determined and Hanbury and Cookrells case is not adjudged but if it be it is on my side and Mich. 37 38. C. B. rot 1149. It was adjudged upon solemn argument at the Bar and on the Bench contrary to the Iudgement in Pell and Browns case if lands be devised to one and his Heirs and if he dye without issue that the land shall be to another and his Heirs this is no Estate tail for it cannot stand with the rules of Law to devise â—uth an Estate for it is but a possibility and if it should be more it must be a Fee upon a Fee and so a perpetuity and it cannot be known within what bounds it shall end either in case of years or life or other contingencies and the comparison of Lampets case is not like to this case for that was or a Term but this is of a freehold and a contingent devise of a freehold is not good since the Statute of 32 H. 8. and Brook tit devise 2 Dyer 28 H. 8. f. 3â— is not an opinion against this And though there could be such a devise of other lands yet Copyhold lands cannot be so devised as the case is here for there cannot be so much as a possibility of reverter for there is no custom to warrant it Hill 5. Car. King and Leyden in this Court and Dyer 264. and though there might be a reverter yet he cannot devise it by will and if he could yet here the conbeyance is made up by surrender admittance and devise and the party is here in by the surrender and not by the devise and so is a Copyholder in by Act executed and not upon the contingency and the will is but to direct and though all this be otherwise yet the Plaintiff cannot have Iudgement for it appears not that the surrender is presented at any Court at all and here is nothing but a recitall found Ierman Iustice said by the Common Law there ought to be a presentment at the next Court Roll chief Iustice and Nicholas Iustice There is no certain time for the presentment but it is according to the Custom of the Manor so that it be within the life of the Tenant Roll chief Iustice said it is an inconvenience to devise such a contingent Estate Nicholas doubted for he said it would shake many wills if it might not be and so said Hales The Court would advise Hales confessed the verdict was imperfect but prayed it might be amended But Latch answered it is good enough for us the Defendants for we have primer possession The Court answered it would be good to have it amended and not to have a venire de novo Venire for that will be chargeable but if the verdict be imperfect to bring the matter in Law into question we can grant a new venire although it hath been heretofore doubted Therefore be advised so that it may be argued Antea Heal against Green Trin. 1651. Banc. sup Hill 1649. rot 370. THe case between Heal and Green upon a special verdict formerly argued by Latch was again spoken to and argued by Twisden Argument upon a special verdict upon construction of words of a Will and he held that the Feme had power by the Will to make the lease notwithstanding that she hath but an Estate for life and cited 11 Car. B. R. Hill rot 810. Iob and Whites case and 21 Iac. Danyel and Vgnel and he said that the remainder limited to the daughter doth not hurt for it may very well stand with the will and the intent of the Testator appears upon the whole to be to give such a power to his wife to make this lease and cited 8 Car. Perd and Bensams case And there is a clause in the will that shews that the Testator did intend to advance his wife by this devise And the Feme shall be in by the power which shall make the estate of the lease good and it is not necessary to recite the power as it is held in Rogers case Maynard on the other side said he would not dispute the power but here is no such power given to the wife as it appears by the expresse words of the Will which doth only describe that she shall only make Estates but for her life otherwise she might make Estates in Tail or in Fee and if this should be the last part of the Will which doth limit the remainder would be destroyed and generals in a Will shall not revoke an express devise but they ought so to be construed that all the Will may stand together as Bonhams case is 8. rep Roll chief Iustice It is a difficult thing to shew the meaning of the Testator here but the general must not destroy the particular devise to which Nicholas Iustice assented and Roll enclyned that the Feme had power by the Will to make this Estate otherwise the words of the Will must be idle and void and it may be the Baron intended to give his wife such a power that she might destroy the remainders and otherwise there cannot be any construction made of the Will Ask Iustice differed in opinion and said it was unreasonable the remainder should be destroyed which is expresly limited by the Will and a Will doth differ from a conveyance Nicholas Iustice said that the words shall be expounded to shew his bounty to his wife but not to give her power to destroy the remainder Ierman Iustice There are expresse words for the Feme and the daughter and the Feme hath a power but not to destroy the Estate of the daughter Curia advisare vult Antea Booth against Lambert Trin. 1651. Banc. sup Hill 1649. rot 201. VPon a speciall verdict upon these words Argument and judgement upon special verdict the question whether dower well assiâ—gâ—ed or not viz. I do endow you of a third part of all the lands my Cosen I. S. your husband dyed seised of The question was whether the feme were well endowed by these words because he doth not say that he endows her by metes and bounds Chase held she was not well endowed and cited 8 Ed. 2.15 and said that here is incertainty which begets dissention which ought not to be and the thing is not here entire but may be devided And this is an assignment of dower which differs from a demand of dower for a demand may be general as in the cases of Thyn and Thyn in this Court and of Fairefax and Fairefax and so the book of 8 E. 2. entry congeable S 5. which seems to prove the contrary that is not to our case for it differs from it Merifield of Councell on the other side held the feme was well endowed and agreed the cases put by Chase That of Common right a feme ought to be endowed by metes and bounds yet sometimes it is otherwise as 3 Eliz. Dyer 27. a feme endowed in Common And the feme that is to be endowed and the
That the law doth take notice of an Arch-deacon being a publique Ordinary and therefore it is not needfull to expresse that the letters were granted per Archidiaconum of such a place Ordinarium illius loci or cui administratio pertinuit but otherwise it were if they were granted within a peculiar jurisdiction Therefore he ordered to shew better matter or elce Iudgement should be given for the Plaintiff Eeles and Lambert Mich. 23 Car. Benc Reg. vid. antea THe Case between Eeles and Lambert was again moved Argument up on a speciall verdict which upon a speciall verdict found was this Sir Molton Lambert makes a lease of certain lands to Eeles for 21 years by deed and Covenants for himself his Executors Administrators and Assigns that the lessee shall peaceably and quietly enjoy the lands let during all the Term the Lessor makes his Will and thereby makes Lambert the Defendant his Executor and dyes and by the Will divers goods in specie are devised to sundry persons Lambert the Executor delivers the goods bequeathed to the Legatees Eeles is ousted of the lands by I. S. and thereupon brings an Action of Covenant against Lambert the Executor who pleads fully administred The question was whether the paying of these legacies by the Executor were a devastavit Devastavit and so the Executor to be charged de bonis propriis to satisfie the Covenant broken or no Green of Council with the Plaintiff argues that it was a devastavit notwithstanding that the devise was of goods in specie and that the Executor had only delivered them because that the Legatees had no property in the goods bequeathed them Property before the Executor had delivered them no more than if they had never been devised and cited 2 H. 6. f. 16. and Cooks Lit. 111. and he said the finding of the Covenant broken was nothing to the purpose and he said it was a Devastavit because it shall be intended that the Executor might know of the Covenant made by the Testator which he was bound also to keep or else to satisfie for the breach of it Covenant and the contingency whether the Covenant would be broken or no makes no difference in the Case for if it should it would prove mischievous in destruction of Covenants which are to be accompted of as Debts Doct. Stud. lib. 2. C. 10. Dyer f. 324. Hob. â— 363 397. But it may be objected that if this should be a Devastavit then Legacies could not be paid which would be dangerous to Executors by reason of being lyable to sutes for them Executors 21 E. 4 f. 21. Brook Tit. Proces S. 10. To tâ—is I answer It may be dangerous yet it is not to the purpose for an Executor should consider of such dangers when he takes upon him an Executorship and take notice of them and he is not compellable to pay Legacies and the Law will not protect him if he pay them against Law Hob. 246. and if the Court Christian endeavour to compel him he may have a Prohibition Prohibition 3ly The Executor peradventure might conceive that there would be Assets afterwards and in that consideration did pay the Legacies and if the 5 Rep. Green and Harisons case and 15 Iac. Robsons case be objected I answer this Case differs from them for here the Question is betwéen Legacies and Debts and there between one Debt and another to wit betwéen a Debt of a higher nature and a Debt of a lower nature Hales for the Defendant argued that it was no Devastavit 1. He agrées Property that the Legatees have no property in the Goods by the devise 2ly If the Covenant had béen broken when the Legacies were paid it would have been a Devastavit 3ly He held that the matter is as well found in the special verdict as it might have béen pleaded and not put at all to the Iury to find The Question here is whether the administration of the Goods before the Covenant broken be good after it is broken and there is good matter before the Court found in the special verdict though it might have been found better The first Argument I will draw from the nature of that upon which the Action is founded namely the Covenant The Action depends partly upon the Déed of Covenant partly upon the breach of it and here is no ground of Action at the time when the administration of the Goods was made and Harisons case cannot be avoided for a Statute is a present duty Duty Star Obligation and ought to be paid before an Obligation Robsons case 14. 15 Iac. And it is as agréeable to Law to pay a Legacy as a Debt upon a Covenant and the mischief to the Lessee in our case is not so material as the mischief may be on the Executors part it is not materially objected that he might take security Security for he cannot compel it For the Objection that our Law takes notice of a Legacy I answer that the Law takes notice of a Legacy as to give an interest in it to the Legatee Interest although he may not take it without the Executors consent 2ly It takes notice of it as remediable by the Law of the Kingdom though not by the Common-law and therefore consider the Statute 21 H. 8. of Administrations Common law Civil law and the Common-law is Iudge of the Statute concerning Administration and not the Spiritual-law Hill 17 Iac. Hinson Buttons Case The Common-law gives not a remedy fora Legacy Legacy but the Spiritual-Court is supported by the Common-law to do it and by the antient Common-law there was remedy to recover a Legacy 2 Rich. 3. f. 14. Glanv lib 7. C. 6.7 and the power of the Ecclesiastical Court is derived from the Common-law and the Common-law will take notice of a compulsary way in the Ecclesiastical-Court to pay a Legacy And the payment in our case is executed and now the Law takes notice of it because the Defendant was compellable to it Pâ—omise If an Executor promise to pay a Legacy an Action upon the case will lye against him if he do not pay it Roll Iustice the Testator may defeat all Covenants by this means and Greens reason is not answered which is the great doubt in the case It was Necton Sharps case 38 Eliz. that Legacies ought to be paid conditionally viz. to be restored if the Covenant should be broken When you argue again argue to this point Bacon Iustice cited a Case 32 Eliz. in the Exchequer against the opinion of Roll and said if the Legacies should not be paid it might be a loss to the Common-wealth for it may be the Goods will perish with kéeping them and the keeping of them may be a charge to the Executor and no body shall have any benefit of them for they may cost more to keep than they are worth and a Devastavit lies not against an Executor of
enough 2ly It doth not appear that there are divers Churches in New-Sarum where the Proclamation was made To the third exception the Proclamation is said to he made prout breve postulaâ— and that shall be supposed duly done and implies all requisite circumstances and he cannot make another return and it is impossible to be otherwaies To the fourth it is not necessary to retorn the place of the Summons and it is said that it was made secundum formam Statuti which supplies the rest And to this the Court said that the words secundum formam Statuti extend far And Roll Iustice said that Proclamaiton in one place was good in all Holhead of Councel with the Plaintiff in the Writ of Error proceeded and took these exceptions in the demand of the Dower 1. The demand is generally de rectoria which is not good Demand Rector for the incertainty of it for there may be a Rector of a College of a Province of a Bishoprick as well as of a Parish-Church and therefore it ought to have been de Rectoria Ecclesiae parochialis de c. 12 H. 4. f. â—9 pl. 1. 2ly The demand decimarum is too general and not good and it ought to have been decimarum granorum soeni c. for the demand de omnimodis decimis quibuscunque is too general 11 Rep. Herberts case 1. To these exceptions Hales answered that a demand in a Writ of Dower need not to be so exact as in other original Writs for original Writs are not alterable but ought to answer the forms in the Register To the second he said that rectoria shall be intended the Rectory of a Church and the Statute extends not to this besides the place of the Rectory is described which makes it certain enough To the third it is not necessary to express the Tithes particularly and the demand being of the Rectory it compriseth all the Tithes also the demand is de omnimodis decimis which is a general demand and compriseth all and is not de decimis only for that might be incertain Holhead The demand is de rectoria de omnimodis decimis which is a demand of one thing twice and that is not convenient for by this means the party may recover dammages twice and the Court will be also inveagled by this means and it matters not though we have not pleaded to this for the Court ought to take notice of it Notice because it is in the original Writ Next there is no form in the Count for cum pertinentiis is informal for it refers to the Parish and not to the Mannour 27 E. 3. f. 86. Pl. 3. Haleâ— This is but a variance in form and is not material and also it shall be intended to refer to the Mannour and not to the Parish Holhead The demand is not warranted by the Writ for the Vill and Parish are not named in the Writ but are named in the demand 11 Rep. Arondels case Hales The demand is not de rectoria in Tymsbury but de Tymsbury and is the denomination of the thing demanded Tithes Parissi and not of the Vill where it lyes Holhead It is not said where the Tithes extend and they may extend to divers Vills as a Parish may 19 E. 3. f. 9. Hales Here is one demand and it includes all the Tithes Roll Iustice You have demanded the Rectory in Tymber and not the Rectory of Tymber and by the grant of ones Mannour in Dale no more of it passeth than what doth lye in Dale and here it shall be intended so much of the Tithes as are in Tymber Holhead Here is a demand of Dower of such things whereof Dower lyes not viz. of a quarry of Stones and it appears not that the Quarry was open in the life of her Husband and if it were yet it is improper to demand it by the name of a Quarry Hales the word Quarry is a good word well-known what it means for Quarrera is an old wel-known Latine word for it Dower and she is as well dowable of it as of a Mine of Coles and it shall be intended to be open because she demands it by that name of a Quarry Holhead The demand of the Dower is also of a Hundred of which a Woman is not dowable because it is an entire thing and cannot be divided and the demand should have been de tertia parte proficuorum hundredi To this Roll Iustice answered then by your reason she shall never keep a Court. Hales It is well enough demanded for a demand shall be of the thing it self and not of the profits of it for the profits were not in the Husband but he was seised of the Hundred and the profits are a thing incertain Holhead The execution of the Habere facias fesinam is not well executed for by it two third parts are assigned for Dower and that is more than the demand Hales That is but a repetition of the thing demanded Holhead A thing not demanded at all is assigned for Dower viz. view of Frank pledge Hales That is but an incident to another thing that is demanded viz. the Hundred and by the demand of the Hundred the view of Frank-pledge is demanded and all other incidents to the Hundred Holhead Here is an assignment also of all tenures and she cannot have Homage because she is a Woman Hales She shall have all tenures which she is capable of and so all shall be understood in this place and no other she shall have Holhead The Iudgement is also if 15 Copiholds Tenements which lately were Copiholds Roll Iustice This is good enough and what loss have you by it Holhead The Assignment is also of the 3d. part de Copicia de Structuris and other words there are which are also incertain And there is error in the assignment of dammages for the dammages are assigned ultra valorem terrae which is against the Statute Roll Iustice Dammages Iudgement the Statute is an addition of the value and dammages for the Iudgement is perfect without returning the Writ of the dammages and so hath been adjudged in the Common pleas Holhead Here is an ill suggestion of the Feme for the suggesteth that her Husband dyed seised in fee of all the Lands out of which she demands her Dower and that is not true for he dyed seised of part of them in tayl To this the Court said that is not material if he dyed so seised that she ought to have Dower Holhead Dammages are given ultra valorem which I conceive is not good Roll Iustice It is well enough for dammages are given and the value by the Statute Holhead The retorn of the Elegit is not good Hales That is another Record and appears not now in the Court Roll Iustice The Elegit hath no reference to the former Record Holhead There is one error in fact and that is confessed by your joyning in demurrer Doubleness Roll
