estate should not be held by any one of his sons or daughters, or his, her, or their issue, after such son or daughter, or such his, her, or their issue, should come into possession of the Gardiner estate. Then follow the operative words,— "As often as the Gardiner estate shall come to the possession of any of my sons or daughters, or any of their issue, then the person next in remainder according to the limitations of this will shall be entitled to and shall come into possession of the Clerk Hill estate for the estate and interest thereby limited to him, and so from time to time as often as that event may happen, in such manner and as if the person so possessed of the Gardiner estate had died or was then dead without issue, and the uses of the Clerk Hill estate shall accordingly cease and shift from time to time, so as the said two estates may never be held or enjoyed in possession by any of my sons or daughters or their issue together and at the same time." The codicil has no effect in deciding the present question. At the death of the testator, this clause came into operation. At that time, his eldest son, James No. 2, had no child, and the remainders to his sons in tail male could not take effect, and therefore the person next in remainder for the Clerk Hill estate was Robert; and if the clause directs that the Clerk Hill estate after shifting should pass in the line of remainders limited by the will, the remainders in tail male to the sons of James No. 2 could never vest in possession. This I mention as one answer to the objection that the plaintiff's claim was barred by the Statute of Limitations, on the ground that the Clerk *634] Hill estate was to shift *upon the devisee thereof taking the Gardiner estate, in such manner as if he were dead, in case he were tenant for life of the Clerk Hill estate, or dead without issue if he were tenant in tail of the Clerk Hill estate. It is possible that this construction may be supported, though I do not sanction it: but, if it is supported, the remainder to the sons of James in tail male never vested in possession, and the remainder in tail general did not vest till 1861. There is another answer to the same objection. The legal estate passes under the conveyance of 1814, made in pursuance of the decree made in 1811. By that conveyance, Robert took the legal estate for his life, with remainder to his sons in tail male, with remainders over in the line according to the will; and the son of James had no right to the possession under these limitations till 1861. I return to the question between the parties upon the construction of the shifting clause. The plaintiff contends, that, when the event happened that the two estates devolved upon James No. 2, the use of the Clerk Hill estate limited to him ceased, and shifted to the person next in remainder under the will, viz., Robert; and that then its operation ceased; leaving the remainders after Robert entirely unaffected. The defendant contends, that, when the event happened, not only the uses limited to James ceased, but also all the uses limited to any of his issue by any devise of the Clerk Hill estate in remainder also ceased, so that he became a stirps of incapacity for taking the Clerk Hill estate, all his issue being as incapable of taking as if they had never existed, that is, as if he had died without issue. I am of opinion that the plaintiff is right. By his construction, effect is given to all the words of the clause in their ordinary meaning, and the declared *purpose of the testator is attained. I refer to the operative words of the clause to show that the Clerk [*635 Hill estate was to shift from the individual taking the Gardiner estate, not from him and his issue; and to the provision for shifting toties. quoties, to show that the purpose of the testator would be certainly attained by that construction, as the two estates could never coalesce. The defendant's construction is not according to the ordinary meaning of the words used, as there are none to make a line of issue incapable of taking Clerk Hill. Also, it is not in accordance with the purpose of the testator that the objects of his bounty should take in the order prescribed in his will, provided the coalition of the two estates could be prevented; but it would take the Clerk Hill estate away from some devisees who could not by possibility take the Gardiner estate, that is, from the devisees in the female line. The defendant's construction is only supported by a strained interpretation of the words "as if he were dead without issue." Those words have full effect according to the plaintiff's construction. If they are strained to the meaning contended for by the defendant, then words creating an estate in perfect certainty are defeated by a strained implication from words of doubtful meaning. If at the death of the third son, John Master, in 1861, the entail of the Gardiner estate had not been barred, the son of James, the present plaintiff, would have had the Gardiner estate, and the Clerk Hill estate would have shifted, according to the plaintiff's construction, to his sister, the daughter of James No. 2; according to the defendant's construction, to his aunt, the daughter of the testator, the present defendant, and so his sister would