1840.-Pruen v. Osborne. take per stirpes, would let in the individuals for whom we appear;, whereas, the construction contended for on the other side, will exclude every member of the family to which those parties belong, from participating in the residue; and, if there had been no other claimants, that construction would have caused an intestacy. Mr. Simons and Mr. Bird appeared for the other parties. [*137] *THE VICE-CHANCELLOR :-I think that the great grand-children are excluded. In the first place, the gift is to the children of the brothers and sisters of John Wilcox's late father, and to the children of the brothers and sisters of his late mother, and to the children of certain individuals whose names are mentioned, or to such of the said several children as are now living, and the lawful issue now living of such of them as are dead. Under those words John Giles, who was the father of the claimants and the grandson of a sister of John Wilcox's father, and who was dead at the date of the will, never could have taken. Then the testator directs that the issue of such of the children as were dead, should take only the share to which their parent would have been entitled if living. There is a difficulty, therefore, in making the children of John Giles take, when John Giles himself never could have taken. The substituted gift is only to the issue of children of certain persons; and John Giles not being a child of any of them, his issue are not pointed at. So that, on the very face of the will, there is no gift to the children of John Giles. Moreover, I am of opinion that, if there be nothing more, in a will or other written instrument whereby to construe the term "issue," than a direction that the issue are to take the shares of their parents, that is enough to confine the general meaning of the word "issue" to the particular meaning of "children" of that parent; and it was so held in Leigh v. Norbury.(a) In Sibley v. Perry, Lord Eldon put the same construction on (a) 13 Ves. 340. 1840.-Pruen v. Osborne. the word "issue," because he found that, in a *particu- [*138] lar clause, the use of the word "parent," restricted the meaning of the word "issue." And the same construction was adopted in a case which came before Sir William Grant, at the Rolls, on the 2d of March. 1814.(a) There, by an indenture, a fund was declared to be in trust for the children of a marriage living at the death of the husband and wife; and the deed then provided that, if any should die in the lifetime of the husband and wife leaving issue, such issue should take such share as their parent would have been entitled to in case he or she had survived the husband and wife. A grand-child of a child of the marriage was excluded. Therefore, I have always considered it as settled, that, in a will or in a deed, if it is a question whether the word "issue" shall be taken generally or in a restricted sense, a direction that the issue shall take only the shares which their parents would have taken if living, must be taken to show that the word "issue" was used in its restricted sense. "This Court doth declare that the several persons by the said Master's separate report in the said first-mentioned cause, dated the 26th day of July, 1830, and the said Master's general report in the said two first-mentioned causes, dated the 14th day of April, 1840, and the sixth schedule to such general report, found to have been children of brothers or sisters of the testator's uncle John Wilcox's late father, or of brothers or sisters of the said testator's uncle John Wilcox's late mother, and to have been living at the testator's decease, *became, upon such [*139] decease, entitled respectively to vested interests in equal 27th parts of the testator's residuary estate; and that the several persons by the same reports and schedule found to have been living at the decease of the said testator, and to have been children of any such children as aforesaid as had died in the lifetime of the testator leaving issue, became, upon the said testator's decease, entitled, as to each class of such children, to vested in (a) Harrington v. Lawrence, not reported. 1840.-Glyn v. Duesbury. terests, as tenants in common, in one equal 27th part of the said residuary estate." GLYN v. DUESBURY. 1840: 29th July. A., an architect and surveyor, brought an action against B., his employer, for 1551 the amount of a running account between them; one item of which was 761, which A. had paid to D. by the direction of C., to whom it was due for plumber's work done for B. C. having taken the benefit of the Insolvent Debtors' Act, his assignee demanded the 761. of B., insisting that the payment to D. was invalid. B. paid into court, in the action, 797., being the 155. minus 76. A. took the 79% out of court, and proceeded with his action. B. then filed a bill of interpleader against A. and C.'s assignee, respecting the 761. Held, that the bill was not sustainable. THE bill stated that the plaintiff, having occasion to build a new house at Ewell in Surrey, employed the defendant, Duesbury, as his architect and surveyor; that S. B. Haynes entered into a contract with Duesbury, as the architect or agent of the plaintiff, to do the plumber's, painter's, and glazier's work of the house; that Haynes accordingly proceeded with the work comprised in the contract, and that all such work had been done and completed; that, according to the terms of the contract, the work was to be paid for as it proceeded, and, accordingly, sums of money were, from time to time, paid by the plaintiff, on the certificate and authority of Duesbury, and otherwise to [*140] Haynes for and on account of *the work so done by him; and, after deducting and giving credit for the sums so paid to him, there became and was, at the commencement of the action after-mentioned, due from the plaintiff, in respect of the work contracted to be done by Haynes, 987. 