for cause shews 1. That the breach of this promise was in the Testators life time and therefore the Action should have béen brought against him and is not now to be brought against the Executor 2ly The Testator did not promise that his Executors should deliver the goods but that he would deliver them upon request Request and there appears no request to be made to the Testator as there ought to have been 15 Iac. Hob. rep f. 300. Bodwells Case But Roll chief Iustice answered Executor That an Executor may be charged upon a collateral promise if there were a breach of it in the Testators life time and here is a good request and goes to all Therefore let the Plaintif take his judgement except better matter be shewed to the contrary and Osborne Mich. 1649. 1 Reipub. Ang. Banc. super THe Plaintif brought an Action upon the Case upon two several promises the Defendant pleaded non assumpsit Arrest of Iudgement in an Action upon the case Issue and upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of iudgement and for cause shews that there is no issue joyned as to the second promise alleged for he doth not conclude with petit quod inquitatur per patriam and yet there is a verdict found upon both the promises The Iudgement was arrested till the other should move Mich. 1649. Banc. super VPon a special Verdict the case was this A Case upon a special verdict argued Tenant for life the remainder for life the remainder in tayl the remainder to the right heirs of him in the remainder for life the remainder man in tayl levies a fine in the life of tenant for life And the question was whether by the levying of this fine the estate tayl were discontinued or no. To prove that the estate tayl was discontinued these Books were cited 1 H 7.22 Lit. Cap. Discents Sect. 34.14 Ed 3. Fitz. Avâ—wry 117.3 Ed 3. Fitz. grants 60.15 Ed. 4 9.2 Rep. Butlers case 5. Cooks Lit. f. 25. Pasch 13 Car. Hungates Case Banc. Reg. Dyer 339. Twisden to the contrary argued that the estate is not altered neither to the right nor by way of Estople 46 Edward 3. f. 23. Estople An Estople supposeth a thing to be done and therefore if the thing be impossible which is alleged by way of estople it can be no estople And one shall not be construed to doe wrong by an Act which may be interpreted so that by it he may doe no wrong Brooks Abridgement Grants 49. Roll chief Iustice The matter here is not how the estates shall pass and how to make them good but the Question is upon the forfeiture Forfeiture for he levies the fine as of an estate in possession and not of a reversion in fée and this is not upon the rule in Bredons case 13 Car. Sir Julius Caesars case an Acceptance of an estate or an Attornment by Tenant for life to a stranger is a forfeiture Jerman Iustice held there was no forfeiture But the Court said the Verdict was ill sound and therefore ordered it should be amended that the whole matter in Law might come in question Amendment Gray against Walye Mich. 1649. Banc. sup VVAlye brought an Action upon the Case against Gray Arrest of judgement in an Action upon the case for speaking these words of him viz. Iack Walye was questioned for stealing of a gray Mare with a snip in her ear and hue and cry went out after him and he durst not shew his face hereabouts The Plaintif had a Verdict and the Defendant moved in Arrest of Iudgement that the words were not actionable because they were general and uncertain words and it doth not appear the party was damnified by them nor how long ago they were spoken Roll chief Iustice said that the party was defamed by speaking of them and he hath laid it that he lost his Credit thereby Therefore let the Plaintif have his Iudgement except better matter be shewn But Nicholas Iustice doubted whether they were actionable or no. And Ask Instice nihil dixit Mich. 1649. Banc. sup AN Attorney of this Court that was within age Error against at Attorney in Court for appearing propria persona being within age Error in fact appeared to an Action propria persona and pleaded to issue and had a verdict and a judgment for him and upon this a writ of Error was brought here it being an error in fact because that being within age did not appear per guardianum nor by his Attorney and it was said that it is not helped by the Statute of Ieofails though it be after verdict And thereupon the Court stayed the Execution Mercer against Rule Mich. 1649. Banc. sup THe Court was moved For a Supersedeas attachment for taking out execution after a writ of Error brought and allowed Supersedeas Attachment Execution That a writ of Error was brought to reverse a Iudgement and that it was received and allowed and notwithstanding the Plaintif that had the Iudgement had taken out execution and thereupon it was prayed for a supersedeas to supersede the execution and for an Attachment against the party for his contempt to the Court. And it was urged by the Councel that moved That after a writ of Error is received and allowed the hands of the Court that gave the Iudgement are foreclosed from granting out execution and that the writ of Error is in it self a Supersedeas and cited Dyer 283. and therefore concluded that the execution is not well issued forth Twisden of Councel on the other side said that the writ of Error was not duly pursued because the roll was not marked and therefore the party might well take out execution But Roll chief Iustice answered that the writ was well pursued though the roll were not marked Yet if neither the roll be marked Notice nor notice given to the Attorney on the other side of the bringing the writ of Error if the party procéed to take out execution it is no contempt to the Court otherwise it is a contempt Contempt Supersedeas And it is the duty of the Clerk of the Errors to mark the roll and not the Attorneys and therefore take a Supersedeas quia improvide emanavit to stop execution Pym against Morgan alias Bambery and Baselye Mich. 1649. Banc. sup Hill 24 Car. rot 1062. IN an Ejectione firmae brought for the Mannor of Caledown Argument upon a special verdict in an Ejectione firmae The Defendant pleads Not guilty and upon this the Iury find a special verdict to this effect That Sir Thomas Morgan was seised in fée amongst other lands of the lands in question and that in 13 Car. he made a settlement of these lands to himself for life the remainder to his daughter Mary for life the remainder to the heirs of the first Tenant for life with a power of revocation
to the Sheriff for his appearance and therefore it was prayed that the party arrested might be discharged and that the bond given to the Sherif might be delivered up Roll the chief Iustice answered Endict the Bailies that made the Arrest or bring your Action against them if you please Discharge for we will not discharge the party arrested Bois against Cranfield Mich. 1650. Banc. sup rot Q. BOis as Executor to another brought an Action of Debt upon divers Obligations made to his Testator Debt upon divers Obligations by an Execution The Defendant pleaded that he did pay a lesser sum than is expressed in the Obligations to the Testator during his life and that he did accept there of in full satisfaction of the said Obligations To this plea the Plaintif demurred Roll Chief Iustice upon opening the matter said that the question here is whether the payment or the acceptance of the money paid in satisfaction be to be traversed And he held it was indifferent to traverse either of them Traverse but he said it was more proper to joyn issue upon the payment but the Court would advise It was then also said that if one pay money in satisfaction of an Obligation and the party to whom it is paid saith that he will receive it for another cause Satisfaction payment yet if he receive it it shall be judged to be paid in satisfaction of the Obligation for he must receive it upon such terms as the other will pay it Brian against Stone Mich. 1650. Banc. sup STone moves the Court for an Attachment against Brian and others For an Attachment for that he was arrested by a Latitat out of this Court in the County of Wilts and thence carried into the Town of Malborow and there arrested by a Serjeant of that Town by a writ out of that Corporation and the Plaintif procéeds there against him upon that writ and not upon the latitat by which he was first arrested which is a contempt to this Court. Attachment Habeas Corpus cum causa The Court ruled the party should have an Attachment nisi c. and also should have a Habeas Corpus cum causa Mich. 1650. Banc. sup THe Recorder of London moved for the Inhabitants of Bishopsgate against one Withringes For the setting a moderate fine upon one that submitted to a fine who for refusing to serve upon the Ward mote Enquest was indicted for his refusal in London and convicted and fined 20 l. the Defendant being committed for not paying his fine removed himself hither by a Habeas Corpus but now hath submitted himself to a fine it was therefore prayed he may be moderately fined here The Court thereupon fined him 20 l. Beal against VVyman Mich. 1650. Banc. sup Trin. 1649. rot 849. VPon these words of a will Question upon words of a Will viz. I give and bequeath one half of my lands to my wife after her death I give all my lands to the heirs males of any of my Sons or next of Kin Latch made these questions in the Case 1. Whether there were a good estate created by these words of the will 2ly Whether the estate were destroyed by the fine levied of the lands For the 1. he held that the heirs males of any of his Sons are words certain enough to create an estate for it is all one as if he had said to the heirs males of all his sons if they have heirs males or to those who have heirs males and the words or to the next of Kin are also certain enough being joyned with the precedent words and shall be meant to the next of Kin and their heirs males if his sons have no heirs males For in a Win if there be words to express the meaning of the Testator it is sufficient enough though the words be not apt And he cited 21 Rich. 2. Devise 27. and 8 Rep. 46 and said that the case in 30 Ass pl. 47. is the same with this in terminis And here is no contingent remainder but only a contingent devise there is no necessity for a particular estate to support it for it ariseth out of the estate of the Devisor yet if there were néed of a particular estate here to support the remainder here is a particular estate in the wife who by implication of the will doth take all the land during her life as it is 13 H. 7.29 H. 8. Br. Devise 48. Trin. 3 Ed. 6. Bendloes Plow Com. 521. Whelpdales case Pasch 25 Eliz Com. Ban. To the 2 point he spake not holding it not material Hales of Councel on the other side held that the wife had not an estate for life in all the land by implication of the will but only an estate for life in a moyety of the land and so there is no particular estate to support the contingent remainder which he held was in this case that it is not a contingent Devise as Latch urged for the remainder here depends by way of remainder and not as a contingent Devise And he held the Devise it self to be void admitting all the precedent matter alleged to be true 1. Because the devise is uncertain for the intent of the deviser doth not appear for it appears not what heir male shall have the land whether the heir male of his son or the heir male of his next of Kin for the words are disjunctive 41 42 Eliz. Com. Banc. in the Case of Tayler Sawyer land devised to a Mans Issue was adjudged a void devise for the incertainty of it And he held that the intent was that the heir male of his son should inherit before the heir male of the next of Kin otherwise the further off of Kin should have the land before the nearer of Kin. And he said that Hill 2. Car. Rot. 1288. Com. Banc. in Hunt and Fishers case the case at the Bar was adjudged in point Roll chief Iustice said That the intention of the Testator here is coeca sicca Intention and senceless and cannot be known Will. and we ought not to frame a sence upon the words of a Will where we cannot find out the Testators meaning Ierman Iustice held that the devise was not void but that the words are to be interpreted as they may stand with Law and as the words will bear Nicholas Iustice prima facie that the devise is void but yet it is questionable Ask Justice to the same intent Roll chief Iustice said that there is too much way usually given to ambiguous devises But let it be argued again the next Term. Parker against Cook Mich. 1650. Banc. sup Hill 23 Car. rot 660. THe Action was an Action of Trespass quare Clausum fregit Upon a Demurrer the question was whether a Copyhold were forfeited or not The Defendant pleaded a special plea of justification viz. That the Plaintif was a Copyholder to his Manor and that for
