Governour of Barbadoes and the Council there have power of probate of Wills and granting of Administration that the Secretary belongs and is an Officer to the said Governour and Council as Register and is concerned about the registring the said Wills and so his Office concerns the Administration of Iustice and then sets forth that this Covenant upon which the Plaintiff brought his Action was entred into upon a corrupt Agréement and for that reason void The Plaintiff replies protestando that this Office concerned not the Administration of Iustice and protestando that here was no corrupt Agréement pro placito he saith that Barbadoes is extra quatuor Maria and was always out of the Allegeance and power of the Kings of England till King Charles the First reduced that Island to his Obedience which is now governed by Laws made by him and not by the Laws of England The Defendant rejoyns protestando that this Island was governed by the Laws of England long before the Reign of King Charles the First and confesses it to be extra quatuor Maria but pleads that before King Charles had that Island King James was seised thereof and died such a day so seised after whose death it descended to King Charles the First as his Son and Heir and that he being so seised 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent absque hoc that King Charles the First acquired this Island by Conquest Baldwyn Serjeant demurred for that the Traverse is ill Ex parte Quer. for the most material thing in the Pleadings was whether Barbadoes was governed by the Laws of England or by particular Laws of their own And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place He said that it was but lately acquired and was not governed by the Laws of England that it was first found out in King James his Reign which was long after the making of that Statute and therefore could not extend to it The Statute of 1 E. 6. cap. 7. Enacts That no Writ shall abate if the Defendant pending the Action be created a Duke or Earl c. And it has béen doubted whether this Act extended to a Baronet being a Dignity created after the making thereof Sir Simon Bennets Case Syd 40. Cro Car. 104. Statutes of England extend no more to Barbadoes than to Scotland or Virginia New England Isles of Jersey and Gernsey 't is true an Appeal lies from those Islands to the King in Council here but that is by Constitutions of their own No Statute did extend to Ireland till Poyning's Law nor now unless named In Barbadoes they have Laws different from ours as That a Deed shall bind a Feme Covert and many others Ex parte Def. Seys Serjeant contra He agreed that the Traverse was ill and therefore did not indeavour to maintain it but said there was a departure betwéen the Declaration and the Replication for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes viz. in Parochia Sancti Martini in Campis and in the Replication he sets forth that this Isle was not in England which is in the nature of a departure as Debt sur obligat ' 1 Maii the Defendant pleads a Release 3 Maii the Plaintiff replies primo deliberat ' 4 Maii 't is a departure for he should have set forth that the Bond was 4 Maii primo deliberat ' Quaere Bro. Departure 14. So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary The Plaintiff replies Quod tali die anno he presented his Clerk and the Bishop refused him the Bishop rejoyns that at the same day another presented his Clerk so that the Church became litigious and the Plaintiff surrejoyns that after that time the Church was litigious he again presented and his Clerk was refused this was a Departure Bro. Departure So likewise as to the place the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress and the Tenant saith that he gave it at L. after he was discharged and at large 40 E. 3. Bro. 32. 1 H. 6.3 The Plaintiff might have said that Nokes was admitted here in England without shewing it was at Barbadoes for the Grant of the Office of Secretary might be made to him here under the Great Seal of England as well as a Grant of Administration may be made by the Ordinary out of his Diocess 2. Except Viz. By the Demurrer to the Rejoynder the Plaintiff hath confessed his Replication to be false in another respect for by that he hath owned it The Defendant hath pleaded that King James was seised of this Island and that it descended to King Charles c. and so is a Province of England whereas before he had only alledged that it was reduced in the time of King Charles his Son and so he hath falsified his own Replication And besides this is within the Statute of 5 Ed. 6. for the Defendant saith that the Plaintiff hath admitted Barbadoes to be a Province of England and it doth not appear that ever there was a Prince there or any other person who had Dominion except the King and his Predecessors and then the Case will be no more than if the King of England take possession of an Island where before there was vacua possessio by what Laws shall it be governed certainly by the Laws of England This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer for which Process might issue and it descends to the Heirs of the Earl at the Common Law And if it be objected that they have a Book of Constitutions in Barbadoes that is easily answered for 't is no Record neither can the Iudges take any notice of it 'T is reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction and that it should be interpreted to extend as well to those Plantations as to England for if another Island should be now discovered it must be subject to the Laws of England Curia advisare vult Lever versus Hosier THIS was a special Verdict in Ejectment Recovery suffered of Lands in a Liberty passeth Lands in a Vill distinct within that Liberty Mod. Rep. 206. Postea The Case upon the Pleading was viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury and whether the Lands in Cotton which is a distinct Vill though within the Liberties shall pass was the Question And it was argued
Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words
Nomen collectivum and if twenty Breaches had been assigned he still counts de placito quod teneat ei Conventionem inter eos fact ' And of that Opinion was the Court and that the Breach being of all three Covenants the Recovery in one would be a good Barr in any Action afterwards to be brought upon either of those Covenants Parrington versus Lee. INdebitatus Assumpsit Limitation of personal Actions only extends to accompt between Merchants Mod. Rep. 268. 2 Sand. 125 127. Pl. Com. 54. for Mony had and received to the use of the Plaintiff a quantum meruit for Wares sold and an Insimul computasset c. The Defendant pleads the Statute of Limitations viz. non assumpsit infra sex annos The Plaintiff replyed that this Action was grounded on the Trade of Merchants and brought against the Defendant as his Factor c. The Defendant rejoyns that this was not an Action of Accompt and the Plaintiff demurred for that this Statute was made in restraint of the Common Law and therefore is not to be favoured or extended by Equity but to be taken strictly and that if a Man hath a double remedy he may take which he pleaseth and here the Plaintiff might have brought an Action of Accompt or an Action on the Case grounded on an Accompt But Baldwyn Serjeant insisted that the Declaration was not full enough for the Plaintiff ought to set forth that the Action did concern Merchants Accompts and that the Replication did not help it The Court were of another Opinion for that it need not be so set forth in the Declaration because he could not tell what the Defendant would plead so that supposing him to be within the Saving of the Act his Replication is good and 't is the usual way of Pleading and no departure because the Plea of the Defendant gives him occasion thus to reply But the Saving extends only to Accompts between Merchants their Factors and Servants and an Action on the Case will not lie against a Bayliff or Factor where Allowances and Deductions are to be made unless the Accompt be adjusted and stated as it was resolved in Sir Paul Neals Case against his Bayliff Where the Accompt is once stated as it was here the Plaintiff must bring his Action within six years but if it be adjusted and a following Accompt is added in such case the Plaintiff shall not be barred by the Statute Mod. Rep. 71. because 't is a running Accompt but if he should not be barred here then the Exception would extend to all Actions between Merchants and their Factors as well as to Actions of Accompt which was never intended and therefore this Plea is good and the Saving extends only to Actions of Accompt whereupon Iudgment was given for the Defendant Astry versus Ballard In Banco Regis Principals in Execution the Bail are lyable 1 Ventris 315 THE Defendant became Bail for six persons against whom the Plaintiff got a Iudgment and two were put in Execution the Plaintiff afterwards brought a Scire Facias against the Bail who pleaded that two of the Principals were taken in Execution before the Scire Facias brought and whether the Bail was not discharged thereby was now the Question It was agreed that if five had surrendred themselves after Iudgment 2 Cro. 320. 1 Roll. 897. yet the Bail had been lyable but are not so if the Plaintiff as in this Case hath once made his Election by suing out Execution against the Principals and thereupon two are taken and in Custody Before the Return of the second Scire Facias they have Liberty by the Law to bring in the Principals but the Plaintiff having taken out Execution he hath made it now impossible for the Bail to bring them in to render themselves But Sypmson argued that the Bail was not discharged for he ought to bring in the other four or else he hath not performed his Recognizance and so it was adjudged by the Court Sid. 107. for the Law expects a compleat satisfaction The like Resolution was in this Court between Orlibear and Norris Steed versus Perryer IN a Special Verdict in Ejectment the Case was this Republication makes it a new Will viz. Robert Perryer being seised in Fee of the Lands in question had Issue two Sons William his eldest and Robert his youngest Son and being so seised he devises these Lands to his youngest Son Robert and his Heirs Robert the Devisee dies in the Life time of his Father Jones 135. 