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
Action cannot lye for a false retorn 2ly He sayes that the old Sherifs delivered the writ thus endorsed to the new but doth not say that they did deliver it to be retorned viz. by Indenture Indenture as the use is 3ly It doth not appear whether there were any retorn of the writ made either by the old Sherifs or the new 4ly The Action is brought in a wrong County Venue for it is not brought in the County where the endorsement and delivery over of the writ was Latch of councel on the other side answered that the Action was brought for delivering the goods back again to the Defendant after they had taken them by vertue of a Fieri facias and not for the endorsement made upon the writ The rule was to reverse the judgement except cause shewed to the contrary At another day the Court was moved to affirm the judgement and the councel on the other side insisted upon the former exceptions to reverse the judgement Glyn chief Iustice caused the Record to be read and upon Oyer thereof said I conceive it is well and according to the course in that kind for the old Sherifs to make the retorn and to deliver the writ over by Indenture to the new Sherifs and here is also a verdict in the Case and a retorn is not properly a retorn untill it be filed here yet it is the retorn of the Sherif in the County where he is Sherif Shew cause upon notice why the judgement ought not to be reversed Antea Q. Denton Mich. 1655. Banc. sup AN order of the publique Sessions made against one Denton for the kéeping of a Bastard child was removed into this Court by a Certiorari To quash a retorn of an order of Sessions and the party also who was committed to Ailsbury gaol for disobeying the order was brought into Court upon a Habeas Corpus granted unto him and upon the reading of the retorn of the Habeas Corpus this exception was taken to the retorn that it appears by the retorn that the order made for Denton to kéep the Bastard-child was made by the Iustices at the Quarter Sessions and that for not obeying this order he was committed to the Gaol by two Iustices at a private Sessions of the peace whereas the Iustices of the Quarter Sessions had no authority by the Statute to make such an order for it ought to have béen made by the next two Iustices of peace to the place where the Bastard was born And to this Glyn chief Iustice agréed but would not release the Prisoner till he was bound over with good bayl to the next Quarter Sessions for the County of Buckingham to appear there and to answer the fact Att Lee and the Lady Baltinglas Mich. 1655. Banc. sup THe Court was moved on the Defendants behalf To discharge a feme covert upon common bayl that there was an Action upon the Case brought against Baron and Feme and the Feme had appeared but the Baron would not and that the Plaintifs Attorney stood to have special bayl for her which she could not procure and therefore it was prayed that she might be delivered upon common bayl But Glyn chief Iustice answered Denied if there be cause to have special bayl the wife must lye in Prison untill the Husband appear and put in bayl for her for she cannot put in bayl for herself being Covert Baron Elmes and Martyn Mich. 1655. Banc. sup THe Court was moved For time to demur to a plea. for the Plaintif that in respect that the Defendant had put in a special plea and pleaded a very long Award which made the plea very long that therefore he might have time granted unto him by the Court to demur to this plea. But Glyn chief Iustice answered you need not have time to demur to the Plea for you may do that presently Denied Rejoynder but if you desire time to rejoyn in respect of the length of the Ples you shall have it Plummer and Sir Iohn Lenthall Mich. 1655. Banc. sup THe Plaintif shewed to the Court by his Councel that he had brought an Action of escape against Sir Iohn Lenthall the Mareschall of the Marshalsea of this Court To put Sir Iohn Lenthall out of his Office and had thereupon a judgement and an execution on against him but that Sir Iohn though as being Marshall he ought as an Officer of this Court daily to attend the Court did yet nevertheless absent himself so that the Plaintif could not take him upon the execution and that if he were present he doubted whether he might take him for fear it would be an escape of the Prisoners committed to him and therefore prayed that Sir John Lenthall might be put out of his place of Marescall that so he might take him in execution Glyn chief Iustice This is very mischievous Cause let Sir Iohn shew cause Friday next why he should not pay the monies Le Gross and Hall Mich. 1655. Banc. sup IN a writ of Error brought in this Court to reverse a judgement given in an Action of debt The Defendants Councel in the writ of Error moved To reverse a judgement for expedition that the Court would reverse the judgement because they conceived it was erroneons for their own expedition that they might bring a new Action Glyn chief Iustice You have not yet confessed the error upon the Record neither have you pleaded in nullo est erratum as you ought to do Denied for moving o◠soon and therefore you move too soon to have the Iudgement reversed Hamond and Thornhill Mich. 1655. Banc. sup IN the Case of one Hamond and Thornhill in a trespass and ejectment tryed at the Bar Whether gavelkind-Gavelkind-lands held by chivalry he deviseable upon the evidence given it was affirmed by Sergeant Twisden that gavelkind-Gavelkind-lands though they be held by knight-Knight-service tenure might be all devised by Will by the custom of Kent Q. for other Councel doubted of it Arnold and Floyd Mich. 1655. Banc. sup THis Case formerly spoken unto and after a Nil capiat per billam nisi c. ordere◠to be entred against the Plaintif was again spoken unto and the Case put and the exception formerly taken that the Plaintif had declared of a general receiving of mony of such and such Customers and had not accompted for them whereas the Articles for breach of which the Action is brought do express that he should accompt for such monies as he should receive of the Customers which were in his charge only But Green answered that though it was not so expressed yet it should be intended that he had not accompted for all such monies as he had received of the Customers in his charge and as to another exception which was also formerly taken viz. that the Plaintif had not shewed what monies he had received for which the Defendant had not accompted and so he knew not what answer to
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
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
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
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
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