intention, without such an implication. And the Court 1766. will not make an implication, to support an idle intention, beneficial to nobody; nor shall such an implication be GULLIVER inade upon a limitation after estates-tail. Mr. Hill cited the case of * Rudhall versus Milward, (in Savile 76. and Moore 212.) But that case does not come up to a limitation after an estate-tail †. V. ASHBY. + Note, Lord observed, at the end of Mr. Hill's argument," that "Rudhall v. Milward was a hard "determination; that there was no implied limitation; and that the remainder was to "the heirat law, who was to take the advantage of the breach of the condition.” (i). If this was to be construed a conditional limitation, it would strip the issue of Ambrose Saunders: and consequently defeat the intention of the testator; he never meant to exclude them. And yet it is urged, "that they should be excluded."+ It cannot, therefore, be considered as a conditional limilation. Nor is it a condition subsequent: for, it would be nugatory; as Ambrose Saunders might immediately suffer a common recovery, and bar the estate. It can only operate as a recommendation or desire. And this is the stronger, by reason of the express condition annexed to the second proviso; (notwithstanding that it is an ineffectual one.) Mr. Justice Aston-Whether this be a condition, or a recommendation; yet the rules of making implications do not hold in the case now before us. The cases cited in support of making the implication are founded upon reasons which do not exist in the present case. I take it to be a condition subsequent; and, as such, barred by the common recovery. The case of Rudhall versus Milward is best reported in Savile 76. That was considered as a condition; and not V. ante 1939. a limitation, And that is agreeable to Thomas's case in 1 [ 1943 ] Ro. Abr. 411. (4). The implication contended for, in the present case, is contrary to the manifest intention of the Testator; who never meant that the estate-tail should cease on a breach of the condition mentioned in the first proviso. He certainly meant that the issue in tail should take, in case of a breach, upon the second proviso. For the " Person to consent to the waste,' was the issue in tail: it was not meant to exclude him. He agreed to the observation, "that the case of Jermyn versus Arscot seems to make "this condition void." He inclined to think that V. ante, 1935, Ambrose Saunders had his whole Life for taking the name. (i) It was a collateral limitation annexed. (k) This case was by Hill stated and most clearly shewn not to be so by authorities. 1941. ASHBY) GULLIVER He concurred in opinion, with Lord MANSFIELD and Mr. Justice Yates, "that the lessor of the plaintiff had no title.' Mr. Justice Hewitt-If this be considered as a condition, [6 Durn. 515.] it is collateral and subsequent, and would be destroyed by the recovery. * 1 Co. 86, d. [ 1944 ] † V. Bro. Abr. Coperceners,8. Such a proviso as this is, shall operate as a limitation, where there is a devise over; and also in some cases where the devise is to the heir. The latter is an implied condi tional Limitation: and this case must be of that it were a limitation at all. sort, if But here the intention of the testator appears to be contrary to such implication. Such an implication would defeat the issue. Whercas he intended that they should be the next takers, in case of a breach; not, that they should suffer by it. However, there is no authority that such an implication of a devise over can be made, after a devise in tail. Wellock versus Hammond was a devise of a fee. And if it had been construed a condition, it must bave descended to the eldest son upon his own breach of it. Rudhall's case seems rather to have been considered as a condition, than as a limitation. However, 'tis no autho rity in the present case. In the case of Jermyn versus Arscot, the proviso was repugnant: it could not take effect, by law. The estate. was "to cease, as if the tenant in tail male was naturally "dead. But the mere death of such a person does not "determine his estate. It must be a dying without issue "male." So, here, a like repugnancy would follow upon a like construction. As to its being only a recommendation-I find no case in the books, about recommendations: and I shall not enter into the question "Whether this is to be considered as a mere recommendation, or as a condition." Thomas's case in 1 Ro. Abr. 411, 843. seems in point. If that was a single heir, that case is in point: if not, one co-heir may enter for Both. And no advantage was here taken of the condition, before the recovery was suffered. "He concluded with saying, that this condition, or whatever else it may be called, is not such a limitation as will carry the estate over to the next remainder-man, upon breach of the condition enjoined: and therefore the plaintiff, who is that next remainder-man, and only claims as being so, can have no title to recover. Per Cur, unanimously... Let the Postea be delivered to the Defendant. A Howe, Esq. vers. NAPPIER. PROHIBITION had been moved for, to the court of Admiralty, in a suit there for seamen's wages; upon a suggestion "that it was by deed executed." It was upon an East India Company's charter-party: which are always (as it was said) under seal. On the last day of last term, Mr. Dunning shewed cause against the prohibition; and alledged, that these contracts used to be without deed: But by 2 G. 2. c. 36. it was provided that they should be in writing, declaring the wages, and expressing the voyage.. That act says--"The agreement shall be made in writing+. But it did not intend to deprive the sailors of the benefit of suing in, the Admiralty-Court; where they could obtain their wages in a more summary and expeditious method, than, in the common-law courts. 1766. Monday 17th A Prohibition ment be special or under seal. + Sect. 1. Durn 268.] Sir Fletcher Norton and Mr. Walker, contra, argued [See 2036. for the prohibition; and urged, that the Admiralty-Courts post, and 3 have no jurisdiction, where the contract is under seal. 2 Sir J. S. 968. Day et al.' versus Searle. 