was a grant but of part of the reversion of the land which case comes not within the Statute for the Grantor cannot have advantage by the Statute where he grants but part of the reversion and it is not literally without the Statute and therefore it is within the equity of it otherwise it would be mischievous to the Grantor and here is no disadvantage to the Lessée by the transferring of the condition for the same Statute that gives benefit of the condition gives benefit of the Covenants and the Grantée of a reversion shall have benefit of a Covenant to be transferred although they are entire in words at the beginning and hath one common conclusion Wild of Councel on the other side held the condition to be entire according to Rawlins case and goes to payment of the rent and the fine and reparations also and the reversion being assigned with which the rent passeth the condition is gone also to the fine Dyer 309. and this is a stronger case than that to destroy the entire condition by grant of the reversion 17 El. Brightmans case C. B. The fine here is a sum collateral and is not incident to the reversion and so the condition is collateral and cannot be apportioned 5. rep Spencers case 34.8 Br. Cov. 93. 2ly The Statute of 32 H. 8. cannot help it for the purview of the Statute explains the large preamble of the Statute and shews the intent of the makers of it to be for forfeitures incident to lands and reversions and a covenant is here as general as a condition and the Statute extends not to a collateral covenant and therefore not to a condition collateral 35 H. 6. f. 56. Condition and the cases put on the other side come not to our case And as for the mischief which may ensue by this it matters not for it might have been prevented by providence of the partyes and the inconveniences which may happen to them must not alter the Law Roll chief Iustice said if he release the fine the condition will not stand as to the rest otherwise if the fine expire by effluxion of time or if he release the reparations the condition is gone as to the rest for the condition here is entire and goes in the destruction of the Estate and it is the Act of the Lessor himself to assign over the reversion and by that all is passed away that is incident to it and by consequence the condition Ierman Iustice demanded What if the Lessor shall pay all the fine presently Roll chief Iustice answered it may be it will destroy the condition Nicholas Iustice said the condition is odious in Law because it goes in destruction of the Estate Adjourned to be argued again because held a case of consequence At another day the case was moved again and argued by Latch for the Plaintiff who made the question to be whether the condition as it is penned may be severed or no and said that as it respects the rent it is not a condition in grosse but as it respects the fine it is a condition in grosse and a condition which is entire in words may by acts of Law receive distributions Where the penalty of a condition is intire there the condition cannot be apportioned but the condition is not so here and therefore may be apportioned Dyer 30â— Knights case â— H. 7.6 Perkins 162. 7. H. 7 Kelm 60. Dyer 334. Popham in Dumports case is contrary to Dyer Cook Lit. 203. 2ly It is questionable whether the Statute may help in our case and he said it doth for the name of rent is not altered nor the condition attending upon it nor any thing done to alter the execution of the condition 3ly By the assignment there is no injury done to the Lessée for by it here is a freeing of a thing to be done and the Statute is a favourable Statute and to be extended with indifferency Finch on the other side argued much to the same effect as he did formerly Roll chief Iustice said it is not necessary for the party to express how the condition relates to all viz. the re-entry for non payment of the rent and of the fine and for not repairing and he said a man cannot by his own Act divide a condition for we must keep the rule of law which is not to divide a condition which goes in destruction of an Estate and this case is not within the Statute of 32 H. 8. All the rest of the Iudges concurred with Roll and so the rule was judicium pro defendente nisi Brown against Nelson Hill 1651. Banc. sup Trin. Hill 1650 rot 897. AN Action of Debt upon the Statute 7 Ed. 6. for selling of wine without licence Whether a Iudgement given against one of two Defendants were good was brought against 2. Defendants they both plead nil debâ—t whereupon issue being joyned a special verdict was