1 Ventris 341 Mod. Rep. 267. and leaves Issue a Son named Robert who had a Legacy devised to him by the same Will The Grandfather afterwards annexed a Codicil to his Will which was agreed to be a Republication and then he expresly publishes the Will de novo and declared that his Grandson Robert should have the Land as his Son Robert should have enjoyed it had he lived And whether the Grandson or the Heir at Law had the better Title was the Question Pemberton and Maynard Serjeants argued for the Title of the Plaintiff who was Heir at Law That if a Devise be to S. and his Heirs if S. dye living the Devisor the Heir shall take nothing because no Estate vested in his Ancestor so if a Devise be to the Heirs of S. after his decease the Heir shall take by Purchase for he cannot take as Heir for the Reason aforesaid By the death of Robert the Son the Devise to him and his Heirs was void and the annexing a Codicile and Republication of the Will cannot make that good which was void before if it cannot make it good then the Heir cannot take by Purchase and by descent he cannot take for his Ancestor had no Estate and therefore he shall have none Besides this is not a good Will within the Statute which requires it to be in Writing Now the Devise by the written Will was to the Son and the Republication to the Grandson was by Words and not in Writing so that if he cannot take by the Words of the Will he is remediless and that he cannot take as Heir because his Ancestor dyed in the Life time of the Testator Moor 353. Cro. Eliz. 243. Cro. Eliz. 422. Moor 353 404. Skipwith and Barrel on the other side That the new Publication makes it good for it makes a new Will in Writing and it shall take according to the Publication which makes it have the effect of a new Will 'T is true Deeds shall not be extended father than the intent and meaning of the Parties at the time of the Delivery but Wills are to be expounded by another Rule therefore though by the death of the Son the Will was void yet by the Republication it hath a new Life 1 Roll. Abr. 618. 5 Co. 68. 8 Co. 125. The Chief Justice Wyndham and Atkins Iustices were of Opinion for the Grandson against the Heir at Law viz. That the Republication made it a
Termino Paschae Anno 27 Car. II. in Communi Banco Naylor versus Sharpless and other Coroners of Lancashire AN Action on the Case was brought for a False Return in which the Plaintiff sets forth Case for a false Return Mod. Rep. 198. that upon a Writ issuing out of this Court to the Chancellor of the Dutchy of Lancaster Process was directed to six Coroners being the Defendants which was delivered to one of them being then in the presence of the Party who was to be arrested but he did not execute it and afterwards at the Return of the Writ they all returned Non est inventus This Action was laid in Middlesex and upon Not-Guilty pleaded the Cause came to Tryal and there was a Verdict for the Plaintiff Baldwyn Serjeant moved in arrest of Iugdment 1. Except That the Action ought not to be laid in Middlesex but in Lancashire where the Tort was committed But as to that it was answered by Serjeant Turner when two Matters both of which are material and are laid in two Counties the Action may be brought in either as if two libel in the Admiralty for a Contract made at Land in Dorsetshire and for which the Plaintiff brings an Action in London against one of them it has been adjudged the Action lies in either County 2. Except The Action will not lie against the six Coroners for the Tort was done by one alone As to that it was said all the Coroners are but one Officer so if one Sheriff suffer an Escape both are liable but in this Case it had been ill to have brought the Action only against one because the ground of it is the false Return which was made by six Coroners And as to the first Exception there could be no doubt now since after Verdict 't is * Stat. 16 17 Car. 2. c. 8. helped though the Trial be in a wrong County But the Court said that Statute helps a Mistrial in the proper County but not where the County is mistaken and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner but if it had béen for not arresting the Party in such a Case it ought to have been brought against the Coroner who was present with the person to be arrested for that had béen a personal Tort which could not have been charged upon the rest Edwards versus Roberts That he did totally forbear and doth not say hucusque good THE Plaintiff declares that the Defendant promised to pay him so much Mony in consideration that he would forbear to sue him and then he avers that he did extunc totaliter abstinere c. Vpon Non Assumpsit pleaded a Verdict was found for the Plaintiff And it was now moved by Turner Serjeant in Arrest of Iudgment 1. Except The consideration intends a total forbearance and the averment is that from the making of the promise he did totally forbear but doth not say hucusque Sed non allocatur for that shall be intended And it was the Opinion of the whole Court that if the Consideration be as in this Case wholly to forbear the Plaintiff by an Averment that from the making the promise hucusque he did forbear is well entituled to an Action A like Case was this Term where the Consideration was as before and the Averment was that he forbore seven Months and being moved in Arrest of Iudgment by Serjeant Baldwyn because 't is not said hucusque which implies that after the seven Months he did not forbear it was notwithstanding held good it being a reasonable time and the rather because if the Action had been brought within the seven Months and the Plaintiff had averred that hucusque he forbore it had been good enough Quaere Reed versus Hatton IN a special Verdict in Ejectment the Question did arise upon the construction of the Words in a Will Devise paying 5 l. per annum 't is a Fee The Case being this John Thatcher was seised in Feé of the Houses in question and did devise them to his Son Robert in which Will there was this Clause viz. Which Houses I give to my Son Robert upon this Condition that he pay unto his two Sisters five pounds a year the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator so as the said Feast be a Month after his death with a Clause of Entry for Non-payment The Testator dies the Houses are worth 16 l. per annum and whether Robert the Son shall have an Estate for Life only or in Fee was the Question This was argued by Jones Serjeant for the Plaintiff and by Seys Serjeant for the Defendant And for the Plaintiff it was said Ex parte Quer. that Robert had but an Estate for Life 'T is true in most Cases the Word paying makes a Fee where there is no express Fee limited but the difference is viz. where the Mony to be paid is a Sum in gross let it be equivalent or not to the value of the thing devised the Devisee shall have a Fee though the Estate be not devised to him and his Heirs but if it be an annual payment out of the thing devised as in this Case it will not create a Fee without apt words because the Devisée hath no loss and therefore it hath beén held that if a Devise be made to two Sons to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life the Sons had only an Estate for Life because 't is quasi an annuel Rent out of the Profits and no Sum in gross * Jones 211. Cro. Car. 157. Broke Abr. tit Estate 78. And * 6 Co. 16. Colliers Case was much relied on where this very difference was taken and allowed that paying 25 l. in gross makes a Fee but paying 50 s. per annum creates only an Estate for Life All Devises are intended for the benefit of the Deviseé and therefore where a Sum in gross is devised to be paid which is done accordingly in such Case if the Deviseé should die soon after the Mony would be lost if he should have only an Estate for Life but in the Case at Bar the Testator by a nice calculation had appointed when the first payment should be made viz. not until a Month after his decease which hath prevented that damage which otherwise might have happened to the Devisee if no such provision had béen made Vide Hob. 65. Green's Case Ex parte Def. But on the other side it was said that Robert had a Fée for though here is a Sum to be paid annually 't is a Sum in gross and Collier's Case was also relied upon on this side It was agreed where payment is to be made by which the Devisee can sustain no loss the Word Paying there will not make a Fée but if there