to his heir in the singular number And he argued that the word heir includes heirs because it is Nomen Collectivum Next Whether the devising the land to Richard for his natural life and after to his heir for ever makes any difference in the Case and he held it did not and said that Archers case that is objected by the other side differs much from this for there the words are restrained for it is Proximo Haeredi and not Haeredi generally as it is in our Case and there the words next heir are not words of limitation but of purchase and to decipher the person but not to limit the estate and in our case if there should not be a limitation Richard should only take for life which is not the intent of the Will as may appear by the passages and clauses of it And Thomas and Kemishes case in 5 Car. in this Court makes an end of our Case Neither doth the adding of the word in perpetuum make a difference in the Case for if the words had béen omitted the same estate had passed to the Tenant Richard and his Estate is not enlarged by them 2ly The words in perpetuum relate to all the Estate and not to any particular Estate and so the surrender made by R. Hunt is good Next of all supposing that it be a limited Estate and a contingent remainder the question will then be whether this contingent remainder be destroyed or no and I conceive it is because the particular Copyhold estate which must support this contingent remainder is destroyed and the Law is the same in that point in Copyhold cases as it is in other cases at the Common Law for Copyholds are directed by the rules of the Common Law 13 Iac. Banc. Reg. It is also held that there is the same rule to support a contingent remainder of a Copyhold as there is of Land at the Common Law Next it is to be considered whether the particular Copyhold estate be extinguished or not And it is cléer that it is for the customary Estate is in the Lord who hath the Fée simple which cannot both stand together and so there is no estate to support the contingent remainder Copyhold and consequently all objections are by this answered 1. That the surrender shall not do wrong 2ly That the surrender destroys not the Custom Turner on the other side argued that only an estate passeth to Richard for life and that the word Heir is not a word of limitation to make the Ancestor take a Fée simple neither shall the word Heir be taken Collective here but singulariter and so according to the common sence number and matter ought it to be construed And Nowns Collective in the singular number do not signifie the same thing that they do in the plurall number as may be proved by other examples and there is no proper name to signifie one particular Heir in Law if the word Heir in the singular number shall not do it Shellyes case 1. Rep. f. 101. â—ooks institut f. 8.1 Rep. Archers case And there are two Iudgements in the Common pleas in the very point as I am informed by the Attorney on our side In a Will the word Heir shall not be taken Coliective out in the natural grammaticall sence and not as a word of art but it is otherwise taken perchance in conveyances which are made by men of Art and learned in the Laws whereas wills are made commonly by lay gents and unskilfull in the Law And the rule is that words shall be interpreted to make all the parts of a déed in which they are to stand together and to bear sence and to be in esse and effectual which cannot be here if the word heir shall be taken Collective but may be if it be taken singulariter Hob. rep Stukely and Butlers case Next if the word heir should be taken Collective then the Estate for life would merge 30 El. C. B. Hill 3 Iac. C. B. Hiller and Lewis his case 3ly Rich. hath only an Estate for life if it were otherwise the Testator would have otherwise expressed it and he hath well expressed an estate for life and no other Estate in him If one grant 4. parts of his mannor it shall passe 4. parts of 5. and not all For the other poynt the contingent remainder is not here destroyed by the destruction of the Copyhold Estate for Copyhold Estates do not depend one upon another as Estates of the Common Law do and here is one in esse to take the Estate Another question he spoke to viz. whether a Lessee at will being ousted by a stranger can reenter and he held he cannot for he hath but a meer right 38 H. 6. f. 27. Fortescue and Yelverton 3. Iac. Banc. Reg. rot 501. Carpenter and Collins But to this Roll chief Iustice Entry and Nicholas Iustice answered that he may enter notwithstanding it hath been heretofore controverted and the reason is because he hath the primer posseâ—sion Roll chief Iustice enclined that the contingent remainder is not destroyed because it doth not here depend upon the particular Estate but it ought to expect till the remainder happen and he conceived that the word heir and heirs were all one here by the intent of the partyes and the frame of the conveyance Ask Iustice said that it is a good Estate of Fee simple conditionall executed in Richard Ierman Iustice The intent in a Will if it be not contrary to Law ought to be taken and there must be words to make the intent appear and these words must stand together and shall not be made void and he conceived the contingent remainder not destroyed Adjourned till the next Term. Postea Port against Midleton Hill 1650. Banc. sup A Writ of Error was brought to reverse a Iudgement given in an Action of debt upon an obligation Error to reverse a judgment in debt and the Error insisted upon was in the entring of the Iudgement which was quod recuperet Debitum suum and doth not say praedictum Roll chief Iustice answered Delivery Escrow that the debt is confessed by the party and the question is whether the deed was delivered as an escrow or not but it was delivered to the party himself and therefore could not be delivered as an escrow Ierman Iustice said that debitum suum without praedictum is not good for the word praedictum is verbum operativum Ask Iustice as Roll and there is but one debt Implication and the word ideo in the record implyes it to be the same debt Nicholas to the same effect The rule was affirmetur nisi causa die Iunae sequenti Hill 1650. Banc. sup AN administrator had a Iudgement against one to recover a debt due to the Intestate and then the Administrator dyed Intestate For a scire facias to revive a judgement denyed Scire facias and another took out new letters of administration de bonis non
for septuagent and Pary and Dayes case quinquegent for quinquagint and these held no materiall variances Latch on the other side said the word in the Bond is uncertain and the condition hath nothing in it to reduce it to a certain signification and if it make any certainty in it it must make it signifie 400 l. and then the Plaintiff hath failed in his Declarasion and Hobarts case differs from this and as for Osborns case it is variously reported and so not to be relyed on Roll chief Iustice What say you to sessanta But the question here is what shall be meant by the word whether 40. or 400. And in Fiâ—zâ—â— berts case Iudgement was given upon a demurrer Variance that gent for gint was a material variance and our case is all one with that If the doubt be whether it should be 40. or 400. how shall we know the intent of the partyes and if it be certain it must he understood 400. and the Action is brought but for 40. l. 44 Eliz. Mich. rot 1301. Gray and Davis case Sexgint was adjudged to be a Bond of 60 l. and not of 600 l. And it is the gent. and gint in all the cases that makes the difference And the case of sessanta comes not to our case and so concluded Iudgement to be against the Plaintiff Ierman Nicholas and Ask Iustices of the same opinion Nicholas Iustice said that false Latin in a Bond doth not make it naught but he held this Bond was for 400 l. and not 40 l. and it is not incertain for the grammar rule ginta notat decem sed genta numero centum doth hold here Antea Gay against Gay Pasc 1651. Banc. sup Trin. 1650. rot 1350. VPon a speciall verdict found in a replevin Whether an estate tail or fee conditionall The case was this A man seised of a Copyhold Borough English devised it to H. his grandchild and to his Heirs and if he dye during the life of his mother the remainder to H. his younger brother and to his heirs The question here was whether here be an Estate tail in H. or a Fee simple executory If it be an Estate tail then the devise was said not good because it is of a Copyhold but if it be a Fersimple Limitation then it is a good devise Roll chief Iustice said that a limitation of an inheritance after an absolute Fee simple is not a good limitation for this would be to make a perpetuity which the Law will not admit Perpetuity but if it be upon a contingent Fee simple it is otherwise Adjournatur Postea Heale against Greene. Pasc 1651. Banc. sup Hill 649 rot 370. IN an Action of Trespass and ejectment Case upon a special verdict in trespass and ejectment upon a speciall verdict sound the case proved to be this A man seised of a manor that had divers Tenants that held for lives by old rents deviseth it to his wife during her life with power to let and set and make estates out of them in as ample maner as the Testator might if he were living The questions were made by Latch 1. Whether this power given her to set and set c. doth not alter her Estate for life in the Lands devised to her 2ly Whether this power given her by the Will adds any power to her estate for life to make estates and he held for the first that the power given her did not alter her Estate And 2ly that it ads no power unto her Estate because the clause in the Will is one entire clause and not double and accumulative and so she can make no greater Estates than her estate for life will bear And for the obiection that is made That then the words that limit the power to her are void and idle He answered that it is not necessary that all the words in a Will should give something but some words may be explanatory of other words and so are these words here and yet the words here may add something to her Estate viz. to enable her to make Estates without impeachment of waste And the words shall not be intended of the time of Execution of the Estates made by the Feme for then they are idle Hill 1 Car. Banc. Reg. Danyel and Vplins case One may dispose an estate by Will for life with power to make Estates to continue after the death of the party that made them But here the estate is made only out of the interest of the wife which cannot endure after her life Pasc 44. Eliz. Bible and Dringhouse and so prayes Iudgement for the Plaintiff Hales for the Defendant made these questions 1. What power was given by the Will 2ly Whether it were well executed and he held the feme being executrix hath but an Estate for life But she hath a power to make estates as she hath done There is no question but such a power may be added The question only is if this power be added here in our case and he said it was added by the express words of the will for else those words are frivolous and operate nothing In Danyel and Vplins case cited which was entred 20 Iac. Hill 720. there is no express Estate given to the party but a meer power only and it was not by reason of the words added for they are only conjunctive words And Iustice Whitlock held there that the first words gave the power Though Iustice Iones differed in opinion and that case is the very same with ours The reason in our case That the words give power to the feme may appear by the comparing this part of the Will with the other parts of it In other parts of the Will where things are devised to his wife these words here used are not added and that argues that the Testator intended the Feme more power than in other things devised to her and the words themselves being a devise of a manor proves by the nature of the thing that the Testator intended to give power to the Feme to make Estates out of the manor And it cannot be intended that the words In as ample maner c do only give the feme power to assign over her term Vaughan and Longs case 24 C. the words were adjudged to be words to enlarge the power of the Legatée and so are they here And the subsequent clause during the term of her life restrains not the power for these words may be either referred to the Estates to be made or to the time of making them and here they are referred to the execution of the power and this is more suitable to the intention of the party in ordinary reason and they are added to expound the intent viz. that the remainder limited over shall not hinder the feme for he hath not barred her out and hath imposed this trust in her as Executrix and as Legatee And for the 2d point here is a good Execution of