found viz. that as to one nil debet and that as to the other he had drawn a pint of wine without licence and upon this Iudgement was given against him that was found culpable It was questioned whether this were a good judgment But Roll chief Iustice concluded it was à good Iudgement and cited many cases adjudged in point to prove it and one in particular in an action upon the Statute for dying with Logwood and he took a difference between an action grounded upon a joynt contract or a joynt trespasse and an Action brought joyntly upon a Statute against two or for a tort done by two as this is upon the Statute In the first case Iudgement cannot be given against one of the contractors in the other it may Weld against Rumney Hill 1651 Banc. sup Hill 1650. rot 1193. A Writ of error was brought to reverse a Iudgement given in an Action upon the case against two Executors Error to reverse a judgment in an action on the case and the error assigned was a matter in fact viz. that one of the Defendants was within age at the time of the Action brought and did appear and plead by his Attorney whereas he ought to have done it by his guardian Twisden for the Defendant in the writ of Error said that it is not all one to appear within age in his own right and in anothers right for where he appears in his own right he ought to appear by his guardian but where he appears in auter droit as he doth here being an Executor he may appear by Attorney and cited Draytons case 9 Car. Appearance But Roll chief Iustice denyed the difference and said it may be that the Executor may be charged of his proper goods as in case he have wasted the Testators goods and then it is not reason but he should plead by his guardian and he is not within the Statute of 21 Iac. for that Statute was made for the Plaintiff and this is in case of a Defendant therefore he should have appeared by
alias Heriots with the appurtenances whereof the said Close called Pipers Down was parcell which tenement and Close were parcell of the said manour and was then and had been time out of mind demised and demiseable in Fee by Copy of Court roll of the said manour did build a new messuage upon the said Tenement and did afterwards by his Letters patents under the great seal grant the office of Keeper and keeping of the said messuage to Iohn Gate for term of his life with all the Lands Tenements c. thereto belonging or adjacent and did also by the same Letters patents give and grant unto the said Iohn Gate amongst other things the Lands belonging to the said new built messuage whereof the said Close called Pipers down was part for Term of his life for the exercising of the said office with an averment in the plea that before that time there was no such office of the keeping of the said house and that the King did not know nor was at the time of the grant enformed that the said Tenement and Lands whereof the said Close was parcell were Copyhold of the said manour After the grant made to Iohn Gate as aforesaid H. the 8. dyed seised of the said manour of the reversion of the said Messuage and Close after the death of Iohn Gate and thereby Ed. the 6. became sofâ—ed of them in like manner and from Ed. the 6. they came to Quéen Mary Then Iohn Gate dyes and after his death Quéen Mary enters upon the said manour and Messuage whereof the said Close was a parcell and afterwards by her Letters Patents under her broad Seal doth grant the Manour and Messuage and Premises unto Susan Tong and her heirs for ever From Susan Tong by mean conveyance the said Manour Messuage and Premises came to Humphry White and his heirs and afterterwards Humphrey White being seized thereof in Fée did by his indenture of lease demise the said Manour Messuage and Premises to Leigh for 60. years to begin from Mich. before the making of the indenture afterward Humphrey White grants away the reversion of the said Manour Messuage Premises to Sir John Branch afterwards Sir Iohn Branch grants this reversion to Vdall Vdall grants it to Bathurst and Bathurst grants it to Thomas Boothby the Ancestor of Thomas Boothby whose Baily doth here make the avowry Afterwards Robert Leigh who had the lease of the said Manour and Premises as aforesaid for 60 years deviseth the residue of this lease then unexpired by his last Will and Testament unto Robert Leigh his Son and dyes Robert Lee the son being possessed of the residue or remainder of this Term for 60. years by virtue of the said Will did at his court held for the said Manour of Chingford grant the said Messuage with the appurtenances and Lands