Replication was held ill because the Plaintiff had made a good Title before the Devise to James and so neéd not traverse the Abatement The Chief Iustice held that the omitting of a Traverse where necessary is matter of substance and the concluding with hoc paratus est verificare when it should be Et hoc petÌ„ quod inquiratur ê‘ patriam or de hoc ponit super patriam or vice versa is matter of substance and the wanting a Traverse is of the same nature and here the Traverse of the sole Seisin is necessary because it is issuable And of the same Opinion were the other Iudges absente Ellis and therefore Iudgment was given for the Defendant Wilson versus Ducket TRespass for taking of his Corn Distress not good of Corn in Shocks the Defendant pleads Not-Guilty to all but 360 Sheaves made into Stacks which the Defendant distrained for Rent and Services in arrear and due to him The Plaintiff demurrs for that they could not be distreined in Sheaves A Distress of them is lawful damage feasant or in a Cart for Rent but not here Per Jones Serjeant it is naught Ex parte Quer. because nothing is to be distrained but what may be known and returned in the same condition as when taken and therefore a Replevin will not lye of Mony out of a Bag or Chest and in this Case the * Altered by Statute 2 Will. Mar. Corn cannot be returned in the same condition because a great deal may be lost in the carrying of it home 18 H. 3. 4. 2 H. 4. 15. 22 E. 4. 50. 11 H. 5. 14. 1 Inst 47. Roll. 667. pl. 17. And of that Opinion was all the Court. Curtis versus Bourn IN Wast Tenant in Common need not joyn in an Action of Waste one Tenant in Common brings an Action of Waste alone and the Question upon the Pleadings was whether he should not have joyned with his Companion and for an authority that they should joyn in this Action Scroggs Serjeant cited Rolls Abr. 2 part 825. pl. 11. where it is said that if a Reversion be granted to two and the Heirs of one of them yet they must joyn in an Action of Waste But it was answered by Pemberton Serjeant That Rolls cited that Case in his Abridgment out of the 1 Inst 53. which seémed to be the Opinion of my Lord Coke grounded upon the Authorities there cited in the Margin which he said did not warrant any such Opinion The difference upon the Books is where Tenant in Common demands an intirety the Writ shall abate and therefore in the Case of Hill and Hart Cro. Eliz. 357. where the Plaintiff had only a third part of a Reversion in Common it was held he should not have an Action of Waste alone Co. Lit. 197. b. Moor 374. because it would be very inconvenient that the third part should be delivered in Execution Co. Lit. 198. Yelv. 161. 'T is true they shall joyn in the personalty where Damages are to be recovered but they shall always sever in the realty and therefore in this Case Waste being a mixt Action and savouring of the realty that being the more worthy draws over the personalty with it and therefore the Action by one alone is good but if they had made a Lease for years then they should have joyned in an Action of Waste And of that Opinion was the whole Court Anonymus Tout temps prist no good Plea after Imparlance THE Question was whether tout temps prist was a good Plea after a general Imparlance And it was insisted for the Plaintiff That this Plea was repugnant because the imparlance proves the contrary 'T is true in an Action of Debt upon a Bond such Plea is good after an Imparlance because 't is to save the Penalty and 't is held in Dyer f. 300. Cro. Jac. 627. contra b. That uncore prist alone without saying tout temps in such case is good though Leonard the Custos Brevium and who was a Learned Man was there of another Opinion But when a single Duty is demanded and the party is intituled to damages for non-payment in such case the Plea of tout temps prist is not good And though it was objected that the difference is that the Defendant after Imparlance should not plead any thing contrary to the matter in the Declaration to which he had imparled as Bastardy to an Action brought by an Heir c. Yet the Court were all of Opinion That the Plea was not good because 't is inconsistent with the Imparlance for petit licentiam interloquendi is no more in English than for the Defendant to say I will take time and resolve what to do which is contrary to be always ready DE Termino Sancti Hill Anno 27 28 Car. II. in Communi Banco Stubbins versus Bird alios IN an Action of Trover and Conversion The Defendant concludes in Abatement it shall be in his election to have it taken in Barr. Mod. Rep. 117. the Plaintiff declared for taking 600 Load of Oar. The Defendant pleads That the Plaintiff never had any thing in the said 600 Load of Oar nisi conjunctim pro in diviso with two others and so concludes in Abatement The Plaintiff replies That J. S. was seised in Fee of a Close in which this Oar was digged and being so seised he dyed after whose death the said Close descended to A. and B. his two Daughters and Co-heirs and that the Plaintiff married one of them and the other was also married and so the Plaintiff and the other Husband and their Wives were seised in Right of their said Wives of this Close The afterwards and before the Action brought 2000 Load of Lead Oar digged out of the said Close and laid there in heaps and then a Partition was made by Deed of the said Close and the Oar and 1000 Load was allotted to one Sister and her Husband and the other 1000 Load was allotted to the Plaintiff per quod he became solus possessionatÌ„ of the said 1000 Load in severalty and being so possessed the Defendant found 600 Load parcel of the said 1000 Load and converted it Absque hoc that the Plaintiff had any thing after the Partition conjunction with any other person The Defendant rejoyns that at the time of the conversion the Plaintiff had nothing but conjunction with the other as before 1. And the Plaintiff demurred Ex parte Quer. for that the Defendant ought to have traversed the Partition for though the Possession was joynt the Partition had made it several by which the joynt Possession was confessed and avoided and therefore the Traverse good like the Rule laid down in my Lord Hobert 104. in Digby and Fitzherberts Case Trespass tali die the Defendant confesses it but pleads a Release of all Actions and traverseth all Trespasses after so here the Plaintiff hath traversed the joynt possession
Trusteés therein named are appointed to sell it for payment of Debts and raising this Portion by which Act all Conveyances made by old Sir Robert Carr since the year 1639. are made void except such as were made upon valuable considerations but all those made by him before the said year with power of revocation if not actually revoked are saved and in the year 1636. he had executed a Conveyance by which he had made a Settlement of his Estate in Tayl with a power of revocation but it did not appear that he did ever revoke the same The greatest part of the Lands appointed by this Act of Parliament to be sold by the Trustees are the Lands comprised in that Settlement and now after the death of Sir Robert Carr the Plaintiff exhibits his Bill against the Son not knowing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer and by this Bill he desires that the Trustees may execute their Trust c. and that he may have relief On the Defendants side it was urged Ex parte Def. that after the Marriage there was a Bond given for an additional Ioynture and it was upon that account that the Defendant was drawn in to execute these Articles And if the very reason and foundation of his entring into them failed then they shall not bind him in Equity and in this Case it did fail because the Plaintiff had disabled himself to make any other Ioynture by a Pre-conveyance made and executed by him of his whole Estate and if this agreement will not bind him then this Court cannot enlarge the Plaintiffs remedy or appoint more than what by the Articles is agreed to be done neither can the Defendants sealing incumber the Estate Tayl in Equity because the Lands were not then in him his Father being Tenant in Tayl and then living and the subsequent descent by which the Lands are cast upon him alters not the Case for the very right which descends is saved by the Act from being charged But on the other side it was argued that though the Marriage did proceed upon the Defendants sealing yet the Assurance which was to be made was a principal Motive thereunto and it being agreed before Marriage though not executed it was very just that he should Seal afterwards and though the additional Ioynture was not made yet there was no colour that the Defendant should break his Articles for that reason because if the Bond be not performed 't is forfeited and may be sued and nothing appeared in the case of any Conveyance made by Sir Francis whereby he had disabled himself to make an additional Ioynture and he hath expresly denied it upon his Oath And though it was was objected that the Money was raised by the old Lady Carr and by the direction of the Trustees lodged in the hands of one Cook who is become insolvent It was answered that there was no proof of the consent of the Trustees and therefore this payment cannot alter the case After the matter thus stated the Lord Chancellor delivered his Opinion That the 6000 l. is doe to the Plaintiff unpaid and unsatisfied for though the Marriage had not taken effect yet the Covenant binds the Defendant because a Deed is good for a Duty without any consideration 2. The Plaintiff has remedy against the person of the Defendant at Law for this 6000 l. 3. He has remedy against such of the Defendants Lands which are not comprised in the Settlement made 1636. for as to them the Trustees may be enjoyned to execute the Trust And he desired the Opinions of the two Iustices if any thing more could be done in this case Iustice Windham was of Opinion that nothing more could be done but to make a Decree to enforce the execution of the Trust And Iustice Wild said that the Plaintiff has his remedy at Law against the Defendant and upon the Act of Parliament against the Trustees but upon these Articles no Decree could be made to bind the Lands for that would be to give a much better security than the Parties had agreed on But if there had been a Covenant in the Articles that a Fine should be levied it might have been otherwise 't is only that a Fine is intended to be levied But as to that the Lord Chancellor was of Opinion that it was a good Covenant to levy a Fine for the words Articles of Agreement c. go quite through and make that Clause a Covenant but because Iustice Wild was of another Opinion he desired the Attorny General to argue these three Points 1. Whether this was a Covenant to levy a Fine or not 2. If it was a Covenant whether this Court can decree him to do it for though the Party has a good remedy at Law yet whether this Court might not give remedy upon the Land 3. If it was a Covenant to levie a Fine and the Court may decree the Defendant to do it yet whether such a Decree can be made upon the prayer of this Bill it not being particularly prayed for the Plaintiff concluded his Bill with praying relief in the execution of the Trust c. In Trinity-Term following these Points were argued by Serjeant Maynard Sir John Churchil and Sir John King for the Plaintiff Mr. Attorny and Mr. Solicitor and Mr. Keck for the Defendant all in one day and in the same order as named The Councel for the Defendant urged Ex parte Def. that this was no Covenant in Law to enforce the Defendant to levy a Fine 'T is agreéd that there is no need of the word Covenant to make a Covenant but any thing under the Hand and Seal of the Parties which imports an Agreement will amount to a Covenant so in 1 Roll. Abr. 518. these words in a Lease for years viz. That the Lessee shall repair make a Covenant so in the Case of Indentures of Apprentiship there are not the formal words of a Covenant but only an Agreement that the Master shall do this and the Apprentice shall do that and these are Covenants but in all these Cases there is something of an undertaking as in 1 Roll 519. Walker versus Walker If a Deed be made to another in these words viz. I have a Writing in my custody in which W. standeth bound to B. in 100 l. and I will be ready to produce it This is a Covenant for there is a present engaging to do it but there are no such words here 't is only a recital That whereas a Fine is intended to be levied to such Uses c. 'T is only Introductive to another Clause without positive or affirmative words and therefore can never be intended to make a Covenant but are recited to another purpose viz. To declare the Use of a Fine in case such should be levied If Articles of Agreement are executed in consideration of an intended Marriage and one side Covenants to do one
