225 against PRES GRAVE. v. Eden (a). There is alfo a good reason why the remedy fhould 1801. be in equity and not at law, in order to prevent a multiplicity of actions: what the interest of each individual was in the could only be ascertained upon a bill filed for a difcovery. 2. At and Others cargo BIRKLEY any rate none of the loffes incurred fall within* general average, being the immediate effects of the ftorm. In the paffage quoted from Beawes's Lex Merc. 148. one of the circumftances ftated to [226] be effential to concur to make loffes of this fort general average is, that the facrifice of the fhip's furniture fhould be in confequence of a confultation between the captain, his officers, and crew. Now here the lofs was incurred by the fole orders of the mafter, without any deliberation of the crew, and therefore is a cafe for which the books do not provide. And there feems reasonable ground for this precaution, in order to prevent fraud. Lord KENYON C. J. If the law confer a right, it will alfo confer a remedy. When once the existence of the right is established the Court will adapt a fuitable remedy, except under particular circumftances where there are no legal grounds to proceed upon. Here the only difficulty pretended is the afcertainment of the proportion to be paid of the general lofs in each particular cafe; and Gince it is admitted that this may be afcertained in equity, there feems to be no reason why if it can be afcertained without recourfe to equity, an action fhould not lie to recover it at law. But it is objected, that this will lead to a multiplicity of actions. The fame difficulty however muft occur in equity. It is not competent in general to file a bill which will conclude the interefts of perfons not named. There are indeed fome excepted cafes to that rule; as in the inftance of creditors, one of whom may file a bill for himself and the rest of the creditors, feeking an account of the eftate of their deceased debtor for payment of their demands (b). But generally fpeaking a court of equity will not take cognizance [227] of diftinct and feparate claims of different perfons in one fuit, though ftanding in the fame relative fituation. I have known the attempt fometimes made, where an eftate has been contracted to be fold in parcels to many different perfons, to file a bill in the names of all of them to compel a fpecific performance; which has been conftantly refufed. Bills in equity for a difcovery are for the most part auxiliary to proceedings in a court of law and it does not follow that a court of equity has jurifdiction over the subject matter because it would compel a difcovery. Such a proceeding does not change the nature of the jurifdiction over the original matter. The objection therefore arifing from multiplicity of actions is of no weight in a cafe like the prefent. The fame inconvenience would exift if there were many perfons owners of different parts of a cargo, and an injury were to happen to the whole from the mifconduct of the captain; they must all bring their several actions for their refpective loffes, and no objection could be made to their recovery. Upon the whole, this action, the grounds and nature of which are fully fet out in the special count, is founded in the common principles of juftice. A lofs is incurred, which the (a) Dougl, 601. (b) Vide Mitford's Ch. Pl, ch.`2. f. 2. part 8. law PRES With 1801. law directs fhall be borne by certain perfons in their feveral pro portions: where a lofs is to be repaired in damages, where elfe BIRKLEY can they be recovered but in the courts of common law; and and Others wherever the law gives a right generally to demand payment of against another, it raifes an implied promife in that perfon to pay. GRAVE. refpect to the other queftion, all ordinary loffes and damage fuftained by the ship happening immediately from the ftorm or perils of the fea must be borne by the fhip-owners. But all thofe articles which were made ufe of by the master and crew upon the [228] particular emergency, and out of the ufual courfe, for the benefit of the whole concern, and the other expences incurred, muft be paid proportionably by the defendant as general average. The rule of confulting the crew upon the expediency of fuch facrifices is rather founded in prudence in order to avoid difpute, than in neceffity: it may often happen that the danger is too urgent to admit of any fuch deliberation. Here however there can be no difficulty, for it is found in fact that the cutting of the cable which belonged to the ship was done for the benefit of the cargo as well as the ship. GROSE J. This action is brought to recover a rateable proportion of a certain lofs and damage, and expences which have been incurred by the plaintiffs as fhip-owners in preventing the owner of the cargo from incurring a lofs. That fuch an action is maintainable I have no doubt. If there be not many inftances of the fort to be found, it is probably becaufe the demand has been fubmitted to without controverfy; for I understand that this fort of damage has been continually fettled as general average in the city of London. Where there is a right, there must be a remedy; and there can be no other remedy than by action to recover damages. It is true, where there are many owners of the cargo there may be as many actions brought, but that arifes from the neceflity of the thing; and I fhould ftill fay, that they are all liable to answer for their refpective proportions. LAWRENCE J. All lofs which arifes in confequence