thereunto belonging whereof the said Close was parcell unto Edmund Lee his brother to hold of the same Manour in Fée at the will of the Lord by Copy of Court Roll of that Manour Edmund Lee was thereupon admitted accordingly Afterwards the said lease for 60. years made by Humphrey White unto Robert Leigh the Father expires Afterwards Thomas Boothby who had the reversion of the said Manour and Premises as abovesaid entred as in his reversion upon the said Manour and Premises and dyed seised thereof leaving issue Thomas Boothby his Son Thomas Boothby the Son enters into the said Manour and Premises and claims the said Messuage with the apurtenances with the lands thereunto belonging whereof the Close called Pipers down was parcell and was granted by Robert Leigh unto Edmund Leigh by Copy of Court Roll as aforesaid as parcell of the demaines of the said Manour of Chingford and doth deny it to be Copyhold and to the intent to try the title thereof did by the Avowant his Bailiff distrein the Cattel in the said Close as damage feasant in his soil and Freehold This Case was argued first by Arthur Harris of Lincolnes Inn who argued for the Plaintiff viz. he that brought the replevin and in his argument he made the generall question in the Case to be whether the close called Pipers Down in which the distress was taken were at the time of the distress taken demiseable by Copy of Court Roll or whether the Custom was not destroyed and he held it was demiseable and that the custom was not destroyed and hereupon he made four questions 1. Whether the grant of the new house to Sr. Iohn Gate per nomen officii of keeper thereof were a good grant 2ly Whether the King not being enformed at the time of the grant that the house was Copyhold tenure he was not deceived in his grant 3ly Whether by this grant the Custom was not destroyed 4ly Whether the Kings Patentee hath not the same privilege to grant this house c. again by Copy of Court Roll after the death of Sr. Iohn Gate And as to the 1. of these 4. questions he cited 8 E. 4. by Chock and 21 E. 4.79 and Mich 5 Car. Banc. Reg. Monsons case and Pasc 14 Car. Banc. Reg. Messand and Butterfields Case and 5 E. 4. f. 8. and Dyer 269. Savages Case To the 2d question he held that the King was not here enformed of his right and consequently he was deceived and therefore ought not to be prejudiced by his grant which he should be if he had not liberty to demise this house again by Copy of Court Roll after the death of Sr. Iohn Gate and he said that there are two rights in the King 1. At the Common Law and 2ly a customary right and of this Customary right or his jus concedendi he was not enformed and he cited these books 3 H. 7.10 rep 49.8 H. 625 Br. Ayd 45 4. H. 6.1 2 R. 3. Hunsons Case and he said that the book of 5 H. 7. f. 1. which is objected is not to purpose for the protestation is not well taken 19 H. 6. a protestation is to supply a matter which is not so here 41 E. 3. Fitzh protest 9.22 H. 6.37 Br. protestation 6. Plowd Coment Gresbrooks and Foxes Case and 20 Eliz. Burrell and Holcrofts Case 2ly The King is not enformed here in his grant in matter in Law as he ought to be and therefore his grant shall not turn to his prejudice 1 rep 52.18 H. 8. Lovels Case Pasc 2 Eliz. Sr. Thomas Mores Case 1. rep â—3 16 Jac. Needlers case and whereas it is said that the words ex certa scientia in the patent do declare that the King was enformed I answer that those words do intend no more but that the King was enformed of matters of fact and not of matters in Law and the Kings grant shall only be taken secundum intentionem and whereas it may be objected that by the granting of the Estate for life unto Sr. Iohn Gate the custom is destroyed I answer that this being in the Case of the King it is an extraordinary Case and not
to be measured by ordinary rules of Law And 2ly Antient grants are to be construed as the Law was at that time when they were made 9. rep 27.6 rep 48. 〈◊〉 H. 7. 