Marshall's Law Notes
JOHN MARSHALL
"Law notes, etc."
A transcription of pages (1-253) of Marshall's Accounts and Law Notes
JOHN MARSHALL (1755-1835)
Law Notes
Abbreviation of source footnoted in red:
Cr.Ja.4832
Source taken from "Table of Abbreviations," 11 an appendix to Henry C. Black, A law dictionary, 2nd ed., St.Paul, Minn., West Publishing Co., 1910, p. 1239-1314:
2Croke's English King's Bench reports tempore James I.
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ABATEMENT Abatemt is a plea put in by the Deft in which he shews cause to the ct why he shou'd not be im- pleaded or if imploded not in the manner & form he then is.
A plea in Abatemt to
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ACTIONS IN GENERAL 1 Ba. 31 Yel 63 Cra. Ja. 68 Cro El 486 Roll. Ab. 31
Where one hath a right to recover in the same kind of action though he derives his right from difft titles yet being conjoin'd in him he may reco- -ver in one action
But one cannot in the same action join a demand in his own right & one which he hath in right of another
Several persons may join in an action where their interest is joint
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ACTIONS LOCAL & TRANSITORY 1 Ba 34 1 Ba 35 Co.L.282 7 Co 3 2 Sal 669 pl.6
All actions real or mix'd must be laid in the county where the lands lie
All personal actions may be brought in any Cty & laid in any place & th Deft cannot traverse it.
The Deft cannot by his plea oblige the Plf to lay his action in a dift Cty unless the matter pleaded be local. The motion must be on affidavit
ACTIONS QUI TAM Ca.en. 375 4 Co 13 2 Haw. 265
Wherever a statute prohibits a thing as being an immediate offence agt the publick good under a certain penalty the whole or part of which is given to him who will sue for it any person may bring such action or information & lay his demand with a qui tam. Also where a statute prohibits or commands a thing the doing or omis -sion of which is both an immediate damage
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ACTIONS QUI TAM Ca.El.236 2 Haw. P. 6 246 C. Ja.104 C. Ja 129 18 El. Ch. 5 Rd. rep.49 134 3 H.P.C.276 2 Hawk P.C.274. 18 El.Ch.5
to the party & also highly concerns the good of the publick, the party may & some say ought to bring his action with a qui tam
An action on a publick stat. need not recite the stat. But if the prosceutor recites the stat. & materially varies from a substantial part this is fatal
If an information contain several offences & be well laid as to some but defective as to others the informer may have judgt for such as are well laid.
An action or information need not conclude contra pacem or in contemptum as an Indictment ______
Every informer on any penal statute shall exhibit his suit in person & pursue it by himself XXX or attorney
Th Deft cannot plead specially & the genl issue either to the whole or to (struck through)any(struck through)part of the charge
If there be more than one deft they ought not to plead jointly
Where a stat. gives a certain penalty to the party griev'd he is entitled to his costs.
Any informer (not griev'd) who willingly delays his suit &c. shall pay costs charges & damages to be assign'd by Ct & no informer shall compound [inserted: without leave of Ct.] under penalty of standing in the pillory, of being disabled to sue in any popular or penal statute & of forfeiting ten pounds
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ACTIONS ON THE CASE Berister 68 Cr. Ja. 223 Sid 298 Dal 282 pl.11 CR.El.219 Cr.Ja.474 Cr.El.53
If Ad delivers goods to B to deliver to C & B does not deliver them but converts them to his own use either A or C may have an action agt. B. They cant join
If a servant is cozen'd of his Masters money the master may have an action agt the cozener
No action lies by a master agt. his sert for the bare Breach of his com. but if a servt does anything falsely & fraudulently to the damage of his Master an action lies
No master is chargeable with the acts of his Servant but when he acts in execution of the authority given by his master & then the act of the servt is the act of the master If I deliver goods to A who delivers them to B to keep to the use of A who wastes them I may have an action a- -gainst AB
Though an injury happens to a man in his property by theneglect of another yet if by law he was no o- oblig'd to be more careful no action lies
If a man uses or abuses the thing he finds he shaa answer forfit.
If by the wrongful act of A-B becomes chargeable to C B may have his action against A before he is sued XXXXX by C.
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ACTIONS ON THE CASE Hob. 267 vide 6 Mod. 46 Sal.210.pl.2 Ld.Ray.284 Cr.Ja.474 Sal.211 pl.3 Cr.Ja.469 Vent.295 LdRay.38 Cr.El. 777
If a man forges bond in my name tis possible I may be injur'd by XXX it, but 'till it be put in suit agt me I have no action agt the forger
Where a man has th possession of any personal chattel & sells it, the bare affirming it to be his amounts to a warranty & gives an action
If on a breaty for the purchase of a house the Deft affirms the rent of the house to be £30 whereas it was but £20 & thereby the Pltf is induced to give so much more than the house is worth an action lies.
If I sell unsound goods & knowing them to be unsound (struck through)warrant(struck through) [inserted: affirm] them to be sound or not knowing them to be be unsound warrant them to be sound an action lies.
If man rides an unruly horse in places much frequented & the horse breaks from him & runs over B & hurts him B shall have an action
For an injury accruing to a man in his real estate of freehold or inheritence the action lies
If a man lend or hire anothers horse & for want of safe keeping the horse dies an action lies
If A obtains a judgt in debt agt B as Ext to his Father & thereupon a takes out a Fi:Fra. but before
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ACTIONS ON THE CASE Godb 285 2.Rol.Rep 312 vide con. Mod 286 Carth 3.4 3 Bal 212 Cr.El.873 Jan.312 1. Bulster 373 Cr. 6a.395 Cr 6a .446 Ld.Ray 370 Cr.El. 7al34
the sheriff can execute it B removes & disnoses of all the Testators goods so that the sheriff is forc'd to re- turn nulla bona an action on th case lies agt B for the sheriff coud not return ______ & if this action does not lie the party is without remedy.
In genl where by the covin of a third person a man loses his debt an action on the case lies agt him.
Also for injuries done to a man with respect to his wife his child or his servant an action lies.
If a minister of justice have warrant to attach the goods of another & can do it & does it not an action lies against him.
If a smith refuses to shoe my horse or if he pricks him, if a farrier kills my horse with bad medicine or by neglect in curing him, or if client receives an injury by the neglect or fraud of his attorney an action lies.
If by common nusance I suffer a particular da- mage an action lies. So too for continuing a nusance.
It seems agreed that for a false & malicious prosecu -tion for any crime whether capital as not by which a man may be endangerd of his life, suf- -fer in this liberty reputation or property
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ACTIONS ON THE CASE Sal.15 Ray.503 Cr.El. 629 Style 379 Sand. 228 Stile 346 Yel. 99 Skin.119
an action on the case in nature of a writ of conspiracy lies whether an indictment was ex- hibited or not.
If a stranger brings an action in the name of J with -out consulting J.an action lies
If an action on the case is brought for a civil action apecial grievance must be shewn.
It seems the batter opinion that a person guilty of felony & pardon'd or burnt in the hand may be proceeded agt at the suit of the party injur'd Action lies for a virgin of good fame married by a man who had a wife.
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AFFIDAVIT [remainder of page is blank]
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AGREEMENTS see Eg.ca. ab.25 pl.6 2.Ver.215 Ab.Eq.16 chan.rep 158 Ch.ca.42 Ver 189 pl.190 2 Ch.ca.140 Ab.Eq.17 2 Ch.ca.17 Ver 227 pl.225 2 Ch.Ca.136 Ver.271 Ren. in Eq 155 2 Ver.127 [ ] 100 464
A person non compos, an infant & a feme covert are generally incapable of entering into agreements.
The ancestor seis'd in fee may by his agrt bind his Heir.
Tis a genl ru]e that wherever the matter of the bill is merely in damages the remedy is at (struck through)com.(struck through) law but if there be matter of fraud mixt with the damages the remedy is in chancery. So where the agreemt is to do something in specie
A court of equity hae decreed a performance of cove- -nants & directed a trial in a quantum damnificat.
Agreemts out of which an equity can be rais'd for a dunce in specie ought to be obtain'd with all ima -ginable fairness & without any mixture tending to surprise or circumvention and that they be not unreasonable in themselves.--
Act of eqty XXXX will much sooner dismiss a bill which prays a specific execution of an unreasonable agrt than set aside an agrt though not strictly fair on a bill for that purpose and when such agreements are set aside it must be on refunding what was paid ma- -king reasonable allowances for improvemt &c.
In law & equity voluntary conveyances are good agt the parties & cannot be revokd nor will the Ct interpose in behalf of one volunteer agt another
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AGREEMENTS 2 Van 365 2 Ver 40 Ver 121 2 Ver 394 Preced.met
533
19 G.2 Ch.1 p 142 143
But if they affect creditors purchasers or younger children the Ct. will set them aside
If there be a defective conveyance without an equi table consideration equity will not oblige the party to make it good though there be a covenant for further assurances
If the agreemt be to quit the possession of lands the ct will not decree a conveyance
If on is bound to transfer £300 stock before such a time which he does not do, & the stock is much risen he shall transfer the stock in specie & account for dividends since the time
No estate for life or any higher estate sha11 be made to take effect nor shall any use thereof be created unles it be by deed indented seal'd & recorded in the Genl. Ct. in the Ct of that Coty where the land lies.
The deed of residents to be recorded in 8 months of non residents in 2 years. The deed to be acknowleg'd by the granter or provd by three witnesses before it can be admitted to record. Deeds of inheritance for term of years or for marriage settlements, all deeds of trust & Mortgages whatsoever not recorded &c. to be void as to subsequent purchasers & creditors but binding between the parties & their heirs.
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AGREEMENTS Note the stat. of Frauds &c. does not require record -ing ab.E.19.pl.3 Ver.151
159
Ab. eq.20 2Ver.322 2 Vent.361 Rec.in Ch 361 Ver.151 2. Ch.Ca.135 Str.42 Gil. His. Ch. 239 Contra 2 Ch.Ca 36 Gil.His.Ch. Ver.159 2 Vent. 361 Ver.366
The foregoing act is very similar to the stat. of frauds & perjuries on which the following determi -nations have been made by the Judges in England.
If the Deft in his answer confesses the substance of a bill setting forth a parol agrt & demanding a specific execution the Ct will decree it.
A parol agreemt which is intended to be reduc'd to writing but is prevented by fraud may be decreed in specie
A letter from a father promising a portion & a mar- -riage had in consequence thereof has been deem'd sufficient
It seems to be admitted that if an agreement be made concerning lands &c. tho not in writing & the whole or part of the money is recd by the party equity will decree a specific execution. The doubt is what evidence shall be admitted as proof of the receipt.
If the Deft confesses it in his answer tis sufft if he denies it the Plaintiff must prov it by written evidence.
If a man on the promice of a lease lays out mo- -ney on improvements he shall oblige the lessee to execute a lease _____ if he has been at no expense
If a man purchases lands in another name & pays the money it shall b a trust for him
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AMENDMENT AND JEO FAIL [remainder of paig blank except for certain words "ambassadors", "Thomas Marshall", etc., inverted]
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ANNUITY AND RENT CHARGE Co.L.147 7 Co. 151 Co.L.147 Booke rent.14 Booke grant
86
2 Vent.204 B.grant 86 Lit.XXX Sci 219
220
6 Co.58 Co.L.146 6 Co.41 6 Co.58
Whenever the remedy by way of charge for the rent is not commensurate to the rent, the rent is call'd seek & the charge is only appurtenant.