is a Iudgement well given Plea and it is too late to assign it for Error But the Court advised Postea Kerman against Iohnson Trin. 1651. Banc. sup Trin. 1649. rot 153. KErman brought an Action of Trespass and Ejectment against Johnson Special verdict in Trespass and Ejectment and upon a special Verdict found the Case was this A man devised to I. S. his whole estate paying his debts and Legacies and dies possessed of Goods and Chattels to the value of five pounds only and dyed also seised in fee of divers lands and was indebted forty pounds at the time of his death The question was whether the lands passed by the Devise Barry of Councel with the Plaintif argued that the lands did pass because that wills ought to receive a favourable construction And 2ly The intent of the Testator is to be considered who by the words all his estate did mean to comprehend as well his land as his goods and chattels for there is no restraint of the words here 7 Ed. 3.10 The word estate is a word of large extent and extends as well to the real as personal estate if it were in Case of grant much more in the case of a Will And there is another word used here to explain the Testators meaning to be to devise his lands as well as his goods and that is the word All which comprehends all manner of estates without exception Next if the land should not pass his debts and Legacies cannot be paid according to the express intent of the Testator and the intent of the party ought to be satisfied although the words be not proper because it is in a will though it might be other wise in a grant And whereas it is objected that the Iuries finding of the value of the debts and Legacies is to no purpose because the will cannot be helped by the averment of the Iury. I answer that averments if they stand with the will may be received to make the Testators intent to appear But besides this is not an averment only but a true stating of the Case to the intent to find out the Testators meaning 3ly The devisee of the land is not made Executor but Trustee or Devisee this is since the Statute of Devises 32 H. 8. The 2. question is what estate the Devisee hath in the lands I conceive he hath Fee simple because he hath all the Estate which must be the largest and that is Fee-simple Hob. rep pl. 280. The word whole goes both to the quantity and quality of an estate also And here the consideration that he is to pay all his Debts and Legacies is a good consideration to pass the fee-simple of his lands and though there may be a surplusage after the Debts and Legacies paid this hinders nothing for it is his intent that the Devisee shall have that surplusage and so he prayed Iudgement for the Plaintif Twisden for the Defendant argued that either nothing passeth by the Will or if any thing then only an estate for life passeth He agreed that improper words may sometimes pais things yet sometimes proper words will not passe things viz. if the intent of the party appear to be contrary 24 Eliz in the Earl of Northumberlands case A Devise of all his Iewels did not pass his Collar of Esses and his Iewels annexed to his Parliament Robes and the words here are not that he deviseth all his estate in his lands but his whole estate generally and if the words here should pass the lands yet the fee simple passeth not but only an estate for life in the lands which do pass nor do the words paying his Debts and Legacies cause the Fee-simple to pass for here is no likelyhood of any loss to the Executor for the words are not that he shall pay all his Debts and Legacies and if he be an Executor as the contrary appears not he shall not be charged with more than the personal estate will discharge The words do amount to a Condition and it is not found that there are any Debts or Legacies paid and so it is not performed and the heir may well enter into the lands in question for the Condition broken 2ly The Verdict doth not find how the lands are held whether in Socage or by Knights service and so it appears not whether they can be devised or no and they shall not be intended to be Socage lands Dyer f. 207. Hill 32 El. rot 2. and Pell and Browns case 3ly It is not found that the Testator dyed seised of the lands as it ought to have been and he prayed Iudgement for the Defendant Special Verdict Roll. chief Iustice to the second Exception to the Verdict answered that in a Special verdict it is not necessary to find whether lands be held in Sorage or by Knights Service and he said that the words in the Will do goe to the nature and extent of the estate as Barry urged and he doubted how the verdict shall supply the Will if it be defective for that is only to make the intent of the Will certain Adjourned to be argued again Postea Marshal against Ledsham Trin. 1651. Banc. sup MArshal as Administrator brings an Action of Debt for rent Arrest of Judgement in Debt and upon a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and takes exception that the Plaintif had not shewn by whom the Letters of Administration were granted unto him as he ought to do but only says that the Administration debito more commissa fuit But it was answered that it is too late to move this Exception after a Verdict for the Iury have now found that the Administration was duly granted and the Letters of Administration were produced in Court and therefore not necessary to shew who granted them Declaration and it was said that in a Declaration it is not necessary to shew by whom Letters of Administration are granted or to say they were granted by him Cui pertinuit or per loci illius Ordinarium But in a Plea in Bar it is otherwise for this is not the cause of the Action Plea and effect of the sute but to shew they have been in the Spiritual Court Judicium nisi pro quaerente was afterwards given Antea Giles against Timberley Trin. 1651. Banc. sup Mich. 1650. rot 176. AN Ejectione firmae vi et armis was brought in the Common Pleas Error to reverse a judgement in an Ejectione firmae and a judgement given for the Plaintif upon a nihil dicit and in a writ of Error brought in this Court to reverse the judgement the Error assigned was in the judgement which was entred thus Ideo consideratum est quod recuperet and the word Capiatur was omitted which ought not to be because the Action is a Trespass vi et armis Roll chief Iustice said It is an ill course they use in the Common Pleas to enter
the Arbitrators have all of it to agree in and till it is ended the Vmpire hath no power at all otherwise the submission would be repugnant in it self The rest of the Iudges concurred in all and so ruled That the Plaintif all capiat per billam nisi Theoballs against Newton Mich. 1651. Banc. sup ONe was sued upon the Statute of Inmates and the distringas jurata bare date on a Sunday and out of Term and so is erronious The question here was whether it be not helped by the Statutes of Ieofails of 18 Eliz. and 21 Iac. Roll chief Iustice held Ieofails that the Statutes extend not to penal Laws although it be ambiguously penned nor to any processes grounded upon them for the Proviso exempts the Original action and by consequence all processes depending upon it are excepted Venire de novo so that here is no good tryal but there shall be a venire de novo nisi Tayler and Webb Mich. 1651. Banc. sup THe Case of Tayler and Webb which arose upon a special verdict upon these words of Will Special Verdict upon the words of a Will viz. I make my Cosen Giles Bridges my soll ayere and yexecutor was again moved and argued by Hales and he made three questions 1. Whether any estate passeth by the words of the will 2ly If any what estate passeth 3ly Whether the false Orthography doth hurt the Will For the first he said that by making one his sole heir his land passeth to him The word heir is to be considered either in relation to an Ancestor and so one cannot make one his heir or it may be considered in relation to a thing to be inherited to wit lands or tenements and so one may make another his heir and thus a Custom may make one a mans heir as it is in Borough English and an accident may thus also make one a mans heir as it is in the Case of possessio fratris Coundens case Hob. Rep. Case 947. And here it is all one to make one his heir and to make hint heir of hislands and the reasons are First the word heir here cannot have any other relation than to the Testators lands for he cannot make him his heir otherwise and the words may be more reasonably intended so 2ly The words carry in them the plain intention of the Devisor that the party should have his lands although the words are not very proper â— H. 7. A devise of lands to his son after the death of his wife passed an Estate for life to the wife although no such Estate was expressed in the Will so here although no expresse Estate of land be devised yet the Devisee shall have the lands by the intent of the Devisor 3ly In ordinary speech if one make such an one his Heir it is intended that he gives him his lands 8 Car. in the C. B. in Spurt and Bents case A devise of his inheritance was held a devise of his lands and Trin. 3. Iac. in Terryes case A devise of all his rents in tayl passed his lands because in vulgar acceptance it is the rents of lands and in Pits and Sands case in this Court A devise of all his free lands in Holford did passe a portion of Tithes and in the case of one Iohnson a devise of all his estate passed all his lands And the words cannot bear the fence to make him Executor according to the Civill Law as hath been objected for the Will shall be intended as it is to be an English mans Will and so the word Heir in it shall he interpreted according to out Law and not the Civill Law and even in the Civill law to make one his Heir doth convey unto him all his lands for he is haeres testamentarius although not haeres legitimus And in this Will here are two expressions for the party is made Heir and Executor which two words cannot signifie one thing for that would be an idle expression 4ly There are some clauses in the Will which shew the intent of the Testator was to convey his lands if it were needful to make use of them 1. There are several annuities for the Devisee to pay 2ly He directs him where the conveyances and assurances of his lands were laid up which plainly shew he meant he should have his land 3ly The words Heir and Executor are joyned together to shew that he gives him all his lands and goods else one of the words must be imperfect and ineffectual which shall not be intended For Authority 7 E. 6. Br. devise 38. by devising that one Son shall be Heir to the other it shall be intended of lands so in construction of law it shall be here intended that the Devisor made him Heir of his lands Hob. Reports in Sparkes and Burnells case William and Anthony shall be each others Heir and it is not said of land yet adjudged that it shall be so meant and so is it in our case and if I have lands in see simple and make one my heir it shall be intended that he shall have my lands in see simple although I say not that I make him Heir of my lands For the second question the reasons before expressed do also shew that the lands are passed in Fee as it is in Purnells and Hambletons case for the word Heir shall relate to the same Estate that the party had in the land who makes the other his Heir 8 Iac. Inkersals case For the 3d point whether here shall be any good devise at all by reason of the false English he said it was all one and to as good effect as if the words were all true English and neither the incongruity nor the insufficiency of the words shall hurt the Will as it is pretended For 1. This is not in case of pleading or of writs but in conveyance of lands It is true that in the former it doth hurt because writs and pleadings may be amended if they be naught but it is fatal in conveyances for they cannot be amended as in Trotman and Standards case Trin. 1651. in this Court it was held that impropriety of words shall not hurt it they can admit of a good construction Desinet in piscem mulier formosa superne 2ly This is in a Will which is such an instrument that is much favoured in Law and therefore to be favourably construed 3ly This is an English Will and admits of much variety of dialects and therefore is not to be critically interpreted Neither are there here any insignificant or missignificant words as hath been objected but significant for the sound of the word as it is written is the same as if it had been rightly spelled for Ayer and Heir sound both alike As in 3 H. 4. f. 4 Baxter and Baxster sounded alike 2ly If the word Heir might receive any other sence yet it cannot do so here because there are other words joyned to it to declare and signifie that the
mony and thereupon the Defendant moved to have the moniés out of Court Roll chief Iustice Peremptory The Plaintiff hath lost his mony â—y this verdict therefore let him shew cause why the Defendant should not have them for it is peremptory to the Plaintiff Franklin Mich. 1653. Banc. sup IN an Action of Accompt the Defendant was adjudged to accompt Motion for Merchants to be joyned to Auditors assigned to receive an accompt and Auditors were assigned The Court was moved that they would order to joyn some Merchants to the Attorneys on either side to help them to mannage the Accompt because the Attorneys were not skilfull in such businesses Roll chief Iustice We can make no rule for this but you may by consent advise with Merchants to assist you in drawing up the Accompts Mich. 1653. Banc. sup BY Roll chief Iustice One burned in the hand may be a Witness one that hath been burned in the hand for Felony may notwithstanding be a witness in a Cause for he is in a capacity to purchase Lands and his fault is purged by his punishment Townsend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. TOwnsend brought an Action upon the Case against Barker Arrest of judgement in an action for words that had béen a Copartner with him in trade for speaking these words of him You are a cosening Knave and did cosen me of 1200 l. at one time and that was in making an accompt in the year 1648. Vpon a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable because though they he spoken of a Tradesman yet they are not spoken of him in reference to his Trade but in reference to an Accompt and although by way of reduction and consequence they may reflect upon his honesty yet they are not actionable and though his reputation be impaired by speaking them yet he cannot be endicted for cosening in his Trade by reason of them because they are spoken of a singular and particular abuse and not of a general cosening used in his Trade and an Action upon the Case lies not for words which are only scandalous by way of reduction and if the words should hinder the party to get a Partner hereafter to trade with him yet he may use his Trade and so cannot be prejudiced nor are the words that he cheated him but that he cosened him which are not of so violent a construction Wild on the other side said that here is a Partnership which is necessary to the driving of a Trade and without which it cannot be so well driven and the Accompt is incident to all Partnerships and prayed for Iudgement Roll chief Iustice If the Copartnership continued the words were actionable without doubt for then they must be spoken of him in the way of his Trade Case but here the Partnership being ended makes the matter more considerable but yet as it is the words are scandalous and may hinder him from getting a Partner for the time to come and it may be he cannot mannage his Trade without a Partner and although an Accompt be a private thing yet the Plaintiff is disgraced by the speaking of the words and none will deal with a man that will cosen his own Partner and we must countenance Trade and Traffique and mens credits and the Accompt is not so collateral a thing to trade as Hales objects as is the hiring of a shop to trade in or the like German Iustice ad idem and said that Copartnership is necessary to support Trade and the keeping of a true Accompt is the principal thing between Partners Nicholas and Ask Iustices ad idem Judicium nisi pro querente Bird and Christopher Mich. 1653. Banc. sup IN this Case upon giving of an evidence in a Trespass and Ejectment Extinguishment of a Proviso in a Deed. it was said by Roll chief Iustice that if I do enfeoff I. S. with a Proviso contained in the Deed that it shall be lawfull for me to revoke this Feoffment and afterwards I levy a fine to I. S. of the same Land this is an extinguishment of the Proviso of revocation Olive and Tong. Mich. 1653. Banc. sup Trin. 1651. rot 1426. Vpon a special Verdict in an Action of Trespass and Ejectment Special Verdict in a Trespass and Ejectment the Case in effect was this One whose Sirname was Mills seised of gavelkind-Gavelkind-lands in Kent in fee by his last Will and Testament devised these Lands to Elizabeth his Daughter in tayl with a Proviso in the Will that if his Daughter Elizabeth did mary one of his own Sirname that then she should have the Lands in fee-simple Elizabeth maried one whose Sirname was Mill but commonly called and known by the name Mills also The question was whether she had maried one of such a Sirname whereâ—â— according to the Proviso in the Will she had a fee-simple in the Lands â—evised unto her or whether his Sirname should be accompted a distinct name from the Testators so that Elizabeth by the Will could only have an Estate in tayl in the Lands devised unto her It was argued first that the name Mill and Mills shall not be said to be one and the same name no more than if she had maried one of a clear differing Sirname in sound yet commonly called also Mills could she have been said to have maried one of his own Sirname and the Proviso here is not a particular pointing out of the person whom his Daughter should mary but a general limitation directing her to mary one of his own Sirname and this ought to have been punctually followed because the name was used to induce the affection of the Devisor to enlarge the estate given by him If he had devised his Land to his Daughter E. if she shall mary a Protestant or an Earl she must mary one that is really so and not one called or only reputed so And as to the objection that this construction would make contrariety in the Will which is not to be admitted this will not be if the Will be taken compositive as it is penned or together and not abstractive and taken to pieces and if it should not be intended that she should mary one who in truth was of his name there would be a contradiction in the Will and here is an Emphasis in the word Own which must be meant his real name and not of a reputative name Roll chief Iustice If a Iuror be retorned by the name of Mills and is sworn by the name of Mill shall this be a mistryal quasi non and the words found alike as Baxter and Backster At an other day the Case was put again by Hales and argued for the Plaintiff and he made divers points in the Case but I could not well hear him but the only point insisted on was the point formerly spoken to and the sum of his Argument was that we are in
supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
between what the Law directs and what the devise directs all the difference is in the manner how his Son Iohn shall come to the Estate 3 4 Phil. Mar. Dyer 134. 37 Eliz. A man seised in fee had issue two Daughters and devised the Lands to them and to their Heirs and it was questioned whether they were Ioynt tenants and I conceive they are and where one omits a thing in a conveyance which the Law supplies this shall not hurt and he cited Iennings and Pollards Case 6 Car. Hales on the other side argued that the Son takes by purchase and not by descent for the devise is not to the Son in present but after the death of the Testators wife and if he had the Lands by descent he should have them presently VVaiver It is true the Son might have waived the taking by purchase and might have taken by descent but here prima facie he shall be intended to be in by purchase and not descent for here doth not appear to be any actual waiver of the purchase and the Son doth here as I conceive take by way of remainder and not by way of reversion And as to the verdict I conceive it is not good for it doth not shew how the lands are held whether in Chivalry or Socage and so it appears not whether the Testator had power to devise all of them or not for if they be held in Chivalry he can devise but two parts of them as the Statute directs 2ly It appears not that the Testator had but one Son by his first wife 3ly It is not shewed that the Lands are parcel of the Mannor 4ly It doth not appear in whose possession the Lands are Roll chief Iustice said Lands that are given by Will shall be intended to be socage tenure Intention if the contrary do not appear And he held that the devise is void and that it is not in the power of Iohn the Son to make the election to take by descent or by purchase at his pleasure but he must of necessity take the Land as the Law directs which is by descent Maxim and it is against a maxim in Law to give a thing to such a person to whom the Law gives it if it had not been so given 3 4 Phil. Ma. Dyer 134. and therefore the Plaintif ought to have Iudgement And as to the verdict he hath primer possession Verdict and therefore if the other make no title the verdict is for him and good enough Bacon Iustice to the same intent viz. that the Heir doth here take by descent and not by purchase for this the Law says and he cannot alter it and cited Foscues Case 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif Franck against Burt and others Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action of Trespass for breaking of his House For costs for the Desendant upon non-sute of the Plaintif and carrying away his Goods at the Tryal the Plaintif was non-sute The Plaintif moved that there was error in the Declaration and therefore there could have béen no Iudgement and prays that he may be spared costs Roll chief Iustice answered that heretofore it hath been made a question whether the Plaintif being non-sute should pay costs Cests but since the Statute of 4 Iac. it is clear he ought to pay costs for the vexation of the Defendant and so it hath béen ruled here and you are out of Court now by being non-sute and therefore you must pay costs And therefore except better matter be shewed let them be paid Mich. 24 Car. Banc. Reg. THe Court was moved for a Prohibition to the great Sessions of Carnarvan in Wales to stop a sute in an English Bill of Equity exhibited there For a prohibition to the great Sessions at Carnarvan in Wales whereas by the Bill it appears there is no matter of Equity in the Case but only matter tryable at the Law The Court answered if they proceed there against Equity we cannot hinder them There was wont to be an Agent here from the Commissioners there for us to confer with in such cases as these but it seems there is not any here now Therefore give notice Prohibition and let them shew cause the next Term why a Prohibition should not be granted Mich. 24 Car. Banc. Reg. VPon reading of a retorn made by the Sherifs of the City of Norwitch upon a Habeas corpus directed unto them for one Chambers It was said by the Court How a Habeas corpus to an inferiour Court should be retorned Retorn that it hath been ruled That upon a Habeas Corpus to an inferiour Court to remove Corpus cum causa they ought to retorn all the causes that are depending there concerning the party that hath the Habeas Corpus if any of the causes depending be for above five pound of which they ought not to hold Plea and therefore because all the causes were not retorned here upon the retorn of this Habeas Corpus The Court held the retorn was not good and ordered that it should be amended upon pain of ten pounds by Monday next Raph against Davye Mich. 24 Car. Banc. Reg. RAph brought an Action of the Case against Davy for speaking these words of her to the Plaintifs mother Arrest of judgement in an action for words viz. Your Daughter innuendo the Plaintif is a brazen faced Whore and deserves to be hanged and for speaking these other words to the Plaintif herself viz. you Huswife are a Thief and have stollen my Purse The Plaintif had a verdict The Defendant moved in arrest of Iudgement Averment that the Plaintif doth not aver that her Mother had not any other Daughter besides herself and so it is uncertain whether the words were spoken of her or no. But the Court held it was well enough without such averment because the Declaration is that the Defendant habens colloquium of the Plaintif did speak the words and that makes it certain enough And therefore bid the Plaintif take her Iudgement Jennings against Lee. Mich. 24 Car. Banc. Reg. IEnnings brought an Action of Assault and Battery against Lee. The Defendant pleads a special plea Arrest of Iudgement in an action of assault and battery and justifies The Plaintif replies de injuria sua propria and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that the replication was not good because it answers not the special matter pleaded nor takes any traverse by an absque tali causa as it ought to do and so there is no issue joyned and consequently there can be no Iudgement Roll chief Iustice said that the replying de injuria sua propria Traverse Issue Ieofails and not traversing absque tali causa is not good for there is not an affirmative and a negative and so
upon the Case and didst kill thy first wife The Error assigned was that it doth not appear in the Declaration that the Plaintif was maried before But the Court affirmed the judgement and said the Defendant hath confessed it by joyning issue non culp upon the words VVood against Topham Trin. 1650. Banc. sup THis case being an Action upon the Case quare filium suum cepit et abduxit Error to reverse a judgement in an Action on the Case et maritavit was again moved and the exception insisted upon was that the Plaintif doth not say Cujus maritagium ad ipsum pertiner But Roll chief Iustice said that it could not be otherwise intended but that the mariage belongs to him and it doth not appear that his Son was maried before and the value of the mariage is not here material for the mariage of his Son belongs unto him as a parent Mariage in regard of his protection and advice Ierman differed and said that if he were maried before he was then Pater Familias and is out of the protection of his Father Protection But Nicholas and Ask Iustices agreed with Roll and Roll said the matter here is not the loss of the mariage for that is but to increase the damages but the Action lies only quare cepit et abduxit Adjourned to be argued the next Term. Antea et Postea Oreswick against Armery Trin. 1650. Banc. sup Mich. 1649. rot 354. OReswick brought a writ of Error against Armery to reverse a judgement given against him in Bristow Error to reverse a judgement in an Action of Debt Debt Custom in an action of debt upon a Concessit solvere according to the custom of the City but the Iudgement was affirmed for the Court said an action of debt will lie by a custom upon a Concessit solvere but not if it be brought against an Executor Custodes Libertat c. against Valconbridge Trin. 1650. Banc. sup THe Court was moved to quash an Endictment of Assault and Battery To quash an Endictment of Assault and Battery The Exception was that the Endictment was taken before the Iustices of Assize and Gaol delivery and Oyer and Terminer and so it doth not appear by vertue of what Commission it was taken Roll chief Iustice He ought to shew by virtue of what Commission particularly it was taken and therefore let it be quashed and a fine of 40 s. set upon the Clark of the Assizes for his negligence Fine Bowles against Clark Trin. 1650. Banc. sup IT was she wed for cause upon a rule of Court why a Prohibition should not be granted to the Prerogative Court Why a Prohibition should not be granted to the Prerogative That in the will which the Prerogative Court endeavoured to repeal there were lands given to the Executor The Court answered If the Prerogative have power to prove a will they may also repeal it by appeal but if lands be devised together with goods they have no power to repeal it as to the lands but if they should have no power to repeal it as to the goods it would be mischievous But they have no authority to make the devise good or ill as to the lands Prohibition And the Court was at first agreed to grant a Prohibition as to the lands only But afterwards the Court held that there could be no such division made of the will by Prohibition as to stand good in part and to be repealed for the rest and so would not grant the prohibition Nota. Keniston against Crouch Trin. 1650. Banc. sup THe Court was moved that upon a Judgement given in the Common Pleas For a rule to enter judgement in the Common Pleas denied since the Act that a writ of Error shall be no supersedeas a writ of Error was brought in this Court and the record removed but that depends undetermined and that the party had moved for execution in the Common Pleas but the Clarks refuse to make out execution without the rule of this Court Rule and therefore a rule was prayed to them to make out execution But the Court answered procéed as the Act directs we will make no rule But we conceive there is no writ of Error now depending and therefore you may take out execution of Course Q. Tamen Execution for it was doubted at the Bar. Denton against Harison Trin. 1650. Banc. sup DEnton brought an Action upon the Case against Harison in London For a Procedendo to London for speaking these words Thou art a Whore and my Husbands Whore and he doth maintain thee The Defendant removed the cause into this Court by a Habeas Corpus whereupon the Plaintif moved for a procedendo Roll chief Iustice was of opinion that a procedendo ought to be granted for if it should not the party hath no remedy to proceed and if they do proceed in London and the judgement he thereupon erronious the party grieved may bring a writ of Error in the Hustinges and reverse it Ierman Iustice said here is a wrong done and the remedy is given according to the custom of the City and it is a good custom Custom because it is for the preservation of the Peace of the City and it is the custom of the City to whip a Whoremonger and to Cart a Whore and this may be the ground or reason why an action lies in London for calling of a woman whore there thought it doe not lie in other places Trin. 1650. Banc. sup VPon an Issue joyned and a Tryal thereupon That Iudgement might not be entred a Verdict was found for the Plaintif and the Postea was delivered to the Clark of the judgements to enter the judgement but through the Clarks neglect execution was taken out the Iudgement being not entred upon this the Court was moved that the Iudgement might not be entred Iudgement because it should have béen entred before Execution issued forth and therefore it was suggested that now it was too late and prayed to supersede the Execution Supersedeas because there was no judgement to warrant it But Roll the Chief Iustice answered that this being but a neglect of the Clark judgement might be well enough entred though the Execution were issued forth and because the tryal betwéen the parties is right therefore let it be entred Cane against Pell Trin. 1650. Banc. sup CAne brought an Action of Debt upon the Statute of 2 Ed. 6. for substraction of tithes against Pell and hath a verdict against the Defendant Arrest of Iudgement in an action upon the Statute for tithes The Defendant moved in Arrest of Iudgement and took an Exception to the Plaintifs Declaration That it did not appear by it in what Parish the lands lie out of which the tithes grew due On the other side it was said 〈◊〉 appeared well enough by implication but if it did not it is not now material there being a
to the Sheriff for his appearance and therefore it was prayed that the party arrested might be discharged and that the bond given to the Sherif might be delivered up Roll the chief Iustice answered Endict the Bailies that made the Arrest or bring your Action against them if you please Discharge for we will not discharge the party arrested Bois against Cranfield Mich. 1650. Banc. sup rot Q. BOis as Executor to another brought an Action of Debt upon divers Obligations made to his Testator Debt upon divers Obligations by an Execution The Defendant pleaded that he did pay a lesser sum than is expressed in the Obligations to the Testator during his life and that he did accept there of in full satisfaction of the said Obligations To this plea the Plaintif demurred Roll Chief Iustice upon opening the matter said that the question here is whether the payment or the acceptance of the money paid in satisfaction be to be traversed And he held it was indifferent to traverse either of them Traverse but he said it was more proper to joyn issue upon the payment but the Court would advise It was then also said that if one pay money in satisfaction of an Obligation and the party to whom it is paid saith that he will receive it for another cause Satisfaction payment yet if he receive it it shall be judged to be paid in satisfaction of the Obligation for he must receive it upon such terms as the other will pay it Brian against Stone Mich. 1650. Banc. sup STone moves the Court for an Attachment against Brian and others For an Attachment for that he was arrested by a Latitat out of this Court in the County of Wilts and thence carried into the Town of Malborow and there arrested by a Serjeant of that Town by a writ out of that Corporation and the Plaintif procéeds there against him upon that writ and not upon the latitat by which he was first arrested which is a contempt to this Court. Attachment Habeas Corpus cum causa The Court ruled the party should have an Attachment nisi c. and also should have a Habeas Corpus cum causa Mich. 1650. Banc. sup THe Recorder of London moved for the Inhabitants of Bishopsgate against one Withringes For the setting a moderate fine upon one that submitted to a fine who for refusing to serve upon the Ward mote Enquest was indicted for his refusal in London and convicted and fined 20 l. the Defendant being committed for not paying his fine removed himself hither by a Habeas Corpus but now hath submitted himself to a fine it was therefore prayed he may be moderately fined here The Court thereupon fined him 20 l. Beal against VVyman Mich. 1650. Banc. sup Trin. 1649. rot 849. VPon these words of a will Question upon words of a Will viz. I give and bequeath one half of my lands to my wife after her death I give all my lands to the heirs males of any of my Sons or next of Kin Latch made these questions in the Case 1. Whether there were a good estate created by these words of the will 2ly Whether the estate were destroyed by the fine levied of the lands For the 1. he held that the heirs males of any of his Sons are words certain enough to create an estate for it is all one as if he had said to the heirs males of all his sons if they have heirs males or to those who have heirs males and the words or to the next of Kin are also certain enough being joyned with the precedent words and shall be meant to the next of Kin and their heirs males if his sons have no heirs males For in a Win if there be words to express the meaning of the Testator it is sufficient enough though the words be not apt And he cited 21 Rich. 2. Devise 27. and 8 Rep. 46 and said that the case in 30 Ass pl. 47. is the same with this in terminis And here is no contingent remainder but only a contingent devise there is no necessity for a particular estate to support it for it ariseth out of the estate of the Devisor yet if there were néed of a particular estate here to support the remainder here is a particular estate in the wife who by implication of the will doth take all the land during her life as it is 13 H. 7.29 H. 8. Br. Devise 48. Trin. 3 Ed. 6. Bendloes Plow Com. 521. Whelpdales case Pasch 25 Eliz Com. Ban. To the 2 point he spake not holding it not material Hales of Councel on the other side held that the wife had not an estate for life in all the land by implication of the will but only an estate for life in a moyety of the land and so there is no particular estate to support the contingent remainder which he held was in this case that it is not a contingent Devise as Latch urged for the remainder here depends by way of remainder and not as a contingent Devise And he held the Devise it self to be void admitting all the precedent matter alleged to be true 1. Because the devise is uncertain for the intent of the deviser doth not appear for it appears not what heir male shall have the land whether the heir male of his son or the heir male of his next of Kin for the words are disjunctive 41 42 Eliz. Com. Banc. in the Case of Tayler Sawyer land devised to a Mans Issue was adjudged a void devise for the incertainty of it And he held that the intent was that the heir male of his son should inherit before the heir male of the next of Kin otherwise the further off of Kin should have the land before the nearer of Kin. And he said that Hill 2. Car. Rot. 1288. Com. Banc. in Hunt and Fishers case the case at the Bar was adjudged in point Roll chief Iustice said That the intention of the Testator here is coeca sicca Intention and senceless and cannot be known Will. and we ought not to frame a sence upon the words of a Will where we cannot find out the Testators meaning Ierman Iustice held that the devise was not void but that the words are to be interpreted as they may stand with Law and as the words will bear Nicholas Iustice prima facie that the devise is void but yet it is questionable Ask Justice to the same intent Roll chief Iustice said that there is too much way usually given to ambiguous devises But let it be argued again the next Term. Parker against Cook Mich. 1650. Banc. sup Hill 23 Car. rot 660. THe Action was an Action of Trespass quare Clausum fregit Upon a Demurrer the question was whether a Copyhold were forfeited or not The Defendant pleaded a special plea of justification viz. That the Plaintif was a Copyholder to his Manor and that for