his guardian and therefore let the Iudgement be reversed nisi Fortune against Johnson Hill 1651. Banc. sup THe Court was moved for an attachment against Iohnson upon an affidavit For an attachment for putting one out of possession that he had ejected one out of possession that was put in by a habere facias possessionem and that in a very riotous manner and had imprisoned the party so put out of possession and others Windham on the other side by way of answer said that the party came into the land by virtue of an eign Iudgement and an extent upon it Roll chief Iustice answered here is title against title therefore take your course in law for we will make no rule in it Crosthwayt and the Hundred of Lowdon Hill 1651. Banc. sup CRosthwayt brought an Action upon the Statute of Winchester of robberyes Arrest of Iudgement in an Action upon the Statute of Winchester for robbery against the Hundred of Lowdon for being robbed of 160 l. and had a verdict against the Hundred It was moved in arrest of Iudgement that the Action upon the Statute did not lye for the party that brought it for it appears that he was not robbed but that the mony was taken out of a portmantle which was carryed by the postboy and that only the Plaintiffs hand was upon one end of the portmantle so that the post-boy was robbed and not the Plaintiff But Roll chief Iustice answered Robbery Possession there is no question but that this was a robbery of the Plaintiff and it is all one as where my Servant is robbed in my presence and there the goods shall be said to be in my possession and so is it here and therefore let Iudgement be entred nisi Tayler and Web. Hill 1651 Banc. sup THis case formerly argued at the Bar and broken on the Bench Special Verdict upon the words of a will and some opinion delivered in it was again moved by Maynard and argued by him And he said that by the Will no land passeth because lands are not mentioned in it neither is there any necessary implication that the Testator intended to devise his lands for the making one his Heir and enjoyning him to pay an annuity doth not convey the lands to him and the Will doth not say that he makes him his Heir of his lands but generally his Heir which by the civill Law may be of goods and for the enjoyning him to pay the annuity this may be out of other lands in consideration of the personal estate given unto him In Danyel and Vblies case a gift made by a Feme coparcener of her purparty of land did not convey the lands in Fée In Marshes case the Father gave his lands to his two Sons to be equally divided it was adjudged there that only an Estate for life passed and here is nothing at all expresly given In Gilbert and Withers case Mich. 20 Iac. It was adjudged that there ought not to be made such a construction of a Will as is not agreable to Law And this is only a logical Will by way of argument and not a grammatical Construction or Interpretation and positive Will Roll chief Iustice answered to make a construction of a Will where the intent of the Testator cannot be known is intentio caeca sicca but here although the words of the Will be not proper yet we may collect the Testators meaning to be by making of the party his Heir that he should have his lands and it is all one as if he had said Heir of his lands and here he not only makes him his Heir but his Executor also Will. and therefore if he shall not have his lands the word Heir is meerly nugatory and to no purpose for by being Executor only he shall have the goods and as it hath been observed he is in this case haeres factus though not natus Ierman Iustice to the same effect and said that the word Heir implyes two things 1. That he shall have the lands 2ly That he shall have them in Fee simple Nicholas and Ask Iustices concurred and so it was ruled that Iudgement should be given for Sir Iohn Bridges the Devisee nisi Lockoe against Palfriman Hill 1651 Banc. sup Hill 1651 rot 1002. VPon a special verdict found in an ejectione firmae Special verdict in an ejectione firmae the case fell out to be this Tenant for life the remainder to Baron and Feme and their Heirs Baron and Feme suffer a recovery The question was whether the Heirs of the Feme were bound by this recovery because the Feme being covert it was conceived she was not Tenant to the praecipe because it appears not she was examined and so nothing was recovered from her It was argued that this recovery did bind the Feme 1. because if a precipe be brought against one who hath nothing in the land the writ only is abatable Fitz. Tit. Droyt 29. Next an Estople with recompence excludes not only parties and privies but also strangers as it is in Shellyes case and 3 Iac. C. B. in Duke and Smiths case 15 E. 4 f. 28 In 43 Ed. 3. f. â—8 was the first mention of examination of a Feme upon a Recovery and she shall be intended to be examined here if it be requisite for it is not found she was not examined and in Br. Abridg. recovery in value 27 23 H. 8. It is held that a Feme Covert is barred by a Common recovery and this hath been the continual practice since that time and whereas it is objected that a colourable recovery doth not bind a Feme Covert it is answered that this is not a colourable recovery but a judicial matter of Record and is brought upon an original and there is an intended recompence to the Feme and to urge that there is no Tenant to the praecipe is an objection which reaches to the common practice of assurances and therefore not to be admitted and in time they might have counterpleaded the voucher but now they cannot avert this matter against the Record 19 E. 3. estople 9. and though the Feme be not examined yet she shall be bound by this recovery though in a fine it is otherwise where there is no recompence in value as here there is and in a fine the Iudge ex officio is bound to examine the Feme but not in a recovery nor is there any practice of it in Law 13 Ed. 3 Iudgement 29. A partition made by writ shall bind a Feme Covert because she hath a recompence so is it upon a partition made upon Record in Chancery And by the Barons surviving the Feme here the recompence both not survive to the Baron but shall go to the Heirs of the Feme Br. recovery in value 27 2 Iac. C. B. here is a reall Estate in the Baron and Feme Hales on the other side made the question to be whether by a recovery
one as if the party had appeared for if he had appeared the Case would have béen otherwise So Iudgement was given for the Plaintif nisi c. Pasch 1652. Banc. sup MEmorandum One brought by Habeas Corpus from the Fleet remaâ—â—ed One was brought into the Court by the Mareschall of the Fléet by vertue of a habeas Corpus directed to him out of this Court and because it did appear upon Record that the party was charged with divers debts when he was turned over to the Fleet he was not suffered to put in Bail here but was remanded Gossage against Tayler Pasch 1652. Banc. sup Hill 1650. rot 117. IN an Ejectione firmae upon a Lease for years of a Messuage Special verdict in Trespass and Ejectrueâ—â— and certain lands in Hatfield Broad-Oak in the County of Essex upon a special verdict found the case fell out to be this Rich. Frank seised amongst other lands and Tenements of the Messuage and lands in question upon the mariage of his Son Leventhorp Frank with Susan Cotele levies a fine of the lands to the use of himself during his own life and the life of Leventhorp his Son and after during the life of Susanna Cotele the wife of Leventhorp the remainder to the use of the heirs to be begotten upon the body of Susanna by Leventhorp her Husband The question here was whether the word heirs shall be intended the heirs of Leventhorp and Susanna his wife or whether the estate shall be intended to be limited to the heirs of Susanna only and that Leventhorp shall have barely an estate for life in the lands Serjeant Glyn of Councel with the Plaintif held That Susanna Cotele hath an estate tayl executed in the lands and that the word heirs shall relate only to the heirs of Susanna and not to the heirs of Leventhorp 1. Because that here is an estate limited for life unto Susanna by an express limitation and her heirs shall take immediately after the estate for life ended and they shall not come in as purchasors By express Terms the word heirs is not limited to any person but it is left to the construction of the Law and that doth apply it to Susanna as to a person to whom Richard that setled the lands hath expressed most affection as appears by the Deed Lit. f. 6. Sect. 28. There is an expression of the party to whom the word heirs shall relate but so is not here and therefore the cases differ In 3 Ed. 3. f. 31 32. It is ruled that both parties have an estate tayl because the estate is limited to both but so it is not in our case so those books are not against me In our case it doth not appear that Richard did intend to advance the Husband of Susanna and therefore it is not reason that the word heirs should relate to him but to Susanna his wife only for in case of limitation of estates the intention of the party is to be considered and doth direct the matter and the preceding limiting of the estate to Susanna and not to Leventhorp doth shew that the party did mean to promote the heirs of Susanna Lit. Sect. 27. Dyer 27. A second reason is drawn from the penning of the déed which in the limitation of it doth encline more that the word heirs should be applyed to Susanna than to Leventhorp for the words upon her is as much as to say of her and then it is the same case with Littletons case 3ly The Intention of the Donor appears to be such by the circumstances of the entire limitations which do shew that he did intend that Leventhorp should not have such an estate whereby it should be in his power to deprive his issue and therefore the word heirs are to be applyed to Susanna and not to Leventhorp for if it should be applyed to both then Leventhorp might destroy the estate of the issue contrary to the Donors intent And whereas Dyer 99 is objected against me I answer that case is not against me for there the word heirs is expresly limited to a certain person viz. to the heirs of the body of both of them but so it is not in our case and whereas Hill 13 Iac. Lane and Panels case in this Court is also objected against me I answer that that case is in effect the same case with Dyer and the question in our case came not in dispute And the will of the Donor in deeds is to be ohserved Lit. 22. C. Tayl. 1. rep Shelleys case 103. 〈◊〉 Notwithstanding in gifts in tayl this rule holds not so that a gift in tayl may be limsted contrary to the rule of the Common Law And I know not of any authority in print or writing against me but in 13 Ed. 3. Fitz. tit variance 81 there is an expresse authority for me and 4 H. 4. Fitz. br 448. in my experience I have known many estates limited as this is in the Southern parts held good estates tayl if it should be otherwise many estates would be shaken Roll chief Iustice We have delivered our opinions before against you viz. that it was not the meaning of the donour to apply the word Heirs to the body of Susanna only for this construction would offer violence unto the words as appears by Littleton who interprets that they are to be applyed to the Heirs of both the partyes and your reason is founded upon a wrong ground and expresly against Litletons case and for your second reason it is of no waight for the words are all one as if he had said to the Heirs of the Husband and wife begotten upon the wife 3ly We are not to frame a meaning against plain words which shew the Donors intent to be against you And the Baron cannot Bar the Estate tayl as you suppose Tayl. for the Feme hath an Estate for life and if she survive she may revive the remaining Estate and we must not consider of inconveniences which possibly may happen against the expresse words of the deed and the multitude of conveyances made in this manner are of no force to alter the Law Ierman Iustice as Roll. That the word Heirs shall be applyed to the Heirs of both partyes because voluntas donatoris secundum formam chartae expressa est observanda Nicholas and Ask Iustices of the same opinion Garland against Yarrow Pasc 1652. Banc. sup THis case being in arrest of Iudgement formerly spoken unto in an Action upon the case for these words Arrest of Iudgement in an Act on for words you are a knave and keep a Bawdy house was again moved by Christ Turner who held that the words are not actionable 1. Because they are of spiritual cognisance 2ly It is not said that he kept a common Bawdy house 3ly here is no special damage laid 10 Car. These words he is a pimp adjudged not actionable in Lewis and Whittons case 4ly It is not alleged that he
Iustice answered Denied It appears not to us but that the Parliament was sitting at the time and peradventure it will be made appear at the tryal Therefore plead and go to tryal and then move in Arrest of judgement if you have any thing to move Page and Parr Hill 1654. Banc. sup Trin. 1654. rot 1687. PAge brought an Action of Covenant upon a Covenant conteined in an Indenture of a demise for years Covenant upon an Indenture for the not paying the rent reserved by the Indenture according to the Covenant The Defendant pleads in bar that the Plaintif entred into part of the land demised before the rent due for which the Action was brought and so had suspended his rent The Plaintif replyed the Defendant did re-enter and so was possessed as in his former estate Suspension of ren and to this replication the Defendant demurred and for cause he shewed that here was no confession and avoidance or traverse of the plea in bar Roll chief Iustice Have you shewed that he continued in possession until the rent grew due for you ought to shew that he entred and was possessed untill after the rent-day but here you have only said that he was possessed in his former right Nil capiar per Billam Therefore nil capiat per Billam nisi Hill 1654. Banc. sup VPon an Affidavit read in Court Not to plead till costs paid assessed in a former Action that 20 l. costs were taxed upon a non-sute in an Action of Trespass and Ejectment brought to the Bar and that the Plaintif had not payed them nor was to be found and yet had brought another Action for the same land The Court was moved that the Defendant might not be ruled to plead to this second Action until the Plaintif had paid the costs taxed upon the former non sute and that another Plaintif might be named or that security might be given to pay the costs if the Plaintif should be non-sute again Shew cause The rule was to shew cause why it should not be so Hill 1654. Banc. sup DArcy moved that an Endictment of Michaelmas Term last might be amended in the Caption But Roll chief Iustice answered To amend an Endictment of a former Term denied It cannot be if it be of the last Term but had it been an endictment of this Term it might have been amended Hill 1654. Banc. sup THe Court was moved to quash an Endictment for entring forcibly upon a Tenant for years against the Statute of 21 Iacobi To quash an Endictment and the Exception was that the Endictment doth not say that he entred manu forti Roll chief Iustice answered The Statute is only that if one enter by force