Lloyd verfus Williams. C. B. JOHN LLOYD (in his own name only) fued out a com mon capias ad refpondendum quare claufum fregit against the defendant, who being ferved therewith, entered his appearance; and being now in court, the plaintiff declared against him, in an action qui tam pro domino Rege quam pro feipfo, &c. and not in any action at his own fuit only. 2 Black. Rep. 722. S. C. Plaintiff declares in an action qui tam, &c. upon a capias ad refpondendum fued out in his own name It was moved by Serjeants Nares and Glynn, that the declara- only, and tion might be fet afide for this (fuppofed) irregularity, or variance well enough. between the capias and declaration. Serjeant Dauy for the plaintiff infifted, that after the defendant had entered his appearance to a common capias, and was in court, the plaintiff might declare against him in an action qui tam, &c. or in any other perfonal action; that if a plaintiff fues out a capias with an ac etiam, in order to hold the defendant to bail, in an action upon the cafe upon affumpfit; if he will waive his bail, he may declare in any other action against the 2 Stran.1232. defendant, after he is in court: and of that opinion was the 2 Wilfon. court; and held that the declaration in this cafe, in an action qui tam, &c. was well enough, the defendant being in court, and having appeared to a capias fued out in the plaintiff's name only, not qui tam, &c. Gulliver, on the demife of Jeffereys Efq. verfus Poyntz. Devife of C. B. EJECTMENT of three meffuages, fix acres of land, meffuages, with all houses, barns, ftables, ftalls, and &c. that stand fix acres of meadow, with the appurtenances, in the parifh upon or beof Thackham in Berkshire, tried at the laft affizes, when a verdict was found for the plaintiff, fubject to the opinion of this upon the following cafe; which states, court long to the fuages; the faid mef lands belong. ing to the meffuages That William Smith of Midgham in com' Berks, on the 27th thail país. day of March 1706, purchased the meffuages and tenements, 2 Black. Rep. with the appurtenances in the declaration mentioned, all together 726, S. C. at the fame time, (as appears by the purchase deed) in fee; and being fo feised thereof, by his will, dated the 24th day of May, 1707, (amongst other things) devifed in these words, viz.“ Ás "touching fuch worldly eftate wherewith God hath bleffed me, "I give and difpofe of the fame in the following manner and "form; Imprimis, I give and bequeath to Elizabeth, my well "beloved 66 66 46 "beloved wife (whom I likewife conftitute, make and ordain my only and fole executrix of this my laft will and teftament) all and fingular my goods and chattels, ready money, book "debts or other debts, my debts being paid and funeral "charges difcharged, and likewife thofe three mcffuages, one lying or being in the abovefaid Midgham, in the parish of "Thackham, the other two in Henwick, in the faid parith, "both in the faid county of Berks, with all houfes, barns, tables, falls, &c. that fands upon, or belong to the faid meffuages, during her natural life; and I alfo give hereby them that the fhall give to, or affign what he leaves at her death upon the faid mefuages, the term of thirty days, to rid off "and take away, all goods, chattels, &c. that are or were properly her's) and after the decease of my faid wife, I give and. bequeath the fame to John Jeffereys, and to the heirs male of "his body for ever. 66 66 46 66 William Smith the teftator died foon afterwards, in the year 1707; whereupon Elizabeth his widow entered upon the premifes in queftion, and having married one Norman, fhe and her husband Norman joined with John Jeffereys, (fuppofing him to have the remainder in fee in him, whereas he had only a remainder in tail) in conveying the premises in queftion in fec, (without levying or fuffering any fine or recovery) which by feveral mefne convey ances came to the defendant's father in fee, upon whose death the defendant entered. John Jeffereys the remainder-man in tail died a few years ago; and a bill being depending in the court of Chancery, between Benjamin Jeffereys his heir in tail, (the leffor of the plaintiff) and the defendant Poyntz, that court directed this ejectment to be brought, in order to have the opinion of this court upon this fingle queftion, viz. whether by the words of the will above ftated, the lands and meadows fhall pafs, as well as the meffuages; no lands or meadow being mentioned in the devife but only three meuages, with all houses, barns, ftables, fialls, et cætera? This cafe was argued by Serjeant Nares for the plaintiff, and Serjeant Jephfon for the defendant. Many cafes were cited on both fides; but as none of them apply directly to the point, the court laid no ftrefs upon any of them, and therefore I do not fet them down here. After fome time taken to consider, the court gave judgment for the plaintiff, that the lands and meadow palled by the will, as well as the mefuages. Curia. Cafes in the books upon wills may ferve to guide us with respect to general rules in the conftruction of devifes in wills, but unless a cafe cited be in every refpect directly in point, and agree in every circumftance with that in queftion, it will have little or no weight with the court; who always look upon the intention of the teftator as the polar ftar directing them in the conftruction of wills. The teftator, in the prefent devife, has clearly manifefted his intention to difpofe of his whole eftate; for thus he begins, "As "touching fuch worldly eftate wherewith God hath bleffed me,' "I give, &c." And therefore, if the words of the will will bear it, we must determine that he has thereby