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
to his heir in the singular number And he argued that the word heir includes heirs because it is Nomen Collectivum Next Whether the devising the land to Richard for his natural life and after to his heir for ever makes any difference in the Case and he held it did not and said that Archers case that is objected by the other side differs much from this for there the words are restrained for it is Proximo Haeredi and not Haeredi generally as it is in our Case and there the words next heir are not words of limitation but of purchase and to decipher the person but not to limit the estate and in our case if there should not be a limitation Richard should only take for life which is not the intent of the Will as may appear by the passages and clauses of it And Thomas and Kemishes case in 5 Car. in this Court makes an end of our Case Neither doth the adding of the word in perpetuum make a difference in the Case for if the words had béen omitted the same estate had passed to the Tenant Richard and his Estate is not enlarged by them 2ly The words in perpetuum relate to all the Estate and not to any particular Estate and so the surrender made by R. Hunt is good Next of all supposing that it be a limited Estate and a contingent remainder the question will then be whether this contingent remainder be destroyed or no and I conceive it is because the particular Copyhold estate which must support this contingent remainder is destroyed and the Law is the same in that point in Copyhold cases as it is in other cases at the Common Law for Copyholds are directed by the rules of the Common Law 13 Iac. Banc. Reg. It is also held that there is the same rule to support a contingent remainder of a Copyhold as there is of Land at the Common Law Next it is to be considered whether the particular Copyhold estate be extinguished or not And it is cléer that it is for the customary Estate is in the Lord who hath the Fée simple which cannot both stand together and so there is no estate to support the contingent remainder Copyhold and consequently all objections are by this answered 1. That the surrender shall not do wrong 2ly That the surrender destroys not the Custom Turner on the other side argued that only an estate passeth to Richard for life and that the word Heir is not a word of limitation to make the Ancestor take a Fée simple neither shall the word Heir be taken Collective here but singulariter and so according to the common sence number and matter ought it to be construed And Nowns Collective in the singular number do not signifie the same thing that they do in the plurall number as may be proved by other examples and there is no proper name to signifie one particular Heir in Law if the word Heir in the singular number shall not do it Shellyes case 1. Rep. f. 101. â—ooks institut f. 8.1 Rep. Archers case And there are two Iudgements in the Common pleas in the very point as I am informed by the Attorney on our side In a Will the word Heir shall not be taken Coliective out in the natural grammaticall sence and not as a word of art but it is otherwise taken perchance in conveyances which are made by men of Art and learned in the Laws whereas wills are made commonly by lay gents and unskilfull in the Law And the rule is that words shall be interpreted to make all the parts of a déed in which they are to stand together and to bear sence and to be in esse and effectual which cannot be here if the word heir shall be taken Collective but may be if it be taken singulariter Hob. rep Stukely and Butlers case Next if the word heir should be taken Collective then the Estate for life would merge 30 El. C. B. Hill 3 Iac. C. B. Hiller and Lewis his case 3ly Rich. hath only an Estate for life if it were otherwise the Testator would have otherwise expressed it and he hath well expressed an estate for life and no other Estate in him If one grant 4. parts of his mannor it shall passe 4. parts of 5. and not all For the other poynt the contingent remainder is not here destroyed by the destruction of the Copyhold Estate for Copyhold Estates do not depend one upon another as Estates of the Common Law do and here is one in esse to take the Estate Another question he spoke to viz. whether a Lessee at will being ousted by a stranger can reenter and he held he cannot for he hath but a meer right 38 H. 6. f. 27. Fortescue and Yelverton 3. Iac. Banc. Reg. rot 501. Carpenter and Collins But to this Roll chief Iustice Entry and Nicholas Iustice answered that he may enter notwithstanding it hath been heretofore controverted and the reason is because he hath the primer posseâ—sion Roll chief Iustice enclined that the contingent remainder is not destroyed because it doth not here depend upon the particular Estate but it ought to expect till the remainder happen and he conceived that the word heir and heirs were all one here by the intent of the partyes and the frame of the conveyance Ask Iustice said that it is a good Estate of Fee simple conditionall executed in Richard Ierman Iustice The intent in a Will if it be not contrary to Law ought to be taken and there must be words to make the intent appear and these words must stand together and shall not be made void and he conceived the contingent remainder not destroyed Adjourned till the next Term. Postea Port against Midleton Hill 1650. Banc. sup A Writ of Error was brought to reverse a Iudgement given in an Action of debt upon an obligation Error to reverse a judgment in debt and the Error insisted upon was in the entring of the Iudgement which was quod recuperet Debitum suum and doth not say praedictum Roll chief Iustice answered Delivery Escrow that the debt is confessed by the party and the question is whether the deed was delivered as an escrow or not but it was delivered to the party himself and therefore could not be delivered as an escrow Ierman Iustice said that debitum suum without praedictum is not good for the word praedictum is verbum operativum Ask Iustice as Roll and there is but one debt Implication and the word ideo in the record implyes it to be the same debt Nicholas to the same effect The rule was affirmetur nisi causa die Iunae sequenti Hill 1650. Banc. sup AN administrator had a Iudgement against one to recover a debt due to the Intestate and then the Administrator dyed Intestate For a scire facias to revive a judgement denyed Scire facias and another took out new letters of administration de bonis non
words of a will which were these I give all my free lands wheresoever to my Brother Iohn Sanders and his heirs upon condition that he suffer my wife to enjoy all my Freelands in Holford for life the Testator having only a portion of tithes of inheritance in Holford and no lands The question here was whether this portion of tithes shall be accompted free lands within the intent of the will and so the wife be to have them during her life Twisden held the tithes were not devised by the will to the Feme for if I devise my fee-simple lands to Iohn a Stile and his heirs tithes do not pass by this devise for tithes are a collateral thing arising out of land and not part of the land it self 42 Ed. 3. f. 13. 10 Iac. Moyle and Ewers case 31 Eliz. Perkins and Hyndes case In the will here they pass not for there are no words in the will to devise them nor can the words he so expounded and here are other lands devised to satisfie the words of the will A term for years hath more relation to land than tithes and a term could not have passed by the words of the will Next the second Clause doth not pass the tithes for there is no such thing as is expressed in it but if it should pass to the wise by implication yet it cannot pass to Iohn Sanders the Brother for there are neither expresse words nor any implication to devise this portion of tithes to him but the contrary rather is to be collected from the Will Wadham Windham on the other side answered that the Testator calls the tithes in Holford his free lands It is true generally that by the devise of lands tithes do not pass but in a will by the intent of the Devisor they may pass and the word land includes all real things in common intention and legal construction as Lutrels Case is 1 Mar. Bro. Tit. Elegit An Elegit may be of a rent and tithes have a nearer relation to land than rent have 2ly Here is an apparent intention to devise the tithes for he explains his meaning in his second clause of the Will that he intends tithes by the word lands 44 Eliz. Com. Banc. Gery against Gery the question there was what passed by the word rents whether lands passed The words were as to all my lands in Dale I devise my rents c. and here the matter comes in by a Proviso which enlarges the matter Trin. 3 Iac. Fitz. Williams case One devised all his goods Iewels and Plate excepting his lease in C There it was adjudged that all his other Leases passed 4 Ed. â— Br. grants 51. Another circumstance in the Will enforceth this construction viz. the word wheresoever which word expresseth the intent of the Devisor to be so otherwise that word will be idle and to no purpose Hob. rep Stukely and Butlers case It may also appear out of the body of the Will for it appears thereby that his Daughter was provided for in his will by his personal estateâ— and that the intention was to dispose of his lands to the Heir and his Copyhold lands which he had in Holford were surrendred at the time of the making of the Will and so the devise cannot refer to them and besides this is called free lands which distinguisheth them from Copyhold lands and so he prayed judgement for the Plaintif Roll chief Iustice There is a Condition annexed to the Devise Condition that his wife shall enjoy this land though the words in the Will are not very proper to erpress it but we must consider them as used in a Will not in a conveyance Nicholas Iustice said the Devisor himself calls them free-holds and this distinguisheth them from Copyhold lands Adjourned till Saturday following to be argued again Dowse against Masters Pasc 1651. Banc. sup DOwse brought an Action of Debt upon an Indebitatus Assumpsit against Masters for five pound Demurrer to a plea in Debt upon Indebitatus assumpsit in which the Defendant pleaded that he did deliver bils to the Plaintif to the value of 6 l. in which the Plaintif was indebted to him which bills the Plaintif did accept in full satisfaction the Plaintif replyed protestando that he was not indebted to the Defendant that he did not receive bills to the value of 6 l. in satisfaction Vpon this a Demurrer was joyned Roll chief Iustice said Plea the Plea of the Defendant is ill for he doth not say that he delivered the Bills in full satisfaction but that the Plaintif received them in full satisfaction which is not good for the Plaintifs receiving of the Bills must be as they were delivered and not other ways and that is not expressed Therefore let the Plaintif take his judgement nisi c. Ross against Lawrence Pasch 1651. Banc. sup ROss brought an Action of the Case against Lawrence for speaking these Welch words of him viz. Dedingues Will Rols in mudon Arrest of Iudgement in an Action upon the case for Welch words Englished which are in English William Ross hath forsworn himself upon Issue joyned and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable as they are rendred in English and so the Action lies not Roll chief Iustice If the words sound in Welch that the Plaintif was perjured yet if the Plaintif do English them in English which doth not amount to perjury it is ill Case and an action will not lie for them Therefore let judgement be stayed Peck against Ingram Pasch 1651. Banc. sup PEck brought an Action upon the Case upon an Assumpsit and declares Arrest of Judgement in an action upon the case upon an Assumpsit that the Defendant in consideration that she the Plaintif would leave her Fathers house and come to the House of the Defendant in such a place did assume and promise unto her that he would mary her and that thereupon she did leave her Fathers House and did come to the Defendants House et obtulit se in maritagium conjungi and because he had not performed his promise Actio accrevit Vpon issue joyned and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and took Exceptions that the Plaintif did not shew in her Declaration when she left her Fathers House and came to the Defendants house nor that she gave him any notice thereof Wild moved for judgement notwithstanding the Exceptions for he said though it be not expresly said that she gave the Defendant notice when she came to his House yet it is said quod obtulit se in maritagium conjungi which implies the Defendant had notice and besides here is no need of notice for the Assumpsit is that if she will come to the Defendants house he will marry her and it is not said that when she comes he will marry her so that he is bound by
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
dis-inherited by doubtfull and ambiguous words as it must be here if these tithes should pass Next as to the verdict he said that it is not thereby found that the Testator died possessed of the tithes as it ought to have been as it hath been adjudged 43 Eliz. and so he prayed judgement for the Plaintif Maynard of Counsel with the Defendant argued That the tithes did pass by the Will otherwise part of the Will must be void which ought not to be if all parts may be so construed that they may stand together and he agreed that lands and tithes are distinct things but in Wills it is not to be so much considered whether the words of them be proper but what was the intent of the Testator in them and whether they do declare his meaning or not and here by construction of the words by freelands inheritance is meant in opposition to Copyhold lands or terms for years 2ly Here is a positive assertion of the Testator himself that in his understanding he had free lands in Holford for he had no other lands there 35 Eliz. Robinsons case rot 504. Banc. Reg. by a will things of one nature may pass by words which are proper to pass things of another nature 44 45 Eliz. rot 125. A devise of lands and tenements will pass leases for years if there be no other lands to pass by those words in the place expressed in the Will and so prayed Iudgement for the Defendant Verdict Roll chief Iustice asked what he said to the exception that it is not found that the Testator dyed seised of the tithes without doubt it had been ill upon a Demurrer therefore see if you cannot help it by the notes by which the Verdict was drawn up But for the matter in Law me thinks it is a strong case that the tithes do pass for we are in the case of a Will where the meaning of the party shall be observed if it may be found out by any means though it cannot be collected ex vi Terminis and should it not be so here part of the Will would be void which may not be if we can make it otherwise by a reasonable construction But I will consider of the Verdict and do you consult with your notes Ierman Iustice The Verdict ought to find the dying seised and till I am satisfied from the Notes I will deliver no opinion Nicholas Iustice held both the devise good and the Verdict also but said it had been otherwise upon a Demurrer Demurrer Ask Iustice to the same intent Ierman Iustice It is clear that the Testator intended to devise the lands in Holford and it is a good devise but if the Verdict be imperfect it is for the Plaintif but if otherwise it is for the Defendant The Court would advise touching the Verdict Hayward against VVilliams Trin. 1651. Banc. sup Hill 1649. rot 824. THe Case was this a Feme was sued as a Feme sole but by the Sirname of her Husband Who may bring a Writ of Error who not she being then Covert The Feme appears and pleads and Iudgement is given against her and the Baron and Feme joyn in a writ of Error to reverse this judgement The question was whether the Baron who was a Stranger to the Record might joyn in the writ to reverse the Iudgement It was moved divers times and the Court advised and at last they said that a Stranger to a Record may not bring