〈◊〉 14 E. 3. Fitzh Scire facias 23. and the King is not bound by a general custom as Common persons are 35 H. 6.29 by Prisot 22 Ed. 3. The King shall not pay a heriot upon the purchase of heriatable Lands and we shall find that many maximes of Law upon serious scanning of them are not so certain to be relyed on as they are commonly held to be 5. rep Knights Case Pasc 3 Eliz. B. R. Conisby and Risby Dyer 10 Eliz. and the patentee of the King shall have the same privilege that the King should have had if he had not granted the Letters patents 27 Eliz. Stubs and Rigfords case At another day Arthur Harris spake again to the point that the King had no legall intent to destroy the Copyhold Estate by his patent and therefore it should not be destroyed and cited Grotius de jure belli et pacis 343. and that no such intent can appear in the words of the patent and cited 7. rep Inglefields Case and 17 E. 3. f. 19. and Cooks Institutes 373. and 1. rep 46. and Plow 333. and as to the last point he argued that the Patentée of the King shall be in the same condition as to the reviving of the Copyhold Estate as the King should have been if he had not made the grant because that the King hath the Fee and he may grant it as he pleaseth Dyer 16 Eliz. 337.1 rep 31.10 Eliz. Dyer 266.24 Ed. 3. Fitz. Tit. guard 27. and no priority can be pleaded against the King nor against his Patentee Hill 30 Eliz. Stubs and Rightwayes Case an Action of Accompt against Executors doth lye only for the King It is true that prerogatives inseparable and annexed to the person of the King cannot be granted away by the King but prerogatives separable may be granted away 12 H. 4. Fitzh guard 81. The Grantee of the Grantee of the King shall have the prerogative of the King by reason of the thing granted by the King Brook praerog 17. 21 H. 7.2 Br. entre congeable 4â—â— The King may distrein for a rent seck but not his Grantee because it is a prerogative executory and not executed for in such case it is otherwayes and as to the objection to the cause of the demurrer set forth that the Concessit is not answered because it only sayes mentionat esse concessum I hold it well enough but if it should not be yet it is helped for both partyes do agree in the setting forth of the Letters Patents 34 Eliz. B. R. in Harâ— and Smiths case and the grant is confessed in our rejoynder and though the demurrer should not be good yet the Avowant cannot have Iudgement for he hath not entitled himself to the Action as appears by his grant for his grant is void and cannot take effect rep 46.8 rep 201.39 Eliz. in the Chequer Chamber Where 2. Manours are granted by the name of one of them the grant is not good And in our case Thomas Boothby had nothing in the land at the time of making of the deed of Covenant to stand seised to use as it appears by the Avowants own pleading and the postea cannot help it Dyer 111. Clarks Case Hill 15 Iac. entred Trin. 15 Iac. rot 29. Desmons case 20 H. 615. Hales on the other side argued for the Avowant and prayes a return of the Cattel distreyned first he put the Case at large And he said that the Plaintiff hath not well set forth the Kings grant in his bar and so it is all one as if he had not set it forth at all Plowd 563. and he hath disputed that which we have not alleged and the sur rejoynder is but argumentaive and not positive and nothing appears to the Court and he hath quite mistaken his course and way But admitting the case and the points to be as they are made viz. 1. Whether the new Office be well granted because the word Constituimus is omitted 2. Whether the grant for life be good 3. Whether the grant of the Copyhold for life be a suspension of the Copyhold estate or an extinguishment of it which is the great question in the Case For the 1 point I hold that here is a good grant of this new Office and that the word Constituimus is not necessary because that there are special fées also newly granted 2ly This is not an Office in gross consisting and resting upon it self but it is a relative Office or an imployment incident in the interest of the house granted and therefore the word Constituimus is not here necessary Dyer 200. 3ly If it be not a formal Office yet here is a good grant of an employment to which a recompence may be added although an Assize cannot be brought for it 3 Ass Trin. 6 Iac. Abercromies Case And here the protestation that the King was not informed that this was Copyhold land is unnecessarily alleged and therefore it is not of necessity it should be answered and if it be not well set forth it is not material For the 2 question whether the King was deceived in his grant he said that the King needed not to take notice of any former estates and that the Statute expresseth that it is not necessary to recite them 24 H. 8. 