and the words manu forti are not expressed in the Act Therefore move it again if you will Hill 1654. Banc. sup A Habeas Corpus cum causa was granted for Elizabeth Bayne To discharge a prisoner turned over to the Mareschal For a habeas corpus ad subjiciendum to the intent to charge her with an Action and upon the return thereof she was committed to the Mareschal Wild moved that she might be discharged because the return of the Habeas Corpus is erronious But Roll chief Iustice answered It could not be whereupon he moved for another Habeas Corpus for her ad subjiciendum to be directed to the Mareschal which was granted Hill 1654. Banc. sup THe Court was moved to quash an Endictment preferred against one for practising Phisick not being skilfull in the profession To quash an Endictment for practising Phisick without licence and not having a License to practice from the College of Phisicians The Exceptions were 1. That no Endictment at the Common Law lies for the offence supposed to be committed for it is not an offence against the Common Law and 2ly an Endictment upon the Statute lies not and so no Endictment lies And upon these Exceptions it was quashed The Protector and Hart. Hill 1654. Banc. sup ONe Hart committed to the Gatehouse appeared in Court upon the return of a Habeas Corpus granted for him To remand a prisoner appearing upon a Habeas Corpus and turned over Denied and upon the prayer of his Councel the return was filed upon which it was moved on his behalf that he might be remanded to the Keeper of the Gatehouse and not turned over to the Mareschal to the intent to save his fees but the Court said it could not be because upon filing of the return there ought to be entred upon it a Committitur to the Mareschal whereby he becomes his prisoner Torret and Frampton Hill 1654. Banc. sup Trin. 1653. rot 178. VPon a special Verdict the Case was this Special verdict upon a Devise A man deviseth his lands to his wife for her life the remaindar to A. B. and C. and their heirs respectively for ever The question was whether A. B. and C. were joynt tenants or tenants in common Serjeant Twisden held that they were joynt renants Whether joynt tenancy or a tenancy in common and that this case differs from Radcliffs case and cited Wilds case in the 6 Rep. that a Will must be clear and conspicuous but so it is not here and here is no enforcement by these words respectively and they do relate to the persons and not to the lands bequeathed and a Covenant made by three respectively is a joynt Covenant and not a several Covenant and the word respectively hath relation to the survivorship which may happen betwixt the parties and a devise to one and his heir is a fee-simple Latch For the Defendant held that here is a tenancy in Common and not a joynt tenancy for the Estate ought to be whole out either a tenancy in Common or whole out a joynt tenancy and this of necessity for there cannot be a joynt tenancy for life and several inheritantes in the remainder and Littletons ground proves this to be so And 2ly It is against all construction to be otherwise as the word respectively is here placed and Ratclifs case which is not so strong a case as this case proves it to be so and although the word respectively may sometimes make a distribution of heirship as hath been objected viz. of several heirships yet here the placing of the word respectively shews it cannot be so Distribution of heirship and this using of the word is not operative but idle if here should be a joynt tenancy for the law says as much though the word respectively were left out and the word would be the more idle in explicating a thing so obvious to common understanding and no ways doubtfull and therefore we cannot think but that these extraordinary words do enforce an extraordinary construction and not a common one and an idle application and this comes not within the rule objected for the certainty for this word hath a proper meaning to make a several distribution
parts it will be naught in all Hill 1649. Banc. sup THe Case of the Vills of Newton and Tyd concerning the presentments made to the Comissioners of Sewers for the Hundred of Wisbitch For quashing presentments and Orders of Commissioners of Sewers and their order made thereupon was again spoken to Twisden against the presentment said That it is not a presentment by Iury as it ought to be by the Statute for the Iury have only power to enquire of things within the Hundred of Wisbitch and it doth not appear that Newton and Tyd are within that Hundred 2ly The substance of the presentment is not good for the Commissioners cannot order that Newton and Tyd which have no benefit by the repairing of the bank shall contribute to the reparations 18 E. 3. f. 22. 3ly They cannot order to make a new wall notwithstanding Callice his opinion in his reading upon the Statute of Seâ—â—ers 4ly The Tax is not well laid for it is not laid upon all the Lands within Newton and Tyd as it ought to be charged if any ought to be Holhead answered to this last exception that it does not appear there are more Lands in Tyd or Newton than are charged And Roll chief Iustice said that is well enough To the third exception Holhead said it is not wholly a new work and therefore they may order to make it To which Roll chief Iustice assented and said it was so notwithstanding the Case of the I le of Ely for that was for the making of a new work totally To the 2d Exception he read the words of the presentment by which it appears that because the adventurers had no Lands to be charged and it is found necessary to be repaired that therefore it is to be repaired by Newton and Tyd for the present necessity Maynard answered that they are not bound to repair for the Act of a Stranger Taxes Roll chief Iustice answered Newton Tyd may take there remedyes against the strange adventurers and it seems there was a present necessity to repair it for publique safety If one be bound by prescription to repair a wall yet to prevent the present and publique danger the Commissioners may tax others to do it and the Law is just that is here made by the Commissioners But the 1. Exception is not answered and so the Commissioners have exceeded their authority Therefore let their be a new Law made by consent and quash the presentments except better matter be shewed But we cannot order you to have your monyes again But for that take your remedy at Law Garret against Blisard Hil. 1649. Banc. sup Hill 24 Car. rot 983. VPon a special verdict found in an ejectione firmae The Case was this Grandmother Tenant for life Arguments upon a case upon a special verdict in an ejectione firmae the remainder to the Father for life the remainder to the Son for life the Son levyes a fine come ceo c. of the Land the question was whether it be a forfeiture of his estate or not Hales argued that it was a forfeiture but I could not here him well He cited these books 41 Ed. 3.10 24 E. 3. f. 70. Pasc 11. Car. Banc. Reg. Huttens reports Trin. 7 Car. Banc. Reg. and adjudged 11 Car. in King and Edwards case Dyer 339. And he said that a fine sur conisance de droit come ceo c. as it is in our case is a Feoffment upon Record and doth imply a Livery And said that a remainder may be forfeited by levying such a fine and concluded it was a forfeiture Wadham Windham on the other side argued that it was no forfeiture Forfeiture And cited Mich. 24 E. 3. and Dyer 139. and laid this for a ground that where a Feoffment in Fee made by a Tenant for lise doth displace any remainder that such a Feoffment is a forfeiture but it is not so in this Case and therefore it can be no forfeiture If Tenant for life of a rent or of an Advowson levy a fine it is a forfeiture although that no remainder be displaced this is the great objection 15 E. 4. f. 15 by Littleton and the fine fur conisance de droit implyes a Fee simple 40 Ed. 3. But there a Fee simple really passed with the estate for life But here it passes by way of interest and not by way of estopel and the Conusee may confesse and avoid and therefore here is no estopel and so it differs from the Cases objected 6 Rich. 2 Estopel 211. But it is objected that he hath taken upon him to passe all the estate which is more than he hath to passe and this makes it a forfeiture 43 E. 3. f. 22. It is good for the reversion in Fee and not for the other estate 37 H. 6. f. 5. 41 E. 3 f 14. by Thorpe It was answered that he hath not taken upon him to passe all the estate but only his own estate It is objected that the fine joyns all the estates together and purports the passing of them whole and entire It was answered that the fine doth not purport the entire estate 44 E. 3. f. 10. so much shall passe by the fine as may rightfully passe and no more and so the estate passes by fraction Cooks Instit 345. The Law construes the effect of the fine according to the intent of the parties and that wrong shall not be intended so is it here And if there be Tenant for life the remainder in fail the remainder in Fee to Tenant for life if Tenant for life levie a fine it is no forfeiture 10 H. 4. f. 2. Tenant for life may pray in ayd of all in the remainder and he said that in this case is no forfeiture nor estopel nor hath he passed more than he hath there is no wrong by the fine but it shall only passe what may be passed and he said a fine is a Feoffment when the thing to passe by it lyes in Livery otherwise it is but a grant and devests no estate as a Feoffment doth And in Baker and Hackers Case in this Court Bredons Case was denyed for Law by Bramston Iones and Barkley Hob. 388 389. It is no discontinuance and such estate shall first passe by which no wrong shall be done The Iudges ought to be Aâ—tuti to invent reasons to support estates and to defend from injuries and where the Conusee of the fine hath an interest to passe by it to satisfie the operation of it such a fine is good and doth no wrong as it is in our Case It is objected that there is a Fée simple here but it is of no value for it is after an estate tayl and shall not be assets in the Heir It was answered It is but of little value but it hath more than a right in it and so he prayed judgement for the Defendant Forfeiture Roll chief Iustice held it was a forfeiture although there be no
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
the power for it ariseth partly out of her interest and partly out of her Authority and both may well stand together and the Estate made out of both is a good Estate or if not the Estate may be intended to arise out of the power given her to make such an Estate and not out of her interest and the joyning of her daughter is not materiall though no good estate be derived from her and so he prayed Iudgement for the Defendant Roll chief Iustice It is usual in the West of England to make Estates for lives upon the old rent but it is not here expressed of what nature this manor is or whether it used to be let and here is no limitation to let for lives But here either the laster words are idle or else the Feme hath such a power that she may destroy the remainder And itsh all not be intended that he trusted his Executrix with more than he gave her and the words of the Will do not express that and the question is how it shall be interpreted The words may be interpreted Cumulative Interpretation otherwise the feme hath power to destroy the remainder which would be a hard construction To which Nicholas assented Roll chief Iustie The intention of the Testator is not cleer to give this power to the Feme but if it did appear to be his meaning it might be otherwise and here it is in a Will And the Verdict is not well drawn up for the Case might have been made better for all the land may be in Demesite for ought appears by the Verdict Adjourned to be argued again Postea VVebb against Wilmer Pasch 1651. Banc. sup Hill 1650. rot 309. VVEbb brought an Action of Debt for rent reserved by him upon a lease for years made to Wilmer Arrest of Iudgement in Debt for rent reserved upon a Lease for years and obtains a Verdict The Defendant moved in Arrest of Iudgement and alleged for cause that the Plaintif had abated his writ The case was this Webb leaseth certain lands to Wilmer for years reserving a rent with a clause of re-entry for not payment the rent being behind the Lessor brings an Action of Debt for the rent and pending the sute re-enters into the land and after the Lessee re-enters The question here was whether the writ once abated by the Plaintifs entry Reviver Abatement pending the writ were revived by the Defendants re-entry Roll chief Iustice held it was not Twisden argued that the writ is not abated but only abatable by plea and so this matter is not to be offered to stay the Iudgement 5 H. 7. f. 47. and he hath pleaded nothing in abatement but to the Action only and he said that it now being after a verdict it is helped by the Statute Hales on the other side said that it doth here appear that the Plaintif hath no cause of Action for he was in possession when he brought the Ejectment Roll answered If one declare having no cause of Action Declaration Departure if there be cause afterward it is well enough But here is a departure and the 1. Ejectment is not revived for it is purged by the re entry The rule was nil capiat per billam nisi The Custodes Libertatis c. against Hall Pasch 1651. Banc. sup HAll was endicted for forestalling of Butter Error to reverse a judgment upon an Endictment for forestalling and pleaded and had judgement given against him whereupon he brought his writ of Error and took these exceptions 1. That it