upon the pleading because the Defendant had justified the taking of a Distress by vertue of a Lease for a Term of years if three live so long and did not aver that any of the Lives were in being 2. He sets forth that one of them was seised and being so seised dyed but doth not say obiit inde seisit̄ and these were held incurable faults Anonymus Exceptions to the Count in a Formedon in Discender Mod. Rep. 219. 8 Co. 88. IN a Formedon in Discender The Tenants by Turner Serjeant of Council with them took three Exceptions to the Count. 1. The Demandant being Brother to the Tenant in Tail who died without Issue sets forth that the Land belonged to him post mortem of the Tenant in Tail without saying that he died without Issue In the ancient Register in a Formedon 't is pleaded that the Tenant in Tail died without Issue and so it is in Co. Entr. 254. b. Rast Entr. 341. b. quae post mortem of the Donee reverti debeant eo quod the Donee obiit sine haerede all the Presidents are so 9 E. 4. 36. 2. The Demandant makes as if there were two Heirs of one Man which cannot be pleaded for he counts that his eldest Brother was Heir to his Father and that after his death he is now Heir which cannot be for none is Heir to the Father but the eldest Son and therefore when they are both dead without Issue the next Brother is Heir to him who was last seised and not to the Father and then he ought to be named which is not done in this Case Hern's Pleader fol. 'T is true in a Formedon in Reverter the Tail being spent the Donor ought not to name in his Count every Issue inheritable to the Tail because he may not know the Pedigree and therefore 't is well enough for him to say quae post mortem of the Donee ad ipsum reverti debeant eo quod he died without Issue but in a Formedon in Discender 't is presumed that the Demandant knowns the descent and therefore he ought to name every one to whom any Right did discend Jenkins and Dawson's Case Hetley 78. Dyer 216. 3. The Demandant hath not set forth that he is Heir of J. begotten on the Body of his Wife 1 Inst 326. which he should have done because this being in the Discender he must make himself Issue to the Tail Ex parte Def. These Exceptions were answered by Serjeant Seys and as to first he said that in a Formedon in Descender he neéd not to set forth that the Tenant in Tail died without Issue which he agreed must be done in a Formedon in Remainder or Reverter 39 E. 3. 27. Old Entr. tit Formedon pl. 3. 7 H. 7. 7. b. a Case express in the Point To the second Exception he said that it was no Repugnancy in Pleading to say that two were Heirs to one Man for they may be so at several times and so it appears to be in this Case since 't is said post mortem of his Brother who was Heir To the third Exception 'T is well set forth that the Demandant was the Issue of Ingram begotten of the Body of Jane for he saith his Brother was so and after his death he was Brother and Heir of him which is impossible to be unless he was begotten as aforesaid and of this Opinion were all the Court viz. Judgment That 't is well enough set forth that the Tenant in Tail died without Issue for if he had any Children alive it could not discend to the Demandant as Brother and Heir which he hath alledged and they all agreed the difference between a Formedon in the Discender Remainder and Reverter And as to the second Exception there is no contradiction to say two are Heirs to one tempore diviso And the last Exception had no force in it But then it was observed that the Demandant in his Writ had set out his Title after the death of the Tenant in Tail and in the Count 't is only Quae post mortem c. But to that it was aswered it relates to the Writ and what is therein shall supply the Et caetera in the Count. Woodward versus Aston in Banco Regis INdebitatus Assumpsit for 10 l. in Mony received to the Plaintiffs use and upon a Trial at Barr this Term Joint Office for life and to the Survivor one consents that another shall be admitted 't is a Surrender 1 Ventris 296. The Case upon Evidence was viz. Sir Robert Henly Prothonotary of the Court of Kings Bench makes a Grant of the Office of Clark of the Papers which of right did belong to him unto Mr. Vidian and Mr. Woodward for their lives and the life of the longest liver of them Afterwards Mr. Vidian makes a parol Surrender of this Grant and then Sir Robert Henley makes a new Grant to Mr. Woodward and Mr. Aston the Defendant for their Lives and for the life of the Survivor Mr. Vidian dies and whether the Plaintiff Woodward should have all the profits of the Office by Survivorship was the Question It was agreed that this was one entire Office and as one of them cannot make a Deputy so he cannot appoint a Successor But the doubt was whether the Plaintiff had not consented that the Defendant should be taken into the Office and had agreed to the new Grant which was made afterwards for it was admitted that if he consented before Mr. Aston came in it must then be found for the Defendant for by his consent he had barred himself of his Right and Benefit of Survivorship and that by his consenting to the new Grant that in Law was a Surrender of the first Grant and then the Defendant is jointenant with the Plaintiff and if so his Action is not maintainable And upon these two Points only it was left to the Iury who found for the Defendant The Evidence to the first Point was that when Mr. Vidian proposed to the Court that the Defendant might succeed him after some opposition and unwillingness in the Plaintiff to agreé to it yet at length he declared that he did submit to it and accordingly the Defendant was admitted but there was no formal Entry of his Admittance as an Officer but only the Courts declaring their Consent that he should take his place Ex parte Quer. On the other side it was insisted on for the Plaintiff and proved that his Submission to the Court was with a salvo jure and what he did was reluctante animo thinking it was a hardship upon him as he often since declared so that it was quasi a compulsory Consent made in obedience to the Court with whom it was not good manners in him to contend Several Points were stirred at the Trial as 1. Whether a Surrender of the Grant of an Office by Parol was good 2. Whether if a Grant be made of an Office or of
made so taketh upon him long after the Will to be Executor it shall make him such by relation from the time of the death of the Testator but here is no Executor nor ever was 'T is true that one was named but as soon as he heard of the Will he renounced and therefore there being no Executor in this Case nothing now can hinder the Administration to be granted cum Testamento annexo If the Testator should dye indebted or have Debts owing to him and the Executor refuses Probate and renounces his Executorship Administration must be granted for Lex fingit ubi subsistit Aequitas and the Executor having a possibility to be such and by his refusal becoming no Executor why should the bare naming of him to be an Executor have relation to make such Administration void since 't is not the Name but the doing of the Office which makes him Executor Dyer 372. If all these Executors had dyed after Administration thus committed it cannot be said that they ever were Executors There can be no inconvenience that this Administration should be good for 't is just that Creditors should have their Debts and Purchasors should be secure in the things purchased If the Testator was indebted an Action will lie against an Executor de son tort for such Debt which Executor is altogether as wrongfull as the Administrator to whom Administraton is committed and the Will afterwards proved by the rightful Executor and if such Executor of his own wrong be possessed of a term for years and a Creditor recovers against him that Crecutor shall have the Term in satisfaction of his Debt and by the same reason shall the Administrator here have a good title to this Term which he sold for the payment of a just Debt and there is no authority for making such Administration void unless it be where the Executor proves the Will but never when he renounceth Ex parte Def. But on the other side it was said that an Executor of an Executor hath all the Interest which the first Executor had so that being an Executor the Administration ganted by the Ordinary is void and the renunciation afterwards shall never make it good and this will appear by the different Interests which the Ordinary and the Executor have by Law 1. The Ordinary originally had nothing to do with the Estate of the Intestate for * Godolph 59. bona intestati capi solent in manus Regis Afterwards two Statutes were made which establish his power the first was Westm 1. cap. 19. and the other was 31 E. 3. c. 11. Yet no power was thereby given him to dispose of the Goods to his own use or to the use of any other he had only a property secundum quid and not an absolute and uncontroulable Right in the Estate 2. But the Executor hath a Right and Interest given to him by Law when a Will is made and may * 5 Co. Middleton's Case release before probate if he therefore hath an absolute Right and the Ordinary hath only a qualified property how can he grant the Administration of the Goods which at the same time are lawfully vested in another Suppose the Executor sells such Goods to one Man and the Administrator to another 2 Anders 150. Case 83. the Sale of one of them must be void and for the said Reasons and by the constant course of the Law it must be the latter It hath been objected that here was no Executor at all only one named or if it be admitted that there was an Executor yet his refusal shall relate to the time of the Administration committed and make that good which might not be so before But as to that he said that here was an Executor appointed by the Will who had an Interest and Administration being granted to another 't is void ab initio and what is once void cannot be made good by any subsequent act Mod. Rep. 214. 