have been disinherited; yet the will vested a clear remainder in her in priority to the remainder to the defendant: and so an estate created by clear words would be [*636 defeated by an implication from the shifting clause, without in any degree fulfilling thereby the purpose of the testator in making the shifting clause. It is true, that if, at the death of the testator, James No. 2 had issue one daughter only, and no brother, the Gardiner estate would have vested in him, and, according to the plaintiff's construction, the Clerk Hill estate would have gone to his aunt, the defendant, and not to the plaintiff's sister; and so the daughter of James No. 2 would have lost her estate in the Clerk Hill property, and would not have had the Gardiner property. But the answer is, that it appears by the will and codicil, that, at the time they were made, the testator contemplated the state of his family, viz. three sons all unmarried, and knew that the case now supposed could not occur at his death, and adapted his devises with the shifting clause to the known state of his family; and the clause so adapted, according to the plaintiff's construction, would not defeat any estate, unless the coalition of the two properties could not otherwise be prevented. If decisions on the construction of other wills can be usefully referred to for the purpose of construing this will, I consider the case of Carr v. The Earl of Erroll, 6 East 14, to support the plaintiff's case, because it contains clear words rendering the issue of the tenant for life incapable of taking the devised estate after it should have shifted from the tenant for life under the shifting clause in that will; but no such words are found in this testator's will. There was a second point mentioned but scarcely argued for the defendant, viz. that the plaintiff was in possession of part of the lands which had passed under Sir William Gardiner's will to the testator, and so to his son James No. 2, and that therefore he was in *637] possession of the Gardiner estate mentioned in the testator's will, and so incapable of holding the Clerk Hill estate at the same time. But there are two answers to this point, each of which is sufficient. First, the plaintiff takes the lands in question, not under Sir William Gardiner's will, but by a title wholly unconnected therewith. The estates tail created by that will have been barred, and the fee simple created thereby has passed by a new title; and, although they are the same lands, they are not part of the estate created by Sir William Gardiner's will. That is the first answer. It also appears by the admissions that the lands formerly part of those comprised in the Gardiner property are only a small part held under a new title, and subject to encumbrances that could not have been imposed on the estate tail, if he had taken it under the devise. Though he holds some of the same lands, he has not in substance the same amount of property, nor in title the same estate as that to which the shifting clause referred. The cases cited by the Solicitor-General are decisive against the defendant on this point. I am therefore of opinion that the rule should be made absolute for entering the verdict for the plaintiff. Rule absolute accordingly.(a) (a) Judgment affirmed on appeal in Exchequer Chamber, 15 C. B. N. S. 170. *638] *ALLEN v. SMITH. May 27. A man goes to an inn, with two race-horses and a groom, in the character of guest. They remain there for several months, taking the horses out every day for exercise and training, and being occasionally absent for several days together at races in different parts of the country, but always with the intention of returning to the inn : Held, that, in the absence of evidence of any alteration in the relation of the parties, that of innkeeper and guest must be presumed to continue; and that the occasional absences did not destroy the innkeeper's lien upon the horses for his bill. Held also, that the fact of the innkeeper's having claimed a lien for the whole time, when in truth he was entitled for a part of it only, was not such an excess of claim as to dispense with a tender of that which was really due. THIS was an action for the detention and the conversion of two race-horses, Nimrod and Magenta. To the count in trover, the defendant pleaded not guilty. To the count in detinue,-fourthly, that the defendant was during all the time thereinafter referred to an innkeeper, and kept a common inn for the reception of travellers and others; and that, before and at the time of the alleged detention of the said horses, he the defendant had a lien on the same for money payable by one Thomas Burrowes to the defendant for the lodging and entertainment of the said Thomas Burrowes and a groom in his employ as guests at the said inn, and for the keep and stabling of the said horses which the said Thomas Burrowes (he then being lawfully possessed of the said horses) had brought with him to the said inn when he and his said groom became such guests as aforesaid, found and provided by the defendant as such innkeeper as aforesaid within his said inn for the said Thomas Burrowes and bis said groom as such guests as aforesaid at the request of the said Thomas Burrowes,-of all which the defendant before and