doth not appear that the Endictment was at the Quarter Sessions as it ought to be by the Statute of 5 Ed. 6. for it is only said to be ad generalem Sessionem Roll chief Iustice answered if it be ad generalem Sessionem it may be intended the Quarter Sessions Intendment 2ly It was objected that there is no Capiatur awarded in the judgement as there ought to be The Court answered they would advise VVillis against Bond. Pasch 1651. Banc. sup Mich. 1650. rot 86. BOnd an Administrator brought an Action of Debt in Bristow against Willis upon an indebitatus assumpsit Error to reverse a judgement in debt and had a judgement The Defendant brought a writ of Error and took these Exceptions 1. That the Plaintif declares for a thing the conusance whereof lyes out of the jurisdiction of the Court Iurisdiction for it is for wages to be paid upon the performance of a Voyage to be made in locis transmarinis Roll chief lustice said this was a good Exception for they cannot enquire at Bristow whether the party hath performed his Voyage or not The 2d Exception was that the Plaintif declares that the Defendant was indebted to him in such a sum of money to render him an accompt The Court answered this is not good Accompt Debt for in such case an Action of accompt lies and not an indebitatus assumpsit And for these causes the Iudgement was reversed nisi and pronounced by Ierman Iustice at the prayer of the Plaintifs Counsel in English being the first that was pronounced so in this Court according to the late Act for proceedings in Law to be in English Quod nota Gowr against Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif Arrest of Iudgement in a Trover and Conversion Demand Trover in a Trover and Conversion brought by Baron and Feme for goods of the Feme dum ipsa sola suit The Exception was that it is not expressed that the goods were demanded by the Feme Roll chief Iustice said the Demand of the Feme is good to found the Action and it was then also said that a Trover and Conversion lies for goods found and converted although they come afterwards to the hands of the party that lost them The Rule was judicium nisi Pasch 1651. Banc. sup MEmorandum The first rule of this Court made in English was between White and Keblewhite Pasch 1651. Pease against Shrimpton Pasc 1651. Banc. sup Hill 24 Car. rot 191. THe Court was informed by Councel that the Habeas Corpus and Bail-piece were lost and therefore it was prayed that there might be a new Habeas Corpus and that the old Bail put in may be allowed by the rule of Court Roll chief Iustice answered make a new Habeas Corpus Habeas Corpus Bail and a new Bail-piece but first let Tutt the Attorney that was Clark of the Bails attend here to be examined whether the Habeas Corpus Bail-piece be lost as is suggested Ritch against Sanders Pasch 1651. Banc. sup Hill 1649. rot 758. RItch brought an Action of Trespass against Sanders for taking away his Corn set forth for tithes Special verdict in Trespass for tithes upon the words of a Will upon issue joyned a special Verdict was found whereupon the case fell out to be upon the construction of the
determined and Hanbury and Cookrells case is not adjudged but if it be it is on my side and Mich. 37 38. C. B. rot 1149. It was adjudged upon solemn argument at the Bar and on the Bench contrary to the Iudgement in Pell and Browns case if lands be devised to one and his Heirs and if he dye without issue that the land shall be to another and his Heirs this is no Estate tail for it cannot stand with the rules of Law to devise â—uth an Estate for it is but a possibility and if it should be more it must be a Fee upon a Fee and so a perpetuity and it cannot be known within what bounds it shall end either in case of years or life or other contingencies and the comparison of Lampets case is not like to this case for that was or a Term but this is of a freehold and a contingent devise of a freehold is not good since the Statute of 32 H. 8. and Brook tit devise 2 Dyer 28 H. 8. f. 3â— is not an opinion against this And though there could be such a devise of other lands yet Copyhold lands cannot be so devised as the case is here for there cannot be so much as a possibility of reverter for there is no custom to warrant it Hill 5. Car. King and Leyden in this Court and Dyer 264. and though there might be a reverter yet he cannot devise it by will and if he could yet here the conbeyance is made up by surrender admittance and devise and the party is here in by the surrender and not by the devise and so is a Copyholder in by Act executed and not upon the contingency and the will is but to direct and though all this be otherwise yet the Plaintiff cannot have Iudgement for it appears not that the surrender is presented at any Court at all and here is nothing but a recitall found Ierman Iustice said by the Common Law there ought to be a presentment at the next Court Roll chief Iustice and Nicholas Iustice There is no certain time for the presentment but it is according to the Custom of the Manor so that it be within the life of the Tenant Roll chief Iustice said it is an inconvenience to devise such a contingent Estate Nicholas doubted for he said it would shake many wills if it might not be and so said Hales The Court would advise Hales confessed the verdict was imperfect but prayed it might be amended But Latch answered it is good enough for us the Defendants for we have primer possession The Court answered it would be good to have it amended and not to have a venire de novo Venire for that will be chargeable but if the verdict be imperfect to bring the matter in Law into question we can grant a new venire although it hath been heretofore doubted Therefore be advised so that it may be argued Antea Heal against Green Trin. 1651. Banc. sup Hill 1649. rot 370. THe case between Heal and Green upon a special verdict formerly argued by Latch was again spoken to and argued by Twisden Argument upon a special verdict upon construction of words of a Will and he held that the Feme had power by the Will to make the lease notwithstanding that she hath but an Estate for life and cited 11 Car. B. R. Hill rot 810. Iob and Whites case and 21 Iac. Danyel and Vgnel and he said that the remainder limited to the daughter doth not hurt for it may very well stand with the will and the intent of the Testator appears upon the whole to be to give such a power to his wife to make this lease and cited 8 Car. Perd and Bensams case And there is a clause in the will that shews that the Testator did intend to advance his wife by this devise And the Feme shall be in by the power which shall make the estate of the lease good and it is not necessary to recite the power as it is held in Rogers case Maynard on the other side said he would not dispute the power but here is no such power given to the wife as it appears by the expresse words of the Will which doth only describe that she shall only make Estates but for her life otherwise she might make Estates in Tail or in Fee and if this should be the last part of the Will which doth limit the remainder would be destroyed and generals in a Will shall not revoke an express devise but they ought so to be construed that all the Will may stand together as Bonhams case is 8. rep Roll chief Iustice It is a difficult thing to shew the meaning of the Testator here but the general must not destroy the particular devise to which Nicholas Iustice assented and Roll enclyned that the Feme had power by the Will to make this Estate otherwise the words of the Will must be idle and void and it may be the Baron intended to give his wife such a power that she might destroy the remainders and otherwise there cannot be any construction made of the Will Ask Iustice differed in opinion and said it was unreasonable the remainder should be destroyed which is expresly limited by the Will and a Will doth differ from a conveyance Nicholas Iustice said that the words shall be expounded to shew his bounty to his wife but not to give her power to destroy the remainder Ierman Iustice There are expresse words for the Feme and the daughter and the Feme hath a power but not to destroy the Estate of the daughter Curia advisare vult Antea Booth against Lambert Trin. 1651. Banc. sup Hill 1649. rot 201. VPon a speciall verdict upon these words Argument and judgement upon special verdict the question whether dower well assiâ—gâ—ed or not viz. I do endow you of a third part of all the lands my Cosen I. S. your husband dyed seised of The question was whether the feme were well endowed by these words because he doth not say that he endows her by metes and bounds Chase held she was not well endowed and cited 8 Ed. 2.15 and said that here is incertainty which begets dissention which ought not to be and the thing is not here entire but may be devided And this is an assignment of dower which differs from a demand of dower for a demand may be general as in the cases of Thyn and Thyn in this Court and of Fairefax and Fairefax and so the book of 8 E. 2. entry congeable S 5. which seems to prove the contrary that is not to our case for it differs from it Merifield of Councell on the other side held the feme was well endowed and agreed the cases put by Chase That of Common right a feme ought to be endowed by metes and bounds yet sometimes it is otherwise as 3 Eliz. Dyer 27. a feme endowed in Common And the feme that is to be endowed and the
and that by the Will the Land and personal Estate passed unto him for he said if by my Will I make one my Heir This is a devise to him of all my Lands in Fee for the Devisee is put in loco haeredis and shall be like an Heir by descent for he is haeres factus although he be not haeres natus Mich. 31 32 Eliz. rot 235 Godfreys Reports Hob. rep f. 34. b. Coundens case Hob. new edition 75. Spark against Burrell the very case in point adjudged 7 E. 6. Br. Done 44. and Devise 48. and in this Case the Devisee had annuities to pay and monies for Legacies which shews the intent of the Testator to be that he shall have his Lands and Goods neither shall the misspelling of the word Heir hurt the Will for the intent of the Testator shall be followed if it may be known as it may well be here Hob. f. 32.15 H. 7. f. 12. Cooks Lit. f. 323. Dyer 325. 2ly Misnaming in a Will shall not hurt the Will Dyer 323.21 Rich. 2. Fitzh devise 27.10 rep 57. 3ly False Latin shall not destroy deeds nor pleadings though it will abate writs a fortiori false English shall not destroy a Will 9 H. 7.16.10 rep Osborns case Hob. 227.10 rep 133. a. 9. H. 6.7 a. and here is only vitium scriptoriâ— and that cannot destroy a Will Hob. f. 162. Walkers case f. 104 104.9 rep 48. a. Dyer 17 Eliz. f. 342. Digbyes case Another reason is the word Heir is here written according to the pronunciation and sound of the word though it agree not in letters and H. that is left out is no letter but an asperte note and the language in England as it differs in time so it differs in place for men speak not nor write English in all parts of England alike and a Will in latin or greek is a good Will within the Statute so that it is not necessary for a Will to be good English and the Testator was bred in France and could neither write nor speak good English and his Will so much the rather is to be favoured And false English hath been allowed in a Bond viz. senteen for seventeen pounds 9. rep 48. a. much more may it be in a Will and so he prayed Iudgement for the Plaintiff Latch for the Defendant argued that the Will was not good he considered 2. points 1. When a man makes one his solle Ayeare and Yexecutor what construction the words shall have 2ly What Estate is conveyed by them And first he said that Hoberts Case cited by Powis was not to the purpose 1. Because it is not the principal case And 2ly It is but an opinion there and an Heir may be without land And for Counden and Clarks case that was cited as it was urged it is for me and not against me and there can be no authority cited that if one make a man his Heir that his lands are thereby conveyed to him in Fee simple But in our case there can be no certain intent of the Testator found out and the making of one his Heir in France where the Testator was bred according to the Civil Law there used is but to make him his Executor and so the Testator might mean it And if one in his Will say I make one of my Daughters my Heir and do not say of his Lands this shall not disinherit the other Daughters and if there should be any Estate conveyed here it cannot be but an Estate for life Brook Done 44.8 Jac. C. B. Inkersalls case 3ly The ill orthogrophy here makes the Will naught for a Will cannot be made good by conjectures Hob. 34. Mich. 23 Car. Robinsons case the Iudgement was reversed for writing the word Aeris insteed of aeris with a dipthongue Trin. 17 Car. C. B. rot 74. and in Skirret and Skinners case libis with a dash over put for libris was adjudged ill and in our case here are divers words miswritten And for the variation of our English dialect which is objected it is to no purpose because this will was lately made the dialect alters not in so short a time and the dialect of the County where the Will was made viz. Glocester Shire agrees not with the Will And Hill 6. Car. this Will came in dispute in the Court of wards and a decree there passed against the Will in this point The Court said the case is doubtful Will. because the Will doth not say I make him heir of my Land but generally my heir and Executor but the false writing hurts not a Will if the Testators mind may be found out Adjourned to be argued again Wood