10 Co. 62. a. Here was a want of power in him who did this Act for the Ordinary could not grant Administration where there is an Executor and therefore no relation shall be to make that good which was once void but if it had béen only voidable it might have been otherwise A Relation may be to inable the Party to recover the Goods of the Intestate and to punish Trespasses as if a Man die possessed of Goods and a Stranger convert them and afterwards Administration is granted to S. this Administration shall * 2 Roll Abr. 399. relate to the time of the death of the Intestate so that he may maintain Trover before the Ordinary had committed it to him but it will never aid the Acts of the Parties to avoid them by Relation as if a Man makes a Feoffment to a Feme Covert and afterwards devises the same Land the Husband disagrées this shall have relation between the Parties so as the Husband shall not be charged in damages but it shall not make the void Devise good 3 Co. 28. b. Butler and Baker's Case So if a Man makes a Release and afterwards get Letters of Administration that shall not relate to make his Release good to barr him neither shall his refusal of the Executorship do it because at the time of the Release or the refusal there was not any right of Action in him for that commences in the one Case after Administration and in the other after the Probate of the Will Notwithstanding such refusal this Executor may afterwards administer at his pleasure Godolph 141. and intermeddle with the Goods of the Testator and if the Administration should be good also then they would have a power over the same Estate by two Titles at the same time which cannot be The greatest Argument which can be brought against this is ab inconvenienti because it cannot be safe to purchase under an Administrator since a Will may be concealed for a time and afterwards the lawful Executor therein appointed may appear but this is more proper for the Wisdom of a Parliament to redress than that the Law should be altered by a judicial determination of the Court and therefore he prayed Iudgment for the Defendant The Court was of Opinion that the Ordinary cannot grant Administration where there is an Executor named in the Will Judgment and therefore gave Iudgment for the Defendant against the Vendée of this Term. The Lord Townsend versus Dr. Hughes In C. B. THE Plaintiff brought an Action of Scandalum Magnatum for these Words spoken of him by the Defendant No new Trial in an Action of Scandalum Magnatum Mod. Rep. 232. viz. He is an unworthy Man and acts against Law and Reason Vpon Not Guilty pleaded the Case was tried and the Iury gave the Plaintiff 4000 l. damages The Defendant before the Trial made all possible submission to my Lord he denied the speaking the Words and made Oath that he never spoke the same after the Trial he
Case of * Sid. 233. the Marquess of Dorchester He is no more to be valued than the Black Dog which lies there which were Words of disesteem and only the Opinion of the Defendant in which Case Iudgment was affirmed in a Writ of Error Object If it be objected to what purpose this Statute was made if no Action lies upon it but what lay at the Common Law Answ The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso which he could not do at the Common Law And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie because 't is brought qui tam c. and the King is concerned but the Defendant may explain the Words and tell the occasion of speaking of them if they are true they must not be published because the Statute was to prevent Discords Object These Words carry in them no disesteem Answ According to a Common Vnderstanding they are Words of disrespect and of great disesteem for 't is as much as to say that the Plaintiff is a Man of no Honour he is one who lives after his own Will and so is not fit to be employed under the King if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant which is not done and therefore he concluded that the Words notwithstanding what was objected were actionable and so by the Opinion of him Wyndham and Scroggs Iustices Iudgment was given for the Plaintiff Atkins Iustice of a contrary Opinion Anonymus AN Action of Assault Battery Amendment after a Demurrer joyned and before Judgment given good Wounding and false Imprisonment for an hour was brought against the Defendant who pleads quoad venire vi armis Not-Guilty and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize from whom he received a Command to bring the Plaintiff being another of the Sheriffs Servants from the Conventicle where finding of him he to wit the Defendant did molliter manus imponere upon the Plaintiff and brought him before his Master quae est eadem transgressio To this the Plaintiff demurred and shewed for Cause 1. That the Substance of the Iustification is not good 2 Cro. 360. because the Servant could not thus justifie though his Master might for the Lord may beat his Villain without a Cause but if he command another to do it an Action of Battery lies against him 2 H. 4. 4. But though this might have been good if well pleaded yet 't is not good as pleaded here for 2. The Defendant saith quoad venire vi armis Not-Guilty Harding and Ferne Postea but saith nothing of the wounding which cannot be justified and therefore this Plea is not good for which reason it was clearly resolved that the Plea was ill but the Court inclined that the Substance of the Plea was well enough The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse and may keep him from going to either of those places And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle But in this Case Leave was given to amend the Plea Sid. 107. and put in quoad vulnerationem Not-Guilty and it was held that though the Parties had joined in Demurrer yet the Defendant might have Liberty to amend before Iudgment given Singleton versus Bawtree Executor Traverse must be where the Charge in the Declaration is not fully answered ASsumpsit against the Defendant as Executor who pleads the Testator made one J. S. Executor who proved the Will and took upon him the Execution thereof and administred the Goods and Chattels of the Testator and so concludes in Abatement Et petit Judicium de Brevi with an Averment that J. S. Superstes in plena vita existit To this Plea the Plaintiff demurred because the Defendant ought to have traversed absque hoc that he was Executor or administred as Executor and so are all the Pleadings 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Serjeant Pemberton for the Defendant said that there is a difference when Letters of Administration are granted in case the Party die intestate and when a Man makes a Will and therein appoints an Executor for in that Case the Executor comes in immediately from the death of the Testator but when a Man dies intestate the Ordinary hath an Interest in the Goods and therefore he who takes them is Executor de son tort and may be charged as such but 't is otherwise generally where there is a Will and a rightful Executor who proveth the same for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them and therefore the taking in such case will not make a Man Executor de son tort because there is another lawful Executor but 't is true that if there be a special Administration 't is otherwise as if a Stranger doth take upon him to pay Debts or Legacies or to use the Intestates Goods such an express Administration will make him Executor de son tort and liable as in Read's Case 5 Co. So in this Case the Defendant pleads that J. S. was Executor which prima facie discharges him for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration that though there was an Executor yet before he assumed the Execution or proved the Will the Defendant first took the Goods by which he became Executor of his own Wrong and so to have brought himself within this distinction which was the truth of this Case and that would have put the matter out of dispute which not being done he held the Plea to be good and so prayed Iudgment for the Defendant The Court were of Opinion that prima facie this was a good Plea for where a Man * 2 Sand. 28. confesses and avoids he need not traverse and here the Defendant had avoided his being chargeable as Executor de son tort by saying that there was a rightful Executor who had administred the Testators whole Estate but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon and therefore the Defendant ought to have traversed that he was Executor or ever administred as Executor the rather because his Plea gives no full Answer to the Charge in the Declaration being charged as Executor who pleads that another was Executor and both these matters might be true and yet the Defendant liable as Executor de son tort which