a writ of Error to reverse it but that is only where he may have another remedy to avoid the prejudice he may receive by it but in this Case the Baron hath no other remedy for his Wife is taken in Execution and by this means he shall lose her society And therefore reversetur nisi Antea Shann against Bilby Trin. 1651. Banc. sup Hill 1650. rot 1065. SHann brought an Action upon the Case upon a promise against Bilby Arrest 〈◊〉 Judgement in an Action upon the Case upon a promise and declares that in consideration that the Plaintif should surrender a Copyhold unto I. S. and his heirs according to the Custom of the Manor the Defendant did assume and promise to pay unto him 100 l. and that he did surrender the Copyhold into the hands of a Customary Tenant of the Manor according to the Custom of the Manor to the use of I. S. and his heirs and that the Defendant had not paid the hundred pound according to his promise and declares to his damage c. Vpon non Assumpsit pleaded and Issue thereupon joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement by Latch of Councel with the Defendant that the Declaration is not good 1. Because it doth not set forth to whom the promise was made and if it do not appear to be made to the Plaintif it is nudum pactum for the promise here is the consideration 2ly The Consideration is Executory and the Plaintif doth not shew that he hath performed it and then he hath no cause of Action The Consideration was that the Plaintif should surrender a Copyhold to I. S. and his heirs according to the custom of the Manor and he only shews that he did surrender the Copyhold into the hands of a Customary Tenant according to the Custom of the Manor to the use of I. S. and his heirs and doth not shew that this surrender was presented at the next Court and so it appears not to be a good surrender Surrender for it is uncertain whether it shall be presented or no and till it be presented it is imperfect To which the Court assented and ruled against the Plaintif a Nil capiat per Billam nisi ◠c. In this case it was said that if a man covenant to convey lands Covenant it ought to be done at the charge of him that covenanteth to do it except the contrary be agreed Consideration And that if there be a double consideration alleaged for a promise if one of them be good and the other be not yet an action will lie upon the promise that is broken which was grounded upon these consisiderations Barcock against Tompson Trin. 1651. Banc. sup Mich. 1650. rot 444. A Writ of Error was brought by the Bail to reverse a judgement given against him upon a scire facias the Error assigned was Error brought by the Bad. that there was no Capias taken out against the principal and therefore the scire facias against the Bail is not good Hale answered that it was too late to urge this now for Error for the judgement is upon two nichils returned and cited 21 E. 3. f 13. 6 Roll chief Iustice said that two nichils is as much as a scire feci returned and it is no Error to give judgement upon it but it had been a good plea upon the scire facias to say that there was no Capias against the principal but now there
heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
and upon it the case sell out to be thus Special verdict in an ejectione firmae A having lands in see simple and also goods and chatels to the value of 5 l. only in Tavestock made his Will and devised to his wife totum statum suum viz. his whole Estate paying his Debts and Legacies and his Debts and Legacies did amount to the value of 40 l. Hales made 2 questions 1. Whether the lands passe to the wife by the Will or not 2ly If they do what estate passeth to her in the Lands For the first he argued that the lands do passe to the wife 1. Because the generality of the words do include the lands as well as the goods for the words are his whole Estate so that nothing is excluded 9 E. 4. a release of all Actions is held a release of all Actions that the party had in all his capacities 2ly The ordinary maner of spéech doth shew that he intended to devise his lands as well as his goods Riches case Mich. 45. Eliz. C. Banc. A devise of all his rents was held to passe all the partyes lands Also the subject matter in fact doth prove this to be his intent and although here is not a collateral averment to prove the intention but a collateral proof to declare the Testators intent this may be admitted to ascertain the Court of his meaning as it is in the case of proving an Act of Parliament In the Lord Cheneys case an averment standing with a Will was accompted allowable though an averment against a Will be not In Cooper and Lanes case 35 Eliz. a devise seigniori puero where the Testator had a Son and a Daughter was held a good devise to the Son although puer signifies as well a Daughter as a Son and the Daughter there was elder than the Son and Hill 8. Car. In Bartler and Rodes case in B. R. a devise of all his lands in Dale if he had leases as well as lands there passed not the leases For the 2d point he argued that a fee simple passed 1. Because his whole Estate is devised and that is to be applyed as well to the lands as to the goods 2ly Because in regard that there is a consideration for it to wit that the wife shall pay his Debts and discharge his Legacies and whereas it is objected that it is not said she shall pay all his Debts I answer that it shall be so intended Here is land and goods mentioned and not land only and it is found that the goods only are not sufficient to pay the Debts and also the goods were liable to the payment of the Debts without this expression in the Will and therefore the land must be intended to be devised And for the verdict it is not material to find the lands to be held in socage for they shall be intended to be so held because it is the most antient Tenure for where the Law creates a Tenure it shall be socage Tenure 2ly Lands may possibly be deviseable although they be not held in socage for if they be neither held by socage nor chivalry yet they are deviseable Dyer 307. Neither is it material to find the Debts and Legacies paid for it is a condition here an not a limitation and there is a person to take advantage if the condition be broken this is a special verdict the breaking of the condition if it had béen broken would have appeared upon evidence therefore it is not necessary to aver it it is in case of a Fee simple which is an Estate intended to continue Devise Roll chief Iustice held that the lands did passe for so he said the common understanding imports and the words do go to the value of the estate 1. It comprehends the thing to wit the land 2ly The extent of the Estate given viz. Fee simple and so it shall be here intended and the words paying his Debts and Legacies doth enforce this construction for they are to be paid presently which cannot be if the lands passe not in Fee and so the aberment it is but to supply the meaning of the Testator and stands very well with the Will and is not so collaterall as it is in Cheyneys case And for the verdict the lands shall be intended to be socage lands Intendment as being the most Common Tenure except the contrary were shewed on the other part Denham and Bakers case Mich. 24 〈◊〉 entred Trin. 23. rot 12.80 and the words paying his Debts and Legacies are words of condition and not of limitation Ierman ad idem and said Condition̄ Limitation when we say a man is a man of a great Estate we mean his Estate in lands as well as goods Nicholas and Ask Iustices to the same effect but Ask said he doubted of the verdict because no Legacies are found and this is part of the case Iudicium pro querente nisi Antea Pickering and Emma Trin. 1651. Banc. sup EMma obteined a Iudgement against Pickering For a supersedeas upon an audita querela brought and had satisfaction upon it and gave a release to the Defendant yet afterwards takes out a capias ad satisfaciendum against him whereupon he brings his Audita querela and moves the Court that he may have a supersedeas to the capias ad satisfaciendum The Court desired to see the release and upon view thereof The rule was that the party should proceed in his audita querela but said they would grant no supersedeas because the release was ambiguous Custodes c. against Rivett Trin. 1651. Banc. sup VPon a rule of Court to shew cause why an Attatchment should not be granted against one Cause why an Attatchment should not be granted for proceeding to a tryal in an iuferior Court notwithstanding a habeas corpus directed to remove the cause An Affidavit was made that the proceeding to tryal was because it was supposed the habeas corpus was against the Statute of 21 Iac. The Court answered you ought to have returned this matter upon your return and not to have proceeded against the habeas corpus but let the Secondary examine the matter and then move again Return But it is dangerous to execute the Iudgement if the Statute be not against the habeas Corpus The Custodes against my Lord Morley Trin. 1651. Banc. sup THe Court was moved on the behalf of the Lord Morley for a Certiorari to remove an Endictment preferred against him at the Sessions of Peaco at Hicks Hall upon the Statute against hearing of Mass For a Certiorari to remove an Endictment The Court answered that they would advise but that they did not see how a Certiorari could be granted at the prayer of the party but they said at the prayer of the Councel for the State it may be granted Baker against Smith Trin 1651. Banc. sup BAker brought an Action upon the Case against Smith and
and that by the Will the Land and personal Estate passed unto him for he said if by my Will I make one my Heir This is a devise to him of all my Lands in Fee for the Devisee is put in loco haeredis and shall be like an Heir by descent for he is haeres factus although he be not haeres natus Mich. 31 32 Eliz. rot 235 Godfreys Reports Hob. rep f. 34. b. Coundens case Hob. new edition 75. Spark against Burrell the very case in point adjudged 7 E. 6. Br. Done 44. and Devise 48. and in this Case the Devisee had annuities to pay and monies for Legacies which shews the intent of the Testator to be that he shall have his Lands and Goods neither shall the misspelling of the word Heir hurt the Will for the intent of the Testator shall be followed if it may be known as it may well be here Hob. f. 32.15 H. 7. f. 12. Cooks Lit. f. 323. Dyer 325. 2ly Misnaming in a Will shall not hurt the Will Dyer 323.21 Rich. 2. Fitzh devise 27.10 rep 57. 3ly False Latin shall not destroy deeds nor pleadings though it will abate writs a fortiori false English shall not destroy a Will 9 H. 7.16.10 rep Osborns case Hob. 227.10 rep 133. a. 9. H. 6.7 a. and here is only vitium scriptoriâ— and that cannot destroy a Will Hob. f. 162. Walkers case f. 104 104.9 rep 48. a. Dyer 17 Eliz. f. 342. Digbyes case Another reason is the word Heir is here written according to the pronunciation and sound of the word though it agree not in letters and H. that is left out is no letter but an asperte note and the language in England as it differs in time so it differs in place for men speak not nor write English in all parts of England alike and a Will in latin or greek is a good Will within the Statute so that it is not necessary for a Will to be good English and the Testator was bred in France and could neither write nor speak good English and his Will so much the rather is to be favoured And false English hath been allowed in a Bond viz. senteen for seventeen pounds 9. rep 48. a. much more may it be in a Will and so he prayed Iudgement for the Plaintiff Latch for the Defendant argued that the Will was not good he considered 2. points 1. When a man makes one his solle Ayeare and Yexecutor what construction the words shall have 2ly What Estate is conveyed by them And first he said that Hoberts Case cited by Powis was not to the purpose 1. Because it is not the principal case And 2ly It is but an opinion there and an Heir may be without land And for Counden and Clarks case that was cited as it was urged it is for me and not against me and there can be no authority cited that if one make a man his Heir that his lands are thereby conveyed to him in Fee simple But in our case there can be no certain intent of the Testator found out and the making of one his Heir in France where the Testator was bred according to the Civil Law there used is but to make him his Executor and so the Testator might mean it And if one in his Will say I make one of my Daughters my Heir and do not say of his Lands this shall not disinherit the other Daughters and if there should be any Estate conveyed here it cannot be but an Estate for life Brook Done 44.8 Jac. C. B. Inkersalls case 3ly The ill orthogrophy here makes the Will naught for a Will cannot be made good by conjectures Hob. 34. Mich. 23 Car. Robinsons case the Iudgement was reversed for writing the word Aeris insteed of aeris with a dipthongue Trin. 17 Car. C. B. rot 74. and in Skirret and Skinners case libis with a dash over put for libris was adjudged ill and in our case here are divers words miswritten And for the variation of our English dialect which is objected it is to no purpose because this will was lately made the dialect alters not in so short a time and the dialect of the County where the Will was made viz. Glocester Shire agrees not with the Will And Hill 6. Car. this Will came in dispute in the Court of wards and a decree there passed against the Will in this point The Court said the case is doubtful Will. because the Will doth not say I make him heir of my Land but generally my heir and Executor but the false writing hurts not a Will if the Testators mind may be found out Adjourned to be argued again Wood against Topham Mich. 1651 Banc. sup VVOod brought an Action of Trespasse upon the case quare filium baeredem rapuit et maritavit against Topham Arrest of judgement in an Action on the case upon not guilty pleaded and a verdidict found for the Plaintiff the Defendant moved in arrest of Iudgement and takes these exceptions to the Declaration 1. That the Plaintiff doth not say cujus maritagium ad ipsum pertinet 2ly That he doth not say that the Heir was within age and Maynard of Councel with the Defendant said that the exceptions are not to the writ but to the Declaration and the Action being a Trespasse to recover the Damages the Plaintiff ought to entitle himself to the mariage for the losse whereof he would recover damages for the Heir it may be is not Heir apparent to him and then is no mariage due to him and here is a special Declaration for the losse of the mariage Roll chief Iustice answered Writs Declaration the writs are good both wayes and so may the Declaration be either with those words or without them and he makes not the ground of his Action to be that the mariage belonged to him Common right but of Common right it doth belong to him and the words are used to be alleged only to increase the Damages and the ground of the Declaration is only quare filium suum haeredem rapuit and for this the Plaintiff ought to have his Iudgement Ierman Iustice differed and said the Plaintiff doth not shew he had any damage by the mariage it may be that he had been maryed before or was of full age so no cause of Action Nicholas Iustice as Roll and said that by the Law the mariage belongs to the Father and it may prove a dishonour to the family to have his son taken away and maryed without the Fathers consent Ask Iustice to the â—ams effect and so Iudgement was given for the Plaintiff nisi Antea Mich. 1651. Banc. sup THe Court was moved to mitigate fines Motion to mitigate fines for riots that were to be set upon rioters that were found guilty upon an information exhibited against them for the riotous cutting down of wood But Wild on the other side prayed there might be good fines set