If I bind my land & goods for the payment of a rent, or if I grant that if such a rent be arrear B may distrain for it in the manor of C. this is a good rent charge.
If an original grant b made of a rent charge to commence after the death of J.S. it is good _____ of a rent in being
If a man grants by his deed an annual rent _______that the out of certaiin lands [insert: with distress] & does not provide grant shall not charge his person, the grantee XXXXXX may distrain for the rent or have a writ of annuity.
If a rent be granted out of lands in which the granter has no interest, or in which the grantee cannot by the deed distrain, with a proviso that it shall not charg his person the pro viso is void.
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ANNUITY AND RENT CHARGE Co.L.146 Co.L.147 Cr.Ja.390 Pay.135 [Sun] 112 Co.L.182 4 Co.48 Cr.El. 268 Lit.S.219 B.L.145 Co.L.148 see 2 Ver 143-4
A grant that a man may distrain in certain lands the person if (struck through)a rent be arrear(struck through)[insert: certain sum and unpaid] does not charge A rent is granted out of an inheritance & term 66r years the grantee may distrain in both but must avow for a rent issuing out of the inheritance
If such power is given in the deed the grantee may when rent is arrear enter & hold the lands till he is satisfied by the percention of the profits.
An action of debt does not lie for the arrearages of an annuity if the grantee be seised of it for life or in fee _____ if for years.
If the grantee distrains & avow or brings a writ of annuity and declares he has determind his elec- -tion & shall ever after be confin'd to the remedy he has adopted
If the grantee of a rent charge before he has made his election purchases a part of the land he is without any remedy
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ARBITRAMENT & AWARD 9 Co.78 6 Co.44 Cr.Ja.99 2 Vent.109 9 Co.78 8 Co.81 8 Co.82 2[Keb] 845 [Vid]290
A right of freehold cannot be transferd, an Annuity determind, partition made by award But if the parties are bound in mutual obligations to stand to the award & a transfer &c is awarded the Party refusing forfeits his obligation.
Debt certain & fix'd cannot be discharg'd by na- -ked award, nor causes criminal or matrimo- -nial decided.
Chattels & actions personal may be determind by arbitrament & tansfer'd by award without deed. The submission is to be taken largely & accor- -ding to the intent of the parties, where tis made by word the remedy to enforce a performance of the award is by reciprocal actions on the case an action of debt will lie if money be awarded
Ex need a submission non oritur actio but notice must be given. If the submission be by deed tis still revocable but the party forfeits his obli- -gation. Marriage of feme sol is a revocation
In debt on a bond to perform an award if non sub -misit be pleaded no breach need be alledg'd.
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ARBITRAMENT & AWARD 8 Co.98 Moor 3.pl 9 Carth 378 Ld Ray 247 2 Browne 137
An award must be made according to the submission It ought to be certain, equal, & mutually satisfactory It must be lawful XX & possible. It must be final.
If the award is good as to one party & void as to the other party tis void in the whole
If money be awarded & not paid the party may either have his first action or action of debt
In pleading a man should set forth the award & there- -in how he hath perform'd it.
When anything is awarded in satisfaction the award is a bar. but where releases are awarded tis no bar till performance
Not necessary to lay time & place of the award
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ASSAULT & BATTERY 6 Mod 149 Ld.Ray.62 [Salk]407 p.12 3 Bl.120 Hawk. P.C.130 3 Bl.120 6 Mod.172 Inst.316 [ ].159
Any injury whatever actually done to the person of a man, in an angry revengeful, rude or inso- lent manner is a battery
The least touching of another person wilfully or in anger is a battery
A Parent may moderately chastise his child, a mas -ter his servt or his scholar. An officer having a warrant agt one who will not be asserted may beat or wound him in the attempt to take him. XXXX A man may beat wound or maim one who makes an assault on his person or on that of his wife parent child or master, or who attempts to kill a stranger
I may justify an asst in defense of my land or goods
In an action on the case the Deft must plead the matter of justification specially.
Every asst will not justify every beating
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ASSIGNMENT 2 Bl.326-7 19.G.2.ch.1 Co.L.214 27.G.2.249
In assignments of a lease for life or years a man parts with his whole property & the assignee stands in the place of the assignor
Assignment of lease &c. to be recorded &c.
To avoid maintenance a possibility, right of entry thing in action cause of suit or title for a con -dition broken cannot be granted or assignd over assignee of bond or note for money or tobacco may sue in his own name allowing all discounts the Deft can prove either agt the Plf himself or the first obligee before notice of assignment
A personal trust not assignable
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ASSUMPSIT X 4 Co 92 [ ] 34 [ ] El 240 [ ] 485 [ ] D3.pl.3 LdRay.175 2 Vent.175 [ ] 27. pl.14 2 Buls.269 Leon.192 Xe.W1.163 Cr.Js.103
In assumnsit damnages are recoverd in pro-
-portion to the loss sustaind by the violation
of the contract. Indebitatus will lie in no case
but where debt woud/lie.
Obliger in bond with.t any new consed.n promi- -ses to pay the Money Asst will not lie but debt
Neither debt or genl Ind. ass. will lie agt the accep- tor of bill of exchange but action on the case
But debt or a genl Ind. may be brought agt th drawer
An Ind. lies for money won at play. paid by mistake
An indeb lies for money recd to the Pl. use on an implied contract Lies agt sheriff for money levied on a Fi.Fa.
All/promises are to be taken most strong agt the pro- -misor & are not to be rejected if they can be reducd to XXXcerty
Wherever a person promises without a benefit a- -rising to the promisor or loss to the promissee tis a void promise as being without sufft consideration
If the father of A & B lying sick declares his intention elder in of devising a rent for his [insert: younger] son during his life & the consideration his father will not change the lands promises to pay the rent in consequence of which th (struck through)rent(struck through) lands is not changd. This is a good consideration
A consideration altogether executed & past, unless made by a precedent request will not maintain asset.
Where the consideration is agt law promise void.
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ASSUMPSIT Polly Ambler- XXXMarch 1001 Cr.Ja.4832
The Plf must set forth every thing essential to the Gist of the action with such certainty that it may appear there was cause of action. But the law requires no greater certainty than the nature of the thing requires
The Deft must shew there was no contract, or that the contract w s void & without consideration or that he has perform'd it.
An entire promise cannot be apportion'd.
The Deft. cannot plead that he has revok'd the promise. Polly Ambler
1 March's translation of Brooke's new cases, King's Bench. 2 Croke's English King's Bench reports (underlined)tempore(underlined) James I.
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ATTACHMENT Dyer 218 2 Haw.P.6 142 145 Sal.24.pl.4 Mod.21 2Haw.P.6 154
Attachm't is a process that issues at the discretion of the Judges of a Ct. of record agt a person for some contempt for which he is to be committed & may be awarded by them upon a bare suggestion or on their XXX own knowledge
All courts of record have a discretionary power over their own Officers & will punish them for diso- -beying their commands for executing them oppressively or otherwise misdemeaning themselves in their office
Attachm'ts have been granted for speaking contemp- -tuous words concerning the rules of Ct for disobedience of those rules & for the abuses of the process.
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AUDITA XXXX QUERELA
An Audit querela is a writ tn be releivd against an injust judgement or execution by setting them aside for some injustice of the party that obtaind them which cou'd not be pleaded in bar to the action.
If A being within age becomes bail for B & judgement is given against him he may avoid it by Audita querela.
AUTHORITY Co.L.181 113 Cr.Ja.153 Co.L.258 Co.L.49 Co.L.52
A naked authority must be strictly executed. Several persons nam'd in a will to sell lands, one dies, the survivors cannot sell
Deed not deliver'd till after the day of date, attorney makes XXXXX livery
on the delivery of the deed good.
Letter of Attorney to make livery absolutely, he delivers on condition good. Secus if to make livery on condion & he delivers absolutely.
Testment made to A & B. livery to attorney to one in name of both good. Authority cannot be transfer'd. 4 Co.77
Must be executed during the life of the person that gives it.
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BAIL ON CIVIL CAUSES Vent.55 3 Bl. 290 22 G.2.Ch.4 27.G.2.Ch.1 296 22 G.2.Ch.4.172 2 Brown 296 22.G.2.Ch.4.178
When the Shf arrests Anyone he is olig'd to take bail otherwise an action on the case lies agt him.
Deft failing to appear, or give special bail when ruled thereto, the bail return'd shall be subject to the same judgement & have the same liberty of de- -fence as Deft wou'd have had.
No bail to be taken after judgement
In suit on a penal stat. the Deft not held to Bail.
Heir, Exr., or Admr not held to special bail
Bail subject to judgement of Genl Ct in appeals
The Bail liable to judgt &c agt Def unless he render his body in execution. If the Bail plead a render of the princi pal he must plead prout patet per recordum
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BAIL IN CRIMINAL CAUSES 1&2.Ph & Ma.Ch.13 stat.West.1 3.Ed.1 Ch.15 1&2.Ph.& Ma.ch.13 4.Bl.295-6
Two Justices Quorum unus having examin'd the prisoner & put in writing so much as is ma- -terial, as also the information of those who bring him may bail any person who is repevisable.
No justice of peace can bail 1. on an accusation of treason. 2. of murder, in case of manslaughter if the prisoner be clearly the slayer or if an indictmt be found agt him. 4th such as being committed for felony have broken prison. 5. Outlaws, 6 such as have abjur'd the realm 7. Approvers & such as are by them accus'd. 8 Persons ta- -ken with the mainour. 9. those charg'd with arson. 10. Ex- -communicated persons. Others are of a dubious nature as 11. Theves openly defam'd & known. 12 persons charg'd with other felonies or manifest & enormous offences not being of good fame 13. Accessories to felony who labor un- -der the same want of reputation. Others must b bail'd on offering sufft surety, as 14 persons of good fame charg'd with a bare suspicion of Manslaughter or other inferior homicide, 15. such persons being charg'd with petty larceny or other felony not before specified, or 16 with being ac- -cessory to any felony.
The Ct. of Kings Bench mayadmit any person what- ever to bail, yet will it pay due regard to the rules prescrib'd by H. West. 3.Ch.131
1 West's reports, English House of Lords(?) or Statute of Westminster
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BAIL IN CRIMINAL CAUSES 2. Hawk P.C. 88 2.Haw P.C. 90 Do. Haw.97 2.Do.115 Do.
No person shall be bail'd for felony by less than two.
Justice taking insufft sureties, the party not appear- ing fineable.
Justices before thy bail a man under com- mitment must at their peril inform themselves of the cause of the commitment. bailing a man not bail- -abl punishable by sevl stat. West.l.Ch.15.27.E.1.ch.3.182.P.M.13
To delay or deny or obstruct bail where it ought to be granted punishable by indictment as well as action
Where a person in Ct is baild for a crime punishable with loss of life or member, a recogn. may be taken from each bail in a certn sum of money body for body or both ways but bail is only liable to be fin'd
For crimes of an inferior nature the recog. [insert: only] in certn sum
Recog. not forfeited if the Principal stands mute
===Page 35+++ BAILMENT 2.Bl.452 Co.L.89 4 Co.83 Broke att. on Assise 20 Doc.&.Stu.130 2 Sal.522.pl 1 Co.1.89 Cr.Ja.243 Do 2.Leon 30 Yel.164 2.Co.79 4.Co.84 Cr.Ja.162 Moore[?] 43
Bailmt is delivery of goods on a contract expres[sed] or implied that the trust shall be faithfully executed on the part of the XXXXX Bailee.
If A leave a chest lock'd with B without acquainting B with the particulars & take away the key the goods are still in possession of A.
