Fenning and Others v Lord Grenville
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1808 |
| Date | 24 May 1808 |
| Court | Court of Common Pleas |
English Reports Citation: 127 E.R. 825
Common Pleas Division
Applied, Jacobs v. Seward, 1872, L. R. 5 H. L. 474.
[239] them . and it is of the utmost importance that the rules of law affecting the disposition of real property should be known and certain. LAWRENCE J. Lord Kenyon in the case of Watson v. FOX0n, and Lord Mansfield in that of Wright v. Holford, declared that they could not understand what Lord Hardwicke meant by relying on the word respective. In the case of Roe v. Clayton, 6 East, 628, which has not been cited, the word respective was not introduced into the devise, but the Court determined that cross remainders were created, principally on account of this circumstance, that it was a devise of all the testator's estate. They collected from this, that it was the testator's design that it should all go over together. In the present case the testatrix, by referring so frequently to the same moiety, and using that phrase throughout the will, sinews that she meant nothing to go over, unless all went. The whole was to pass to her heirs together. It therefore must have been the intention of the testatrix, to create cross remainders, for she could riot otherwise effectuate her object. As to the word respectively, the cases which have founded themselves on the distinction of that expression must now be considered as having been overruled. What Lord Kenyon said in the case of Watson v. Fawn, merely amounted to this, that the only thing necessary in order to imply cross remainders, was to ascertain' the intention of the testator : no technical words are required. CHAMBRE J. I am of the same opinion. I wonder, as my Lord does, how the old doctrine ever became established. The oldest case is that in Dyer, 303 b., and there, no difficulty was found in giving cross remainders by implication among five : that was not a stronger case than this. It was necessary there, in order (240] to effectuate tine testator's apparent intent, that all the tenants in tail should take by cross remainders. So here, the testatrix devises over the remainder of all her moieties to her daughters as tenants in common, and the heirs of their bodies : she then gives the same to her right heirs ; but it is impossible that the whole should at once go over to her heir, without either devesting estates which are in ease, or supposing, what is almost impossible, that all the tenants iii tail should die at one moment. Therefore cross remainders must be implied here. Let the postea be delivered to the Defendant. [241] FENNINGS AND OTHERS v. LORD GRENVILLE. May 24, 1808. [Applied, Jaeobs v. Seward, 1872, L. H. 5 H. L. 474.] One tenant in common of a chattel cannot maintain trover for it against his companion, unless the latter have so disposed of it, as to render it impossible that the Plaintiff should ever take and use it.ùThe conversion of a chattel by a tenant in common to its general and profitable application, though it change the form of the substance, is not such a destruction of the subject-matter, as to prevent the Plaintiff from taking and using it in its altered state; therefore it creates no right of action.ùWhere the general consent of the persons engaged in a trade, has established certain rules for the conduct of that trade, it is not competent for any number of individuals to promulgate a contrary regulation.ùAnd though they may agree amongst theraSelves to adopt-new rules, they cannot thereby deprive one who has not assented to their compact, of the benefit of the old rules, as against themselves.ùThough it be a trade recently established.ùMore especially if the trade, and the custom, be of such a nature, that the subjects of several nations partake inn the trade, and are governed by the custom.ùBy the custom of the whale fishery among the Gallipagos islands, he who strikes a whale with a loose harpoon is entitled to receive half the produce from him who kills it.ùBy the custom of the Greenland whale fishery, unless he who first strikes a fish continues his dominion until he has reduced it into possession, any other person who kills it acquires the entire property. Trover for a whale, the half of a whale, and certain quantities of whale flesh, blubber, oil, spermaceti, and whale hone. -Upon the trial of this cause at Guildhall, before Mansfield C. J., at the Sittings after last Michaelmas term, it appeared that the Plaintiffs were the owners of the "William Ferming,"and the Defendants owners of the " Caervent," both being ships employed in the summer of the year 1805, in the Southern fishery, among the Gallipagos islands. While Luce, the captain of the Plaintiff's ship, was engaged in killing a whale, he struck another, one of a shoal, with a harpoon made fast by a abort line or warp to a small buoy called a droug. The wound produced the usual effect of this weapon, it retarded...
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