2â— To the 3 point the chief question whether the Copyhold estate be suspended or extinguished he held it was extinguished and cited Knights case Alton woods case and said that the rules of the Civil Law ought not to be applyed to the Common Law nor to be cited to perplex the proceedings thereof and were this in the case of a Common person without doubt the Copyhold estate would be destroyed 20 Eliz. by Popham and Fenn and the King here hath the Fee simple and there is no difference between the case of the King and of a Common person in this regard a thing which will not pass by the King without notice will not pass with notice and here is no prejudice to the King in not taking notice whether by the Patent the Custom to grant Copyhold estates be destroyed or not and here is a necessary consequence in Law that the custom is destroyed because the King that had the fee in the Manor hath suspended the Copyhold by his grant All the Arguments used on the other side are to destroy the Kings grant and the cases put do all differ from our case and do stand upon their own bottoms Nor shall the King be intended to be mis-conusant of his particular grant such as this is although he may be in a general grant lib. Ass 21. pl. 19. Pasch 12 Car. C. B. Glover and Edgars case and it would be a great mischief if the Copyhold estate should be revived As to the last point whether the
but if it be interrupted but in part it is not so as it is in the case cited where the King hath Gavelkind lands Com. Plowd 114. and so prays judgement for the Plaintif Adjourned Latch at another day argued for the Avowant and said that the Plaintif in his rejoynder hath made no title unto Susan Tong from whom he claims It is objected that by the grant of the Manor of Chingford Comitis per nomen duorum illorum maneriorum c. that Tong cannot be intituled It is answered that the other side hath confessed that Tong hath a title for they derive from her also and the contrary doth not appear to the Court and it being agreed the Court will not make a doubt of it He made 3 Questions 1. Whether the Manor of Chingford Comitis passeth per nomen duorum illorum maneriorum de c. 2ly Whether if the grant be ill it be aided by Statute 3ly Whether it be helped by the Averment For the 1. he held that here is a good grant without any averment or aid of the Statute for if the King grants two Manors one shall pass and e converso it shall not be so in the Case of the King but it is good in the case of a Common person with an Averment The grant of the Manor of Saperton cum Rippen is an ill grant for the incertainty of it but here is no such incertainty here is no non nosmer of the thing for the word nomina requires not a proper name but it is all one as if it had been expressed by words comprehending it and the word Manors doth comprehend it If the King grant his two Acres of Land lying in a Common field although but one Acre is to be found yet the grant is good and it is not like to the grant of a Manor with the Advowson where the King hath but a moyety of the Advowson or a moyety of the Manor for the Moyety is not actual in the whole but one is actually in two and so it is well named here 2ly Whether it be good without an averment that the land was in the Lord Darcy and he held it was If the words were general in the grant all of them ought to be true otherwise nothing will passe by the grant as Dodingtons case is but here is a proper name to express it and therefore the grant is not destroyed although the latter description do not agree to it 10. Rep. Harpers Case 2 H. 4. f. 2. If the King grant all the lands in the Patent annexed bearing date 10 of Iune though the Patent bear date the 10 of Iuly yet is the grant good for veritas nominis tollit errorem demonstrationis and if the grant should not be good at the Common Law yet it is ayded by the Statute of 3. 4 Phil. Mar. and here is a full and a strong averment in the pleading for it is Manerium praedictum and not Manerium generally and here is not only a possibility but also a facility for it to pass and it may be called Manor or Manors and in a feofment a thing may pass per nomen because that the livery passeth it where one pleads per nomen he is to make the Plea agree with the Record or specialty otherwise per nomen shall not be pleaded and Newtons opinion against this is but a single opinion 33 H. 8. Br. Averment 42. The word praedict makes an averment in the name of the Feoffor â—4 H. 4.30.22 H. 6.40 Barton and Escott here is also a full averment of the thing granted this is in grants 7 E. 4.24.33 H. 6. f. 22 26 Ass 2.24 Ass 6. so in Letters Patents Dyer 86. the Serjeants case and if this be authority it is in the very point Dyer 207. praedict per nomina is a good averment Pasch 7. Iac. Rot. 430. B. reg Stonehouse and Reeds case where there was not so much as a per nomina but only decimas praedict and yet adjudged to be a good intitling by