The naked possession of chattels XX personal cannot be alien'd.
If the goods of A are bailed by B to C - C must redeli- ver them to B, but if C dies his Exr is chargeable only to A.
Where goods are pledgd for money lent the pawnee may us them without injuring them & if they are stolen he shall not answer for them unless the money for which they were pledg'd had been tenderd If the money be tenderd or th goods decay the duty remains The Pawnbroker hath a special property though th goods be not deliverd to him at the time of the money lent. provided they be deliver'd for the [livery?] is not countermandable If goods be pawn'd without mentioning time of redemp- -tion the pledger has time during life though the pledgee dies. If a carrier, ferry man or hostler be robb'd he shall answer the value of the goods
If A takes a gelding to pasture & he be stolen no action lies agt A without a special assumnsit to restore him
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BAILMENT Sal.26 pl.12 2Ld Ray 209
My Lord Holt has laid down the following rules with regard to Bailment.
There are six sorts of bailment which lay a care & obligation on the party to whom tis made 1 A bare bailt to another to keep for the use of the bailor, bailee not answerable witht gross neglect. 2. A delivery of goods to another which are in themselves useful to keep, bailer if guilty of the least neglect or abuse of the loam answerable 3 A delivery of goods for hire, hirer to take all imagi -nable care & to restore them at the time. 4.A delivery by way of pledge if the goods are not the worse for using pawnee may use them at his peril as elso if the keeping them be a charge, if not with- -standing all his diligence the goods be lost he shall have/his/debt
5.Goods to be carried for a reward. if you deli- -ver them to a public or common carrier he XXXXXXXX XXXXXXXXX must be chargeable at all events, but if to one who has particular private employ- ment he is not chargeable at all events though he receive a hire 6. Where goods are deliverd to do some act about them as carrying without a rewd. The person to whom they are deliver'd only chargeable if they are lost by his own narticular neglect.
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BARGAIN & SALE
2.Bl.338 [Br.Fox(?)] to uses.33 7.Co.40 Cr.El.394 2. Co.54 8 Co.93 2 Co.35
Bargain & sale is a kind of a real contract whereby the bargainor bargains & sells that is contracts to convey, for some pecuniary consideration, the land to the bargainee, & thereby becomes seis'd to to his use.
No person can bargain & sell who cannot be seis'd to an(?) use. Though words of bargain & sale be used if no conside- ration of money be inserted it can only operate as a covt to /rec'd/ [ ]
Any freehold or inheritance & posession remainder on reversion on an estate for use or years may be bargaind and be sold
A man seis'd of a freehold may bargain & sell it for years but a man possess'd of a term cannot bargain & sell it so as to be executed by the statute.
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BARON & FEME Co.L.33 6.Co.22 Bar(?).rep 142(?) Co.L.351 Br(?)24 Co.L.45 2.Bl.434 Co.L.300 Pop.5.97 Co.L.46 351 Cr. ch.344 2.Bl.433.B 3.Mod.186 Salk 115 pl 4 Ver.261 1 Co 10
The age of consent in an inft male is fourteen & in a feemale twelve. Both must be bound or neither
A wife seperated by articles, in consideration of money recd by the Husbd & covenants by him, cannot be seis'd & forcd to live with him
If a man marries a woman seised on fee he gains a freehold. Baron & femme may by deed (the wife being privately examd) transfer a freehold of which he is seis'd in her right.
Marriage is a gift in law to the husbd of the wifes chattels real, but if he does not dispose of them in his life they survive to her & he cannot devise them away. If the husbd survives the wife they are absolutely his
If a husbd possess'd of a term for seventy years makes a lease for twenty years to begin after his death this is good because a present interest passes. Secus if a rent be granted to issue out of the lands because the term comes entire to the wife by a title paramount the grant
Choses in action do not survive to the husbd on/the death of the wife nor has he any right to them but as Admr.
Husbd & wife divors'd from bed & board the wife having alimony brings suit & is allow'd costs husbd cannot release them
A legacy was given to a feme covert who liv'd seperate/from her husbL, the Exr paid it to the feme & took her receipt for it, decreed to pay it over XXX again to the husbd with interest. Lease at will not determin'd by marriage
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BARON & FEME 4 Co 60 salk 325 Ld.Ray.315 2 Ver 410 Ch.Ca.21 2.Vent.343 2.Ch.re.81-79 2 Ver 17 Ver.408 Moor 468 3 Mod 186 Haw.P.C.65 Haw.P.C.9 Ver.143
A will or submission to an award made by feme sole are revok' d by her subsequent marriage Contracts or debts in presenti from hus'bd to wife, also such as are contingent & may haopen during coverture are extinguish'd by marriage
A man enters into a bond to his intended wife condition'd to leave her £1000 & mortgages his estate not leaving personal assets to discharge the bond. Decreed in equity tho void in law
Equity will set aside the intended wife's contracts enterd into before marraige when they appear to have been made with an intent to deceive & cheat the husbd & are in dero- -gation of the rights of marriage.
Widow before her marriage with a second husbd may without his knowledge, make provision for her children by the first
The husbd is liable for the wifes debts contracted before marriage whether he had any portion with her or not
Husbd not liable for her debts before coverture unless recoverd in her life time
Feme covert not punishable for theft if committed in compy with or by coercion of her husbd. secus if the theft be only by the command of her husband.
If the ife incur the forfeiture of a penal statute the husbd may be made a party to an action or information for the same. Sevl goods were devis'd to A's/ wife/ for life & after her death to B. Though A & his wife were parted & there had been great suits for alimony, & they during the seperation had wasted the goods yet(?) husbd charg'd for this conversion of the wife's.
Page 40
BARON & FEME Mod 128 2.Vent.155 Salk.116 118.pl.10 X 2,sup>d</sup> Ld.Ray. 1006 Str.647 2 Show. 283 Ba.Dissei- Str. 67 [ ] 159
A husbd may by law be compel'd to find his wife with necessaries suitable to his degree circumstances estate of which & of the wifes necessity the jury are to determine. The wife has no absolute power by any contract of hers though for necessaries to bind the husbd without his assent precedent or subsequent of which likewise the jury are to judge. If she cohabits with her husbd & bought necessaries for herself children or family the husbd is liable for them so if he runs from her, or turns her away, or forces her by cruelty to go away from him. But if he allows her a seperate maintenance or prohibits particular persons from trusting her he shall not be liable during the time he pays that maintenance or for goods taken from the particular persons pro- -hibited ----If the wife pawns his cloaths & bor- -rows money to redeem husbd not liable
If Baron or stranger desscise another to the use of a feme covert her agreement signifies nothing. But if a Feme covert actually enters & commits a dessenin, binding Husbd & wife make a lease by indenture of the wifes lands reserving rent, he dies, she marries again, the second husbd receives the rent & dies she cannot avoid the lease.
Page 41
BARON & FEME Co.L.3 Moor.432 Str.239 Salk.114 Vent.328 Co.L.133 Co.L.351 Yel.166 Bro.B&F.66 Co.L.933
A femme covert is capable of purchasing, but the husbd may disagree & it shall void the purchase, though the husbd should agree to the purchase yet after his death she may waive it & if she does no act which proves her assent to it her heirs may waive it after her.
In those cases where the debt or cause of action will survive to the wife husbd & wife are regularly to join in the action.
The fruit of the labor of the wife belongs to the husbd for which he only shall bring the action unless there is an ex- -press promise to the wife.
For a personal tort done to the wife they must join & if the wife dies the action dies with her
all actions for which the wife stood attachd at the time of the co- -verture, also for all her torts or trespasses during coverture the action must be brought agt both baron & feme
If goods come to feme covert by trover, the action my be brought agt both but the conversion must be laid solely in the husbd.
A husbd who has abjur'd the realm or who is banish'd is civi- -liter mortuus, his wife must be consider'd as a feme sole A woman whose husbd had left her about twelve years had car- -ried on a trade & given receipts in her own name, being sued for debt contracted in the course of her trade gave coverture in evidence & her husband was prov'd to have been lately alive in ireland. Jury jound for Deft.
Page 42
BASTARDY Sal.122 pl.5 Br.bar.36 Co.L.344 Godol.281 Co.L.8 Co.L.8 Co.L.245 7 Co.44 [ ] 120
All persons born in lawful wedlock are deemd legita- mate unless there is an apparent impossibility that they shou'd be generated by the husband.
If a person be castrate, be under the age of fourteen or out of the realm the issue are bastards
The usual time for the legitimation of children born after the death of the husbd is nine solar months & ten days.
A lewd woman immediately after her husbds death married her adulterer & within six months had a child -adjudged to be her first husbands Widow married immediately child born within nine months & eleven days adjudged the secd husbds
If there be bastard eigne & a mulier & on the death of the father the bastard enters & enjoys the land during XXX life the mulier cannot enter on his own issue
No Man can bastardize another after his death
To exclude the mulier from his inheritance the the possession of the bastard must be uninterupted & a descent [ ] his issue.
[Inverted] 26-16- 6 58 1 4 84-17-10
===Page 43---
2 Bulst. 226 5.Co.60
BILLS OF SALE
3 Co.81
Mo.638
3 Co.8l
2 Bulst.
226
%.Co.60
Blood & natural affection a void consideration agt cre- -ditors
If goods continue in the possession of the vendor after a bill of sale of them, thoh there is a clause in the bill that the vendor shall account annually with the vendee for them, yet it is fraud.
A genl conveyance of them all without any ex- -ception, also a secret manner of transacting the said bill (struck through)as that it be(struck through) also unusual clauses containd in it, as th tit be made honestly, truly, & bonafide are marks of fraud & collusion.
Possession of a lease for years after an absolute convey- -ance or gift fraudulent, secus if the conveyance or sale be conditional as that on paymt of so much money it shall go to the vendee
Fraud need not be pleaded but may be given in evidence
Page 44
BILL OF EXCEPTIONS 2. inst. XXXX426 2 Inst. 427 Dyer 231 pl 3 Ray.46 2.Inst. 427 Vent. 366
At common law a writ of error lay error lay not for an error in law not appearing in the record & there- -fore. 13th of Ed. l.ch.30. gives a bill of exceptions in such case.
The stat. extends to all pleas dilatory or peremptory to prayers to be receiv'd, oyer of records & deeds &c also to any material evidence offer'd & overruld
The party/must pray the justices to put their seals to his bill before judgement & after judgement they may (if they have before refus'd) be commanded to it
The Ct. will not suffer the party to move any thing in arrest of judgement on the point on which the bill of exceptions has been before allow'd.
Page 45
BURGLARY Hale P.C. 80 Hale P.C. 81 Hawk P.C.102 XXXXXXXX 4.Bl.227
Burglary is a breaking & entering the mansion house of ano- -ther or a church or the walls or gates of a walld town with an intent to commit some felony.
One who comes down a chimney, opens a window, /or/breaks the glass thereof, unlocks the door or draws the latch of a door, or if persons coming to a house with an intent to rob it, are let in under pretence of business & then rob the house, or take lodgings in the house & then fall on the Landlord & rob him, or having brought a Constable with hue & cry bind the constable & rob - these cases have been adjudged burglary.
Any the least entry either with the whole or with a part of the body or with a pistol or weapon is sufficient.
There may be also an entry in law a.s where sevl come to commit a felony & some stand in parts adjacent while others enter & rob.
It must be in the night, not day light to distinguish the face A house which a man dwells in but for part of the year Or which he has hird & brought nart of his goods in but has not yet lodged in, or which XX his wife has hird tho' with his privity & lives in will satisfy the wds mansion house. Also out buildings which are part of the mansion house, as a lodging in one of the Inns of Ct or in a house actually divided from the rest with a door to the street in which case the indictmt shd term it the mansion house of the proprietor. There must be an intention to commit a felony.