difpofed of his whole worldly eftate; by the words; "fuch worldly eftate where"with God hath bleffed me," means, "I intend by this my will "to give every thing I have in the world;" and are more comprehenfive, expreffive and forcible to take in the whole thing intended to be given, than any particular eftate or interest in the thing intended to be given. Godb. 40. If the meffuages and lands had been purchafed at different See Cro. El. times, or had been occupied and enjoyed in several and diftinct 476, 704. farms, it might have been doubtful, whether the lands (in that cafe) would have paffed; but as it appears by the flate of the cafe, that the teftator purchased the whole together, about one year and two months before he made his will, and (we must take it) was in poffeffion of the whole at the time of making his will, (as nothing appears to the contrary) it feems very clear, that he intended to devife the whole, both mefuages and lands. We lay no ftrefs upon the words et cætera; for it would be dangerous to fay, that &c. means lands; however, taking the other words along with the &c. and all the circumstances above flated together, they manifeft the teftator's intention, that the lands and meadow, as well as the meffuages, fhould pafs by the devife; and we are all of opinion, that they did pafs thereby, as one integer or whole farm; as much as if the teftator had faid, "I give and devife all that my farm, with the appurtenances, "which I purchafed of A. B." which, without doubt, would have paffed the whole, both mefuages and lands. Judgment for the plaintiff. Throgmorton 2 Blick. Rep. Throgmorton, on the demife of Robinson, verfus Wharrcy. C. B. Ante, Ter. Trin. 10 GEO. III. 7:8. S. C. [See ante page 125-1 J. R. being furrendered lands to M. A. whom he in tended to marry, and the heirs of their two bodies; and IN N this term the cafe was argued the third time, by Serjeant Burland for the plaintiff, and Serjeant Forfer for the defendant. See the full and exact state thereof in the last term. Serjeant Burland-John Robinfon being feifed in fee of the copyhold lands in question, on the first day of August 1720, furrendered the fame to the ufe of Mary Arnall (whom he then intended to marry), and the heirs of their two bodies lawfully to be begotten; and for default of fuch iffue, to the ufe of the right heirs of the faid John Robinfon. The marriage afterwards took effect, and Mary was accordingly admitted tenant of the premises in question. for default of fuch iffue to the ufe of the right heirs of the faid J. R. Refolved, that M. A. took an eftate for life, with contingent remainder to the heirs of the body of her and her husband. དང་ང་ The question is, what eftate the wife took by the furrender? I am to contend, that she took an estate in special tail executed. It is laid down in Beresford's cafe, 7 Rep. 42. a. that fuch conftruction of a deed fhall be made, as to produce three effects; 1. To ftand with the rule of law; 2. With the intention of the donor; 3. That all the parts of the deed may stand together, if this may be by the rule of law. In confideration of the marriage, the friends of the wife were bargaining with the intended hufband, for the benefit of her and her children; and it was never meant, that it fhould be in the power of the hufband and wife to bar the iffue; which it cer tainly would be, if fhe only took an estate for life, with a contingent remainder to the heirs of their two bodies, as is contended on the other fide; and therefore, to carry the intention of the partics into execution, the wife must take an estate in L. 26, fpecial tail: and in fuch cafe all the perfons will take the eftate he, 461. which was intended for them; therefore the court will go as far as poffible to effectuate the deed of furrender; and will not favour a contingent remainder, if it clearly appears that the intention of the parties was to create a better eftate for the wife and her iffue. a Leo. pl. 453 Dyer 97.4.6. Serjeant Forster for the defendant-Mary Arnall took an estate for life, with a contingent remainder to the heirs of the bodies of her and her hufband. It could not be the intention of her hufband, 102. 316. hufband, that she should have an estate tail executed; for in that Cro. Car. Dowgall verfus Bowman. C. B. 2 Black. 723. S. C. fumpfit to plead non SERJEANT Burland moved for leave to plead feveral pleas. The defend- part. Strithorft verfus Græme Efq. C. B. CASE upon feveral promifes. The defendant pleaded, affumpfit infra fex annos. The plaintiff replied, that he abroad at the time of making the feveral promifes in declaration, viz. at A. in the kingdom of S. and that he ever fince been, and ftill is, abroad out of this kingdom. defendant demurred, and the plaintiff joined in demurrer. all the counts, as to part. 4 Term Rep. Serjeant Glynn, for the defendant, objected that the replica- realm. tion was ill; but gave no reason why it was fo, that I heard. Caria. If the plaintiff is a foreigner (as it feems he is), and doth not come to England in fifty years, he ftill hath fix years after his coming into England, to bring his action; and if he never comes to England himfelf, he has always a right of action while he lives abroad, and fo have his executors or adminiftra. tors after his death. An infant thay fue before he comes of age, if he pleafes; but if he does not, he has fix years after he comes of age to bring his action. While any of the difabilities mentioned in the ftatute of limitations continue, the party may, but is not obliged to commence his action: the ftatute doth not run, while any of thofe difabilities continue. Judgment for the plaintiff. Vol. III. Tinkler |