the same libel, he pleaded not guilty thereto; chaelmas term, but the causes The defendant was ready and willing to take zances were es treated in Hilary term, without any notice to and, on the 30th June, entered into a second recogni peremp his trial on both these occasions. Zance, himself in Sol. with one surety in 801. for The recognitorily proceeding to the trial of that indictment at the Middlesex sittings after Trinity term, and, in the meanthe defendant, time, for being of good behaviour. The defendant did not give notices of trial, or make up the records in either of these prosecutions, either after Trinity or Michaelmas terms, nor did he obtain any rules for respiting the estreating of the recognizances. The prosecutors, however, or any motion by the prosecutor: Held, that this estrcat was regular. gave Per Curiam. It was the defendant's duty, in pursusuance of his recognizances, to be prepared, according to the practice of the Court, to try at the sittings after Trinity or Michaelmas terms, and he was not so prepared; for he neither gave notice to the prosecutors, nor made up the records, on either occasion. And the prosecutors having done so is immaterial to the question.. There was no necessity to give any notice to him that his recognizances would be estreated: for he was bound to take notice of the terms of his own recognizances. The rule must, therefore, be refused, the estreat being quite regular, and conformable to the ordinary practice of the Court. Rule refused. 1822. The KING against CLARK. 1822. grant a habeas corpus to the warden of the body of a debtor trate, to be examined, from time to time, respecting a charge of felony or misde meanour. Ex parte GRIFFITH GRIFFITHS. The Court will CHITTY moved for a writ of habeas corpus to be directed to the warden of the fleet, commanding him fleet, to take the to carry the body of Griffith Griffiths before the lord confined there, mayor, or some other justice of the city of London at before a magis- the Mansion-house there, from day to day to be examined, touching a charge of felony and misdemeanour. It appeared by the affidavit of the sole owner of the ship, Samuel of Liverpool, that Griffiths was the master of that ship, which was in February 1821, chartered on a voyage from Liverpool to the Brazils, and back, and that Griffiths having had the certificate of registry duly delivered to him as master, had deviated and otherwise misconducted himself during the voyage; and on the 27th of April last, arrived with the ship in the port of London. Upon this he was personally required by the owner to deliver up either to him, or at the custom-house to the proper officer there, the certificate of registry. But he refused altogether so to do: whereupon the owner had applied to, and obtained a warrant against him from the lord mayor, for the purpose of proceeding to convict him of the offence pursuant to the statute 34 G. 3. c. 68. s. 18. and thereby enabling himself to obtain a registry de novo of the ship if necessary. Griffiths being, however, at this time, a prisoner in the Fleet for debt, there was no power of taking him under the warrant unless the Court granted this writ. And he referred to Rex v. Woodham. (a) The Court thought it a proper case for their interference, and thereupon directed the writ to issue. Writ granted. (a) 2 Str. 828. |