against Topham Mich. 1651 Banc. sup VVOod brought an Action of Trespasse upon the case quare filium baeredem rapuit et maritavit against Topham Arrest of judgement in an Action on the case upon not guilty pleaded and a verdidict found for the Plaintiff the Defendant moved in arrest of Iudgement and takes these exceptions to the Declaration 1. That the Plaintiff doth not say cujus maritagium ad ipsum pertinet 2ly That he doth not say that the Heir was within age and Maynard of Councel with the Defendant said that the exceptions are not to the writ but to the Declaration and the Action being a Trespasse to recover the Damages the Plaintiff ought to entitle himself to the mariage for the losse whereof he would recover damages for the Heir it may be is not Heir apparent to him and then is no mariage due to him and here is a special Declaration for the losse of the mariage Roll chief Iustice answered Writs Declaration the writs are good both wayes and so may the Declaration be either with those words or without them and he makes not the ground of his Action to be that the mariage belonged to him Common right but of Common right it doth belong to him and the words are used to be alleged only to increase the Damages and the ground of the Declaration is only quare filium suum haeredem rapuit and for this the Plaintiff ought to have his Iudgement Ierman Iustice differed and said the Plaintiff doth not shew he had any damage by the mariage it may be that he had been maryed before or was of full age so no cause of Action Nicholas Iustice as Roll and said that by the Law the mariage belongs to the Father and it may prove a dishonour to the family to have his son taken away and maryed without the Fathers consent Ask Iustice to the â—ams effect and so Iudgement was given for the Plaintiff nisi Antea Mich. 1651. Banc. sup THe Court was moved to mitigate fines Motion to mitigate fines for riots that were to be set upon rioters that were found guilty upon an information exhibited against them for the riotous cutting down of wood But Wild on the other side prayed there might be good fines set
for another man he had unwillingly committed a Trespass against the Plaintif in taking away 2 or 3 wheele-barroughs of Earth of the Plaintifs soil and therefore it was prayed that the matter might be referred to the Secondary to tax the damages and Costs for the Trespass which he was ready to pay that the proceedings might be stayed But Roll chief Iustice answered It cannot be but you may confess the Action Reference He le against Green Hill 1651. Banc. sup IN an Ejectione firmae a special Verdict was found upon which the Case fell out to be this A man being Lessee of a Manor for 199 years Special Verdict in an Ejectione firmae deviseth the Term to his wife for life with power to make such estates in as ample manner as he himself might have done during her life and the remainder in Tall to his Daughter and dies the Feme proves the Will and accepts of the Legacy and after makes a Lease for 99 years and dies and the daughter brings an Ejectione firmae against the Lessee of the Feme The question was whether this Lease made by the Feme were a good Lease or not Merifield argued that the Lease was not good after the death of the Feme because she having but an estate for life Lease and the Lease for 99 years being derived out of it when the estate for life ends the estate derived out of it must end also And 2ly If the Feme had any power to dispose of any part of the Term longer than for her life by the same reason she might have disposed of all of it which cannot be intended for the Testator did not mean that she should have power to destroy the Entayl made upon his Daughter And as to the Objection that she hath dissposed of but part of the Term and therefore hath not destroyed the Entayl I answer It matters not what she hath done but what she might have done for by the same reason that she disposed of part she might have disposed of the whole The rest of the Argument I could not hear Henage Finch on the other side argued That the Lease made by the Feme continues after her death because the Feme had a power given her to make such a Lease and by vertue of that power the Lease continues for the power given unto her relates to the Estates to be made by her and not to the continuance of her life And here the intent of the Testator is to be considered which was that his wife should have the power to dispose of all the Term if she would for he trusted her with it because she was his Wife and Mother of his Daughter to whom the Entayl was made and the very subject matter shews his intent to be so and because there is no other power expressed against this in any other part of the Will and the words that give her this power would be idle and trifling if they should receive any other Construction 2 Car. Banc. Reg. Danyel and Ogleys case and Gibs and Whites case 1 Car. nor does the assent of the Feme to the Legacy to have the Term for life destroy her power to make estates 2ly She hath well executed this power for the Iury have found that it is the Lease of the Feme 9 Iac. Suckham and Hawkins case a power given to an Executor may be executed by parts Roll chief Iustice held Lease the Lease was good for a Will ought to be so interpreted that all the parts of it may stand together and if the Feme here have not power to make this Lease the Clause of giving her this Lease is idle and the meaning is so without doubt the Feme hath the sole estate in Law in her and the power given here is but a restoring to her of that which she had before by the Law and her consenting to the Legacy doth not take away her power to make Estates And this limited power and the remainder to his daughter may stand together for it might be that the wife would not make such a lease and then the daughter should have had the land in tayl but if she dispose of it the daughter shall not have it Ierman as Roll. Nicholas Iustice held that the Feme could only dispose of the land during her life and that the Testators intent by the words was that the Feme should not be tyed to occupy the lands her self during her life but might dispose of them Ask as Nicholas that she can dispose of the lands only during her life for the power is only given during her life and this interpetation will make all parts of the Will stand together better than the other interpretation Adjourned Antea Dekins against Latham Hill 1651. Banc. sup Entred Hill 22 Car. rot 946. IN an ejectione firmae a special verdict was found Special verdict in an ejectione firmae upon which the Case fell out to be this One seised of lands covenanted to levy a fine to the use of himself and his wife for life and after he leased the lands for 21 years for 3 l. rent per annum by equal portions and after the death of I.S. to pay a gross sum of 125 l. by way of fine payable by 5 l. a year quarterly with a proviso in the Indenture that for default of payment of the rent or fine or for want of reparations it should be lawfull for the Lessor to re-enter After the Lessor levyes a fine and assigneth over his interest in the reversion The question here was whether the condition of entry be transferred over to the Assignee by the transferring over of the reversion Hales of councell with the Plaintiff held that the lease proceeds from the Husband only and not from the Baron and Feme and the condition is transferred over for the condition runs joyntly as well to the fine reserved as to the rent and is as it were a several condition in Law although it be comprised but in one clause and not several clauses and the condition as to the rent is transferred though not as to the fine In 19 E 4. f. 7. The law makes a several distribution of one praecipe and so may it do here of one condition and Rawlins case in the â— rep cited against this comes not to this case for there the question was of the suspension of a condition but here it is of the transferring over of a condition 2ly If it be but one condition yet it is well transferred by the Statute of 32 H. 8. C. â—4 an extinguishment in part is not extinguishment of all although a suspension of part be a suspension of all and the Grantee of the reversion shall have advantage of the condition because 1. He is within the words of the condition as to the condition 2ly The clause of re-entry is within the words of the Statute and Knights case objected comes not to this case for there
to the surrender or otherwise the admittance is not good Thurle and Madison Mich. 1655. Banc. sup IN a Tryal at the Bar between Thurle and Madison Enrolment of a Deed. It was said by Glyn chief Iustice that if divers persons do seal a Deed and but one of them acknowledge the Déed and the Déed is thereupon enrolled this is a good enrollment within the Statute and may be given in evidence as a Deed enrolled Evidence at a Tryal It was then also said that if a deed express a consideration of money upon the purchase made by the Deed yet this is no proof upon a tryal Consideration that the monies expressed were paid but it must be proved by witnesses MEorandum Copy proved That upon the same Tryal an Act of Parliament produced in point for the selling of Delinquents estates was sworn to have been examined by the Parliament Roll and that it was a true Copy before it was read in evidence Nota. VVood and Gunston Mich. 1655. VPon a motion for a new tryal between Wood and Gunston Memorandum New tryal for miscarriage of the Iury. upon a supposition of excessive damages given by the Iury in an Action upon the case tryed at the Bar for words viz. Calling the Plaintif Traytor c. 1500 l. being the damages given It was said by Glyn chief Iustice that if the Court do believe that the Iury gave their verdict against their direction given unto them the Court may grant a new Tryal And a new Tryal was gronted in this Case after a full debate had by Councell on both sides Culliar and Iermin Mich. 1655. Banc. sup CUlliar brought an Action upon the Case upon a promise and declared Arrest of judgement upon a promise that the Testator of the Defendant in consideration that the Plaintif would mary such a Woman did promise that he would leave him half his Estate at his death and thereupon he did mary the party and yet he did not leave him half his estate at his death Vpon a verdict found for the Plaintif it was moved in arrest of judgement that the Declaration was not good for whereas the promise was that the Defendant should leave him half of all his estate which might be intended both of his real and also of his personal Estate and of any estate in reversion as well as of an estate in possession the Plaintif only says that the Testator died worth 3000 l. in possession and that he did not leave him half of that estate and it may be he left him part of his real estate or estate in reversion to the full value of half his whole estate But Glyn chief Iustice disallowed the exception and gave judgement for the Plaintif Iudgement Lance and Blackmore Mich. 1655. Banc. sup Hill 1654. rot 191. LAnce an Executor brought an Action upon the Case against Blackmore Arrest of judgement in an Action upon the Case upon a pro and declared that in consideration that the Testator would suffer the Defendant to enjoy such a Close of land the Defendant did assume and promise to pay 53 s. a year for the rent thereof for so long time as he should enjoy it and for so much rent due for it for so long time in the Testators life time and for so much rent due since his death he brings the Action Vpon non assumpsit pleaded a verdict was found for the Plaintif and entire dammages given It was moved in arrest of Iudgement That an Action of the Case doth not lie it being for the non-payment of rent which follows the nature of the land and doth sound in the realty for which a personal Action lies not 2ly Here doth not appear by the Daclaration Personal act on Consideration to the any consideration to ground the promise upon for the Declaration is that if the Testator in her life time would permit the Defendant to enjoy the Close then c. and it is not averred Averment that the Testator did in her life time suffer the Defendant to enjoy the Close Glyn chief Iustice If a promise be made to the Testator the Executor may have an Action Executor and it is a good consideration as to him for the executor is representative of the Testator And 2ly An Action upon the Case will not lie for rent upon a promise in law but upon a special promise of the party to pay it Promise in Law Special as our Case is it will lie Ingram and Fawset Mich. 1655. Banc. sup IN this Case it was said by Glyn chief Iustice Administratâ—r must shew how Administrator That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintif to shew by whom the letters of Administration were granted unto the Defendant but he must shew by whom the letters of Administration were granted to himself to entitle himself to the Action for if it appear not to the Court that he is Administrator he cannot sue by that name Mich. 1635. Banc. sup IT was said by Wild and agreed by Whitwick one of the Masters of the Vpper Bench office How far special bayl is lyable for the principal that if an Attorny do appear for one in the Vpper Bench special bayl is entred for his Clyent to that Action that that Bayl is not bound to stand Bayl to all other Actions that shall be declared in against the party upon the by but the Attorny for him is bound to appear for him in all such Actions and to put in Common bayl Wagstaff and Tempest Mich. 1655. Banc. sup IT was said by Glyn chief Iustice upon evidence given in a Tryal at the Bar Dispensation with a forfeiture of an Estate bayl between VVagstaff and Tempest that if tenant for life do levy a Fine of the Lands he is so seised of whereby he should forfeit his estate yet if he in the remainder will joyn with the Tenant for life in declaring the uses this is a dispensation with the forfeiture and Le Gay Mich. 1655. Banc. sup THe Court was enformed For a time to accompt before Auditors that in an Action of Accompt brought there was a verdict that the Defendant should accompt before Auditors and that Auditors were assigned and the parties were now before the Auditors and thereupon it was moved on the Defendants part that this Court would grant him time to accompt for the reasons alleged But Wild answered that it was not proper to move here for the Auditors are now Iudges of the matter Auditors Iudges by the Statute and may give time if they see cause To which Glyn chief Iustice agreed and said the Auditors are Iudges by the Statute and therefore move before them and trouble not us with it Sergeant Bradshaw and Procter Mich. 1655. Banc. sup IN the Case of Sergeant Bradshaw and Mr. Procter of Grays Inne Challenge to an array no part of