the word praedict because it was held a good averment although it was not led on by a per nomina and there admitted to be clear if it had been with a per nomina as the Case here is so Tong is well intitled 2ly The Plaintifs title is well avoided and we have well destroyed his Copy without doubt if a Common person had granted the Copyhold for life the Copy-hold had been thereby extinguished and our case is not a prerogative case for the King is bound by the Custom of the Manor and the Custom is here destroyed and the prerogative cannot create the Custom anew and it is against the Kings Prerogative to have things drawn out of the King without matter of Record and it is prejudice to the King to have the Custom revived for the lands are now made free and shall never return again to the Vassalage The Kings Prerogative exalts him above a Common person but this custom makes him equal to a common person 2ly The Custom here cannot be supported but here is an absolute extinguishment of the Copyhold so that it cannot be regranted The law will confirm things necessary to the grant of the King in some cases where it is prejudicial to the King 16 H. 7. f. 8. Nicholas case Plowd 489. The king seised of a donative makes it presentative if he do but once present unto it so if he turn an Annuity into a rent charge by taking a distress And the nature of this Custom here ought not to be examined with other Customs for it is more strict than in other cases for if it be once destroyed it is always destroyed and cannot be suspended and it is not for the Kings dis-advantage to have the Copyhold destroyed but it is for his advantage and conveniency and so he prays judgement for the Avowant Roll chief Iustice All will come and rest upon the last point for all the other things are admitted The grant is good by the per nomen and it is only nominal and doth not imply that there are two Manors and it may stand well enough with reason that it may be known per nomen But the last point is considerable he enclined to Latch Nicholas Iustice to the same effect and that the praedict is a good averment The last point is considerable but prima facie here the custom is not destroyed Ask Iustice to the same effect and that it appears that the King intended to grant but one Manor Roll We will take time till the next term to speak to the last point which is only doubtfull and to deliver our opinions Ierman Iustice the pleading of the party per nomen helps not the Patent if it be not good in it self The next Term Roll chief Iustice for himself and the rest of the Iudges who he said concurr'd in opinion with him delivered the opinion of the Court to this effect 1. That they were agreed that
the grant of the Office of the Custody of the house is a good lease for life notwithstanding it was Copyhold and it is not necessary to recite in the grant that it is Copyhold 2. That after the estate for life is determined the King may grant the house and land again by Copy of Court Roll because the Kings grants shall be taken favourably and not extended to two intents where there is no necessity for it as there is not here and we are not here to intend a collateral intent and so the Copyhold is not destroyed for the Law takes care to preserve the inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copyhold viz. to have Common c. and his election is also destroyed if he may not have it Copyhold So Iudgement was given for the Plaintif nisi Pawsey and Lowdall Pasc 1651. Banc. sup Pasc 1650. rot 275. IN this Case formerly argued Roll chief Iustice Iudgement reversed upon a special Verdict touching a Devise of Copyhold lands and Nicholas and Ask Iustices agreed that the devise of the Copyhold here is a devise to the Heirs of the Father and so a Fee-simple and that the party comes not in as a purchaser and for this cause the judgement was reversed nisi As to the other point whether the surrender of a Copyhold by a Tenant for life be good in this case the Court delivered no opinion Antea Trundall and Trowell Pasch 1651. Banc. sup Hill 1650. rot 670. IN this Case it was held that Tenant in antient Demesn cannot after imparlance plead antient Demesn for he hath made a full defence Where antient Demesne cannot be pleaded for he says Defendit vim et injuriam quando c. which implyes all the rest Mich. 22 Car. Banc. Reg. Yet it was ruled to be again spoken to Peck against Ingram Pasch 1651. Banc. sup THis Case formerly spoken in was moved again and Latch held Whether a good notice that the words obtulit se in maritagium conjungi was a good notice