1s. 0 1-2d.; that, in August, 1839, and pending the completion of the work, Haynes took the benefit of the Insolvent Debtors' Act, and the defendant, Obbard, was appointed assignee of his estate; that, in June, 1840. Glyn v. Duesbury. 1839, and during the progress of the work, Duesbury, at Haynes's request, accepted, and paid when it became due, a bill of exchange, dated the 13th of June, 1839, and payable six months after date, for 921. 7s. 2d., being the balance which Haynes claimed to be then due to him from the plaintiff, in respect of the work; that Duesbury alleged that certain parts of the work contracted to be done by Haynes, had, by reason of Haynes's default therein, been actually done by him, Duesbury, and, on that ground, he claimed to have some portion of the balance of 987. 1s. 0 1-2d. paid to him by the plaintiff; that Duesbury also alleged that the amount of the acceptance so given by him as aforesaid, was, in fact, more, by the sum of 16., than was really and justly due to Haynes, and that consequently, the sum of 761. 7s. 2d. only was so due, and was the utmost amount claimable, in respect of the matters in question, by Obbard as Haynes's assignee; that Obbard, as such assignee, disputed the validity of the alleged transfer or assignment to Rose of the debt due to Haynes from the plaintiff, and insisted that, notwithstanding the acceptance alleged to have been given and paid by Duesbury, he, Obbard, was entitled to have the 767. 7s. 2d. paid to him by the plaintiff; and that, in manner aforesaid, conflicting claims had arisen and still subsisted between the two defendants, in respect of the 761. 7s. 2d., as the balance remaining due and *owing from the plaintiff on account of the work [*141] so actually done by Haynes for the plaintiff; that, by reason of such conflicting claims to the last-mentioned balance, the plaintiff did not know to which of the two defendants he could safely pay the same; but he was ready to pay the same into court, in order that the defendants might interplead and settle their claims amongst themselves; that, save as thereinafter mentioned, there was a balance of 571. 9s. due from the plaintiff to Duesbury, as such surveyor and architect as aforesaid, on the balance of the account between them, exclusive of the balance due from the plaintiff, for the work contracted to be done by Haynes; that Duesbury had commenced an action in the Court of Queen's Bench against the plaintiff; and, by the particulars of demand therein, he claimed the 571. 9s., the balance 1840.-Glyn v. Duesbury. due to him as such surveyor and architect as aforesaid from the plaintiff, and the further sum of 98l. 1s. 0 1-2d., for plumbing, painting, and other work, (making together 1557. 10s. 0 1-2d.,) and he claimed 921. 7s. 2d., parcel of such last-mentioned sum, as money paid for the plaintiff's use; that the 987. 1s. 0 1-2d. mentioned in the particulars of demand, was the same sum as the balance of that amount therein before mentioned to be due from the plaintiff, for the work contracted to be done by Haynes; and that the 921. 7s. 2d. was the sum which Duesbury alleged that he gave such acceptance for and paid, as before mentioned; that the action was still pending, and the plaintiff had pleaded thereto, and had paid into court, in the action, 797. 2s. 10 1-2d., which included the 577. 9s. due to Duesbury as aforesaid, and also the whole balance due from the plaintiff, on account of the work contracted to be done by Haynes, exclusive of 761. 7s. 2d., being that portion of such last-mentioned balance as [*142] was claimed *by Obbard, as such assignee as aforesaid, to be due and payable to him; and that the plaintiff had pleaded to the action, non assumpsit except as to 791. 2s. 10 1-2d., and that, as to that sum, Duesbury ought not further to maintain his action, because the plaintiff had brought it into court, and Duesbury had not sustained damages to a greater amount; that Duesbury had replied to those pleas by joining issue on the first, and taking out of court the 797. 2s. 10 1-2d., in discharge, so far, of the action; that the 791. 2s. 10 1-2d. was the full amount claimed by Duesbury by his particulars of demand, exclusive only of the 767. 7s. 2d., which was the subject of the conflicting claims between him and Obbard; and the right to such sum, as between those parties, could not be tried or decided in the action; but, nevertheless, Duesbury insisted upon the payment to him of such disputed sum, and had given notice of trial for the next Kingston assizes; and Obbard threatened to bring an action against the plaintiff for the 767. 7s. 2d., as the balance due to him from the plaintiff, on account of the work contracted to be done by Haynes; that Duesbury wrote two letters, one to the plaintiff, dated the 13th of June, 1839, and the other to the plaintiff's solicitor, dated the 19th of July |