for another man he had unwillingly committed a Trespass against the Plaintif in taking away 2 or 3 wheele-barroughs of Earth of the Plaintifs soil and therefore it was prayed that the matter might be referred to the Secondary to tax the damages and Costs for the Trespass which he was ready to pay that the proceedings might be stayed But Roll chief Iustice answered It cannot be but you may confess the Action Reference He le against Green Hill 1651. Banc. sup IN an Ejectione firmae a special Verdict was found upon which the Case fell out to be this A man being Lessee of a Manor for 199 years Special Verdict in an Ejectione firmae deviseth the Term to his wife for life with power to make such estates in as ample manner as he himself might have done during her life and the remainder in Tall to his Daughter and dies the Feme proves the Will and accepts of the Legacy and after makes a Lease for 99 years and dies and the daughter brings an Ejectione firmae against the Lessee of the Feme The question was whether this Lease made by the Feme were a good Lease or not Merifield argued that the Lease was not good after the death of the Feme because she having but an estate for life Lease and the Lease for 99 years being derived out of it when the estate for life ends the estate derived out of it must end also And 2ly If the Feme had any power to dispose of any part of the Term longer than for her life by the same reason she might have disposed of all of it which cannot be intended for the Testator did not mean that she should have power to destroy the Entayl made upon his Daughter And as to the Objection that she hath dissposed of but part of the Term and therefore hath not destroyed the Entayl I answer It matters not what she hath done but what she might have done for by the same reason that she disposed of part she might have disposed of the whole The rest of the Argument I could not hear Henage Finch on the other side argued That the Lease made by the Feme continues after her death because the Feme had a power given her to make such a Lease and by vertue of that power the Lease continues for the power given unto her relates to the Estates to be made by her and not to the continuance of her life And here the intent of the Testator is to be considered which was that his wife should have the power to dispose of all the Term if she would for he trusted her with it because she was his Wife and Mother of his Daughter to whom the Entayl was made and the very subject matter shews his intent to be so and because there is no other power expressed against this in any other part of the Will and the words that give her this power would be idle and trifling if they should receive any other Construction 2 Car. Banc. Reg. Danyel and Ogleys case and Gibs and Whites case 1 Car. nor does the assent of the Feme to the Legacy to have the Term for life destroy her power to make estates 2ly She hath well executed this power for the Iury have found that it is the Lease of the Feme 9 Iac. Suckham and Hawkins case a power given to an Executor may be executed by parts Roll chief Iustice held Lease the Lease was good for a Will ought to be so interpreted that all the parts of it may stand together and if the Feme here have not power to make this Lease the Clause of giving her this Lease is idle and the meaning is so without doubt the Feme hath the sole estate in Law in her and the power given here is but a restoring to her of that which she had before by the Law and her consenting to the Legacy doth not take away her power to make Estates And this limited power and the remainder to his daughter may stand together for it might be that the wife would not make such a lease and then the daughter should have had the land in tayl but if she dispose of it the daughter shall not have it Ierman as Roll. Nicholas Iustice held that the Feme could only dispose of the land during her life and that the Testators intent by the words was that the Feme should not be tyed to occupy the lands her self during her life but might dispose of them Ask as Nicholas that she can dispose of the lands only during her life for the power is only given during her life and this interpetation will make all parts of the Will stand together better than the other interpretation Adjourned Antea Dekins against Latham Hill 1651. Banc. sup Entred Hill 22 Car. rot 946. IN an ejectione firmae a special verdict was found Special verdict in an ejectione firmae upon which the Case fell out to be this One seised of lands covenanted to levy a fine to the use of himself and his wife for life and after he leased the lands for 21 years for 3 l. rent per annum by equal portions and after the death of I.S. to pay a gross sum of 125 l. by way of fine payable by 5 l. a year quarterly with a proviso in the Indenture that for default of payment of the rent or fine or for want of reparations it should be lawfull for the Lessor to re-enter After the Lessor levyes a fine and assigneth over his interest in the reversion The question here was whether the condition of entry be transferred over to the Assignee by the transferring over of the reversion Hales of councell with the Plaintiff held that the lease proceeds from the Husband only and not from the Baron and Feme and the condition is transferred over for the condition runs joyntly as well to the fine reserved as to the rent and is as it were a several condition in Law although it be comprised but in one clause and not several clauses and the condition as to the rent is transferred though not as to the fine In 19 E 4. f. 7. The law makes a several distribution of one praecipe and so may it do here of one condition and Rawlins case in the â— rep cited against this comes not to this case for there the question was of the suspension of a condition but here it is of the transferring over of a condition 2ly If it be but one condition yet it is well transferred by the Statute of 32 H. 8. C. â—4 an extinguishment in part is not extinguishment of all although a suspension of part be a suspension of all and the Grantee of the reversion shall have advantage of the condition because 1. He is within the words of the condition as to the condition 2ly The clause of re-entry is within the words of the Statute and Knights case objected comes not to this case for there
his guardian and therefore let the Iudgement be reversed nisi Fortune against Johnson Hill 1651. Banc. sup THe Court was moved for an attachment against Iohnson upon an affidavit For an attachment for putting one out of possession that he had ejected one out of possession that was put in by a habere facias possessionem and that in a very riotous manner and had imprisoned the party so put out of possession and others Windham on the other side by way of answer said that the party came into the land by virtue of an eign Iudgement and an extent upon it Roll chief Iustice answered here is title against title therefore take your course in law for we will make no rule in it Crosthwayt and the Hundred of Lowdon Hill 1651. Banc. sup CRosthwayt brought an Action upon the Statute of Winchester of robberyes Arrest of Iudgement in an Action upon the Statute of Winchester for robbery against the Hundred of Lowdon for being robbed of 160 l. and had a verdict against the Hundred It was moved in arrest of Iudgement that the Action upon the Statute did not lye for the party that brought it for it appears that he was not robbed but that the mony was taken out of a portmantle which was carryed by the postboy and that only the Plaintiffs hand was upon one end of the portmantle so that the post-boy was robbed and not the Plaintiff But Roll chief Iustice answered Robbery Possession there is no question but that this was a robbery of the Plaintiff and it is all one as where my Servant is robbed in my presence and there the goods shall be said to be in my possession and so is it here and therefore let Iudgement be entred nisi Tayler and Web. Hill 1651 Banc. sup THis case formerly argued at the Bar and broken on the Bench Special Verdict upon the words of a will and some opinion delivered in it was again moved by Maynard and argued by him And he said that by the Will no land passeth because lands are not mentioned in it neither is there any necessary implication that the Testator intended to devise his lands for the making one his Heir and enjoyning him to pay an annuity doth not convey the lands to him and the Will doth not say that he makes him his Heir of his lands but generally his Heir which by the civill Law may be of goods and for the enjoyning him to pay the annuity this may be out of other lands in consideration of the personal estate given unto him In Danyel and Vblies case a gift made by a Feme coparcener of her purparty of land did not convey the lands in Fée In Marshes case the Father gave his lands to his two Sons to be equally divided it was adjudged there that only an Estate for life passed and here is nothing at all expresly given In Gilbert and Withers case Mich. 20 Iac. It was adjudged that there ought not to be made such a construction of a Will as is not agreable to Law And this is only a logical Will by way of argument and not a grammatical Construction or Interpretation and positive Will Roll chief Iustice answered to make a construction of a Will where the intent of the Testator cannot be known is intentio caeca sicca but here although the words of the Will be not proper yet we may collect the Testators meaning to be by making of the party his Heir that he should have his lands and it is all one as if he had said Heir of his lands and here he not only makes him his Heir but his Executor also Will. and therefore if he shall not have his lands the word Heir is meerly nugatory and to no purpose for by being Executor only he shall have the goods and as it hath been observed he is in this case haeres factus though not natus Ierman Iustice to the same effect and said that the word Heir implyes two things 1. That he shall have the lands 2ly That he shall have them in Fee simple Nicholas and Ask Iustices concurred and so it was ruled that Iudgement should be given for Sir Iohn Bridges the Devisee nisi Lockoe against Palfriman Hill 1651 Banc. sup Hill 1651 rot 1002. VPon a special verdict found in an ejectione firmae Special verdict in an ejectione firmae the case fell out to be this Tenant for life the remainder to Baron and Feme and their Heirs Baron and Feme suffer a recovery The question was whether the Heirs of the Feme were bound by this recovery because the Feme being covert it was conceived she was not Tenant to the praecipe because it appears not she was examined and so nothing was recovered from her It was argued that this recovery did bind the Feme 1. because if a precipe be brought against one who hath nothing in the land the writ only is abatable Fitz. Tit. Droyt 29. Next an Estople with recompence excludes not only parties and privies but also strangers as it is in Shellyes case and 3 Iac. C. B. in Duke and Smiths case 15 E. 4 f. 28 In 43 Ed. 3. f. â—8 was the first mention of examination of a Feme upon a Recovery and she shall be intended to be examined here if it be requisite for it is not found she was not examined and in Br. Abridg. recovery in value 27 23 H. 8. It is held that a Feme Covert is barred by a Common recovery and this hath been the continual practice since that time and whereas it is objected that a colourable recovery doth not bind a Feme Covert it is answered that this is not a colourable recovery but a judicial matter of Record and is brought upon an original and there is an intended recompence to the Feme and to urge that there is no Tenant to the praecipe is an objection which reaches to the common practice of assurances and therefore not to be admitted and in time they might have counterpleaded the voucher but now they cannot avert this matter against the Record 19 E. 3. estople 9. and though the Feme be not examined yet she shall be bound by this recovery though in a fine it is otherwise where there is no recompence in value as here there is and in a fine the Iudge ex officio is bound to examine the Feme but not in a recovery nor is there any practice of it in Law 13 Ed. 3 Iudgement 29. A partition made by writ shall bind a Feme Covert because she hath a recompence so is it upon a partition made upon Record in Chancery And by the Barons surviving the Feme here the recompence both not survive to the Baron but shall go to the Heirs of the Feme Br. recovery in value 27 2 Iac. C. B. here is a reall Estate in the Baron and Feme Hales on the other side made the question to be whether by a recovery
one as if the party had appeared for if he had appeared the Case would have béen otherwise So Iudgement was given for the Plaintif nisi c. Pasch 1652. Banc. sup MEmorandum One brought by Habeas Corpus from the Fleet remaâ—â—ed One was brought into the Court by the Mareschall of the Fléet by vertue of a habeas Corpus directed to him out of this Court and because it did appear upon Record that the party was charged with divers debts when he was turned over to the Fleet he was not suffered to put in Bail here but was remanded Gossage against Tayler Pasch 1652. Banc. sup Hill 1650. rot 117. IN an Ejectione firmae upon a Lease for years of a Messuage Special verdict in Trespass and Ejectrueâ—â— and certain lands in Hatfield Broad-Oak in the County of Essex upon a special verdict found the case fell out to be this Rich. Frank seised amongst other lands and Tenements of the Messuage and lands in question upon the mariage of his Son Leventhorp Frank with Susan Cotele levies a fine of the lands to the use of himself during his own life and the life of Leventhorp his Son and after during the life of Susanna Cotele the wife of Leventhorp the remainder to the use of the heirs to be begotten upon the body of Susanna by Leventhorp her Husband The question here was whether the word heirs shall be intended the heirs of Leventhorp and Susanna his wife or whether the estate shall be intended to be limited to the heirs of Susanna only and that Leventhorp shall have barely an estate for life in the lands Serjeant Glyn of Councel with the Plaintif held That Susanna Cotele hath an estate tayl executed in the lands and that the word heirs shall relate only to the heirs of Susanna and not to the heirs of Leventhorp 1. Because that here is an estate limited for life unto Susanna by an express limitation and her heirs shall take immediately after the estate for life ended and they shall not come in as purchasors By express Terms the word heirs is not limited to any person but it is left to the construction of the Law and that doth apply it to Susanna as to a person to whom Richard that setled the lands hath expressed most affection as appears by the Deed Lit. f. 6. Sect. 28. There is an expression of the party to whom the word heirs shall relate but so is not here and therefore the cases differ In 3 Ed. 3. f. 31 32. It is ruled that both parties have an estate tayl because the estate is limited to both but so it is not in our case so those books are not against me In our case it doth not appear that Richard did intend to advance the Husband of Susanna and therefore it is not reason that the word heirs should relate to him but to Susanna his wife only for in case of limitation of estates the intention of the party is to be considered and doth direct the matter and the preceding limiting of the estate to Susanna and not to Leventhorp doth shew that the party did mean to promote the heirs of Susanna Lit. Sect. 27. Dyer 27. A second reason is drawn from the penning of the déed which in the limitation of it doth encline more that the word heirs should be applyed to Susanna than to Leventhorp for the words upon her is as much as to say of her and then it is the same case with Littletons case 3ly The Intention of the Donor appears to be such by the circumstances of the entire limitations which do shew that he did intend that Leventhorp should not have such an estate whereby it should be in his power to deprive his issue and therefore the word heirs are to be applyed to Susanna and not to Leventhorp for if it should be applyed to both then Leventhorp might destroy the estate of the issue contrary to the Donors intent And whereas Dyer 99 is objected against me I answer that case is not against me for there the word heirs is expresly limited to a certain person viz. to the heirs of the body of both of them but so it is not in our case and whereas Hill 13 Iac. Lane and Panels case in this Court is also objected against me I answer that that case is in effect the same case with Dyer and the question in our case came not in dispute And the will of the Donor in deeds is to be ohserved Lit. 22. C. Tayl. 1. rep Shelleys case 103. 〈◊〉 Notwithstanding in gifts in tayl this rule holds not so that a gift in tayl may be limsted contrary to the rule of the Common Law And I know not of any authority in print or writing against me but in 13 Ed. 3. Fitz. tit variance 81 there is an expresse authority for me and 4 H. 4. Fitz. br 448. in my experience I have known many estates limited as this is in the Southern parts held good estates tayl if it should be otherwise many estates would be shaken Roll chief Iustice We have delivered our opinions before against you viz. that it was not the meaning of the donour to apply the word Heirs to the body of Susanna only for this construction would offer violence unto the words as appears by Littleton who interprets that they are to be applyed to the Heirs of both the partyes and your reason is founded upon a wrong ground and expresly against Litletons case and for your second reason it is of no waight for the words are all one as if he had said to the Heirs of the Husband and wife begotten upon the wife 3ly We are not to frame a meaning against plain words which shew the Donors intent to be against you And the Baron cannot Bar the Estate tayl as you suppose Tayl. for the Feme hath an Estate for life and if she survive she may revive the remaining Estate and we must not consider of inconveniences which possibly may happen against the expresse words of the deed and the multitude of conveyances made in this manner are of no force to alter the Law Ierman Iustice as Roll. That the word Heirs shall be applyed to the Heirs of both partyes because voluntas donatoris secundum formam chartae expressa est observanda Nicholas and Ask Iustices of the same opinion Garland against Yarrow Pasc 1652. Banc. sup THis case being in arrest of Iudgement formerly spoken unto in an Action upon the case for these words Arrest of Iudgement in an Act on for words you are a knave and keep a Bawdy house was again moved by Christ Turner who held that the words are not actionable 1. Because they are of spiritual cognisance 2ly It is not said that he kept a common Bawdy house 3ly here is no special damage laid 10 Car. These words he is a pimp adjudged not actionable in Lewis and Whittons case 4ly It is not alleged that he