Page 46
CARRIERS Co.L.89 Sal. 232. pl.11 Comyns 25 pl.10 4 Co.84 Vent. XXX 238 Carth. 485 Co.L.89 4 Co.83 Hawk P.C. 90 Hale P.C. 60
All persons carrying goods for hire come under the denomination of common carriers
The master of a stage coach who only carries XXXX passen- gers for hire not liable for goods of those passengers. If a carrier be robd he shall answer the value of the goods.
If A delivers a box to a carrier to carry & he asks what is in it & A tells him a book & tobacco, tho' there is a hun- -dred pounds besides if the carrier is robd he shall answer for the money But if A being a common carrier receives by his book keeper from the servt of B two bags of money seald up containing as was told him £200 & the book keeper gives a receiut to this effect Recd of &c two bags of money XX seald up said to contain £200 which I promise to deliver such a day at ixeter to __ he to oay 10/pr Ct for carriage & risk. Though the bags contain'd £450 & the carrier is robd he shall be answerable only for the £200 for this is a particular undertaking; & the fraud of the Plaintiff.
A carrier may maintain trover & conversion agt a stranger by reason of his special property.
If a carrier opens a pack & takes out part of the goods, or if he having brought the goods to the place apoointed takes them away again secretly animo furandi he is guilty of felony
Page 47
CERTIORARI F.N.B. 543 22G.2 Ch 4 27 G.2 ch.1.
Certiorari is an original writ out of Chan- -cery or the Kings bench to the judges of an in- -ferior Ct. comg them to return recds of a cause depending before them.
Certiorari is not to be allow'd fter issue or demur -rer joind. Cause once remov'd by certiorari & sent back by procedendo &c never after to be removd
Certiorari not to be granted here the matter in dispute was not originally cognizable in Genl Court.
Page 48
COMMITMENTS 2 Haw. P.C.46 2.&3. P.& M Ch.10 2. Haw. P.C.119
All persons who are appreahended for offences not bailable as also those who neglect to offer bail for offences which are bailable must be committed Also wherever a justice has power to bind a person over or to compel him to do such a thing he may commit quousque &c if in his presence he shall refuse to be bound or to do such a thing Previous to commt the justice must take the exami -natim of the Prisoner & the information of those that bring him & certify the same in writing.
Every commitmt must be in writing under the hand & sea1 of him that made it, shewing his authority & directed o the keeper of the prison. It ought to set forth the crime with convenient certainty
Every Mittimus ought to have a lawful conclusion And if grounded on an act of Parliament ought to be conformable to the method prescribd by that Statute.
Page 49
CONDITION C.L.203 Co.L.204 [ ] 12 9 CoXXX 85 Moor 92 8 Co.44 5 Co.68 Cr.Ja.398 Vaugh.31 Co.L.163
The word condition or sub conditione does most pro- -perly create a condition. Other word create con -dition as proviso; but it must depend on a -nother sentence, also it must be the words of the gran -tor and compulsory to enforce the grantee to do some act
As the intent of the testator chiefly governs in wills these words faciendum, faciendo ca intentione, ad effec -tum &c create a condition
Conditions cannot be annex'd to estates of inheri- tance or freehold estates without deed. Secus of Rents annuities warranties &c. Executory interests. Also of Chattels.
A person cannot resign or a condition be releas'd on condition. A man cannot release a personal thing on a condition subsequent, secus on a condn precedent.
Conditions can only be reserv'd to parties & privies, their Heirs Feme covert & infant hound by express conditions.
Conditions which defeat an estate are to be taken strict -ly therefore if a man leases lands for years on condi- tion that the lessee /nor his assigns/ shall not alien but to one of his bro- -thers & the lessee aliens to one of his Brothers the assignee is not within the condition but he may alien to whom he pleases.
If a man makes a lease for years by indenture
Page 50
CONDITION Co.L.203 2.Bl.154 1 Vent.202 10 Co.42 Ver.79 167 2.Vent.952
provided always & it is covenanted & agreed between the parties that the lessee shall not alien this is both a condition & a covenant.
When the estate is so expressly confin'd & limited by the words of its creation that it cannot endure for any longer time than till the contingency hap- -pens upon which the estate is to fail this i~ denomiXXX- -nated a limitation. These words are proper for its creation While, so long as, until, &c. In such cases the estate determines so soon as the contin- -gency happens & the next subsequent estate which depends on such determination becomes inmediately vested without any act to be done by him who is next in expectancy. But though X strict words of condition be used in its creation yet if on breach of the condition the estate be limited over to a third person the law construes it into a limitation.
In equity ith respect to conditions precedent & subsequent the prevailing distinction seems to be to releive agt the breach or non performance of a condition where a composition can be made. As where one devised (struck through)L 10000XX piece(struck through)-/lands/to J.S. his
Page 51
CONDITION 2.Ver.366 2.Bl.156 2 Vent.109 10 Co.38 Co.L.206 Eq.Abs. (Abr?) 18 Cr.El.815
kinsman paying £1000 a piece to his two daughters who were his heirs at law and J.S.made default & the daughters recovd in ejectmt yet J.S. was releiv'd on paymt of principal, interest & costs.
If a condition be impossible at the time of its cre- -ation or afterwards become impossible by the act of God or the act of the feoffer himself, or if (struck through)they(struck through)/ it/ be contrary to law or repugnant to the (struck through)estate(struck through) nature of the estate tis void.
If the condition of a bond be impossible at the time of making it the condition is void & the obligation stands single. But if the condition is possible at the time of making it & becomes impossible (struck through)at the time of making it(struck through) by the act of God of the law or of the Obli- -gee &c the obligation is saved.
The condition of a bond was to settle certain lands in such a manor by such a day; the obligor died before the day the bond savd at law, but a specific execution de- -creed in chancery.
If there be lessee for years on cndn not to lien with<supra>t/supra> the assent of the lessor, makes his Exr & devises it to him & the Exr enters generally the testator not being indebt- -ed to any body, this is forfeiture of the condition
Page 52
CONDITION 7 Co.56 Vaug.32 Dyer. 656 Vaugh.31 Co.L.202 Co.L.30
If there be a nomine pend given to the lessor for the nonpayment of the rent he must demand the rent before he can be entitled to the penalty. Or if the clause had been that if the rent were behind that the estate of the lessee shoud cease & be void, In these cases a demand must be made at the day prefixd for the payment & alledged expressly to have been made in the nleadings.
But where the power of reentry is given to the lessor for default of payment without any further demd the lessee has undertaken to pay it whether demanded or not
If words of limitation be us'd the Lessee must at his peril pay the rent
If man leases land on condn that he shall not alien the land or any part thereof & after aliens part with the assent of the lessor the whole condition is dispens'd with
It is laid down as a rule that he who enters for a condition broken shall be in of the same estate he was before & therefore shall avoid all mesne incumbrances.
But a man entitled to be tenant by the Curtesy makes a feoffment in fee on condition, enters for condition broken & then his wife dies he shall not be te- -nant by the Curtesy
Page 53
CONDITION Lit.sec. 337 Co.L.308 Co.L.207 5 Co.96 Co.L.210 5 Co.97 Cr. El.798 Cr.El.363 Hob.103
If a man makes a feoffmt in fee with condition to be void if the feoffer pays a certain sum of money to the feoffee & he dies before paymt the heir cannot pay it. But when a day of paymt is limited & the feoffor dies before the day his heir/may tender the money
If A enfeoffs B on condition that B ehall pay money on a day & before the day B enfeoffs C either of them may tender the money
If a man bargains & sells lands with a proviso that /it/ the vendor before such a day pay so much money to the vendee his heirs or assignes then the sale to be void a tender to the Exr is not good. secus if a feoffee be to pay money to the feoffer. Designatio unius est exclusio alterius.
If the condition of an obligation be to pay less sum & no day of paymt be limited the obligor ought to pay it presently that is in convenient time.
The intent of the condition must be honestly performd. If the condition be in th copulative & it is not possible to be perform'd it shall be taken in the disjunctive
If the condition of an obligation be that the obligor shall pay £10 to th obligee which is for the rent of certn lands & the obligee enters on the land & so suspends the rent yet this shall not excuse the paymt for it is but a re- cital that it is for rent & therefore not material.
Page 54
CONDITION Co.L.207 Cr.El.755 Cr.El.755 Cr.Ja.14
If the condition of an oblig~tion be to pay a small sum at a certain day & the obligee refuses it at the day, tho' this saves the penalty yet the principal must be naid. Secus if the condition be for the performance of an act collateral to the obligation
Regularly if the condition be to be perform'd by a stranger & he refuses the obligation is forfeited.
If the condition be to make a gift in tail to a stranger who refuses obligation and because it was intended that the (struck through)feoffee(struck through)/obligee/ shoud have the reversion
Page 55
COPARCENERS Co.L.163 5 Mod.141 Ld.Ray.64 pl. 1 Co.L.164 255 Co.L.171 8.Co.101 F.N.:B.62 Booth 244
If a man having lands in fee hath issue two daughters & one of them is attainted of felony & the father dies both daughters being alive one moity shall descend to the innocent daughter & the other moity shall escheat. Had it been remainder to the right Heirs of A whoXX is dead leaving issue two daughters when of one is attaint ed of felony the remainder void for the whole
One coparcener cannot before partition mke avowry for the moity of a rent
If coheirs are disseir'd before partition their XXXDpossessory action must be joint, secus of an action brought by their issue
If two parceners of full age make an unequal partition it shall bind them secus if one had been within age
If two Parceners take husbands who make an equal partition this shall bind their wives, secus if the partition be uneql
When a partition is made by writ tis directed to the sheriff to summon the refractory coparcener to shew cause why she will not make partition of the lands &c.
There are two judgements, the first that partition be made between the aforesd parties of the aforesd tenements & appurtenances, on which there goes out a writ to the sheriff commanding him to go in person with a jury to the tenemts to be divided & there in presence
Page 56
COPARCEBERS Booth 245 Co.L.167 Cr.El.9 Dalison 28
of the parties (if they anpear on summons) by the oath(?) of twelve men, to make An equal & fair partition & then return the inquisition of the partition annex'd to the writ under the seals of the Sheriff & the jurors whose names are likewise to be return'd
All must be concluded in a partition by writ. There is a condition annex'd to a partition that if either the whole of any one share, or an estate for lif or in tail, be there out evicted by entry witht action the party may avoid the partition.
Page 57
COSTS 22.G.2 ch 5 180 Cr.Ch.141 Sal.206. pl.5 ?od.129 ?i.Ray.831 ?.645 G.2.ch 5 G30 Sal.314 pl 21 25 G.2 ch 5 7.G.3.ch.23 Vent.193 Sal.206 pl 4 2 Inst. 288
In actions of Asst & battery & slander if the jury
give under five pound damages in the Genl.
Ct. or under forty shillings in Chy Ct . Plaintiff shall recover no costs. In the construction of a similar stat. in Engd it has been held that it extends not to slander of title or to slander which can only lie where there is special damage, or in an action for beating his sert per quad servetium amisit.
And in all actions of trespass & all other personal ac- -tions where it shall not be enter'd on accd. that the interest &c. in lands might be in dispute, or that the trespass was wilful or malicious if the jury find under forty shillings the Pltf shall not recover more costs than damages
Exrs or Admrs Plfs pay no costs unless the action is brought in their own right as for a conversi- -on or trespass in their own time
Prosecutors for offences not capital in Genl Ct. whose names sh~ll be set at th foot of the indictmt liable to costs on bill not found or deft acquitted.
