1905. ROE dem. Earl of against [106] it shall pass by the other; but where a man might pass lands either by the common law, or by raising a use, in many cases it is held otherwise." And even where a conveyance, BERKELEY might operate in one of two ways under the statute of uses, Abp. of York. as the intent of the parties was considered as working much in the raising and direction of uses, it has been holden, That if a man intended to pass land one way, it should not pass another way, contrary to his intent. To this effect is the case of Samon v. Jones, 2 Vent, 318, determined in the House of Lords; and though, as it is said in Osman v. Sheafe, 3 Lev. 370, "The Judges have, in later times, had more consideration to the substance; viz. the passing the estate according to the intent of the parties, than the shadow and manner of passing it;" and where the intent of the parties is apparent to pass a thing one way or another, a deed may be good either way, and inay enure to divers purposes; and he to whom the deed is made shall have his election which way to take it, and may take it that way which is most for his advantage, yet there is no case or authority which says, that if a conveyance cannot operate in the way intended to pass the estate intended, that it shall operate in another way to pass an estate, which was not intended, and not within the contemplation of the parties; “ And though the manner of passing an estate is not to be regard ed;" yet, "the intent is to be regarded, What estate is to pass, and to whom?" And so it is laid down by Lord C. J. Willis in his Report, 687. Let us then examine and see what was the intent of the parties in this case. Was it to take an interest under the power only, or to take an interest out of Mrs. Egerton's lifeestate, in case the lease could not operate as an appointment under the power? As to this point, it is impossible to doubt. At the time of the new lease the Archbishop had 55 years, the unexpired remainder of a term of 98 years in the messuage in question, an interest of greater value than an estate for any single life; for this interest he could not mean to substitute a lease during Mrs. Egerton's life only. The lease itself also, by its term, shews the intention of the parties to be only an appointment under the power; for Mrs. Egerton professes to make the lease by virtue of and in execution of the power and authority given and reserved to to her by Lord Berkeley of Stratton.' Thus she in most distinct terms refers the act she was then doing to that power, and does not in the slightest degree shew any intention of granting an interest by way of demise, as owner of the lifeestate; for tho' * the lease, after referring to the power, goes on with some words more general, as any other power," &c., yet technically speaking, power does not apply to the sort of interest which the ownership gives; for which there is the authority of Lord Thurlow, in 3 Bro. Chan. Cas. 35, if any authority on this head were wanting. The redden dum is consistent with the same intent, and proper for a lease made in pursuance of the power; for it makes the rent payable to Mrs. E. herself for life, and afterwards to those in remainder;' who, had she intended a demise out of her life estate, would have had no claim to any rent to be reserved under it; and the rent is exclusively reserved to those in remainder, without any alternative provision for payment of an apportioned part of it, in case of Mrs. Egerton's death, to which her representatives would be entitled in the event of her dying between two rent days; and which would have been proper, if a demise by her as tenant for life had in any event been intended. From hence it appears unquestionably clear what was her intention, what the interest she meant to convey, and what the act she meant to execute. The other party to the deed, the Archbishop, by executing the counterpart, as distinctly shews on his part what he meant to accept, which could be only what by the lease Mrs. Egerton meant to grant: his object unquestionably being to come in under Lord Berkeley's will, and not under Mrs. Egerton, and to acquire an interest which might precede and take place of all the estates subsequent to Mrs. Egerton's which were limited by Lord Berkeley's will; and were thereby also made subject to the power; and not in any event to let in the interest of the remainder-men on the death of the tenant for life, to his own prejudice, and to the destruction of the interest he had in the premisses. If the new lease be a surrender of the old one, it must so operate by construing the Archbishop's acceptance of it to be an assent on his part to take a demise from Mrs. Egerton as owner of the estate, contrary to the plain meaning and purport of the deed, to the manifest disadvantage of himself; and this, though he now expressly disclaims, and at no time - appears 1805. ROE dem. Earl of BERKELEY Abp. of YORK against * [107] [108] 1805. ROE dem. Earl of BERKELEY against appears to have claimed any interest which Mrs. Egerton could give him independent of the power. In Sir E. Clare's case, 6 Coke, 18, it is laid down, That if a man make a feoffment to the use of such persons as he should appoint by Apb. of YORK. will, and until appointment to the use of himself in fee, and he afterwards devise the land without any reference to his power, he shall be considered "as declaring his intent to devise the land as owner, and not to limit an use according to his authority." So here, vice versa, as the lease expressly refers to the power, and reserves the rent to the persons in remainder, the parties have declared their intent, that this deed should operate as an appointment, and not as the demise of the tenant for life. In' Hobart, 159, it is laid down, "That if your act may work two ways, both arising out of your interest, election is given to the patient to use it either way;" on