to such person or persons and to such use and uses intents and purposes as she should think fit and that the Plaintiff should assent thereunto and not impeach the same in Law or Equity The Marriage shortly afterwards took effect and Philippa by Will in Writing gave all her Estate away in Legacies and Charitable Vses and she devised to the Plaintiff 20 l. to buy him Mourning and gave to Sir William Turner the Defendant 100 l. and made him Executor and she devised to Mr. Hays and to Mr. Grace 20 l. apiece whom she made Overseers of her Will and died There was neither Date or Witnesses to this Will save only the Month and Year of our Lord therein mentioned and that this Will not being proved in the Spiritual Court the Plaintiff moved for a Prohibition and the Defendant took Issue upon the Suggestion In which Case these Points were resolved by the Court. Mod. Rep. 211. 1. If there be an Agreement before Marriage that the Wife may make a Will if she do so 't is a good Will unless the Husband disagreés and his Consent shall be implyed till the contrary appear And the Law is the same though he knew not when she made the Will which when made 't is in this Case as in others ambulatory till the death of the Wife and his dissent thereunto but if after her death he doth consent he can never afterwards dissent for then he might do it backwards and forwards in infinitum 2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dissent 3. If the Husband consent that his Wife shall make a Will and accordingly she doth make such a Will and dieth and if after her death he comes to the Executor named in the Will and seems to approve her choice by saying He is glad that she had appointed so worthy a Person and seemed to be satisfied in the main with the Will and recommended a Coffin-maker to the Executor and a Goldsmith for making the Rings and a Herald Painter for making the Escutcheons this is a good assent and makes it a good Will though the Husband when he sees and reads the Will being thereat displeased opposes the Probate in the Spiritual Court by entring Caveats and the like and such disagreément after the former assent will not hurt the Will because such assent is good in Law though he know not the particular Bequests in the Will 4. When there is an express Agreement or Consent that a Woman may make a Will a little proof will be sufficient to make out the continuance of that Consent after her death and it will be needful on the other side to prove a Disagreement made in a solemn manner and those things which prove a dissatisfaction on the Husbands part may not prove a disagreement because the one is to be more formal than the other for if the Husband should say that he hoped to set aside the Will or by a Suit or otherwise to bring the Executor to terms this is not a dissent Sir Robert Howard versus the Queens Trustees and the Attorney General In the Dutchy UPON a Bill exhibited in the Dutchy Court Jones 126. The Question was whether the Stewardship of a Mannor was grantable in Reversion or not The Attorny General and the Queens Council Butler and Hanmore held that it was not But Serjeant Pemberton and Mr. Thursby would have argued to the contrary for they said it might be granted in Fée or for any less Estate and so in reversion for it may be executed by Deputy But this Question arising upon a Plea and Demurrer the Debate thereof was respited till the hearing of the Cause which was the usual Practice in Chancery as North Chief Iustice who assisted the Chancellor of the Dutchy informed the Court. And he said that in all Courts of Equity the usual course was when a Bill is exhibited to have Mony decreed due on a Bond upon a Suggestion that the Bond is lost there must be Oath made of it for otherwise the Cause is properly triable at the Common Law and such course is to be observed in all the like Cases where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity but if the Case be proper in its own nature for a Court of Conscience and in case where the Déed is not lost the Remedy desired in Chancery could not be obtained upon a Trial at Law there though it be alledged that the Déed is lost Oath need not be made of it as if there be a Déed in which there is a Covenant for farther Assurance and the Party comes in Equity and prays the thing to be done in specie there is no need of an Oath of the loss of such Deed because if it 't is not lost the Party could not at Law have the thing for which he prayed Relief for he could only recover Damages Note also That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption if the Mortgagor be foreclosed he pays no Costs and though it was urged for him that he should pay no Costs in this Case because the Mortgagee was dead and the Heir within Age and the Mony could not safely be paid without a Decree yet it being necessary for him to come into Equity he must pay for that necessity Note also the difference between a Mortgage in Fee and for Years for if 't is in Fee the Mortgagor cannot have a Reconveyance upon payment of the Mony till the Heir comes of Age. It was agreed in this Case by the Court that if there be Tenant for Life Remainder in Fee and they joyn in a Deed purporting an absolute Sale if it be proved to be but a Mortgage he shall have his Estate for Life again paying pro rata and according to his Estate and so it shall be in the Case between Tenant in Dower and the Heir Loyd versus Langford Lessee for Years makes an Assignment of his Term where Debt lies upon the Contract and where not IN a special Verdict the Case was Viz. A. being Tenant in Fee of Lands demised the same to B. for seven years B. re-demises the same Lands to A. for the said Term of seven years reserving 20 l. Rent per Annum A. dyes his Wife enters as Guardian to the Heir of A. her Son and receives the Profits B. brings Debt against her as Executrix de son tort in the debet and detinet and whether this Action would lie or not was the Question Serjeant Baldwyn who argued for the Plaintiff held that it did lie for though the Rent in this Case reserved did not attend the Reversion because the Lessee had assigned over all his Term yet an Action of Debt will lie for that Rent upon the Contract Cro. Jac. 487.
Estate for years and so having no Freehold the Contingent Remainder could not be supported that Mary could not take by way of Executory Devise because Robert was living when his Son Benjamin dyed within Age that therefore 't is quasi a Condition precedent Grant's Case 10 Co. cited in Lampet's Case 1 Leon. 101. There is a difference between Boraston's Case and this at the Barr for that was a Devise to Executors till Hugh shall attain his Age of 21 years and the mean Profits in the mean time to be applyed by them for payment of the Testators Debts and because he might have computed how long it would be before his Debts could be paid therefore it was adjudged that after the death of Hugh within Age the Executors should continue in possession till Hugh might have attained his full Age had he lived and so a present Devise to them But here the Devise is generally till Benjamin Wharton shall attain his Age of 21 years so that nothing vested in him until that time and he dying before then the Estate shall descend to the general Heir who is the Plaintiff 2. Admitting this should be taken as an executory Devise there must be some person capable to take when the Contingency happens and there was no such person in this Case for Robert was alive when Benjamin dyed and Mary could not then take as Heir of his Body for Nemo est haeres viventis like the Case of 2 Cro. 590. Vaugh. 272. Pell and Brown viz. Brown had Issue William and Thomas he devises Land to his youngest Son Thomas and his Heirs and if he dye living William then to William and his Heirs Thomas did dye without Issue living William and it was adjudged that if those Words Living William had been left out of the Will Thomas would have a Fee Tail which he might have docked by a Common Recovery but by reason of those Words he had only a limited Fee because the Words viz. If he dyed without Issue are not indefinite to create a Tail but are restrained to his dying without Issue Living William which is a limited Fee and his Estate being determined William then had a Fee but if he had died before the Contingency happened viz. in the Life time of Thomas and then Thomas had dyed without Issue the Heirs of William would not have an Estate in Fée for the Reasons aforesaid If therefore nothing vested in Benjamin Wharton nor in Mary his Sister then the Land descends to Augustine Smith as Heir at Law to Elizabeth who was Heir to the Testator and so the Plaintiff hath a good Title Ex parte Def. Newdigate Serjeant contra Here is only an Estate for years in the Sister of the Testator and an Estate in Fee presently vested in Benjamin Wharton and he relyed upon Boraston's Case where the Father having Issue Humfry and Henry devised to his Executors till Hugh his Grandson the Son of Henry should be of Age and then to him in Fée it was there adjudged that the Executors had a Term till Hugh might have attained his full Age and that though he dyed at the Age of nine years yet the Remainder did immediately vest in him in possession upon the death of his Grandfather and that by his dying without Issue the Lands did descend to his Brother So here the Fee descends to Benjamin Wharton in possession and he dying without Issue and within Age the Land shall then descend to his Sister and Heir The like Iudgment was given in the Case of Taylor and Wharton about 12 years since and in Dyer 124. a. A Devise to his Wife till his Son shall be of the Age of 24 years then to the Son in Fee and if he die before 24 years without Issue then to the Wife for Life the Remainder to A. c. The Testator dyed 2 Leon. 11. pl. 16. Dyer 354. a. it was adjudged that the Son had a Fee simple presently for an Estate tail he could not have till he was 24 years old and after the death of his Father there was no particular Estate to support that Estate in the Remainder till he should come to the Age of 24 years so that he took by descent immediately So here a Feé vested in Benjamin presently and he being dead within Age Mary may take as Heir however when she is of Age she shall take as Heir of the Body of Robert by way of executory