Also in Chy Ct. unless Ct. shall certify probable cause for prosecu /tion
A common informer on a popular stat. can in no case recover costs unless they be expressly given by such stat.
Page 58
COSTS Cr.Ch.559 10.Co.116
But in an action on a stat. by the party griev'd for a certain penalty given by such stat. Plaintiff shall recover costs
Where damages were before recoverable & a stat. encreases them to double or treble the value, costs also as parcel of the damages shall be trebled
[inverted:]
Where there is nothing in the will which can convince the mind of the Court that no favor was intended by the Testator to those children born posterior to the Divise
Page 59
COVENANT 1.Ch.Ch.294 Sal.197 . pl 3 5.Co.XX 17 4.Co , 80 Owen 104 5 Co.18-19 Str.Cas.12 Cr.El.553 And .55 Vent. 175 Cr. El. 457 5.Co.16 5 Co.15 Cr.Ja.438
Any wds in a writing seal'd. &c which shew the parties concurrence to the performance of a future act will create a covenant.
Covt on deed poll the parties must be nam'd therein
If a man makes a lease for years of land by the words concessi or demissi these import a covenant.
Bond for performance of covts genly extend to covts in law & deed.
But an express covt qualifies the generality of covt in law.
Covt does not lie for goods leas'd by indenture though they be evicted within the term.
Where there is a joint interest the action of covt must be joint. But if two bind themselves severally to pay money the obligee may sue which he pleases
In every case where the testator is bound by a covt the Exr. shall be bound by it if it be not determin'd by his death
Covts real or such as are annexd to the estates shall descend to the heir of the covenantee & he alone shall take advan- -tage of them. Secus of covts in gross .Also for Breaches in the time of the covenanter action shall be brought by Exr.
The assignee of a term is bound to perform all the covts annex'd to the estate, as where it extends to a thing in esse
If the covt be for a thing not in esse; Assignee not bound unless nam'd. If the assignee be nam'd yet if the thing to be done be merely collateral & no way concern the thing demisd, it shall not bind him
Page 60
COVENANT Hard. 87 5 Co.17 Ba.Cov.32 Cr.Ja.309 Ray.303 Sal.31.pl.2 Ld.Ray.368 4 Co 80. 5 Co. 17. Cr.El.303 Cr.El.599 8.Co.83 Sid.309 Ray.27 Broke obligation Dyer 4.28 Sal.198 pl.4
Assignee not bound by a covt for the delivery of per- -sonal things though particularly namd
Where a man leases for years & covenants for him & his assigns, the lessee assigns over.Lessor has his action agt assignee or Lessee. Also an Assignee who assigns over is liable for the rent due before & during his enjoymt Lease by indenture covt in law created by the word de- -mise shall go to the assignee. So of all Covts vrhich run with the land.
All contracts are to be taken according to the intent of the parties express'd in their words & if there be any doubt it shall be construed most strong agt covenanter
If the principal thing to b perform'd as conveying an estate &c /be void/ further covts which are relative & dependant thereon are so likewise. So if lessee for years grants so much of the term as shall be to come at the time of his death & covts that the lessee shall enjoy it & gives bond for the perforwance of covts, yet the principal thing Viz. the grant being void for uncertainty, both bond & Covts are void likewise.
Where A covts not to do an act which was lawful to do an act of Parlt comes after & xompels him to do it it repeals the covt, so if covts to do a thing which is lawful & an act hinders him from doing it.
Page 61
COVENANT 2 Jones 195 Cr.Ch.XX 76 Cr.Ja.661 Co.L.303 Cr.El.635 Lev.152 contra 2 Mod.309 5 Co.78 Cr.Ja.645 [ ] pl.2 [ ] [ ]
Secus if a man covts to do a thing which was unlawful & an act comes & renders ti lawful.
If two men on sale of their wives lands covt that they & their wifes have good right to convey lands & to make farther assurances if one of th wives be within age the covt. is broke
In an action of covt several breaches may be assign'd other- -wise in debt on an obligation condition'd to per- form covenants.
If the breach be assign'd in the words of the covt sufficient.
If a man be bound to perform all the covts in an in- -denture if they are all in the affirmative he may plead performance generally. Secus for the negative
It has been adjudged that where there are reciprocal covts in the same deed one may be pleaded in bar of the other.
If the assignee of a term have a covt from the assignor that he shall quietly free from all arrears of rent &c if there be rent arrear yet he cannot assign this as any breach/of the covt unless he be sued or charged therewith
In actions on bonds for performance of covts &c. jury may assess damages for such breaches as Plf shall prove. And on Demr for such as Plf shall assign after judgmt. Such judgmt to remain as a security to the Plf. his Exrs. or Admrs on which they may have a XXXXX scire Facias agt Deft & assign any other breach.
Page 62
CURTESY OF ENGLAND D.& stud. 203 Co.l. 123 Co.L.144 7.Vin.156 pl.23 Co.L.30.326 Dyer 363 pl.26 8 Co.72 2 Inst. 309 Br. [ ] 6 Co.111
If a man marries a woman seir'd of lands of inheritance & has issue by her which might possibly inherit those lands he shall be tent by the Curtesy
He cannot be tent. of a [ ] at common law or what is now called a trust, or of an Annuity after writ brought
A man may be tent. of an equity of redemption
If a husbd after issue makes a feoffment in fee & the wife dies the feoffee shall hold it during the life of the husbd. But Quere if such feoffment or lease made before issue shall be good by subseqt issue.
If Tent by curtesy attempt to alien a greater estate he in reversion shall have a writ of entry.
If the husbd make a feoft in fee & retake an estate to him & his wife by which the wife is remitted he shall not be tent. by the curtesy
Page 63
DAMAGES Co.L 42 Morr 419 Vent. 267 10 Co 117 Cr.El.544 Br. Dam. 68 Roll. [ ] 578 Yel.45 vide
11.Co.56
11.Co.6 Cr.El.860
If Tent for life & he in reversion join in a lease for life & then in an action of wast tent for life shall recover the place wasted & he in reversion damages.
In all actions which sound in damages the jury may give what damages they think proper, though in con- -tracts the very sum specified & agreed on is usually given yet if there are any circumstances of hardship fraud or deceit, XXX tho not sufft to invalidate the contract the jury may consider them & proportion & mitigate the damages accordingly
Impersonal actions the Plf shall recover damages only for the tort done before the action brought & cannot recover more than he has counted for
Plf in Detue may recover more damages agt Garnishee than
he has counted for
In trespass for rescuing distress, Deft justifies on special matter, demurrer, for the Plf he shall have the damages he has counted for
Where the jury find higher damages than are containd in the declarn Ct may give judgmt for so much as the party hae declard for or plaintiff may release
The jury cannot regularly assess sevel damages for one trespass with which the Defts are jointly charg'd. But if one Deft is found guilty at one time & the other at another time sevl damages may be
Page 64
DAMAGES 3 Mod.12 3.Tal.15 pl.6 Ld.Ray.116 Yel.176 Cr.Ch.438
be taxed & the Plf hath election to taKe execution de melioribus damnis
In battery pro amputatione manus dextrae the Court may increase the damages for it is appa -rent from the recdsup> & view of the Ct.
So in trespass on a nihil dicit if a writ of enquiry of damages be awarded the Ct. may encrease or di -minish the damages found by the inquest adjudged in an action of asst Battery & wounding
If action of trespass if brought on a Stat. on which the Plf is to recover double or treble damages the damages are to be assised by the jury & doubled by the Ct.
Page 65
DEBT 3.Co.22 Lev. 54 22.G.2.Ch 27 p. 249 22.G.2.Ch.10 4.Co.49 Cr.Ja.88 5.Co.32 2.Ja.685
If the Stat. prohibits a thing under a certn penalty & pres- scribes no particular method for recovering it, the party shall have an action of debt.
On a contract debt lies not till all the days of paymt are pass'd.
If one enters into a contract to pay money &c at his sevl contingencies the obligee has his action at th hap- pening of either of them
Debt may be brought on promissory note for money or tobacco & by assignee of bond in his own name and for money due on protested bills of exchange agt the drawer or indorser or both.
Debt will lie for rent due on a lease for life as well as years
If a feme lessee for life takes husbd & dies debt lies agt the husbd for rent issuing out of the land.
If a man sells certain cloths for £66 flemish money he may bring an action of debt for £39-12 monetae angli & setting forth the special matter & avering that £66 flemish money was at the time of sale worth £39.12 english money & that the deft has not paid &c.
If an Exr recovers any thing in the right of hist testator it must be in the detinet only.
But if an Exr. takes oblign for debt due to his testa tor in debt on this oblign it must be in the debet X & detinet
Page 66
DEBT Cr.Ja.685 Vent . 321 Cr.El. 74
So if an Exr sells the goods of his testator
Also debt agt the Exr shall be in the detinet only unless after judgemt R devast[avi]t is suggested
But if debt be brought agt Exr for arrearages of rent in curr'd after the death of the testator it shall be in the debet Debt agt Baron & feme for debt before marriage in debet.
In debt on an oblign the deft cannot plead nil debet
In debt for rent with deed the proper plea is non est factum
Page 67
DESCENT 2.Bl.208 2.Bl.212 Do.214 Do.217 Do.220 224 234 Co.L.15 Lit.sec. 387.8.441
Inheritances shall lineally descend to the issue of the person last actually seised but shall never lineally ascend
The male issue shall be admittee before the female
The eldest only of Males shall inherit but the females all together
The lineal descendants in infinitum of any person deceas'd shall represent their ancestor
On failure of lineal descendants the inheritance shall descend to the blood of the first purchasor
The collateral beir of the person last seised must be his next collateral kinsman of the whole blood In collateral inheritances the male stock shall be pre- -fer'd to the female unless where lands have descended actually from the female
If the eldest son enters yet if the relct of the (struck through)widow(struck through)/father/ be endow'd & the eldest son dies the brother of the half blood & not the sister shall have the reversion of the third part For the widow is [ ] in continuance of her husbds estate Secus if the eldest son had made a lease for life & leseee had endowed the widow.
In descents which toll entries it is requir'd that the ancestor die seis'd of a freehold & fee
Page 68
DESCENT
A man seis'd of lands in fee on condition dies seised if the condition be broken in his life it does not take away the right of Entry 1n the feoffer. Lit. sec. 391.
If a man seis'd of lands in fee devises them to another in fee & dies whereby the descent in law is cast on the devisee, & the heir before any entry made by the devisee enters & dies seised, this descent shall not take away the entry of devisee because he would be without remedy having never had possesion. Co.L.240.
If t11e younger son enters by abagemt & dies seis'd yet the Heir or his issue may enter. Secus if the younger son has made a feoffmt in fee & the feoffee had died seis'd. Co.L.342
Or if the elder brother had enterd & been disseis'd by the younger L.l 397
The same law holds of intrusions Co.L.243
The entry of infts & feme coverts not taken away by descent s. L.Sec. 402
So desct lost during imprisonment, or absence in foreign parts /Co.L. 255/
Page 69
DETINUE
3.Bl.150 Sid.172 Yel.165
In detinue th party is to recover the thing in specie or damages for the detainure.
To ground an action of detinue these points are necessary. 1.That the deft came lawfully by the goods as either by delivering them to him or find- -ing them. 2d. That the Plf have a property 3. That the goods themseves be of some value & 4. That they be ascertain'd in point of identity
Detinue lies only for or agt the husbd for goods detaind by or from a feme covert before marrige.