and so the stile implies common by intendment The Court advised till the next Term. This Case was afterwards moved by Latch who said That here is no variance between the Writ and the Record although the Writ be not so full as it might have been to describe the Record and it is agreeable to the antient and usual practice at this day and cited the old book of Entryes 171 and said that in Paytons case the Record was in Curia Domini Regis Civitatis and the writ of Error was in Curia Civitatis Glocestriae Mich. 23 Car. Banc. Reg. rot 569. and all Courts of Record are originally the Kings Hales on the other side said that the writ of Error ought to shew whose the Court is and the rather because it is said to be Curia Manerii Wadham Windham The Register is both ways and by direction of Parliament the Common Pleas is stiled Curia de Communi Banco But here the Record appears to be Custodum c. Civitatis and the Writ doth not mention that The Court would advise oâ— the Presidents This case was again moved and Lodge and Woodhalls case 22 Car. urged that the Return of the Certiorari upon the writ of Error was not good for the variance formerly alleged but Wadham Windham held it good enough and relyed upon Presidents shewed to Hern the Secondary as the Court had directed Hales on the other side urged that the variance made it not good for it cannot be intended the same Court Roll chief Iustice here is no diâ—â— opposition between them for they may both stand together and the writ of Error intends it to be a Court of Record and yet it is the Court of the Manor also and therefore it is good in substance De facto it is the Court of the Lord of the Mannor but virtually and in dignity it is the Court of the King but the Venire is clearly vitious and therefore let the Iudgement be reversed for that cause Jervis and Lucas Mich. 1652. Bane sup THe Court was moved for one Iervis Motion for the Court to view a wound to encrease damages that the Court might view his wound and increase the damages given him by the Iury because they had given him but twelve pence damages for his wounding whereas the parties Arm was broken and he was in great danger still to lose the use of it But Roll chief Iustice answered it appears not by his Declaration what manner of wounding it was he received as it ought to have been and how can we know how he was wounded But we will advise and hear Councel on both sides At another day Serjeant Parker moved the same matter again and cited 3 H. 4. f. 4. and 18 H. 4. f. 23. and Dyer to prove the Court might increase the damages Twisden answered That the wounding ought to have been particularly expressed in the Declaration that the Court might judge of it by the Record and the party is not to be viewed by the Court upon the bare averment of the party made at the Bar. View To which Roll chief Iustice agreed and said how can it appear to us that he was wounded so as you aver by this Battery for it may be he was wounded since your action neither can you now discontinue the Action because it is after a verdict Discontinuance so that you are now without remedy Mich. 1652. Banc. sup THe Court was moved for a prohibition to the Prerogative Court Motion for a Prohibition to the Prerogative Court because they do proceed to examine witnesses there to disprove a will that was proved there 20 years since by which Will lands were devised and the lands are sold and this they do to prevent a tryal at Law touching the title of the land directed out of the Chancery Roll chief Iustice answered they may examine the probate there for you have libelled there to take benefit of the probate and therefore the other party may disprove the probate if he can as far as concerns any goods devised by the will And therefore we will grant no prohibition Mich. 1652. Banc. sup THe Court was moved for the Parishioners and Officers of the Parish of Clarkenwell Motion to make Scavengers execute their Office By-laws Mandamus to make Scavengers that are elected in that Parish to serve the Office Roll chief Iustice answered It is marvel that the City of London do not look to this for they have power by their by-laws to make men serve such offices yet take a mandamus for them to be brought hither to shew cause why they will not execute the Office Actoâ— and Ayres Mich. 1652. Banc. sup A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Ejectione firmae Error to reverse a judgment in the Common Pleas in an Ejectione firmae Iudgement and the Error assigned was that the judgement was quod querens recuperet the words quod defendens capiatur are omitted And upon this Exception the Court reversed the judgement for they said in this judgement thus entred there is no return of damages nor a Capiatur and so the Common-wealth is cozened of the fine and the Defendant barred from bringing his writ of Error Dawkes and Coveneigh Mich. 1652. Banc. sup Hill 1650. rot 653. COveneigh was endicted for felony for breaking the house and taking 250 l. Special Verdict in an Action of Trespaâ—â— quare clausum irâ—gâ—t out of the house of Dawkes and found guilty and was burnt in the hand afterwards Dawkes brings an Action of Trespasse quare clausum fregit and for carrying away the 250 l. against Coveneigh who pleads not guilty and thereupon a special verdict was found to this effect that the Defendant did feloniously break the house and carry away the 250 l. and was endicted for it and was found guilty and burnt in the hand for it and if upon the whole matter c. The question upon the special verdict was If after the Defendant was endicted and found guilty and burnt in the hand for this fact at the sute of the keepers of the libertyes of England c. an Action of Trespasse quare clausum fregit and for carrying away the mony be maintainable by the party who was thus robbed against the party that robbed him or no. Latch of Councel with the Plaintiff held that the Action did well lye and that the Plaintiff ought to have Iudgement and that this special matter found by the Iury is no bar to the Action for if he had been attainted for another Felony it would not have barred the Plaintiff from his Action after he had been discharged but otherwise it is if the party bring his Action whilst the party stands attainted or the party be attainted pending the Action of Trespasse 33 Eliz. Wade and Prescots case in this Court and 34 Eliz. Trussels case in this Court and 6 Ed. 4. 4. and in our
this Case upon the construction of a Will which must be favourably taken and the variation here betwixt Mills and Mill is small and inconsiderable to defeat an Estate for it is only in the termination of the word and is as little as the difference between Baxter and Backster or Hasting and Hastings 9 E. 4.42 44 Eliz. Molyn and Molyns or Pitt and Pitts which differ but in one letter and is not a material difference 2ly It appears by the Verdict that he was commonly called Mill and Mills and common reputation we know doth give names to things 3ly It is found that he was known by one name as well as the other and this will satisfie the Testators intent well enough to carry the Estate 4ly The party himself was known to the Testator at the time of the making of the Will by the name of Mills as appears in eight several places of the Will And if one devise Lands and Goods and excepts one Lease if there be other Leases they are devised 5ly It appears by the Will and the Verdict that the mariage was intended by the Father with this very person that is called Mills and a settlement of Lands made upon it and it shall not be intended that the Testator thought that this mariage would be dissolved and another mariage be had And the devise in the body of the Will doth not make the Proviso in the end of the Will repugnant but if it did the last repugnancy shall stand for here is no dependancy of the last Proviso upon the other part of the Will but it is a substantine clause which revokes not the other Doctor Buts Case 10 Rep. and this shall be counted his last Will and it is the more strong because it appears by the very words that it is a plain substantive clause made to declare the new intent of the Testator and it shall not be intended that this Proviso shall be applyed to another person although there be a particular title given to him by the Will and the Estate altered by the Proviso and the former devise is derogated by it Hob. 2d Case Harding Case and the strength of the Proviso to have one of the true name of Mills is not to be intended for it appears that the intent of the Testator was to have one of his name in reputation and this appears by the former limitation in the Will and the provision made in the last Proviso to preserve his name is no more than that he had done before and the former limitation is as well for the Testators advantage as the latter Proviso and more and his intent was not to sell the Lands but to preserve them and it is no more to say of my own Sirname than to say of my Sirname nor is the videlicet any thing to the purpose Roll chief Iustice if the question were only upon the Proviso there would be no difficulty but that Mill and Mills should be all one and it would be good in a Conveyance also as I suppose and if it were apparent that he intended one and the same person Proviso then the last Proviso would be good to revoke the former part of the Will but the doubt is whether he intend the same person or not because he makes such an alteration of the Estate by the Proviso and puts these words mine own name in it by which it séems he intended to advance his own name and he seems exact in it by the great alteration of the Estate made by the Proviso in the settlement of the Estate At another day the Case was again moved and argued by Wadham Windham that Mills Mill are both one name and differ but in sound as Abacock Habacock and the Verdict finds that both the names are his true Sirname though it could not be so in Christian names 6 Rep. 66. Sirnames are altered by time and Custom of places and being so altred do become true names as the name of Cromwell is now become a true name though antiently the name was Williams but I agree that Christian names cannot be altered by time no more than things can be altered from one thing to another 3ly By the construction of the Will and by the finding of the Verdict the names are made one name although by the Testator he was known by no other name than the name of Mills for he is so called and this answers the Proviso in the Will that he should be of his own Sirname with whom his Daughter was to mary 4ly Here is a particular devise made to her in the body of the Will of the Lands if they should not be devised here 8 Rep. Clausa generalia non extendunt ad ea quae sunt specialiter recitata and there is a difference between a Will and a Deed for all the words in a Deed are spoken together but it is not so in a Will which is ambulatory and may have several constructions and one clause may controll another Instit 11 2. and the Proviso here in the last part of the Will controlls the former part of the Will as a Codicil might have done if there had been any and the very words express the parties meaning 1 Rep. Porters Case Dyer 255. If in a Will a clause may receive a doubtfull construction then a verbis non est recedendum nor shall there be a particular supplyment of words added to expound it except to prevent an absurdity which must not be admitted though in a Will Maynard on the other side made two questions 1. Whether Mills and Mill should be intended to be one and the same Sirname and so to be the Testators Sirname 2ly Whether Elizabeth take the Lands by the first clause in the Will or by the Proviso or latter clause For the first he held that Mills and Mill is not one and the same Sirname because the Testator had a particular eye to his own true Sirname and the Cases put of names that differ yet sound alike do not come to our Case because there was no such special eye or regard as here is 2ly Suppose that his true name be Mills and that he is provided for particularly by the Testator in his Will then the Proviso cannot extend to him for this would be senselesse and it is as much as to make the Testator in one breath to speak contradictories and it would be hard to make such constructions of such words that would argue the party to be irrational that spake them and the words in the Proviso are in nature of an exception in construction of Law 12 Ed. 1. Fitzh Grants 87. and Carter and Ringsteeds Case is not yet answered by the other side Bolton and the Lady Staffords case 8 Iac. C. B. 1. rep Mildmayes Case The words in a Proviso in a Will or Deed may be supplyed with other words rather than to interpret it so that it shall contradict the former part of the Will or Deed
and upon this the Defendant demurred and upon the Demurrer the Case was this A Lease was made for one year the Lessee covenants for him and his Assigns to pay the rent so long as he and they shall have the possession of the thing let the Lessee assigns over his Term the Term expires the Assignee continues the possession after the Term expired and for rent behind by the Assignee after the expiration of the Term the Lessor brings the Action and the question was whether here be such an Assignee that the Action will lie against or not Roll chief Iust held that though here be not an Assignée strictly Assignee Covenant according to the rules of Law yet that he shall be accompted such an Assignee as is to perform the Covenants made between the parties and ruled the Defendant to shew cause why the Plaintif should not have judgement Nota. Wood and Markham Hill 1653. Banc. sup VPon an Ejectione firmae brought For a restitution after an habere facias possessionem executed and a Tryal thereupon had a Verdict was found for the Plaintif but upon an agreement made betwéen the Plaintif and the Defendant the Defendant was to hold the land recovered the remainder of his Term to come and according to this agreement he held it for 2 years but afterwards before his term expired the Plaintif takes out an habere facias possessionem and executes it Serj. Bernard moved for the Defendant upon this matter shewed to the Court That the Defendant might have a rule for restitution But Roll chief Iustice answered It cannot be Restitution but you must have your Action upon the Case against the Plaintif for not performing his agreement Case for the Act seems to be unconscionable Masters and VVallis Hill 1653. Banc. sup Pasch 1652. rot 581. A Writ of Error was brought in this Court to reverse a Iudgement given in the Common Pleas in an Action of Trespass quare vi et armis and the Error assigned was Error to reverse a judgement in Trespass quare vi et aâ—mis that the Trespass is concluded to be contra pacem c. but doth not say publicam Twisden answered that it is well enough because the Action was comment'd by Original but if it had been by Bill it would have been otherwise Roll chief Iustice It is the use in the Common Pleas to make such short recitals but in the beginning of the Record here it is recited at large and if it were not recited at large it would not be good Recital but for the matter it self it is matter of substance and generally it ought to be concluded to be contra pacem publicam yet it is good here as it is for the reasons before alleged Affirmetur judicium nisi c. Hill 1653. Banc. sup VVIld moved against a Sherif that he may not be admitted to file the retorn of a writ directed to him Against filing a return of a writ because an Action upon the Case is depending against him for not returning this writ and if he should now be admitted to file the return he would thereby abate our Action Roll chief Iustice If the writ be not filed it shall not be filed till the Court be moved but he cannot file it as of this Term though he should file it for the return of the writ as it seems is long since past but if the retorn be already filed you move too late Swan and Fenham Hill 1953. Banc. sup Trin. 1650. rot 1072. IN an Action of Trepass and Ejectment a special Vâ—rdict was found Special verdict in Trespass and Ejectment and in it this Custom viz. That the Owners of Houses in the Town of New-Castle in fee simple may devise them by Paroll but not Tenants in tayl and it was further found that the Testator was seised of the Houses in question in fee tayl in possession and of the remainder of them in fee-simple and so seised did devise them by Paroll The question was whether this devise was warranted by the Custom Shafto argued that the Custom did not warrant this devise because Customs are not to be enlarged by construction but are to be taken strictly and according to the letter because they run in abridgement of the Common-law and so are not to be favoured 9 E. 3. f. 38.11 H. 4. f. 33.5 H. 6. f. 51. Next here are immaterial words found in the Verdict for if it be the Custom for Tenant in fee-simple to devise yet this extends not to tenant in tayl 27 H. 6. f. 5.21 E. 4. f. 24. and a devise of rent to be issuing out of these Houses is not good within the Custom although that a rent doth follow the nature of the Land 22 Assis pl. 78.26 H. 8.54 It is true Cook in his Littleton f. 111. saith that one may devise a rent in remainder but I deny this for the authorities of the Books are against him An estate in remainder is not Assets nor can be devised 3 H. 7. f. 23 24. a condition goes to an Estate tayl not to a fée-simple in remainder 6 Rep. f. 33. And here is but a power of an Estate and not an Estate in possession Lit. sect 137. And the finding here that the Tenant in tayl did die without issue is not material for this could not be known at the time of the devise and the devise takes its effect in the time of the Devisor 27 H. 8. Dyer 45.5 Eliz. Dyer Bishops Case 1 Rep. Archers Case f. â—6 2ly Here is no Custom found to intitle the party for a Town cannot have a Custom as it is here found though a Borough may 22 Ass 178 and this is not found to be an antient Vill 7 H. 6. Dyer 22 H. 6. Fitzh praescript 47. Next the Custom is not found that Burgers may devise as it ought to be Turner Iohn on the other side held that some Estate doth pass by the Will and it matters not what Estate passeth and the Owners of Houses in our Case shall be intended to be Tenants in fee-simple and it is not necessary that they be Tenants in fee in possession Perkins devises Plowd 262. Dyer 22.22 Eliz 371. p. 5. and the Custom here found is no more but an ordinary Custom common to other Boroughs and it shall not be intended a special Custom And this case may be resembled to Cases upon the Statute of 32 34 H. 8. for devising of Lands 10 Rep. f. 81. Trin. 34 Eliz. Benefilds Case there cited and 35 Eliz. Howards Case which prove that reversions may be devised Nat. brev 199. a. Perkins Devises Pl. 540. is the very Case in question and the Cases put on the other side come not to our Case Roll chief Iustice It is not necessary in a special Verdict to be so precise as in pleading Special verdict but something may be supplyed and the verdict hath found that he was Owner and that the
