" 1804. ROE dem. versus VERNON "according to the custom of the manor," and not "at the will of the lord," and the decree is only that they shall be held according to the custom of the manor," and not "at the will of the lord." Besides which, the only question there in dispute was, as to the nature of the fines; and Others. and the statute by which the decree is confirmed, contains a saving clause, saving to the parties their former estates. And as to any inference that they were not customary freeholds, which might be drawn from the form of admittance, that being in the words of the lord of the manor, would not conclude the plaintiff'; and even though they are stated to be copyhold, yet that is not conclusive, because they are so, as being held by copy of court-roll. That, being customary freeholds they would pass under a devise of all freehold lands, Greenhill v. Greenhill. * That by the introductory clause of the will the testator clearly intended to dispose of all his estates whatsoever,† and that by the exception in the residuary devise to his three daughters, he evidently supposes that he has disposed of these tenements, and he does not even devise the residue until after the death of himself and his brother without male issue; which also shews that he thought he had disposed of it before. For the defendants, on the same points, it was insisted that even if the tenements were customary freehold, they * 2 Vern. 679; this was also inferred from the following cases: 9 Mod. 68. 10 Mod. 518. Acherley v. Vernon, Comyn's Rep. 381. Haslewood v. Pope, 3 P. Wins. 323. Tendrill v. Smith, 2 Atk. 85. Doe v. Allen, 8 Term Rep. 497. Goodright v. Stocker, 5 Term Rep. 15. Ibbetson v. Beckwith, Forrester, 157. ↑ On this head were cited the following cases: Smith v. Coffin, 2 H. Bl. 444. Doe v. Buckner, 6 Term Rep. 610. Gulliver v. Poyntz, 3 Wils. 143. We omit stating the argument more fully, as most of these cases upon construction of wills, as to the leading points, are well known, and particular arguments on the construction of one, will seldom apply to others. 1804. Roɛ dem. versus VERNON were still a tenure in villenage, forfeitable by leasing for more than a year, and only a superior sort of copyhold. But it was insisted that upon the information, 7 King James I. they were confessed to be " parcel of the manor," and Others. and were therefore copyhold. That it was stated in the case "that these tenements were always found and reputed copyhold ;" and that the testator must therefore be supposed to have considered them so. That as to the introductory clause of the will, in all the cases cited, there were, besides, other strong proofs of intention, which are wanting here. That as to the cases that, under a devise of "lands" generally, copyholds will pass, they may be admitted; and yet there is no case where, under the words "all freehold lands," copyholds were held to pass; and when the testator means to pass copyholds, he uses proper words in this will to comprehend them. That as to the residuary devise, it contains words large enough to include all which was not given before, and the exception applies only to what is plainly mentioned before. That as to some of the tenements, if they passed under the first devise, the first taker, being himself tenant in tail under a former title, might, by a recovery, destroy all the estates created by the devisor., WALTON declined arguing upon the failure in performing the condition of taking the name of Wentworth, because his own client deriving title under a daughter, he could not take advantage of it, the limitation over being to the first and other sons of the daughter, who should neglect to take the name. The case stood over for judgment till this day, when the opinion of the Court was delivered by Lord ELLENBOROUGH, C. J. who, after reading the case, and stating the several points which had been made, concluded that the cases from Dyer, Croke, and Sir Wm. Jones, and others which had been cited for the plaintiff, to shew that the surrender included the uncompounded as well as the compounded lands, were all clearly distinguishable from the present; there being in them words sufficient to shew a clear intention to convey the whole described in the first part of the several descriptions; and the other words in which there was a mistake being added in another sentence by way of further explanation. That in some of them the grant was of one particular thing, clearly defined; in which case the addition of another circumstance, which is erroneous, would not vitiate the whole. But here the former description was general and indefinite, and must be restrained by the subsequent words. He referred particularly to the case of Gascoign v. Barker, and said that in the case of Swift v. Eyres, † the distinction was clearly taken, that the words all which were in the tenure of J. S. were there a part of a new sentence, and so were not restrictive, though they would be so, when the clause is general and one sentence, and not restrained till the end of the sentence, as in the case 2 E. IV. c. 29, Pl. C. in the case of Wrottesley v. Adams. But in this case the words being of the yearly rent to the lord, in the whole, of 4l. 10s. 84d. and being compounded for, were a part of the same sentence, and clearly part of the description. That the latter words, therefore, operated by way of restriction, and confined it only to the tenements compounded for. As to the second question, he observed upon the effect of the information and decree, and also upon the surrender, and the mandamus to be admitted, in all of which the tenements are called copyhold; and said, that although many cases had been cited to shew that where the tenements are not held at the will of the lord, they are not copyhold; yet without going into the question,whether they are strictly so or not, it was sufficient to inquire what the testator meant by the words all his freehold manors, lands, &c. and it could not be considered that he would enter into the nice distinctions of lawyers on a question of subtlety and intricacy, and make * 3 Atk. 8. + Cro. Car. 548; and Sir IV. Jones, 1804. ROE dem, versus VERNON and Others. a distinction between customary tenements of freehold, held by copy, and common copyholds, particularly since the customary tenements were always demisable by copy of court-roll. That in making devises, testators adopt common terms, and cannot be supposed to make very nice distinctions; that in no other parts of the will had the present testator classed these tenements with freeholds. That where he had given any thing expressly, he had generally used appropriate terms, as in the first charges of 20001. and 2001. on the real estate in lieu of dower; that in the residuary clause, where he spoke of freehold and copyhold, he knew how to make the proper distinction between them, and yet excepted only, in general terms, that which he had in general terms given before. That upon this clause, indeed, it was contended for the plaintiff, that it was plain he thought he had devised them before, as he intended to devise all his real property, and this residuary clause being only in failure of male issue, itwould not apply to thein; but that the answer properly given was, that there could be no intestacy, since the words are sufficient to include the whole; and although introductory words will explain the testator's intention, yet there are no cases that introductory clauses can alter the construction where the testator uses plain words. And more particularly would it be improper to alter the construction of these words; 'when afterwards, in a certain event, the testator devises all other his manors, mes suages, lands, tenements, and hereditaments, whatsoever and wheresoever, both freehold and copyhold, excepting in the county of York," &c. plainly shewing that where he intended to pass copyhold lands, he was able to describe them properly. And he concluded, on the whole, that the Court could not give to the word freehold any other than its ordinary meaning in the will of a testator who seems clearly to know the meaning of the words he uses. 66 POSTEA TO THE DEFENDANTS, ANONYMOUS.-April 25. No action will lie at the suit of a father for seducing his daughter, per quod servitium amisit, where the daughter does not reside in the father's family, and has no intention of returning to it, although she is not residing as a hired servant elsewhere. To support this action, there must be some appearance at least of the relation of master and servant still subsisting between the father and his daughter. 1804 TOPPING moved for a new trial, in an action for seduc- ANONYMOUS. He cited Gould v. Charlton, tried in 1789, on the Northern circuit, before Wilson, J. who held that if the daughter be under age, though she be not resident with the father, yet the action is maintainable. He also cited Johnson v. M Adam,† in which Wilson, J. had ruled the same point; but he admitted that the opinion of Buller, J. as stated in Bennett v. Allcott, was certainly against him; and, upon being questioned by THE Court, he admitted that had it not been for the misfortune which occasioned the action, it was not intended that the daughter should ever return to her father's family. Lord ELLEN BOROUGH, C. J. "The case seems clear. "There was in this case no service, there were no wages, and there was no intention of returning to the father. In 1 |