1 Salk. 31. Opy versus Addison. [V. 12 Mod. 38. S. C.] 1 Ld. Raym. 577. [See it also in 12 Mod. 4. 5.] Clay v. Snelgrave. They proceed by a different manner of proof: they require two witnesses; the common law, only one. Lord MANSFIELD-It must turn upon the sug- [ 1945. ] gestion: You may move to amend that. Whereupon, Mr. Walker made a motion for that purpose and a rule was granted, to shew cause why the suggestion should not be amended; and the present rule was enlarged. On Friday the 7th of this month of November, Sir Fletcher Norton moved to make absolute the rule for amending the suggestion. And accordingly, the rule for amending the suggestion was then made absolute: And upon the amended suggestion, it was averred to be a contract made at Land, (viz. at the East India House, &c.) and that it was under seal. And a rule was made, at the same time, for Civilians to be heard against the prohibition. Dr. Marriott now argued against the prohibition, and for the jurisdiction of the Admiralty. He said he would lay down some first principles. One of which was, that A prohibition must be granted upon good and legal cause. He admitted that the Court of Admiralty could not hold 1766. HOWE V. plea of things arising by deed, in cases where the matter is to be executed on land. They are restrained by the acts of 13 R. 2. Stat. 1. c. 5. and 15 R. 2. c. 3. It depends upon the nature of the thing; not upon the NAPPIER. locality. They may hold plea of contracts for seamen's wages, generally. For, the question is "Whether they have earned their wages or not, by the maritime law?" That is the point in issue. The contract comes in only incidentally, not originally. We do not pretend to determine upon deeds, generally: but here it comes on only demonstrative. We can give the mariners the most effectual remedy in cases of wages. We can send commissions to examine witnesses: which foreign Courts of Admiralty will assist. Mariners may join together in suing, in our courts. We examine our witnesses upon interrogatories: which is convenient to men of that vague kind of life. So [1946] that they have certain and convenient justice in the Admiralty-Courts. The cases where prohibitions have been denied, on general contracts for seamen's wages, are the followingWoodward versus Bonithan, Sir Thomas Raym, 3. Anonymous, 1 Ventr. 146. and Wells versus Osmond, in 6 Mod. 298. Where the true reason is given, why seamen may sue for their wages in the Admiralty, though the contract be at land; namely, that there the ship is made liable to them; and there they may all join in the suit; neither of which may be at common law, and yet much for the case of poor seamen. The first question is how far the Admiralty may bold 66 plea of contracts made at land ?" Now 3 Lev. 60. Coke versus Cretchett, and Middleton versus Scolly, there also mentioned, prove that notwithstanding 13 R. 2. or 15 R. 2. the Admiralty have jurisdiction to hold plea of a charter-party and contract, though made at land. The next question is, "whether they can hold plea of a "deed ?" and then, "whether this be a deed ?” 1st. The Court of Admiralty proceeds by the common and maritime laws of England, as well as by the present system of maritime laws in all civilized countries. The civil law pays respect to a deed. And the process of the Admiralty is summary, and more expeditious and easy in its method of obtaining seamen's wages: and more ample justice may be done, even in the case of a sealed contract made at land Cases do not make law; but law makes cases. I suppose, the counsel on the other side will produce a case out of Salkeld. But a case not founded on principles is no authority. The Court of Admiralty are the proper and only judges of the service of mariners. And here, the whole of the libel is the hiring and the performance. The suggestion is founded on the two statutes of 13 R. 2. Stat. 1. c. 5, and 15 R. 2. c. 8. 1766. HOWE V. NAPPIER. The Black Book of the Admiralty, (No. 25. Letter C.) which is coeval with the Red Book of the Exchequer, supposes those statutes to have proceeded from a turbulent [ 1947 ] spirit. They have been the grounds of prohibitions to the Court of Admiralty. Lord Coke laboured to abridge their jurisdiction in his writings. But at this day, the spirit of these statutes will not be enlarged. Therefore he hoped the court would not put it in the power of a company (meaning the East India Company.) to oppress their seamen, by granting a prohibition in the present case. The litigation in the Admiralty Courts is only as to the SERVICE. Mr. Dunning also argued against the prohibition. The wages being earned on the high seas was the principle, he said, of the Admiralty jurisdiction: and the case of Opy versus Addison et al. in Ï Salk. 31. was the first case to the contrary; and seems not to have been much considered. Probably, Bridgman's case, in Hobart 11. might be the ground of that determination. The 2 G.2. c. 36. directs indeed "that the agreement "shall be in writing." But it did not mean (7) to take away the Admiralty jurisdiction, so convenient to mariners. And surely the mere putting a seal to the agreement in writing ought not to take their jurisdiction away from them. The case of Day et al.' versus Searle, in 2 Sir J. S. 968. is only this the mariners libelled on a contract "under seal: and a prohibition was granted, on the au"thority of Salk. 31. Vide 3. Lev. 60, contra." Which Note of reference to 3 Lev. 60. shews that that case so referred to was not cited or considered in the case of Day yersus Searle. Sir Fletcher Norton, contra, for the prohibition. The jurisdiction of the Admiralty ought not to be extended, if for no other reason, yet for this one alone, it's This appears by Sect. 8, but there the act only provides that by entering into and signing such agreement, i.e. such as in that act is mentioned, no mariner shall be deprived of any means for the recovery of wages against the ship or owners thereof. C 4 ་་་ |