Devise arising out of the Estate of the Devisor Stiles 240. Owen 148. which needs no particular Estate to support it as in case of a Contingent Remainder for before Mary was of Age Robert her Father was dead and so she might well take Trin. 19 Car. 2. in B. R. Snow versus Cutler Rot. 1704. North Chief Iustice Curia Favourable distinctions have béen always admitted to supply the meaning of Men in their last Wills and therefore a Devise to A. till he be of Age then to B. and his Heirs this is an Estate for years in A. with a Remainder in Feé to B And if such a Devise to A. who is also made Executor or for payment of Debts it shall be for a certain Term of years viz. for so long as according to computation he might have attained that Age had he lived Contingent Remainders are at the Common Law and arise upon Conveyances as well as Wills one may limit an Estate to A. the Remainder to another and so it may be by Devise if the intent of the Parties will have it so But as at the Common Law all Contingent Remainders shall not be good so in Wills no such latitude is given as if none could be bad they are subject to the same Fate in Wills as in Conveyances In this Case Elizabeth had a Term till Benjamin Wharton be of Age for she is Executrix she was likewise Heir at Law to the Devisor and this Land had gone to her had it not béen for this Will so that 't is plain the Testator never intended that a Fee-simple should vest in her but somewhere else for he could never intend the Descent of the Inheritance to that person to whom he had devised the Term. It has beén argued that Mary is Heir at Law to Benjamin as well as Heir of the Body of Robert and so if she can take either way 't is good but to make her Heir to Benjamin 't is necessary that the Estate vest in him before he comes to 21 years and for that Boraston's Case was much relyed on which was also said not to differ from this at the Barr that an Estate passes to Benjamin Wharton in praesenti and that there was no Incapacity for Mary to take by way of Executory Devise as was urged on the other side and therefore why should she not take by way of Executory Devise as Heir of the Body of her Father or at least as Heir of Benjamin her Brother An Executory Devise needs no
particular Estate to support it for it shall descend to the Heir till the Contingency happen 't is not like a Remainder at the Common Law which must vest eo instanti that the particular Estate determines but the Learning of Exeecutory Devises stands upon the Reasons of the old Law wherein the intent of the Devisor is to be observed For when it appears by the Will that he intends not the Devisee to take but in futuro and no disposition being made thereof in the mean time it shall then descend to the Heir till the Contingency happen but if the intent be that he shall take in praesenti and there is no incapacity in him to do it he shall not take in futuro by an executory Devise Sid. 153. pl. 2. A Devise to an Infant in ventre sa mere is good and it shall descend to the Heir in the mean time for the Testator could not intend he should take presently he must first be in rerum natura 3 Co. 20. a. 1 Inst 378. a. If an Estate be given to A. for Life the Remainder to the right Heirs of B. this is a contingent Remainder and shall be governed by the Rules of the Law for if B. dye during the Life of A. 't is good but if he survive 't is void because no Body can be his right Heir whilst he is living and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder that so when B. dies his right Heirs may take In this Case a Fée did vest in Benjamin presently and therefore after his death without Issue the Defendant is his Heir and hath a good Title if not as Heir at Law yet she may take by way of Executory Devise as Heir of the Body of her Father which though it could not be whilst he was living because nemo est haeres viventis yet after his death she was Heir of his Body and was then of Age at which time and not before she was to take by the Will That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age And so by the Opinion of the whole Court Iudgment was given for the Defendant Evered versus Hone. SPecial Verdict in Ejectment wherein the Case was thus viz. A Man hath Issue two Sons Thomas his eldest and Richard his youngest Son Thomas hath Issue John Richard hath Issue Mary The Father devised Lands to his Son Thomas for Life Constructi-of Words in a Devise and afterwards to his Grandson John and the Heirs Males of his Body and if he die without Issue Male then to his Grandaughter Mary in Tail and charged it with some Payments in which Will there was this Proviso viz. Provided if my Son Richard should have a Son by his now Wife Margaret then all his Lands should go to such first Son and his Heirs he paying as Mary should have done Afterwards a Son was born and the Question was whether the Estate limited to Thomas the eldest Son was thereby defeated And the Court were all clear of Opinion that this Proviso did only extend to the Case of Mary's being intituled and had no influence upon the first Estate limited to the eldest Son Anonymus IN the Exchequer Chamber before the Lord Chancellor Executor of an Executor de son tort not liable at Law the Lord Treasurer and two Chief Iustices the Case was thus viz. The Plaintiff had declared against the Defendant as Executor of Edward Nichols who was Executor of the Debtor The Defendant pleads that the Debtor died intestate and Administration of his Goods was granted to a Stranger absque hoc that Edward Nichols was ever Executor but doth not say or ever administred as Executor for in truth he was Executor de son tort The Plaintiff replies that before the Administration granted to the Stranger Edward Nichols possessed himself of divers Goods of the said Debtor and made the Defendant Executor and dyed and the Defendant demurred and Iudgment was given for the Plaintiff but reversed here for an Executor of an Executor de son tort is not lyable at Law though the Lord Chancellor said he would help the Plaintiff in Equity But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort so his Executorship vanished and nothing shall survive The Lady Wyndham's Case IF Flotsam come to land and is taken by him who hath no Title the Action shall not be brought at the Common Law and no Proceedings shall be thereon in the Court of Admiralty for there is no need of Condemnation thereof as there is of Prizes By the Opinion of the whole Court of Common Pleas. Rose versus Standen Action where misconceived by the Plaintiff and Verdict against him no Barr to a new Action IN Accompt for Sugar and Indigoe the Defendant pleaded that the Plaintiff brought an Indebitatus Assumpsit a quantum meruit and an insimul computasset for 100 l. due to him for Wares sold to which he pleaded Non assumpsit and that there was a Verdict against him and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt The Plaintiff demurred and it was said for him that he had brought his former Action on the Case too soon for if no Accompt be stated the Action on the Case on the Insimul computasset will not lye and so the former Verdict might be given against him for that Reason Ex parte Def. But on the contrary the Defendant shall not be twice troubled for the same thing and if the Verdict had been for the Plaintiff that might have been pleaded in Barr to him in a new Action Curia 2 Cro. 284. But the Court were of another Opinion that this Plea was not good and that if the Plaintiff had recovered it could not have been pleaded in Barr to him for if he misconceives his Action and a Verdict is against him and then brings a proper Action the Defendant cannot plead that he was barred to bring such Action by a former Verdict Antea Putt and Roster Postea Rosal and Lamper Ante. because where 't is insufficient it shall not be pleaded in Barr as in Debt upon Bond the Defendant pleaded another Action upon the same Bond and the Iury found Non est factum the Entry of the Verdict was that the Defendant should recover damages eat inde sine die but not quod Querens nil capiat per Breve so no Iudgment to barr him 2 Cro. 284. But pending one Action another cannot be brought for they cannot both be true If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye the Insimul computasset implies an Accompt and upon Non assumpsit pleaded the Defendant might have given payment in Evidence and for that
Anno 30 Car. II. in Communi Banco The Case of one Randal and his Wife an Administrator c. Judgment may be avoided without a Writ of Error by a Plea where the Party is a Stranger to it DEBT upon a Bond against the Defendant as Administrator They plead a Iudgment recovered against the Intestate in Hillary Term 26 27 Car. 2. and that they had not Assets ultra The Plaintiff replies that there was an Action against the Intestate but that he dyed before Iudgment and that after his death Iudgment was obtained and kept on foot per fraudem The Defendant traversed the Fraud but did not answer the death of the Intestate and upon a Demurrer it was said for the Plaintiff that the Iudgment was ill and that he being a Stranger to it could neither bring a Writ of Error or Deceit and had no other way to avoid it but by Plea and that 't is put as a Rule That where Iudgment may be reversed by a Writ of Error the Party shall not be admitted to do it by Plea but a Stranger to it must avoid it by Plea because he is no Party to the Iudgment as if a Scire Facias be brought against the Bail 't is a good Plea for them to say that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body but 't is not good to avoid the Iudgment because 't is against the Record Cro. Eliz. 199. which must be avoided by Writ of Error 1 Roll. Abr. 449 742. The Court were of Opinion that the Plaintiff might avoid the Iudgment without a Writ of Error especially in this Case where 't is not only erroneous but void Hill versus Thorn IN an Arbitrament it was held by the Court Rules in an Award that if two things be awarded the one within and the other not within the Submission the later is void and the breach must