his promise to take notice of her coming Roll chief Iustice answered if all the Declaration be considered together here is a good consideration expressed for this is not like to the case of tender of money And the words obtulit se in maritagium conjungi shall be intended to the Defendant himself Consideration and then he must néeds have notice of her coming thither D ves of Counsel with the Defendant took this Exception that the Plaintif in setting forth her offer of mariage doth not say tunc et ibidem soe there is neither place nor time set forth Roll chief Iustice answered it is after a Verdict and you move this Exception too late Advantage and you have now lost the advantage of taking it If there be a sufficient notice it is well if not it is not good for there ought to be a notice for she may come to his house in private so that he cannot take notice of her coming thither Notice The question only is this whether notice be sufficiently and necessarily imployed in the words obtulit se in maritagium conjungi Curia advisare vult Postea King against Weeden Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif in an Action upon the Case upon an Assumpsit brought by an Administrator Arrest of Iudgement in an Action upon the Case 2 Exceptions were taken 1. That the Plaintif did not shew his Letters of Administration and 2ly That there is no good consideration set forth to ground the Assumpsit upon for it is that the Defendant did promise that if the Plaintif would forbear to take his course for the monies he would pay them which words are uncertain and he should have said his course in Law and not generally his course Roll chief Iustice to the 1 answered It is not necessary here to shew the Letters of Administration for they are but inducements to the Actio◠and not the ground of it And for the second exception the consideration is certainly enough set forth Consideration although the Latine be not very proper Therefore let the Plaintif have his judgement nisi c. Sawyer against Russel Pasc 1651. Banc. sup SAwyer brought an Action upon the case against Russel Arrest of Iudgement in an Action upon the Case for taking away certain Cattel and obtained a Verdict against the Defendant The Defendant moved in Arrest of Iudgement and took exception to the Plaintifs Declaration for the incertainty thereof The Plaintif declared of a Trover and Conversion de ducentis Averiis viz. bobus juvencis Anglice Steers Iuvencis Anglice Runts Iuvencis Anglice Heifers which is uncertain and so judgement cannot be given for it is uncertain for what number of each of the Steers Runts and Heifers judgement should be given Roll chief Iustice enclined that it is certain enough Averment and that the number may be averred and the Cattel are all of one kind yet The Court would advise afterward it was ruled Iudicium nisi Shedlock and La. Pere Pasc 1651. Banc. sup Hill 1650. rot 211. IN a Writ of Error brought to reverse a Iudgement given in an inferior Court The Error assigned was Error to reverse a judgment in an interior Court Iudgement Error Abatement that the Iudgement is quod recuperare debeat whereas it ought to be recuperare debet Roll chief Iustice answered That if it be so there is no Iudgement given and so no Writ of Error lies therefore let the writ be abated For the Writ of Error supposeth a Iudgement for the words of it are si judicium redditum sit and in 3. Iacobi in the Exchequer Chamber the very case was adjudged so Collins against Sillye Pasc 1651 Banc. sup Hill 1650. rot 302. THe Case was this Demurrer upon an entry upon Lessee for years Lessée for years by indenture covenants with the Lessor that he will not assign over the land let nor any part thereof without the consent of the Lessor The Lessor during the term enters into part of the land let the Lessee assigns over the remainder of his term in the rest of the land without the consent of the Lessor and the Lessor thereupon brings an Action of Covenant against the Lessee the question was whether it did lye in regard that the Lessor had entred into part of the land Covenant Roll chief Iustice held that the Covenant was collateral and therefore it is broken by the assignment notwithstanding the Lessors entry into part of the land And the rule was judicium nisi Custodes against Monger Pasc 1651. MOnger was endicted for forgeing a presentment to a Iury in a Court held before Commissioners of sewers Exceptions to the setting forth of a presentment against Monger for casting of 10 loads of soil into the Thames Exceptions were taken that it doth not appear by the endictment by what authority the Court was held where the presentment was found 2ly It is not averred that the presentment did present the casting in the soil to be any annoyance 3ly There doth not appear to be any process in the case against the party upon the presentment To the first it was answered by councell on the other side that it is not necessary to shew by what authority the Court was held for their Authority is by Act of Parliament and it is a publique Act to be taken notice of Roll the chief Iustice answered That it is a private Act made for the City of London and concerned the Lord Maior though part of it be publique Statute for part of an Act may be publique and another part of it private and of that part which is private we are not bound to take notice and it was here said that in criminal causes Errors in proceedings are not helped by a verdict Notice Roll took an exception that the endictment was only contra pacem publicam Ieofail Indictment whereas at that time when it was preferred it ought to have been contra pacem nuper domini Regis contra pacem publicam nunc Adjourned 23 Car in the Kings Bench. Pasc 1650. rot 414. Cremer Plantiff in a Replevin Burnet Avowant in a Replevin THe Plaintiff complains for the taking of his Cattell Whether a copyhold estate be extinct by the Kings leasing it for life to wit a Horse Colt and three Mares the 13 of Ianuary 21 Car. at Chingford in the County of Essex in a close there called Pipers down THe Defendant avows the taking of the Cattel in loco quo c. as Bailiff unto Thomas Boothbye as damage feasant in the Close aforesaid being the soil and the freehold of the said Thomas Boothby Vpon the pleading the case appeared to be as followeth KIng Henry the 8. being seised in Fée in the right of his Crown in the maner of Chingford Comitis in the County of Essex of which manour a certain tenement called Lormiers
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
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
heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
the Arbitrators have all of it to agree in and till it is ended the Vmpire hath no power at all otherwise the submission would be repugnant in it self The rest of the Iudges concurred in all and so ruled That the Plaintif all capiat per billam nisi Theoballs against Newton Mich. 1651. Banc. sup ONe was sued upon the Statute of Inmates and the distringas jurata bare date on a Sunday and out of Term and so is erronious The question here was whether it be not helped by the Statutes of Ieofails of 18 Eliz. and 21 Iac. Roll chief Iustice held Ieofails that the Statutes extend not to penal Laws although it be ambiguously penned nor to any processes grounded upon them for the Proviso exempts the Original action and by consequence all processes depending upon it are excepted Venire de novo so that here is no good tryal but there shall be a venire de novo nisi Tayler and Webb Mich. 1651. Banc. sup THe Case of Tayler and Webb which arose upon a special verdict upon these words of Will Special Verdict upon the words of a Will viz. I make my Cosen Giles Bridges my soll ayere and yexecutor was again moved and argued by Hales and he made three questions 1. Whether any estate passeth by the words of the will 2ly If any what estate passeth 3ly Whether the false Orthography doth hurt the Will For the first he said that by making one his sole heir his land passeth to him The word heir is to be considered either in relation to an Ancestor and so one cannot make one his heir or it may be considered in relation to a thing to be inherited to wit lands or tenements and so one may make another his heir and thus a Custom may make one a mans heir as it is in Borough English and an accident may thus also make one a mans heir as it is in the Case of possessio fratris Coundens case Hob. Rep. Case 947. And here it is all one to make one his heir and to make hint heir of hislands and the reasons are First the word heir here cannot have any other relation than to the Testators lands for he cannot make him his heir otherwise and the words may be more reasonably intended so 2ly The words carry in them the plain intention of the Devisor that the party should have his lands although the words are not very proper â— H. 7. A devise of lands to his son after the death of his wife passed an Estate for life to the wife although no such Estate was expressed in the Will so here although no expresse Estate of land be devised yet the Devisee shall have the lands by the intent of the Devisor 3ly In ordinary speech if one make such an one his Heir it is intended that he gives him his lands 8 Car. in the C. B. in Spurt and Bents case A devise of his inheritance was held a devise of his lands and Trin. 3. Iac. in Terryes case A devise of all his rents in tayl passed his lands because in vulgar acceptance it is the rents of lands and in Pits and Sands case in this Court A devise of all his free lands in Holford did passe a portion of Tithes and in the case of one Iohnson a devise of all his estate passed all his lands And the words cannot bear the fence to make him Executor according to the Civill Law as hath been objected for the Will shall be intended as it is to be an English mans Will and so the word Heir in it shall he interpreted according to out Law and not the Civill Law and even in the Civill law to make one his Heir doth convey unto him all his lands for he is haeres testamentarius although not haeres legitimus And in this Will here are two expressions for the party is made Heir and Executor which two words cannot signifie one thing for that would be an idle expression 4ly There are some clauses in the Will which shew the intent of the Testator was to convey his lands if it were needful to make use of them 1. There are several annuities for the Devisee to pay 2ly He directs him where the conveyances and assurances of his lands were laid up which plainly shew he meant he should have his land 3ly The words Heir and Executor are joyned together to shew that he gives him all his lands and goods else one of the words must be imperfect and ineffectual which shall not be intended For Authority 7 E. 6. Br. devise 38. by devising that one Son shall be Heir to the other it shall be intended of lands so in construction of law it shall be here intended that the Devisor made him Heir of his lands Hob. Reports in Sparkes and Burnells case William and Anthony shall be each others Heir and it is not said of land yet adjudged that it shall be so meant and so is it in our case and if I have lands in see simple and make one my heir it shall be intended that he shall have my lands in see simple although I say not that I make him Heir of my lands For the second question the reasons before expressed do also shew that the lands are passed in Fee as it is in Purnells and Hambletons case for the word Heir shall relate to the same Estate that the party had in the land who makes the other his Heir 8 Iac. Inkersals case For the 3d point whether here shall be any good devise at all by reason of the false English he said it was all one and to as good effect as if the words were all true English and neither the incongruity nor the insufficiency of the words shall hurt the Will as it is pretended For 1. This is not in case of pleading or of writs but in conveyance of lands It is true that in the former it doth hurt because writs and pleadings may be amended if they be naught but it is fatal in conveyances for they cannot be amended as in Trotman and Standards case Trin. 1651. in this Court it was held that impropriety of words shall not hurt it they can admit of a good construction Desinet in piscem mulier formosa superne 2ly This is in a Will which is such an instrument that is much favoured in Law and therefore to be favourably construed 3ly This is an English Will and admits of much variety of dialects and therefore is not to be critically interpreted Neither are there here any insignificant or missignificant words as hath been objected but significant for the sound of the word as it is written is the same as if it had been rightly spelled for Ayer and Heir sound both alike As in 3 H. 4. f. 4 Baxter and Baxster sounded alike 2ly If the word Heir might receive any other sence yet it cannot do so here because there are other words joyned to it to declare and signifie that the