upon the whole matter and therefore that the Action did well lye Roll chief Iustice answered this is a personal thing and ought to be offered to the party himself otherwise it is no notice and that doth not appear here and if there be no notice implyed then the Action lies not and Holmes and Twists case is that there ought to be notice if the thing be to be done by the party himself otherwise if it be to be done by a stranger so is it here but the question only is if notice be implyed here or not Ierman Iustice said there is no tender of mariage if the other party be not there The rule was for the Plaintif to take his Iudgement Rooke against Smith Pasch 1651. Banc. sup ROoke brought an Action upon the case against Smith for speaking these words of him Thou art a poor fellow Arrest of Iudgement in an Action upon the Case for words and art not able to pay 2s in the pound and art not able to pay thy debts Vpon an Issue joyned and a Verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable for 1. the Plaintif is not by them charged with the crime of being a Bankrupt and so there is no particular losse to him 2ly It is not showed that the Plaintiff got his living by buying and selling or that he is indebted and 11. Iac. Brook and Clarks case was cited Twisden on the other side answered that the Plaintiffs credit was impaired by the words and by his credit his livelyhood is in part mainteyned And he cited Viccary and Barns case Adjourned to the next Term. Wild afterwards moved again for Iudgement because the words being spoken of a tradesman he conceived them to be actionable Maynard on the other side held them not actionable because there is no particular damage alleged to grow to the Plaintif by speaking of them and because there is no crime objected against the Plaintiff for poverty is no crime but a man may be poor and honest at the same time and he cited two cases to be adjudged that a particular damage ought to be alleged And said that these Actions are not favoured in Law and therefore if the words be not cleerly Actionable it was not reason to make a forced construction of them to make them so Next the Plaintiff hath not averred that he was able to pay all his debts for all the things bought but only of a debt contracted by the buying of the Oyl mentioned Twisden denyed the cases put by Maynard of the particular damage and held the words actionable Roll chief Iustice said a man may be a Bankrupt and yet be honest for he may become so by accident Averment and not of purpose to deceive his creditors But here is no need for the Plaintiff to shew he had a particular losse by the words for it is enough that he is generally scandalised by them neither is it necessary for him to averr that he was able to pay all his debts as Maynard hath alleged Therefore let the Plaintiff have his Iudgement nisi Antea Owen against Jevon Trin. 1651. Banc. sup Pasc 1651. rot 211. OWen brought an Action of the case against Ievon for speaking these words of her Arrest â—f judgement in Action for words viz. This is the whore that my man Cowell begat a bastard on and spent all my mony upon and the quean hath been too long in Town to my ease Vpon an issue joyned and a verdict for the Plaintiff Twisden for the Defendant in arrest of Iudgment urged that the words are not actionable because there is no special losse or damage alleaged by the Plaintiff hapning to her by reason of the words said that in one Lighfoot and Pigots case it had béen ruled that an Action lies not for saying a woman had a Bastard and he cited also Winter and Barnards case Trin. 1650. in this Court. Vpon these reasons Iudgment was stayed till the other side should move Iay against Iay. Trin. 1651. Banc. sup Trin. 1650. rot 1350. THis case formerly put and spoken to Argument in a special verdict touching the consideration of the words of a will was again spoken unto by Latch wherein he made this question viz. whether the limitation to I. and his Heirs were good or not and he held it was not good for he said that such limitation in case of a freehold is void He confessed that in the case of Pell and Brown 17 Iac. rot 44. the contrary was adjudged but that there did appear such apparent inconvenience in it that upon it the Court was afterwards divided and 21 Iac. in the Serjeants case it was made a flat quaere and ever since it hath been disputable whether a contingent devise be good or not and in Iacob and Tellings case it is not
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
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