be assigned only upon the first 2. If there be a Submission of a particular difference and there are other things in Controversie if in such Case a general Release is awarded 't is ill and it must be shewed on the other side to avoid the Award for that cause 3. If the Submission be of all differences till the 10th day of May 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May if there be no differences between those two days the Award is good if any it must be shewed in Pleading 1 Roll. Abr. 257. otherwise the Court will never intend it 4. Smith and Shelbury Antea That reciprocal Covenants cannot be pleaded in barr of another and that in the assigning of a Breach of Covenant 't is not necessary to averr performance on the Plaintiffs side Staples versus Alden DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee Tender of Goods to the Man shall be a Tender to the Master The Defendant pleaded that in all that space of a Month Henry Knight did not come to London but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter To this Plea the Plaintiff demurred for that the Condition being to do something to a Stranger the Defendant at his peril ought to perform it 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned that the Defendant should give such a Release as the Iudge of the Prerogative Court should think fit the Defendant pleaded that the Iudge did not appoint any Release and it was adjudged no good Plea because the Obligation is on his part and he ought to tender a Release to the Iudge Cro. Eliz. 716. But on the other side it was said that a delivery to the Servant is a delivery to the Master himself and if parcels of Goods are delivered to the Porter and lost an Action lies against the Master Curia The Court absente North Chief Iustice held the Plea to be good and that such a Construction was to be made as was according to the intent of the Parties and that a delivery to the Man was a delivery to the Master whereupon Iudgment was given for the Defendant Gillmore versus Executor of Shooter In Banco Regis A new Act shall not take away an Action to which the Plaintiff was entituled at the Commencement of the Act. INdebitatus Assumpsit There was a Treaty of Marriage between the Plaintiff who was of kin to the Testator and the Daughter of one Harris with whom he afterwards had 2000 l. as the Marriage Portion and Mr. Shooter in his Life time promised to give the Plaintiff as much or to leave him worth so much by his Will This Promise was made before the 24th day of June before this Action brought the Marriage took effect Harris paid the 2000 l. and Shooter dyed in September following having made no payment of the Mony or any Provision for the Plaintiff by his Will This Action was commenced after Shooter's death and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries 29 Car. 2. c. 29 Car. 2. which Enacts That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage c. unless such Agreement be in Writing c. And that this was a bare Promise without Writing And by Wyld and Jones absente Twisden Iudgment was given for the Plaintiff for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then intituled For if a Will had been made before the 24th day of June and the Testator had dyed afterwards yet the Will had been good though it had not been in pursuance of the Statute Aster versus Mazeen In C. B. IN Covenant Breach assigned did relate to three Covenants the Declaration concludes sic fregit Conventionem and good the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee c. and would free the Premisses from all Incumbrances in which there was also another Covenant for quiet Enjoyment and the Breach assigned was upon an Entry and Eviction by another and concludes sic Coventionem suam praedictam fregit in the singular Number And upon a Demurrer to the Declaration Maynard Serjeant said That the Breach did relate to all the three Covenants and therefore the Conclusion was ill because he did not shew what Covenant in particular and if he should obtain a Iudgment upon such a Declaration the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants But Conyers for the Plaintiff said that Conventio is
Toll c. which were first created by the King 9 Co. Abbot de Strata Marcella's Case So that this Toll is not become in gross by the dissolution whereupon Iudgment was given for the Defendant Sir William Turner's Case Amendment not after issue joyned DEbt qui tam c. for 100 l. against Sir William Turner being a Iustice of Peace in London for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street This Cause was to be tried by Nisi prius this Term before the Chief Iustice And now the Plaintiff moved to amend one Word in the Declaration wherein he was mistaken for he had laid the Meeting to be at Turner's Mansion House and upon Enquiry he understood the place of Meeting was not at his Mansion House but at a little distance from it and so prayed the word Mansion might be struck out But the Chief Iustice said that after Issue joyned Curia and the Cause set down to be tried and this being a penal Statute no President could be shewn of an Amendment in such case and therefore would not make this the first and so Leave was given to the Plaintiff to discontinue upon payment of Costs Brown versus Johnson IN Accompt The Plaintiff declares against the Defendant Time where 't is made parcel of the issue not good for that upon the first of March 22 Car. 2. abinde to the first of May 27 Car. 2. he was his Bayliff and Receiver of 80 Piggs of Lead The Defendant pleads that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead hoc paratus est verificare To this the Plaintiff demurred and assigned specially for cause that the times from the first of March to the first of May are made parcel of the Issue which ought not to be because the Plaintiff in his Declaration must alledge a time for Form sake but the Defendant ought not to tye him up to such time alledged for he might have said he was not Bayliff modo forma And for this the Case of Lane and Alexander was cited where the Defendant by Ejectment makes a Title by Copy of Court Roll granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant 1 Junii 43 Eliz. The Defendant maintains his Barr and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy and upon Demurrer it was adjudged that the traversing of the day is matter of substance which being made part of the Issue is naught But on the other side it was objected that time is material and that in Actions of Accompt 't is proper to make it parcel of the Issue for a Man may be Bayliff for two but not for three years and a Release may be pleaded from such a time to such a time Fitz. Accompt 30. Rast Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea first for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead the Defendant pleads and that he was not Receiver thereof but doth not say of any part thereof for which reason the Court held the Plea ill because he might retain 79 and yet not 80 Piggs but to plead generally ne unques Receptor is well enough though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead he should have accompted 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast Entry 18 19 20. 2. The Defendant concludes hoc paratus est verificare whereas it should be de hoc ponit se super patriam but the Court doubted of this because it was not specially assigned Postea 3. The Plaintiff charged the Defendant as his Bayliff upon the first of March and the Defendant pleads that he was not his Bayliff from the first of March so he excludes that day and this the Court held to be incurable and likewise that the time ought not to be made parcel of the Issue 2 Sand. 317 318. and so Iudgment was given quod computer Abraham versus Cunningham Administrator sells a Term afterwards an Executor appears and renounces yet the Sale was adjudged void Jones 72. 1 Vent 303. IN a special Verdict in Ejectment the Case upon the Pleadings was Viz. Sir David Cunningham being possessed of a Term for years made his Will and therein appointed his Son Sir David Cunningham to be his Executor and dyed Sir David the Executor in the year 1663. made his Will also and therein appointed David Cunningham his Son and two others to be his Executors and dyed those two Executors dye and B. a Stranger takes out Administration cum Testamento annexo and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff for which he had received a thousand Pounds And in the year 1671. the surviving Executor of Sir David the Executor made Oath in the Archbishops Court that he never heard of his Testators Will 'till then nor ever saw it before and that he had not medled with the Estate nor renounced the Executorship 6 Co. Packmans Case Then a Citation goes to shew cause why the Administration should not be repealed and Sentence was given that it should be revoked upon which the Executor enters and the Lessor of the Plaintiff entred upon him This Case was argued by Saunders for the Plaintiff Ex parte Quer. and Levints for the Defendant And first it was said in behalf of the Plaintiff that the Authorities in the Books were strong on his side that the first Administration was well granted 'T is true if a Man make a Will and Administration is granted and that Will is afterwards proved such Administration is void as in Greysbrook and Foxes Case Pl. Com. But in this Case after the death of Sir David Cunningham the Executor his Testator is dead Intestate for to make an Executor there must be first the naming of him then there must be some concurring act of his own to declare his assent that he will take onus executionis upon him for no man can make another Executor against his will so that if after the death of the first Executor those other Executors appointed by him had made such a Declaration as this surviving Executor hath since done their Testator had dyed Intestate 7 E. 4. 12 13. The Executor is made by the Testator and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate so that 't is plain there cannot be an Executor and Administrator both together If he who is