of extraordinary facrifices made or expences incurred for the preservation of the fhip and cargo come within general average, and must be [229] borne proportionably by all who are interested. Natural juftice requires this. Then the only argument against this fpecies of remedy is refolvable into this, that the plaintiff choufes to take a dif ficulty upon himfelf in proving the amount of a defendant's intereft in the cargo in order to afcertain the proportion which he is bound to pay, instead of having recourfe to a Court of Equity, where he can obtain proof of it more eafily, and thereby facilitate his remedy. But that objection does not prove that a plaintiff cannot recover in an action whenever he can make out his cafe without having recourfe to the affiftance of a Court of Equity. . LE BLANC. J. Unless it be fhewn by authority that the action (a) Vide Marsham v. Dutrey, Select Caf. of Evid. 58. S. P, 1801. Feb. 3d. DOE on the feveral Demises of HENRY COCK and CHARLES Tuesday, Cock alias HOPKINS against Cooper. and land to ON the trial of this ejectment at the laft aflizes for the county A devife of of Suffex, to recover certain meffuages and lands at Cowfold in a meffuage the faid county, a verdict was entered for the plaintiff, fubject to the opinion of this Court on the following cafe. R. C for the term only of his natural life, and af ter his deceafe to the aid R. Cas tenants in iffue of the but in cafe the faid R. C. hall die without en a devile of the fame to E. H. in fee; gives to leaving iffue, Henry Cock of Horsham being feifed in fee of the premises in queftion by his will duly executed, dated 19th January 1792, (among other things) devised the fame in the following words: "Alfo I give, devife, and bequeath unto Richard Cock, son of my "fifter Elizabeth Cock deceased, all that meffuage or tenement, "barns, buildings, farms, and lands, with the appurtenances in common; "Cowfold in the county of Suffex, to have and to hold unto my "faid fifter's fon Richard Cock aforefaid for the term only of his "natural life; and after his deceafe I give and devife the fame "meffuage or tenement, farm, lands, and premifes, with the appurtenances, unto the lawful iffue of the faid Richard Cock, S "tenants in common, to whom I give, devife, and bequeath the "fame: but in cafe the faid Richard Cock fhall die without leaving "lawful iffue, then and in fuch cafe, after his deceafe, I give and estate-tail in "devise the fame meffuage or tenement, and farm, with the ap- order to efpurtenances in Cowfold unto Elizabeth Harding, formerly Eliza"beth Hewitt, now wife of S. Harding of Horsham, and to her tent. "heirs and affigns." The teftator Henry Cock died in 1793. cross reRichard named in the faid devife entered upon the premises imme- cannot be diately on the death of the faid devifor, and in the year 1795 fuffered a recovery thereof, and conveyed the fame in fee to the defendant William Cooper, who is now in poffeffion under that title. The faid Richard Cock died in January 1800, without iffue. Elizabeth Harding, formerly Hewitt, in the faid will named, died in the lifetime of the faid Richard Cock. The faid Henry Cock (one of the leffors of the plaintiff) is the teftator's heir at law, and alfo the heir at law of the faid Elizabeth Harding. The queftion for the opinion of the Court is, whether the faid leffor of the plaintiff Henry Cock is entitled to recover in this ejectment, fectuate the general in mainders And implied be tween the iffue of R. C. *[230] Pooley for the plaintiff contended, that Richard Cock the devifee took only an estate for life, and that his iffue took eftates tail as [231] tenants in common, with crofs remainders; and confequently the recovery fuffered by the first taker was of no avail. The intent of the teftator is exprefs, that Richard Cock fhould take "for the term only of his natural life." And there being no words of inheritance added to the limitation to his iffue, they would in the firft inftance only take eftates for lives by implication; but inafmuch as the remainder over was only to take effect upon the dying of Richard Cock without leaving any iffue, and as the issue were to take as tenants in common and not in fucceffion, in order to effectuate the intention of the teftator cross remainders mu be raised between the iffue. (Lord Kenyon C. J. Is it not a fettled rule that crofs remainders cannot be implied between more than two? Then 0 3 here 231 1801. DOE againft COOPER. here is an eftate of inheritance afterwards given to the first taker; for the remainder over was not to take effect till failure of his iffue. But fuppofing the remainder to the iffue to be a contingent remainder, it was put an end to by the deftruction of the particular eftate on which it depended before the contingency happened). Cross remainders may be raised even between more than two, if it The cafe of be neceffary to give effect to the teftator's intent. Gilbert v. Witty (a) has been much fhaken fince in Phipard v. Manf field (b), and Twifden v. Locke (c). It is not neceffary, as was faid by Lord Kenyon in Doe v. Wainwright (d) to use any precife form of words in order to give crofs remainders: and if the teftator's intention can only be effectuated here by giving an eftate of inheritance to the children, it directs in fubitance crofs remainders; for no otherwife can the entire eftate go over to the perfon in re[232] mainder, which was the clear intent of the teftator, as it is not to go over till the event of R. C. dying without