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
estate may pass by Attorney and so although here be but a bare power given yet it is well executed notwithstanding his death that gave it 2ly This Letter of Attorney was not countermandable by the Copyholder himself during his life and therefore it shall not be countermanded by his death and though it had been countermandable during his life yet it being not countermanded by him in his life his death shall not countermand it and the custom doth strengthen this power Next this custom is not contradictory for here is no Attorney made but a writing made in the nature of a Letter of Attorney and a power to surrender given by it and it is no more than for one Copyholder to surrender for another which is usual and in Cooks 9 Rep. f. 76. A Copyholder is called an Attorney also Copyhold estates are made by customs and therefore such customs which are to confirm estates are to be favoured in Law although they do differ from conveyances of estates at the Common Law and this custom is not only reasonable but convenient also for the passing of Copyhold estates And this custom enlarges the power of alienations and such customs have generally been admitted good though different from the Common Law And when a custom is become a Law it is very dangerous to alter it and the doing of it would overthrow many estates Ellis Sollicitor General on the other side argued That the custom is not good because it is against the rule of Law That an authority given should survive the party that gave it and a custom cannot strengthen it for a custom ought to be reasonable and agreeing to the nature of the thing which it concerns otherwise it cannot be good for Ratio est formalis causa consuetudinis Dalisons Rep. 32. 1 Instit f. 59. And this cause cannot be reasonable because it cannot give an authority to another to do such a thing for him after his death which he could not do during his life And this custom doth purely destroy the nature of the Common Law and therefore cannot be good And it is against the very nature of an authority to survive and so consequently it is against the nature of the thing Dyer 357. 10 E. 3. f. 5. 18 Rep. Vnyers case The party in his life time might have revoked this authority and therefore his death doth revoke it and by the death of the Copyholder the Copyhold is descended and cannot be surrendred by a dead man and here was no incoation of the estate of the party that is dead and I hold there is a difference betwixt a will and an authority And also here the Letter of Attorney is not pursuant to the custom and therefore it is a void Letter of Attorney 16 Iac. rot 530. Greenwood and Onslaes case Customs are to be taken strictly Copyhold and to be so pursued and it is not so here for here is an addition to the custom and this makes all void Roll chief Iustice Copyholds are much led by the customs of the Manor and me thinks here is little difference betwixtt surrendring into the hands of another Copyholder to make a surrender for him and this case and the variances are not so considerable as to make it void here The Court would advise At another day the case was again put Custom and the Court delivered their opinion that the custom was good and Roll chief Iustice said that the death of the party doth not revoke this writing made in the nature of a Letter of Attorney Revocation for it is strengthned by the custom and it is not like an ordinary Letter of Attorney which becoms void by the death of him that made it Authority Executor for this custom is a Law and the authority here survives as an Executor may sell the Testators lands it he be impowered to do it by the will and therefore the Custom is good and let the Plaintif have judgement nisi c. Child Trin. 1654. Banc. sup AN Action upon the Statute of 5 Eliz. was brought for using a Trade not having served an Apprentiship in it That the Defendant might not plead to the Action Serjeant Fletcher moved that the Defendant might not be compelled to plead because he ought not to be sued out of the County where he useth the Trade Roll chief Iustice proceed according to Law and plead this matter or move it in arrest of Iudgement Rule for we will make no rule Trin. 1654. Banc. sup BY Roll chief Iustice Where an Action on the Case lies and where not an Action upon the case doth not lie against one for causing another to be endicted for a Trespass but for causing one to be endicted for a thing which deserves corporal punishment or a thing which sounds in scandal of the party endicted an Action upon the case will lie Nota. Stevens against Ask. Mich. 1654. Banc. sup STephens brought an Action upon the case against Ask for these words Action on the Case for words Arrest of judgement Adjective words Thou art a common Bastard-bearing Whore and hadst two Bastards by a Butcher and I will prove it Vpon not guilty pleaded and a verdict found for the Plaintif Twisden moved in Arrest of Iudgement that the first words viz. Thou art a common Bastard-bearing Whore are not actionable because they are adjective words and are not positive And for the other words they are not actionable because they were spoken of a Feme Covert who cannot have a Bastard Vpon this the judgement was arrested till the next Term and then Wild moved for judgement for that he conceived that the words taken together are actionable and cited Owen levons case adjudged in this Court to prove it Roll chief Iustice If she were married at the time of the words spoken she could not have a Bastard but yet why should not the words be actionable for the words purport that she was not maried when she had the Bastards and the Iury hath found for the Plaintif Therefore let her take her judgement nisi Barker and Weston Mich. 1654. Banc. sup THe Court was moved that the bail to an Action might be discharged To discharge Bail because they had now brought in the principal and it was but one day after the return of the writ But Roll chief Iustice answered that it may not be because they come in upon the return of the second Scire facias Harvey and Mountney Mich. 1654. anc sup IN this Case the Action being a Trespass and Ejectment and the title concerning Hugh Audley of the Inner Temple the Defendant was by rule of Court at the tryal which was to be at the bar to appear and confess the lease entry and ouster and to stand upon the title only Plaintif non-sute and yet judgement for him yet at the tryal he would not appear upon which the Plaintif was non-sute and yet the judgement was for the Plaintif upon
the Record It was said that a challenge to the array is no part of the Record but ought to be determined whether it be good or not by the Iudge before whom the tryal of the Cause should have been By whom to be determined Demurrer to a challenge if the challenge had not been taken and so hath it been ruled upon serious advise in the Common-pleas and it was then likewise said if there be a demurrer to a challenge at the Assises the Iudge of Assise may determine it there or over-rule it or adjourn it to be heard at another time Somes and Sir John Lenthall Mich. 1655. Banc. sup THe Court was enformed that an Action of Debt was formerly brought against Sir Iohn Lenthall and that there was Iudgement For Sir Iohn Lenthall the Mareschall to appear that he might be in execution and an execution thereupon taken out against him but that he abâ—conded himself that be could not be taken and therefore it was prayed in regard he was an Officer of this Court that the Court would order him to appear here that he may be committed in execution to the Sherif of Middlesex But Glyn chief Iustice answered if Sir Iohn Lenthall do appear here and you pray him in execution we can commit him to no other prison but the Marshalsea for that is the prison of this Court and to commit him to that prison of which he is the Kéeper without securing the Prisoners there before we do it will be an escape in Law of all the Prisoners Therefore let Sir Iohn shew cause why he should not pay the Debt for it is neither for his own credit nor the honor of this Court that he should not satisfie his Debts Fardres and Prowd Mich. 1655. Banc. sup HArdres brought an Action upon the Case against Prowd Arrest of judgement in an action upon the Case upon a promise and declared that whereas he at the instance and request of the Defendant had taken pains to reconcile differences betwixt the Defendant and I. S. and others the Defendant did assume and promise unto the Plaintif to pay unto him 100 l. at a certain day and for not paying the mony accordingly he brings his Action And upon non-assumpsit pleaded and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement 1. That here is no consideration set forth in the Declaration to ground the promise upon for it is only said that in consideration that the Plaintif had taken pains c. Consideration executed he did promise c. and this is a consideration executed and not sufficient to ground a promise upon and one Hunt and Dier case was cited for proof 2ly He doth not shew what pains he hath taken and so it cannot be known whether his pains were sufficient to ground the promise upon 3ly He sayes that he took pains to reconcile differences betwixt the Defendant and I. S. and others and doth not shew who these others were The two last exceptions were over-ruled without speaking to and to the first VVild answered that here was a continuing consideration Continuing consideration though the pains taken were past for it is said he took the pains at the instance and request of the Plaintif Glyn chief Iustice It is as you say Voluntary curtesie for here is more than a voluntary Curtesie upon which no consideration for a promise can be grounded for the pains here were undertaken at the instance of the Plaintif Iudicium nisi c. Mich. 1655. Banc. sup BY Glyn chief Iustice Where one may appear by Attorney where not If one come in upon the Eâ—igent he may appear by his Attorny but if he come in upon the Outlawry he must appear in his proper person and not by his Attorny and so is the constant practice of the Common-pleas and of this Court also Nota. London and VVilcocks Mich. 1655. Banc sup LOndon brought an Action of Trespass against VVilcocks inter alia Arrest of judgement in Trespass for taking and carrying away 40 loads of Corn in the Straw Vpon a verdict found for the Plaintif it was moved in arrest of Iudgement that the Declaration was uncertain for the Plaintif had declared for 40 loads of Corn in the Straw and it doth not appear whether they be Horse-loads or Cart-loads or what other loads of Corn they are But Glyn chief Iustice answered that it is well enough expressed for it being of Corn in the Straw it shall be intended Cart-loads and therefore let the Plaintif have his Iudgement Judgement Q. If the Action had been laid in the County of Cornwell where it is usual to carry Corn in the Straw upon Horses whether the Declaration would have been good VVood and Gunston Mich. 1655. Banc. sup WOod brought an Action upon the Case against Gunston for speaking of scandalous words against For a new tryal in an action of Trespass for 〈◊〉 words and amongst other words for calling him Traytor and obteyns a verdict against him at the Bar wherein the Iury gave 1500 l. dammages Vpon the supposition that the dammages were excessive and that the Iury did favour the Plaintif the Defendant moved for a new tryal But Sergeant Maynard opposed it and said that after a verdict the partiality of the Iury ought not to be questioned nor is there any Presidents for it in our Books of the Law and it would be of dangerous consequence if it should be suffered and the greatness of the dammages given can be no cause for a new tryal but if it were the dammages are not here excessive if the words spoken be well considered for they tend to take away the Plaintifs estate and his life VVindham on the other side pressed for a new tryal and said it was a packed business else there could not have been so great dammages and the Court hath power in extraordinary cases such as this is to grant a new tryal Glyn chief Justice Discretion of the Court. Discretion Judicial Arbitrary The Court not to be intended partial It is in the discretion of the Court in some cases to grant a new tryal but this must be a judicial and not an arbitrary discretion and it is frequent in our Books for the Court to take notice of miscariages of Iuries and to grant new tryals upon them and it is for the peoples benefit that it should be so for a Iury may sometimes by indirect dealings be moved to side with one party and not to be indifferent betwixt them but it cannot be so intended of the Court wherefore let there be a new tryal the next Term and the Defendant shall pay full Costs and judgement to be upon this Verdict to stand for security to pay what shall be recovered upon the next verdict Granted The Protector and Buckner Mich. 1655. Banc. sup BUckner was endicted upon the Statute of 1. Iac. Special verdict upon an endictment upon the