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
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
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
to alter all or any part of the settlement made at any time during his life The verdict finds further that there was an Ordinance of Parliament made in the year of our Lord 1645. that Sir Thomas Morgan should forfeit all his lands and estate which he was then seised or possessed of or had been seised or possessed of from the year 1641. and that by the same Ordinance the lands in question were given to Mr. Pym that by virtue of the said Ordinance he encred was seised pro ut that Mr. Pym died so seised after whose death the Plaintifs lessor as his heir entred made a lease to the Plaintif after that Sir Tho Morgan died Mary the Defendant claiming as tenant in remainder for life after the death of Sir Thomas her father by vertue of the settlement made 13 Carol. entred into the lands in question and the Plaintif as lessée of Pym brings the action Vpon this special verdict the Question was Whether by the Ordinance of Parliament made not till the year 1645. yet looking back to the year 1641. the remainder of the lands in question which was setled 13 Car. being before the making of the Ordinance and also before the time to which the Ordinance looks back be forfeited by the Ordinance or not Forfeiture Latch of Councel with the Defendant argued That it was not forfeited 1. Because that the Ordinance is penal and retrospective or looking back and therefore it is odious in Law and shall not be largely interpreted but as strictly as may be 2ly The preamble of the Ordinance sets forth 2. things as the reasons why the Ordinance was made 1. Mr. Pyms deserts to whom the lands were given 2ly Morgans offences for which he was thus punished and both these grounds for making the Ordinance can extend no further than to the year 1641. and so not to the time of the settlement made 13 Car. by Sir Thomas Morgan for then neither of these causes alleged were in being 2ly The purview of the Ordinance is double 1. punitive 2ly remunerative 1. the punitive part which concerns the punishing of Sir Thomas Morgan 2ly the remunerative part concerning the rewarding of Mr. Pym and the punitiue part made in the year 1645. cannot reach the estate setled upon Mary his daughter so long before viz. 13 Car. for it can reach no further back than to the year 1641. at the most to which time and no further the Ordinance is retrospective and in the Statute of 23 H. 8. general words of an Act are restrained Besides there is a demonstration in the Ordinance that shews the Ordinance doth not extend to the estate of the Defendant as may appear by the provisoes conteined in it for although the children of Morgan are to be punished within the Ordinance by the second proviso of it yet this extends not to so long time as to 13 Car. when the estate was setled but only to the estate as it was in the year 1641. And therefore prayed Iudgement for the Defendant Wadham Windham on the other side argued that the estate of Morgan though it was said to be setled 13 Car. was forseited by the Ordinance Because the estate was not absolutely setled at that time for there was a proviso in the conveyance to revoke the settlement so that at the time of the Ordinance made the estate was in Sir Thomas Morgan absolutely to dispose off as he pleased and by the words of the Ordinance all Morgans estate is passed without any saving and the provisoes of the Ordinance do prove that the Children of Sir Thomas Morgan were excepted out of the savings made to preserve the estates of others Also Boons and Favours bestowed use to be amply expounded and this being a Boon bestowed by the Parliament shall receive as large a construction as is possible Besides Morgan was a Papist therfore it may well be supposed that he intended not this for any real settlement but only by way of subtility for some private reasons for we know that Papists do use to make such settlements as this was to preserve them from penalties of the Law And the words of the Ordinance are accumulative to convey all Morgans estate and there are no restrictive words and if there were they should be void here for the Manor of Callidown being the Lands in question are expresly given by the Ordinance and as to these Lands the rights of all men are bound and therefore if there were a saving it would be void as it is Cook rep Alton Woods Case And an act of Parliament sometimes is as a conveyance sometime as a judgment and both waies a saving in it is void and srivolous 1 Rep. 4. A conditional estate or a right may be saved by Iudgment or fine but not an entire estate or interest Saving and therefore the estate of Mary in the Manor of Callidown cannot be saved by any proviso and he cited Alton Woods Case for authority in the principal Case f. 51. But admitting a general saving had been good to save Maries estate yet as the words of the Ordinance were penned her estate is not saved by it for the words were put in the Ordinance for the advantage of Pym and not to provide for Mary for she claims from Thomas Morgan and so prayed Iudgement for the Plaintif Roll chief Iustice said that the provisoes in the Ordinance are not void to all persons as Windham argued for Strangers are clearly provided for by them But let the Case be argued again Saturday fortnight Postea Hatwood against Payte Mich. 1649 Banc. sup Entred Hill 24 Car. rot 78. THe question insisted upon in this Case was Whether Tithes be extendible upon an Elegit whether upon a recovery in an Action of Debt against a Parson the Tithes be extendible by Elegit Hales of Councel with the Plaintif held that they are because that Tithes may be said to be Tenements and the Parson hath a Free-hold in them although he hold them jure Ecclesiae But Roll chief Iustice said Elegit that a Parsonage cannot be extended but that the Debt may be levyed out of the profits of it by the Sherif as it was wont to be done Extent for now there being no Bishops the profits cannot be sequestred by the Bishop of the Dioces Sequestration as they used to be But Ierman and Nicholas Iustices doubted Clergy Ask Iustice agreed with Roll and said that by the Common-law the Clergy are no more privileged from paying their debts than Lay men are Roll chief Iustice said it hath been heretofore questioned whether a Clergy-man be subject to watch and ward or to contribute to satisfie for a robbery done within the Hundred but now it is no question but they are subject and shall contribute Adjourned till Saturday to be argued again Postea Tyndal and others against Harington Mich. 1649. Banc. sup TYndal brought an Action of Debt
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
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
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