===Page 70===DEVISES 2.Ver .104 Cr.El.27 Cr.Ch.219 Co.L.112 2.Mod.315 Ld.Ray.262 Str.73 Sal. 231.pl.10 Ray.163 Sid. 153 Lev.135 Ray.162 Plow.343 Yel.347. pl.16 Mod.217 Ch.Ca.39 2.Ver.689
A woman whose husbd is banishd for life by act of Parliamt/may make a will
Husbd may bind himself by covt or bond to per- -mit his wife to dispose of legacies &c. & this is such an appointmt as the husbd will be oblig'd to stand to.
A wife may be devisee tho' not grantee to her husbd
An (struck through)inf(struck through)/male/ may devise his lands at 21 his negroes at 18 & his personal estate t 14 years of age; a female may dispose of her personal estate at 12 years old.
It hass been doubted whether a devise to an inft in ventre sa mere is good but all agree that a de- vise to ~n inft when he shall be born or wher God shall give him birth is good & that the freehold shall descend to the heir at law in the mean time.
If a man devises lands in which he has nothing & after purchases them such a devise is void.
If a man devises lands & is disseisd & dies before reentry the devise is void.
After articles agreed on for a purchase, the purcha- -sor devises the land & dies before a conveyance executed, yet the land passes in equity
An equitable interest deviseable as well as a legal estate
Page 71
DEVISES 3.Lev.427 Abr.Eq. 175.6 Co.L.6 2. Bl.108 Cr.Ja.416 Hob.2 Cr.El.378 5.Co.21 2.Sal.685 2.Ver.564 Sal.234.pl.13 Cr.Ch.447 Co.L.9 Cr.El.498
A mere possibility not deviseable.
A right to set aside a release deviseable & the devise of all the residue of the testators estate to the wife &-constituting her sole Execx apt words for that purpose If a man devises lands to another forever, or in fee simple, or to him & his, or th~t such a one shall be universal heir a fee passes. So if XXXX A de- -vises land/s to B to give sell or do what he pleases with it, or to B & his blood, or to B & his succeesors. So if the words be I release all my lands to A & his Heirs or I will that A shall have my inheritance or that A shall be heir to all my lands.
A Device shall be intended for the benefit of the devisee therefore wherever there is a sum in gross to be paid the devisee has a fee
The word estate in a devise generally passes a fee But where the word estate is coupled with chattels it may be construed to mean only chattel interests
A devise to a man genly construed for the life of the devicee
Tho' a devise on a consideration genly passes a fee yet where there are express words to determine the intent of the devisor there the devise shall be construed accordingly
Page 72
DEVISES 9.Co.128 Vent.230 Co.99 6 Co 16 sec Vent.212 co.66 2.Ver.427 Abr.Eq.184 3.Co.96 Cr.El.311 Co.L.112 236 3.Co.20 Cr.El.202
If a man devise lands to his son B & if he has issue male of his body lawfully begotten then to his issue, if no issue male devises over, B has an estate tail
Wherever the ancestor takes an estate for life & there is a limitation to his heirs or issue then words are words of limitation & not of purchase
Lands were devis'd to A & his wife & after their decease to their children they having then a son & a daughter living, A & his wife have hird an estate for life
An express devise of an estate for life is some -times not enlarged by a subsequent limitatio to his heir
If a man devises lands to his Exrs for paymt of his debts &, after paymt the remainder shall not vest title the debts are paid & the estate shall go from Exr. to Exr. for that purpose.
A man devises lands to be sold by his Exrs or to his Exrs to be sold, the Exrs shall have the profits before sale to their own use secus if the devise had been that his Exrs shou'd sell his land.
A devises lands to his Exrs till his son comes of age, the profits to be applied to the performance of his will though the son dies before he comes
Page 73
DEVISES Ch. Ca.113 Abr.Eq.395 Gil. eq. rep. 36 Cid 151 Sec Lev.264 4 Co. 82 Cr.El.39O Bl. 4.3. pl. l Eq.Abr.197 2 Ver.708 Ver.1O4 2.Ch.Ca.2O5 Vagh.251 Cr.Ja.75 Vent.230
of age yet the interest of the Exrs continues till he wou'd have been of age.
A man devis'd land to his wife till his son & heir appa- -rent shou'd be of age & then to his son & his heirs, the inte- rest of his wife determines by the death of his son before 21. & the remainder vests in the son on the death of the testator
A term was devis'd to B & if he died within the term the residue to C after he attains the age of 21 if C dies before 21. B, tho' he dies first has a bequest of the whole term.
A devis'd lands to B & C till £800 be rais'd out of them. B & C have the lands no longer than till they might have recd if out of the profits unless the disturbance is by the heir
Creditors are so far favor'd especially in equity that where ever it appears to be the testators intent that his lands shou'd be liable for his debts they shall be subjected thereto tho there be no express words to charge them. As where A devises that all his debts &c be paid in the (underlined)first place(underlined)
If lands are devis'd to trustees for paymt of debts & C gains out of the rents & (underlined)profits(underlined) trustees may sell the land itself
Where estates are created by implication to the dispersion of th heir at law the implication must be necessary & not merely possible
Where the devisee takes a particular estate of
Page 74
DEVISES Levin 418 Sal.237.pl.16 Cr.El.387 Ver.35 2.Bl.172.3 Cr.El.205 Cr.Ja.590 Vagh.272 2.[Rol ?] rep. 497 2.Mod.289 Abr.Eq.288 Ld.Ray.204 Str.132.Sal.226 pl 4 2.Sand.330 4.Mod.234 2.Lev.39 3.Keb.11 3.Sal.299
inheritance by express words in the will, such estate shall not be enlarg'd by implication
A devise of things personal is good though the testator had them not at the time of making his will.
By a devise of all goods a lease for term of years has pass'ed. Devise to A for life & after his death to the heir of B. Goods vest in him who was heir of B at his decease
An executory devise needs not any particular estate to support it. A fee simple or other lessXX estate may be limited after a fee simple. A remainder may be limited in a chattel interest after a narti -cular estate for life created in the same
The contingency on which it is to vest must happen in a life or lives in being or nine months after a life; or a reasonable number of years
An executory devise bein a mere collateral possibility is not bound by a recovery.
One devises lands to his wife till his son comes to the age of 21 years then to person the fee vests imme- -diately in the son though the wife shall enjoy the lands
Where a contingent estate is limited & depends on a freehold which is capable of supporting a remr it shall never be construed an executory devise but a contingent remainder.
Page 75
DEVISES Sal.226.pl 4 226 Ld.Ray.3 2.wILL.20 P.56 Dyer.303 Went 224 Cr.Ja.448 3.Lev.127 Co.L.18 3.Ch.Ca.35 Cr.Ch.298 2.And.123 2.Vent.285 2.Ver.461 621 Abr.eq.211
A remr limited per verba in presenti shall not be con- -strued an executory devise
No cross remrs can be created by implication in a will unless the words do plainly express the intent of the devisor to be so, as where det acres are devis'd to A.B.& C. & if they die without issue of their bodies (underlined)or any of them(underlined) the lands to remain over there by reason of the words (underline)any of them(underline) they h&ve cross remainders
Where th testator makes the same disposition of his estate as the law wou'd have done, or where his disposition is in such genl terms that his intention is uncertain, or where h is establishing a settlement agt the reason and policy of the law the will has been re- -jected.
If on having bnds in fee & other lands for years de- -vises all his lands & tenements the fee simple lands on- -ly pass. secus if he had only lease for years
If a man devises his house in A & his lands in B a house on his lands in B will not pass
A Devise of all his lands not before devis'd, or of all the rest of his lands, or of all his lands out settle -ment &c sufficient to pass the reversion of lands out of which ea particular estat was before devisd So a devise of al his lands, tenements & hereditatments
===Page 76 DEVICES 2.Ver.623 Abr. eq. 214 3.Ver.729 Co.L.24 Dy.44 Plpw.345 Cr.El.422 Cr.El.423 sec 2.Vent.722
By a genl devise of all lands tenements & heredita- -ments Mortgages in fee tho' forfeited will not pass
A description of a person by the name of heir tho' not heir genl operating with the intention of the testator, suft to ascertain the person to take. The authorities of old books contra
If a man devises lands to A & his heirs & A dies in th life of the Devisor, B the heir of A takes nothing
If there be a devise to A for life remr to B in fee tho A die in the life of the Devisor or refuse , B shall take.
Page 77
DISSEISIN 3lBl.169 Co.L.277
Disseisin is a wrongful putting out/of him who is actually seised of the freehold.
Page 78
DISTRESS Co.L.47 5.Co.3 Co.L.169 3.Co.22 22.G.2. Ch.10.p.204 3.Bl.7. CoL. 47 3. Bl. 8 Cr.El.569 552 3.Bl.9.10 7.Co.7 3.Co.92 22.G.2. ch.10.p.204
If the lessor reserve not the reversion h cannot dis- -train witht a clause of distress
A rent granted for equality of partition by one Parcener to another, or to a widow out of lands whereof she is dowable in lieu of her dower, or by one person to another on an exchange may be distrain'd for of common right
Landlord may distrain for rent arrear after the lease is determind provided it be within six months after such determination, during the land lords interest in the lands & the Tenants possession.
Those things of which no man can have a valuable pro- -perty cannot be distrain'd.
Whatever is in the personal use or occupation of a Man is for the time privileg'd from/any distress. Also valuable things in the way of trade
Things for which a replevin will not lye, as money out of a bag, cannot be distressed. So of things which can- not be return'd again in the same plight.
Distress for rent shou'd be made in the day. It may be taken in a house if the door be open or out of a window
Goods fraudulently remov'd may within ten days be seised & sold as if they had been distrein'd on the premiss, provided they had not been bona fide sold before the seisure.
PAGE 79
DISTRESS 22 G2 Ch 10 p.202 Co.L.47 2 Inst.106 3. Bl.13 4.Mod.385 Ld.Ray.53 Sal.247 pl.1 3. Bl. 12 Vent.183 2. Inst.107 Co.L.47 22.G.2 Ch 10.p.203
Goods distrein'd & not replevied within ten days after such distress & notice given at the chief mansion house or other most uublic flace on th land , by giving (struck through)bond(struck through) sufft<\ surety for paymt of the rent within three days may be sold to the highest bidder
Goods distrein'd if live to be out in a pound overt if dead & liable to damage to be put in a pound covert within three miles of the premises
On a similiar act of Parliament with our act of assembly it has been determind that notice given the owner of the goods is sufft whether it be left at the chief mansion hous or not.
Distress must be reasonable. A man may distrein an ox or a horse for three pence provided there be no other distress on the premises.
If distress be witht cause owner may rescue the goods before they are impounded.--may have an action of trespass or on the case agt the party distreining their Exrs. or Admrs. & shall recover double the value of the good distrein'd & sold.
Page 80
DOWER Co. L.33 13.Co.22 2.Bl.XX 131 Co.L.33 4.Arn (?) ch.2.p.31 2. Bl.130 Lit, sec.36 10.Co.98 Brook 6 sec Cr.El 564 3. Lev.437 Salk 54.pl.4 Ld.Ray.326 Inst.32 Perk.328 Perk. 366 Co.L.35 2 Co. 67
The wife must be above nine years old at the death of her husbd otherwise she cannot be endow'd . If the husbd be attainted of treason or the wife be at- -tainted of treason or felony she shall not be endow'd unless she be pardon'd.