Owner may devise and the Custom is that every Owner in fee-simple may devise and the Custom shall go to Land and holds to reversions as well as to lands in possession At another day it was argued that the devise was not good for the word Owners cannot extend to all sorts of Owners for it extends not to an Infant Owner of such Houses for he cannot devise therefore the words must receive a limited construction and therefore I conceive the word Owner extends only to an absolute Tenant in fee-simple and not to a reversioner in fee for a Custom must as hath been said be taken strictly 12 E. 4. f. 3.21 E. 4. f. 24. 2ly In true construction this Owner in fee in remainder shall not be said Owner but the Tenant in tayl is Owner and so here is not Owner ex vi termini 3ly Here is but a possibility of fee-simple in him which is not grantable or devisable 2 Ed. 4.1 and the Statute of Westm 2d helps not to the Custom for that Statute is within memory of man 26 H. 8. f. 4.22 Ass Pl. 78. And upon the very finding of the verdict it cannot be good for by the Verdict no title is found for the Defendant Latch on the other side held that here is a good devise warranted by the Custom for here is an Estate within the very letter of the Custom for he is true Owner of the House in fee-simple although it be not in present possession for he hath fee-simple in it and hath it to his own benefit in such an Estate as it is and the word Owner is a general word and comprehendeth all manner of Ownerships 2ly It is within the reason of the Custom for it intends the same benefit to Owners in reversion as it doth to Owners in possession and is indifferent unto all Estates And although a Custom shall be taken strictly yet it shall also be taken reasonably as having respect to the benefit of the party and there can be no reason alleged to be against this devise 26 H. 8.4 A remainder in fee shall go according to the Custom whether by the Custom Lands in fee shall go the Custom shall go to all things issuing out of the Land and so to all Estates in the Land Dyer 148. and here is more than a possibility devised 4 5 Phil. Mar. Benloes It is ruled that a fee-simple expectant shall go to the youngest Son by the Custom where the Custom was that the youngest Son should have the Lands of which his Ancestor dyed seised and as to the Verdict here is a good title found for the Defendant Roll chief Iustice The verdict is imperfect for the Ejectment is against Baron and Feme and the Feme is found Ejector by the verdict and nothing is found concerning the Baron Venire de novo therefore you must have a Venire de novo if you will not agree to amend the Verdict according to the notes if the notes will warrant it Afterwards a Venire de novo was awarded by consent Pendarvis and Saint Aubin Hill 1654. Banc. sup Trin. 1653. rot 723. IN an Action of Accompt the Defendant pleads ne unques receptor Plea before Auditors upon this an Issue was joyned and an imperfect verdict found and thereupon a Venire de novo was awarded and the Iury found for the Plaintiff and the Defendant adjudged to accompt before Auditors The Defendant pleads before the Anditors that he had delivered over part of the monies To this the Plaintiff demurs and shews for canse that this Plea is contrary to the Verdict for that is that he should accompt for all and here he would accompt but for part only Windham for the Plaintiff argued that this cannot be a good plea before Auditors in discharge of the accompt but it goes in bar of the accompt Dyer 196. 41 E. 3. f. 31.22 H. 6.25 and in Boynton and Cheeks Case lately in this Court such a Plea was adjudged not good And it would be michievous if it should be otherwise in reserving such matter to be tryed again Twisden on the other side said it is a good plea before Auditors to say that he received the monies to deliver over and there are four opinions in the Books how this matter should be pleaded â—o E. 3. Br. Acc. 8â— hold â— that this Plea is pleadable before Auditors and this plea is in discharge of the Accompt and therefore pleadable before Auditors 12 H. 4.18 and in Baynton and Cheeks Case cited the judgement was not given upon this point Roll thief Iustice The Books generally are that this plea is in bar of the Accompt Plea Bar. but here your plea of delivery over hath made it a plea in bar and it would be mischievous to plead it now for this would cause one and the same issue to be twice tryed and then there may be contrary Verdicts which would be inconvenient Therefore let judgement be for the Plaintiff Stavely and Ulithorp Hill 1653. Banc. sup AN Action of Debt was brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes and a Verdict was given for the Plaintiff Arrest of Iudgement in an action for not setting forth of Tâ—hs It was moved in arrest of judgement that the Statute was mis-recited because it was not said the Parliament in which it was made was held by prorogation as in truth it was But Latch answered that it is not mis-recited for it is true that the Parliament was held upon the 9th of November Recital as we have alleged though we have not expressed it to be held by prorogation and we conceive it is not necessary to express it to be so held for the Presidents are contrary as in Cooks Entry tit Prohibition Roll chief Iustice The Parliament is not said to be begun and held but only to be held and therefore it is well enough Iudgement was given for the Plantiff nisi Postea Dorman and Snag Hill 1653. Banc. sup AN Action upon the Case was brought upon two promises Arrest of judgement in an Action upon two promises viz. to pay so much mony upon a certain day and 2ly to save the Plaintiff harmless c. Vpon issue joyned and a verdict found for the Plaintiff it was moved in arrest of judgement that the Plaintiff did not shew how the Defendant hath not saved the Plaintiff harmless but only sayes generally that he did not save him harmless and so he may bring another Action for the same thing The Court was then of opinion that it was not good to say generally that the Defendant did not save him harmless but he ought to shew in what particular as if I assume and promise to one to give him all the mony in my Purse I must shew how much mony was in it and aver that I gave it him At another day Sergeant Clark moved for judgement whom Latch seconded and said here is a good breach
Iustice answered Denied It appears not to us but that the Parliament was sitting at the time and peradventure it will be made appear at the tryal Therefore plead and go to tryal and then move in Arrest of judgement if you have any thing to move Page and Parr Hill 1654. Banc. sup Trin. 1654. rot 1687. PAge brought an Action of Covenant upon a Covenant conteined in an Indenture of a demise for years Covenant upon an Indenture for the not paying the rent reserved by the Indenture according to the Covenant The Defendant pleads in bar that the Plaintif entred into part of the land demised before the rent due for which the Action was brought and so had suspended his rent The Plaintif replyed the Defendant did re-enter and so was possessed as in his former estate Suspension of ren and to this replication the Defendant demurred and for cause he shewed that here was no confession and avoidance or traverse of the plea in bar Roll chief Iustice Have you shewed that he continued in possession until the rent grew due for you ought to shew that he entred and was possessed untill after the rent-day but here you have only said that he was possessed in his former right Nil capiar per Billam Therefore nil capiat per Billam nisi Hill 1654. Banc. sup VPon an Affidavit read in Court Not to plead till costs paid assessed in a former Action that 20 l. costs were taxed upon a non-sute in an Action of Trespass and Ejectment brought to the Bar and that the Plaintif had not payed them nor was to be found and yet had brought another Action for the same land The Court was moved that the Defendant might not be ruled to plead to this second Action until the Plaintif had paid the costs taxed upon the former non sute and that another Plaintif might be named or that security might be given to pay the costs if the Plaintif should be non-sute again Shew cause The rule was to shew cause why it should not be so Hill 1654. Banc. sup DArcy moved that an Endictment of Michaelmas Term last might be amended in the Caption But Roll chief Iustice answered To amend an Endictment of a former Term denied It cannot be if it be of the last Term but had it been an endictment of this Term it might have been amended Hill 1654. Banc. sup THe Court was moved to quash an Endictment for entring forcibly upon a Tenant for years against the Statute of 21 Iacobi To quash an Endictment and the Exception was that the Endictment doth not say that he entred manu forti Roll chief Iustice answered The Statute is only that if one enter by force and the words manu forti are not expressed in the Act Therefore move it again if you will Hill 1654. Banc. sup A Habeas Corpus cum causa was granted for Elizabeth Bayne To discharge a prisoner turned over to the Mareschal For a habeas corpus ad subjiciendum to the intent to charge her with an Action and upon the return thereof she was committed to the Mareschal Wild moved that she might be discharged because the return of the Habeas Corpus is erronious But Roll chief Iustice answered It could not be whereupon he moved for another Habeas Corpus for her ad subjiciendum to be directed to the Mareschal which was granted Hill 1654. Banc. sup THe Court was moved to quash an Endictment preferred against one for practising Phisick not being skilfull in the profession To quash an Endictment for practising Phisick without licence and not having a License to practice from the College of Phisicians The Exceptions were 1. That no Endictment at the Common Law lies for the offence supposed to be committed for it is not an offence against the Common Law and 2ly an Endictment upon the Statute lies not and so no Endictment lies And upon these Exceptions it was quashed The Protector and Hart. Hill 1654. Banc. sup ONe Hart committed to the Gatehouse appeared in Court upon the return of a Habeas Corpus granted for him To remand a prisoner appearing upon a Habeas Corpus and turned over Denied and upon the prayer of his Councel the return was filed upon which it was moved on his behalf that he might be remanded to the Keeper of the Gatehouse and not turned over to the Mareschal to the intent to save his fees but the Court said it could not be because upon filing of the return there ought to be entred upon it a Committitur to the Mareschal whereby he becomes his prisoner Torret and Frampton Hill 1654. Banc. sup Trin. 1653. rot 178. VPon a special Verdict the Case was this Special verdict upon a Devise A man deviseth his lands to his wife for her life the remaindar to A. B. and C. and their heirs respectively for ever The question was whether A. B. and C. were joynt tenants or tenants in common Serjeant Twisden held that they were joynt renants Whether joynt tenancy or a tenancy in common and that this case differs from Radcliffs case and cited Wilds case in the 6 Rep. that a Will must be clear and conspicuous but so it is not here and here is no enforcement by these words respectively and they do relate to the persons and not to the lands bequeathed and a Covenant made by three respectively is a joynt Covenant and not a several Covenant and the word respectively hath relation to the survivorship which may happen betwixt the parties and a devise to one and his heir is a fee-simple Latch For the Defendant held that here is a tenancy in Common and not a joynt tenancy for the Estate ought to be whole out either a tenancy in Common or whole out a joynt tenancy and this of necessity for there cannot be a joynt tenancy for life and several inheritantes in the remainder and Littletons ground proves this to be so And 2ly It is against all construction to be otherwise as the word respectively is here placed and Ratclifs case which is not so strong a case as this case proves it to be so and although the word respectively may sometimes make a distribution of heirship as hath been objected viz. of several heirships yet here the placing of the word respectively shews it cannot be so Distribution of heirship and this using of the word is not operative but idle if here should be a joynt tenancy for the law says as much though the word respectively were left out and the word would be the more idle in explicating a thing so obvious to common understanding and no ways doubtfull and therefore we cannot think but that these extraordinary words do enforce an extraordinary construction and not a common one and an idle application and this comes not within the rule objected for the certainty for this word hath a proper meaning to make a several distribution
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif
for the acquittance and the bond Ask I have not a book but I think the case is as it hath béen put and here is no Covenant that the Defendant should receive the 110 l. at the day Nil caplat per Billam Glyn chief Iustice Nil capiat per Billam nisi c. Clark and Fitzwilliams AN Action of Trover and Conversion was brought by Clark against Fitzwilliams for divers goods and houshold stuff and amongst the rest the Plaintif declared of a Trover and Coversion of 6 Tuns Arrest of Iudgement in a Trover and Coversion After a Verdict for the Plaintif it was moved in Arrest of Iudgement that the Declaration was uncertain for it cannot be known what is meant by 6 Tuns and upon this the judgement was stayed till the Plaintif should move Whereupon Serjeant Twisden at another day moved for judgement and said the Declaration was good enough for it is known that the 6 Tuns are Brewers Vessels or else they signifie nothing and then no damages are given for them according to Osborns case and the case where the Action was pro viginti ulnis instead of ulmis Windham on the other side said that a Tun is a measure and well known so to be and you ought to shew certainly of what you doe demand the quantity of six Tuns and it cannot be said that the six Tuns shall signifie nothing as Serjeant Twisden supposeth for here the words are substantive and signifie by themselves and not adjective and Osborns case cited was adjudged upon another reason for fulcrum lecti signifies a Bedstead and the Anglice which was added viz. Curtains and Valence were a meer addition and no part of the Declaration and besides they were in English which ought not to have been Glyn chief Iustice The Court hath delivered their opinion already That it is incertain what the Plaintif doth mean by the words 6 Tuns for this case is not like the cases put where a thing is mentioned which doth signifie nothing for there damages cannot be given for such a thing for the word Tun doth signifie divers things but it is incertain what it doth signifie here Nil capiat nisi and therefore Nil capiat per billam Ask Iustice ad idem Fox and Swann Mich. 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Fox Plaintif and Swann Defendant exception was taken against a witness that was produced to prove the lease of ejectment Exception against a wâ—â—nesse because he had the inheritance in the lands let but it was urged by the Councel on the Plaintifs side that the Defendant did claim under the same person that the Plaintif did and thereupon the witness was admitted to be sworn and in this case it was also said that if Lessée for years do covenant with the Lessor not to assign over his Term without the Lessors consent in writing A Devise is not an assignment and do afterwards without such consent devise the Term to J. S. this is not a breach of the Covenant for a devise is not a lease It was also said that if a lease for years be forfeited and the rent for the land let be afterwards received by the Lessor or by his assent the lease is made good again by this Act of the Lessor Lease forfeited revived and the forfeiture is dispensed withall Nota. Mich. 1655. Banc. sup VPon Articles exhibited in this Court against one Alwin an Attorney of this Court for false practice and Barratry Attorney convicted upon Articles turned over the Bar. and proved against him by divers Affidavits read in Court Iudgement was pronounced against him by the Court that he should be put out of the Roll of the Attorneys and be fined 50 l. and turned over the Bar and stand committed He was turned over the Bar accordingly at the West end of the Bar by the Tip-staffs of the Court. Martyn and Miller Mich. 1655. Banc. sup THere were two several causes tryed betwixt Martyn Plaintif Arrest of Judgement upon an Error of a Clark and Miller Defendant and thereupon there were two venires and two Distringasses taken out and by the mistake of the Sherif a wrong Distringas was filed to the Venire viz. that which should have been filed to the Venire in the first cause was filed to the Venire in the second cause and this was moved in Arrest of Iudgement Glyn chief Iustice This is as if there was no Distringas and is therefore helped by the Statutes of Ieofails but if it were an erronious Distringas it could not be helped and here was a good issue joyned and a good tryal of that issue and it was but the mistake of the Sherif and may be amended by taking off the wrong Distringas from the Venire and fixing the right Distringas in the room of it No Rule and therefore this is no cause to arrest judgement FINIS An Alphabetical TABLE OF THE SEVERAL HEADS Contained in the following TABLE A ABatement 1 Abreviation 2 Action 3 Accessory vid. Principal 4 Accompt 5 Acquittance 6 Addition 7 Adjournment 8 Administration and Administrators 9 Admission 10 Admiralty 11 Affidavit 12 Alien 13 Amendment 14 Amercement 15 Amoveas manum 16 Annuity 17 Apparance 18 Appeal 19 Appendant and Appurtenant 20 Arraignment 21 Arbitrator 22 Arbitrary 23 Arrest 24 Arrest of Iudgements vid. Iudgements 25 Assets 26 Assise 27 Assignment 28 Assumpsit vid. Promise 29 Attachment 30 Attaint 31 Attorney and Attornment 32 Audita querela 33 Auditor vid. Arbitrator 34 Averment 35 Authority 36 Antient demesne 37 Award or Arbitration 38 B BAnkrupt 1 Baron and Feme 2 Bargain and Sale 3 Bastard 4 Beggar vid. Vagrant 5 Bayl 6 Bailif 7 Breach vid. Promise 8 Byâ—law vid. Law 9 C CApias 1 Case 2 Certificate 3 Certainty and Incertainty 4 Certiorari 5 Cestuy que use 6 Champerty 7 Challenge 8 Chancery 9 Chappel 10 Charges 11 Chattel 12 Clergy 13 Common and Commoner 14 Commissions and Commissioners 15 Commitment vid. Imprisonment 16 Common right vid. right 17 Consession 18 Condition 19 Confession 20 Consent 21 Consideration 22 Conspiracy 23 Construction 24 Contempt 25 Continuance 26 Contract 27 Copyhold and Copyholder 28 Copy 29 Corporation 30 Costs 31 Covenant 32 Courts 33 Custom 34 D DAmages 1 Date vid Tyme 2 Declaration 3 Decree 4 Deed 5 Delivery vid. Deed 6 Demand 7 Demurrer 8 Denison and Denisation 9 Departure 10 Depopulation 11 Devastavit 12 Devise 13 Debt 14 Descent 15 Discharge 16 Discontinuance 17 Discretion 18 Discription 19 Disfranchisement 20 Dispensation 21 Disseisor and Disseisin 16 Distress 22 Distringas 23 Destruction vid. Extinguishment 24 Donative 25 Dower 26 E EIectione firmae 1 Election 2 Elegit 3 Endictment 4 Engagement 5 Engrossing 6 Enquiry 7 Enrollment 8 Equity 9 Error 10 Escape 11 Estople 12 Estreate 13 Evidence 14 Examination 15 Executor 16 Execution 17 Exposition vid. Interpretation 18 Extent 19