the other hand, "If the act will work two ways, the one by an interest, and the other by an authority or power, and the act be indifferent, the law will attribute it to the interest, and not to the authority:" and lastly, " where interest and authority meet, if the party declare clearly that his will is, That this shall take effect by his authority or power, then it shall prevail against interest; for modus et conventio vincunt legem." Now, in this case, the parties have declared most clearly and unequivocally, that their will is, that this shall take effect by the authority or power. Whether or not this lease would operate as between [109] the parties to it by estoppel, is not material for the present purpose to inquire; it is sufficient to warrant us in deciding for the defendant, if it did not pass an interest; which, we we are of opinion, it did not. As in this case our judgment is formed upon this ground; viz. That Mrs. Egerton having a power to appoint, and an estate also which enabled her to demise independent of her power, both parties intended an appointment under the first, and not a grant out of the latter; and that the deed shall not be allowed to operate contrary to such their intention; it will not be necessary to examine the cases of Wilson and Sewell, and Davison v. Stanley, where the lessees could have but one thing in their contemplation; viz. a demise out of the interests which the lessors in those cases either had, or were supposed to have in the premisses demised. It may, however, be observed, That the the general reasoning to be found in those cases, applies most strongly to the present. The effect of our opinion will be, That the period of the Earl of Berkeley coming into possession of the estate, will not be postponed to any later time than was in the immediate contemplation of the devisor; that the Archbishop will aoquire no advantage, and only not suffer a loss by what was probably the mistake of some less cautious or skilful adviser: and this result is what one cannot but feel to be the real justice of the case; and it would have been a circumstance to be regretted, if the law had been found to be otherwise. Judgment for the Defendaut. 1805. RoE dem. Earl of BERKELEY against Abp. of Yonx. [110] COLE and Others against GowER and PIGGOTT. a promissory THE plaintiffs declared in assumpsit, on a Tuesday, Jan. 29th. The stat. 6 G. 2, c. 31, only authorizes parish-officers to take security from the puta tive father of a bastard child to indemnify the parish; and therefore where they had taken a promissory note absolute for a which there was sum certain, to a plea of tender as the amount of a lesser sum of the charge actually sus tained by the parish, which found for the plaintiff's could not recover fur ther upon the On the 22d of January, 1803, one Mury Taylor, single woman, being a pauper of the parish of Pulloxhill, swore bastard child (of which she was then pregnant) to Gozer, defendant, one of the defendants, who was apprehended under a war- herd, That the rant in that behalf on the 7th of April following. Shortly after his arrest, and before he had been carried before any magistrate, he offered to compromise the affair with the parish, and to pay the parish officers 207. if they would give him time; and they agreed to take the 201. by instalments, secured by a sufficient person. Gower was thereupon released out of custody at his request, that be might find such surety; VOL. VI. promising G uote. 1805. promising to meet the parish-officers and settle the business next day; and he accordingly met them on the 8th of April, COLE against together with the other defendant Piggott, whom Gower ofGower. fered as his surety; when it was finally agreed, between all the [111] parties, that the 20%. should be paid by three instalments, to be secured by three joint promissory notes of the defendants, to bear date respectively the 8th of April. The first (whereon the present action is brought) at two months date, for 61.; the second at twelve months, for 77.; the third at twentyfour months, for 71. The three notes were accordingly prepared by Piggott, who also prepared the memorandum aftermentioned. Before the notes and the memorandum were signed, Piggott (in the presence and hearing of Gower) asked the parish-officers, Whether they expected that the notes should be paid in case the child died? who answered, That, without a doubt, it would be expected that the money should be paid in all events. Whereupon the defendants signed the three promissory notes, and delivered them to the plaintiff Cole; and he signed the following memorandum, on the part of the parish, and delivered it over to Gower; which memorandum, dated 8th April, 1803, stated (in substance) That "whereas Mary Taylor, of the parish of Pulloxhill, &c. single woman, had, by her voluntary examination, taken in writing upon oath, before E. T. a magistrate of the county, on the 22d of January, 1803, declared herself to be with child, which was likely to be born a bastard, and to be chargeable to the parish of Pulloxhill, and had charged W. Gower with being the father, &c. And whereas the said W. Gower and J. Piggott had given to the parish-officers their joint notes of, hand for the payment of '201. by instalments, to indemnify the parish from the costs and charges of maintaining and providing for the child, of which Mary Taylor was so enseint; therefore he, Cole, one of the church wardens, &c. on behalf of himself and the rest of the inhabitants of the parish, did thereby undertake [112] and agree to provide for and maintain such child, &c. and to indemnify W. Gower from maintaining the same, and all costs, charges, and expences which he might sustain on account thereof." The first note became due on the 11th of June, 1863; and on the 17th, Mary Taylor, the pauper, was delivered of a still-born bastard child, in the parish of Pul *loxhill: 1 |