Widow of person dying intestate allow'd to remain in the mansion house & plantation thereunto adjoin ing witht paying rent until dower be assign'd her
A woman is entitled to be endow'd of all lands of which her husbd was seised in fee simple or fee tail during the coverture & to which her issue might possibly have been heir. This excludes frdvrnfible freeholds.
To entitle the wife to Dower the husbd must have the freehold & inheritance in him simul & semel, but an intervening estate for years does not bar her dower
If the husbd makes a feofft of lands & the feoffee improves them yet the wife shall only be endow'd of the value they were of in the husbds time.
If the husbd have only a right of entry during coverture & have neither a seisen in fact or in law the wife shall not be endow'd.
If a disseisor &c assign dower this shall not be avoided unless they be in of such estates by fraud & covin of the woman
PAGE 81
DOWER Dyer 343 Co.L.34.37 2. Bl.136 7.Co.37 Cr. El. 451 4.Co.l22 2.Bl.136 13.CO.23 4.Ann. Ch.4.p 24 19.G 2. Chl. p133 1.G.2.Ch4.84 2. Bl.137 [ ].2.13
A woman entitled to dower cannot enter until it be assign'd to her & set out either by the heir terri tenant or sheriff in certainty.
If the thing of which she is endowed be divisible it must be set out by metes & bounds if indivisible she must be endow'd specially as the third toll [dish to a mill(?)] &c
The assignment of Dower must be absolute
If lands assign'd for dower be lawfully evicted by elder title the widow shall be endow'd anew
A widow may be barred of her dower by elopement or being forc'd away, by living voluntarily with he r adulte- -rer unless/her husbd be reconceild to her, by divorce a vinculo matrimonii, the treason of/her husbd, by detaining the title deeds or evidences of the estate from the heir untill she restore them by aliening the land (struck through)or negroes(struck through) assign'd her for dower, or sending the slaves out of the State witht consent of him in reversion or by feoffmt of husbd/supa> & wife, the wife being privily examind or by her husbds will, she not renouncing it within nine months or by jointure
Tents in Dower to recover damages only from the time of requesting it.
1 i.e. terre-tenent, one who is literall y in the possession of land, as distinguished from the owner out of possession.
Page 82
DOWER
DURESS Co.L.253 Jenk.166 2.Inst.483 2.Ver.497 Cr.Ja.187 Sid.123 5.Co.119
Where a person is illegally restrain'd of his liberty & enters into a bond or other security to th person who causes the restraint he may avoid the same for duress of imprisonment.
A man may avoid his own act for fear of loss of life or member, or mayhem or imprisonmt. Also in eqty a man may avoid his deed tho' the terror & force are not sufft to make it duress at common law
The duress must be done to the party himself his father, his son, or his wife.
Deed by duress to be avoided by special pleading judgement in actio.
Page 83
EJECTMENT Sal.225 pl.5 Barnes 120 2.Bur.1116 Rep & ca.of practice C.P.115 Sup.tol Barnes 24.25 2.Barnes 148 Barnard K.B.48
Declaration must be servd (struck through)on the premises(struck through) on the Tent himself or his wife/on the premises/unless he absconds in which case it has been holden that it may be serv'd on his neice, father son or daughter.
An affidavit that the declaration was serv'd if the Deft does not appeair & enter into the common rule Plf moves for judgmt agt the casual ejector.
If there be sevl persons that claim title the rule may be drawn genly or particularly. Genly that he who claims title to the premises in question in his possesei- -on shou'd be admitted deft for such missusages XXX & this puts a necessity on the Plf to distinguish by proof what tenements are in each defts possession Or specially that B who claims title to such lands expressing them particularly shou'd be admitted deft. In which case the defts [several lines of XXXX]
[several lines of XXX] Attorney shou'd give a note of the lands for which he was admitted deft. If on the trial the deft will not appear & confess lease &c. the course is to call the deft & his attorney if he is within the rule & then to call the Plf &[ ] -suit him & then on the return of the postea judgmt will be given agt the casual ajector.
Page 84
EJECTMENT Vent.255 2.Vent.195 Str.694 2 LdRay.1470 2.Str.908 11.Co.55 Cr.El.235 Cr.Ja.573 Cr.Ch.435 Yel.118 Rol.rep.3 Vent.30 Law of Ej.76 Yel.182
Where there are two defts for the same premises & one appears & confesses leave &c & the other does not, the Plf cannot proceed agt the other but he must be nonsuited; if there appear any covin betwee such person not appearring & the lessor of th Plf the Ct. will stop the judgemt aft th casual ejector for the part of him that appear'd & compel him who did not to release costs.
If an inft delivers a declaration some friend or guar- -dian Must be set up as Plf to answer costs.
Where the presisses are empty, where a corpo- -ration is lessee of the Plf where the sevl interests of the lessors are not known there must be an actual lease &c. Rules for pleading to be given & Ct. mov'd for judgt.
In this action the law requires that the thing de- manded be so particularly specified that the shefiff may certainly know what to give the Plf pos- -session of if he shou'd recover
The trespass complain'd of in ejectmt must be agt the actual possession. Exr may hav action for eject of testator. Lessor must have a right of entry.
The Plf must lay commencement of his lease in his declarn preceding ouster by the Deft but this
Page 85
EJECTMENT Cr.Ja.311 2 Rel.rep. 461 Law.ej.81 Law.ej.82.3 Cr.Ja.613 6 Co.14 2.Vent.214 Hard. 330 5.Co.91 Leon.145 6.Mod.27 Sal260pl.1
day of the ouster need not be expressly mention'd Neither is the Plf oblig'd to declare the day of his entry
Where the limitation of a lease is altogether un- -certain the Plf cannot recover secus where tis impossible
Plf shall recover as much as he has title to tho' he lays his ejectmt for more
The Plf must declare on such a lease -as suits the lessors title
Lease made by Guarn to try title of inft seems good
After verdict given for the Plf there must be a full & actual possession given to him by the sheriff.
The writ of execution is only returnable at the election of the Plaintiff.
Alex K Marshall Alex K Marshall
Page 86
ELECTION 2.Co.36 Co.L.145 2.Co.37 Lev.54 2.Co.37 Co.L.145
If a man grants twenty acres parcel of his manor, the grantee has his election of situation
It is laid down as a genl rule thati if electi- -on be given of two sevl things he that is the first agent or is to do th first act has the election
In debt on an oblign that if a ship out to sea & either the goods or the obligor come safe then to pay such a sum. Action lies on the contingency which shall first happen
Where the things granted are annual & to have continuance the election remains with the grantor as well after the day as before When nothing XXXX to the grantee & before passes election it must be made in the time of the grant -tor secus where an estate or interest masses immediately
When one & the same thing passes to the dones or grantee & he has his election in what man- ner or degree to take it there the interest passes immediately
Page 87
ERROR 3.Bl.4O5 27 G.2 pa.301 Dyer 90 5 Co 39 2.Sid.56 Cr.El.419 F.N.B.44 [ ] 173 [ ] 652 Liv.72 Sid.213 Ray.16 Cr.Ja.392 Carth.371
A writ of error lies for some suppos'd mistake in the proceedings of a Ct of record it only lies on matter of law arising on the face of the proceedings
XX Upon appeal in personal action where judgemt or decree does not exceed £20 error can only be assignd in matter of right, where it does not ex- -ceed £50 it may be assignd in matter of right & such matters of form as were insisted on in the Ct below, where the judgmt does exceed £50 or in all real actions any errors in form or substance may be assigned.
No person can bring a writ of error but him who was party to or privy to the recd or was injurd by th first judg- -ment. It only lies agt him who was party or privy to the first judgemt his Heirs Exrs or Admrs
After the recd is remov'd & the Plf has assign'd his errors, he shall have a sci.fa. ad audiendum er- rores agt the deft who thereupon may plead in nullo erratum or a release &c. A Sci.fa. lies agt the heir & terre tenants. Sci.Fa. to the terre- tenants is usually granted but tis not ex de- licto justitia
Page 88
ERROR Book.er- ror. 93 Cr.Ja.29 Rob.658 Vent.34 Sal.263 Pl.4 Sid.294 Cr. El. 611 Sid.147 Vent.252 Sal. 268.p115 Carth.338 Cr.Ch.53 5.Co.39 Palm.270 Vent.7
Pleading in nullo est erratism is an acknow -legement of the fact & denial that tis error
If a writ of error abates by default of the party a second writ shall be no supersedeas secus if it abates by act of God or of the law
In a writ of error for want of assigning errors, judgemt is not affirm'd but execn goes on first judgemt party can have no costs but his remedy must be on the recognizance by which he is bound to prosecute with effect
To reverse an outlawry party must appear & assign errors in person
The Plf in error cannot assign error of fact & error of law together. In such case deft shoud demur for simplicity
It seems a genl rule that nothing can be assignd for error which contradicts the record
A man cannot reverse a judgemt for error un less he can shew the judgemt was to his disadvantage
If a writ be brought to the damage of /£/30 & the Plf declares ad damnum /£/40 & the verdict gives 30/£/ this is no error after verdict.
A fault in a sci.Fa. on judgemt not [ ] by appearance.
Page 89
ERROR 10.Co.115 Ch.co.19 Cr.Ja.246
If the Plf recovers more damages than he has declar'd for, if before judgemt he releases the over -plus he may take judgemt for the residue
If upon a judgemt the sheriff sells the goods &c of the party & after the judgemt was reversed by writ of error the party can only be restord to the money for which they sold. But if the goods &c were only deliverd to the Plf in satisfaction &c the party shall be restord to the specific goods.
Page 90
ESCAPE IN CIVIL CASES
8.Co.141 Cr.Ja.3 5.Co.89 3.Co.44 Cr.Ja.657 22.G.2 Ch.6 pa186
It is a genl rule that wherever a sheriff or other officer has a person in custody by virtue of an authority from a Ct which has jurisdiction in the matter, that the suffering such person to go at large is an escape
If XXXX A is arrested & in the custody of the Sheriff & afterwards another writ is deliver'd to him at the suit of B. Upon the delivery of the writ A by construction of law is immediately in the Sheriffs custody witht an actual arrest
If the sheriff or other officer who has the custody of a XXXX prisoner either bail him when he is not bailable by law, or suffer him to go out of the limits of the prison tho' with a keeper it is an escape.
If man has the judgemt agt two persons & they are both taken in execution XX if the sheriff suf -fers one of them to escape he shall (struck through)have(struck through) be an- swerable for the whole debt
Sheriff not liable for an escape unless wilfull or negligent or unless the nrisoner might have been retaken & he neglects to XXXXX make fresh suit.
Page 91
ESCAPE IN CIVIL CASES 22.G.2 Ch.6 p.184 Do.187
Process on escape to be executed at any time or place
Old sheriff may deliver over prisoners by indenture to the new or have their names with the cause of their commitment recorded in the records of the County Ct.
Page 92
ESTATES IN FEE SIMPLE Inst.3. Co.L.9 Lit.sec.578 Co.104 And.3 Co.L.20 Dyer 156 Leon.182
A feme covert is canable of purchasing an \ estate in fee simple, but her husbd may disagree to it, if he neither agree or disagree she may disagree to it efter the coverture is determin'd, so/may her heir.
If the Father infeoff the son to [ ] to him his heirs &
after the son enfeoffeth the Father as fully as the father
enfeoff'd him a fee passes.