leaving iffue. It was truly faid in Phipard v. Mansfield that the intent of teftators in general is to raise cross remainders between children; and the courts have been anxious to lay hold of any words in a will to give it that conftruction. Thus where the devife over was of all the teftator's faid lands after a devise to ifiue, it was construed to raise crofs remainders between the iffue; the intent being apparent that no part fhould go over without the rest. Maynell v. Read (e), and Holmes v. Meynell (f). So where the devife is to children, iffue, Dy. 303. b. pl. 49. &c. and if they all die without issue then over. So here the devifor gives over the fame meffuage, &c. In Phipard v. Mansfield (g), where the devife was to three and the heirs of their bodies as tenants in common, and in default of fuch iffue to the teftator's own right heirs, crofs remainders were implied. The like construction prevailed in Atherton v. Pye (h). [Lord Kenyon. In that cafe there were words of limitation added to the devife to the daughters; and this forms a principal ground of distinction in these cafes.] By the fubfequent part of the will there is an eftate of inheritance created which is to be coupled either with the exprefs eftate for life before given to Richard Cock, or with the estate of freehold before raised by implication of law in the iffue. Now the teftator's intention requires that the estate of the fecond takers should be enlarged, and there is no rule of law to restrain fuch a conftruction. The giving an eftate of inheritance by implication of law to the first taker is a mere techinal rule of property, which may be controlled according to the doctrine of [233] Lord Mansfield in Doe v. Laming (i) by the apparent intent of the teftator to the contrary. It is true that according to this conftruction the word iffue must be construed to be a word of purchafe in one part and a word of limitation in another part of the will; but there is no objection to that. 2 Stra. 804. and though Lord Kenyon in Doe v. Applin (k) feemed to intimate that there was fome difficulty in putting a different conftruction on the fame word in (c) Ambl. 665. different 1801. DOE COOPER different parts of the fame will, yet he did not deny that it might be done. (Lord Kenyon. Certainly what was there faid was only with reference to the particular cafe before the Court; for no doubt the fame word may be used in different senses in a will if the in- against tent to do fo be obvious.) Here that intent appears. For by giving the eftate to the iffue as tenants in common it is evident that he did not intend that they should take by defcent from Richard Cock; and having before given him an eftate for life only, it is plain that where he uses the word iffue afterwards as a word of inheritance he must have intended it to apply to the estate before given to the iffue of R. C. as purchafers. Suppofe an eftate devifed to A. for life, remainder to the iffue of B. as tenants in common, and if B. die without iffue then over; in that cafe A. could not take an estate of inheritance, and therefore fuch eftate must connect itself with the estate before given to the iffue of B. as purchasers. Suppofe here the devife over had been in cafe Rd. Cock fhould die without leaving defcendants, he could not have taken an eftate-tail. Now no more benefit was intended to Rd. Cock in the devife over" in d fault of his leaving iffue" than if he had been a mere stranger. He was only named by way of defcribing the defcendants of the [234] perfon who were to take before the ultimate remainder took effect, and not by way of making him the stock of fuccellion to future generations; for his children were to take as tenants in common, forming fo many diftinct ftocks. Therefore if the teftator meant to create any eftate of inheritance by these words it must have been with a view to couple it with the eftates for lives before given to the tenants in common. The cafe of Doe v. Applin (a), where the devife was to A. for life, and after his decease to and among his iffue, and in default of iffue then over, has been fince confidered in Burnfall v. Davy (b) as going further than any cafe in giving an eftate tail to the first taker by the rejection of the word among ft, and the authority of it has been therefore questioned. And in Doe d. Candler v. Smith (e), upon a devife fomething fimilar, there was an exprefs eftate-tail afterwards given to the first taker. Marryat contrà was stopped by the Court. Lord KENYON C. J. Cafes of this kind have been fo much agitated of late, that all the arguments occur readily to one's mind; and after the decifions which we have made we fhould not be confiftent with ourselves if we were not to hold that the first taker took an estate-tail in this cafe. It has been the settled doctrine of Weftminfer Hall for the last forty or fifty years that there may be a general and a particular intent in a will, and that the latter must give way when the former cannot otherwife be carried into effect. I remember that point much difcuffed in the cafe of Robinson v. [235] Robinfon (d). I heard it argued the first time before a very great lawyer Sir Dudley Rider, who then prefided in this court. A fecond argument was directed, but he died before it came on. It was argued a fecond time before Lord Mansfield, and the certificate, (a) 4 Term Rep. 82. (b) 1 Bol. & Pull. 221. Vide what was faid by Lord Kenyen relative to this opinion in Doe v. Halley, 8 Term Rep. 7. (6) 7 Term Rep. 53%. (d) 1 Burr. 38. which |