at the time of the said alleged detention had notice; and that the said money remained and was wholly due and unpaid, and the said lien in full force and effect, wherefore, &c. There was a fifth plea to the count in detinue, similar to the fourth, only alleging that Burrowes had been intrusted with the horses by one John Cunningham, the then owner thereof, and that the lien claimed was for money payable by the said John Cunningham for the lodging and keep of Burrowes and the horses. *The cause was tried before Byles, J., at the sittings in London after last Hilary Term. The facts which appeared in [*639 evidence were as follows:-On the 15th of March, 1861, one Thomas Burrowes, who was a stud groom and trainer, and who had been long known to the defendant, came to the defendant's inn, the Wheatsheaf, at Westbury, in the county of Wilts, with the horse Nimrod, on hist way to the meet of the Wiltshire hounds at that place. After staying there a short time to refresh and bait his horse, he departed, but returned that evening, and slept at the Wheatsheaf. On the following morning, a groom in Burrowes's employ arrived at the inn with the other horse, Magenta; and Burrowes and the groom remained there with the two horses, with the exception of certain intervals of absence when they went with the horses to run at races in various parts of the country, down to the 11th of October. Besides these occasional absences, the horses were taken out daily for exercise on the downs. It appeared that the horses in question had belonged to one John Cunningham, who had intrusted them to Burrowes for the purpose of their being entered and run at such races as Burrowes might think fit, on the terms of his (Burrowes's) paying all expenses of training, keeping, and entering them, and handing over to Cunningham onethird of their winnings. This arrangement, however, was never communicated to the defendant, who always imagined the horses to be the property of Burrowes. In September, 1861, John Cunningham sold the two horses to the plaintiff, sending an order to Burrowes to deliver them up to him. In reply to this, Burrowes wrote to Cunningham, telling him that there was a long bill owing to the landlord of the Wheatsheaf for keep, and that he declined to allow the horses to be removed until his demand was satisfied. Upon receiving Burrowes's letter, Cunningham wrote to the defendant, as follows: "Mr. Smith. [*640 "8th October, 1861. 'Sir,-You are aware that the two horses, Nimrod and Magenta, that Burrowes has been running about the country, belong to my family, and were intrusted to him under the following conditions,that we were to have one-third of their winnings, and to be at no expense whatever. Magenta he has had for two years, and Nimrod for one year, and every farthing we have received from him on account of winnings is 157. Not liking this style of thing, I made up my mind to sell both horses; and I have made several applications to him to return them. This morning brings me a letter from him saying you have a bill against them, and will not let them go till it is paid. Will you please let me know if this is correct; and, if so, please let me have your account. Understand, if Burrowes's story is true, I hold you responsible for both horses from this date, as I mean to bring an action against Burrowes for breach of contract, and also for moneys due from stakes won. I have sold both the horses to a gentleman who knows them both as well as Burrowes does, if not better. I will spend 5007. over this affair, sooner than Burrowes shall cheat me with my eyes open. Please let me have your account without delay. I give you strict orders that the horses are not to be trained, but merely to have walking exercise under your own eye, until I have time to wake Mr. Burrowes up. You can read him this letter if he is with you. I will give Burrowes an opportunity of appearing in a witnessbox before a big-wig, a thing I know he likes. Understand me plainly, I do not wish you to be a loser: *but, having on all *641] occasions done my best to serve Burrowes, I will not put up with such treatment. JOHN CUNNINGHAM." On the following day, the defendant sent Cunningham this answer :— "Westbury, 10th October, 1861. "To J. Cunningham, Esq. "Enclosed is the bill for the keep of your horses and men up to tomorrow (Friday). The horses are well and big; and I should thank you to settle the account, and remove them as soon as possible. THOMAS M. SMITH." The following is a copy of the account enclosed :- "1861. March 15th to 11th October, thirty weeks' "Thirty weeks' board of man at 17. .£60 0 0 30 0 0 "Deduct nine weeks for absence of horses and 90 0 0 13 10 0 £76 10 0 On the 1st of November, the plaintiff called on the defendant with a letter from Cunningham, authorizing him to receive the horses, and demanded them. The defendant refused to let them go without first receiving the amount of his bill. The defendant swore that he had never in his life taken in horses to stand at livery. A verdict was taken for the plaintiff for the value of the horses, 2107., to be reduced to 1s. upon their being given up; and leave was reserved to the *defendant to move to enter a verdict for him, if the Court should be of opinion that his claim of lien was *642] |