If the Lord releases all his right to his Tent. if one parsoner or joint tent releases all his right to the other, a fee passes. So where one parcener grants a rent to another for [ ] of partition
Where the ancestor takes an estate for life & the limitation/is to his right heirs, there the ancestor has (struck through)an estate(struck through) the reversion executed in himself & the right heirs are not purchasers
If by limitation the estate may determine in B during the continuance of his life though the remr he in his right heirs yet it does not rest in B
If A makes a lease for life or a gift in tail remr to his right heirs this in its original creation is a void limitation.
Page 93
ESTATE FOR LIFE & OCCUPANCY 2.Bl.121 Co.L XXX 42 183 3.Co.20 2.Vent.65 Co.L.251 7.Co.55 Co.L.251 [ ] Co.L.42 Co.76 sec. 1 Co. 140 Co.L.41 2.Bl.122 35 Co.L.55 2.Bl.123.4 Co.L.55
If one grants lands to another generally the lease is tent for life &, nrovided the lessor has power to grant such an estate, he is tent for his own life.
Uncertain interests as an estate to a woman [ ] viduitate &c are consider'd as estates for life determi- nable on the happening of the contingency to which tis limited.
If ten,sup>t for life aliens in fee or attempts to create a greater estate than he has receiv'd which is to the preju- dice of him in reversion tis a forfeiture.
But a man cannot by any disposit1on or action in pais for -feit things which may be transfer'd witht XXXXXXX the nototoriety of it
Where he in remr is party to the conveyance there Tent for life may by solum investiture convey a greater/estate than he had by the first [ ] contract
Every tent for life unless restraind by covt or agreemt, may of common right take on the land reasonable [ ] -version botes
Tent for life or his representative shall not be pre -judiced by any sudden determination of his estate
Tent or Tent for life shall have the emblements tho the estate is forfeited by act of Tent for life.
===Page 94===
ESTATES FOR LIFE & OCCUPANCY Vaugh.104 Co.L.41 Cr.El.721 Vaugh.57 Cr.El.57 Hob.313 @.Rolls Abr.150 Vagh.138 [2]Bl [ ] Vaugh.189 Cr.Ja.554
- lBulst.12
ColL.41 Dyer 328
- .Bulst.12
Col.L.41 Dyer 328 2.Bl.259
There can be no occupant of things which lie in grant & which cannot pass witht deed as rents &c unless they are appendant to things which pass by livery
If a lease be made of lands to A for life hab. to B & C successively. B & C tske no estate in possession or reversion & the lease determines on the death of A.
If a lease be made to A & B for their lives & the life of the Longest lives they make partition & A dies his part immediately reverts to the lessor
A right by occupancu can only be acquired by actual entry. Lev. 202. Sid.346.
If Tent pur autre vie dies, his lessee [ ] will or for years having possession such lessee shall be tent by occupancy & the lessor estate shall merge
If tjere be any intermediate interest the term of the occupant shall not merge & he is to hold the estate subject to the charges laid on it by his lessor
If lands be let to a man & his heir or to a Man his Exrs & assigns dur1ng the life of another the heir in the one case & in the other the Exr shall be a spe- -cial occupant.
Page 95
EVIDENCE [faint]
Page 96
EVIDENCE 2.Hawk P.C.452 2.Hawk P.C.433 Co.L.6 Sid.337 Mod.107 Skin.223 Ray.191 Sal.283.p 12 sec Vent.49
A conviction/of treason, felony, piracy, praemunire perjury or of forgery on the 5th of [ ]. Also a judgmt/sup\p> in attaint for giving a false verdict or in conspira cy at the suit of the King. also a judgmt for any crimes to stand in the pillory, or to be whipped or branded being in act which had jurisdiction are good causes of excepn agt a witness while there continue in force. If convicted of felony but admitted to his clergy XXX & burnt in the hand he is reenabled to be a witness. A pardon restores the party to his credit where it is only the [
] of the judgemt [ ]
The credit of a witness is to be impeach'd only by genl accounts of his character (struck through) & behavior (struck through) reputation & not by proofs of particular crimes whereof he never was convicted.
The testimony of a witness is not to be admitted who is either to be a gainer or loser by the [ ]
An Exr if he hath not the sucklusage of the estate only be a witness for a will Children of an intestate cannot be witnesses in any matter relative to the intestates estate.
He who borrows money XXX upon an [ ]contract cannot be a witness on an information for the usury unless he has paid the money
Page 97
EVIDENCE [faint]
Page 98
EVIDENCE 2.Ver.98 [ ] 625 5 Co.68 Ver.366 Ver.473 Ch.Ca.19 Abr.eq.230 & 243 2.Ver.98.337 Sal.234 pl.13 [ ]tem.Tal. 240. 2. Str. 1261 Sal.281. p19 Hawk P.C.431 Do. 429
In Cts of eqy a distinction has been taken between evidence that may be offer'd to a jury & to inform the conscience of the Ct.
Also to ascertain a fact parol evidence has been admitted to explain the intent of the testator If A purchases lands in the name of B, A has been admitted to prove that he paid the purchase money
Also to oust an implication & rebut an equity parol evidence has been admittcd to explain the intent of the testator.
The Cts are very unwilling to admit of parol evidence in relation to any thing which appears on the face of a will
The party who is to prove any fact must do it by the highest evidence the nature of the thing is ca- -pable of.
What a witness or a person accus'd of a crime has been heard to say at another time may be given in evidence
Where ever a mans confession is made use of agt himself it must be taken altogether & ot by parcels.
Page 99
EVIDENCE Gil.ev.62 Ath.204 Eq.Ca.abr 227.pl.3
Depositions cannot be given in evidence agt any person who was not party to the suit.
Page 100
EXECUTION 4 Co. 90 Cr.Ja.569 2.inst.395 Cr.El.584 8.Co.171 Cr.Ch.240 3.Co.12 [ ] [ ]. 99 Dyer.69 Cr.El.181
All writs of execn which are to be executed by the sole authority of the Sheriff are good if they be properly executed tho' no return be made secus of an elegit.
If the creditor takes out an elcgit & it appears to the sheriff thrt there are goods & chattels sufft to satisfy the debt he ought not to extend the lands
In an elegit the jury are not oblig'd to find the certain beginning of a term but if they do find its beginning & are mistaken a subsequent sale by the sheriff on this inquest is erroneous.
On an elegit the sheriff may either extend a term for years or sell it absolutely
On a ca.ad.sa. the sheriff is to take no bail
The whole personal estate except wearing apparel is liable to execution on a fi.cr.lev.Fa.
If the Sheriff takes the goods of a stranger tho' the Plf assures him they are the defts he is a trespasser. Nor can the sheriff take in execution goods pawnd or gag'd for debt, nor goods demis'd or letten for years, nor goods distrain'd
If the deft dies after execn awarded & before it be served yet it may be serv'd on his goods in the hands of his Exr or Admr.
Page 101
EXECUTION Sal.322 pl.1.10 22.G.2 Ch.3.194 Cr.Ch.208 Co.L.290 [ ] Ch 318
Neither does the death of the Plf abate the execn Writs bind the property of the Deft from the [ of their delivery to the Sheriff. Where any person whose goods are taken on a fi.fa. does not within five days satisfy the Plf his debt damages & costs the Sheriff, having given notice at the [ Church on sunday may the third day following proceed to sell the same at public auction.
If on sale the deft gives security to pay debt &c within three months goods to be returnd.
If the goods cannot be sold for 3/4 their value, they may be sold for three months credit and the bonds are to have the foce of judgements.
New execn may be sued forth agt the lands &c. of persons dying charg'd in execn.
No person is entitled to or can sue out execn who is not privy to the judgemt or entitled to the thing [ as heir Exr or Admr.
Inft not liable to execn but the parent must demur
If a person recovers in trespass agt Baron & feme exr may be sued agt feme after death of baron.
Page 102
EXECUTORS & ADMINISTRATORS Ch. Ca. 121 2,Ver.249 22.G.2. Ch.3.162 Godol.1O2-3. [ ] of Exr208-13 5.Co.27 Co.L.172 Cr.Ch.490 Off Exr 112 Godol.109-10 Off. of Exr198-9 God.110
Legatee on a bill complaining that the (struck through)testa(struck through) Exr wasted the estate may compel him to give security for paymt of legacy
Refusal of an Exr to give security is a refusal of the Exr.ship. And Ct. shall take security in all cases unless the testator, leaving more than visible estate sufft to pay all his debts, shall have directed the contrary in his will.
A child in ventre sa.mere may be appointed Exr but he cannot administer till he is 17.
If an inft Exr. after 17 gives an acquittance for debt &c due to the testator, such release witht an actual paymt to the inft is void.
If a feme covert appointed Executrix administers husbd & wife are afterwards estopped to say that the wife is no Exx so if husbd addministers witht the consent of the wife she shall be bound during coverture.
A feme covert Execx may witht the consent of her husbd make a will & appoint her husbd or other person Exr.
Page 103
EXrs and ADMrs Sal.3O4 Cr.Ch.372 5.Co.30 2.Bl.512 Cr.Ch.373 Ca.tem.Tal. 246 2. Strange 865 2.Lev.239 5.Co.29 Cr.El.78 Sid.57 5.Co.18 Cr.El.602 5.Co.29 Cr.Ch.227 2.Lev.37
Creditor appointed Exr may retain assets to satisfy his debt in equal degree. So of an admr.
If the creditor makes his debtor Exr it is an extinguish -mt of the debt & shall take place of legacies unless the debt be devis'd but shall be assets in the hand of the Exr to pay debts.
If an inft & one of full age are appointed Exrs he whq is full age may take out admn durante minor state of the inft & may declare his Exr or Admr durante minor state
An XXX Admr durante minor state cannot sell the goods of the decd further than for the paymt of debts unless they be bora perutura
[ ] lies for inft after age agt an Admr durante minoritate who wastes the assets
If Admr/is granted during the minority of sevl infts it ceases on the coming of age of any one of them & it is laid down by Lt [sic] Coke that admr granted during the minority of an inft Exr ceases on his marriage
If an Admr durante minoritate recovers in an action & then his time determines the Exr may have sci. Fa. on this judgemt
Page 104
EXrs and ADMrs Sal 305 Ld.Ray.86 Ver.200 5.Co.33 Godolp.171 Off.Exr.171 %.Co.38.4 Sal.313 pl.19 Yel.103 Cr.Ja.549 Cr.El.102 2.Ver.147 2.Bl.507 Dyer.166
If the Exr dies before probate his Exr cannot be Exr to the first Exr.
Admr de bonis non is to be granted to the next of kin to th first testator or intestate unless there be a residuary legatee
All acts of acquisition, transferring or possessing the deceased's estate will take an Exr de son tort
There cannot be an Exr de son tort where there is rightful Exr or where admn has been granted unless the person claims to be exr. An Exr cannot waive a term but shall be charg'd as far as he has assets tho' the rent be greater than the value of the land. Admr may be granted in part. If an Exr de son tort takes but admn this does not purge the wrongs so but that a creditor may charge him as exr de son tort.
Where the things which come to the possession of the Exr de son tort are of very inconsiderable value it is said he may if charg'd with a considerable sum, have releif in equity.
An Exr de son tort cannot sue in right of the de- -ceas'd but he may be sued & is chargeable with the debts of th e deceased so far as assets
Page 105
EXrs and ADMrs 5.Co.30 Moor 126 Godol.82 Off.Exr.3 Godol.83 76 Off.Exr.10 Godol.403 Godol.77 Off.of.Exr.13 Godol.134 Off.Exr.95 Dyer 23 Cr.El.347 Do.318 Sal.318.pl.26
come to his hands.
If he pleads ne unques Exr & tis found agt him he sub- -jects himself to the paymt of the whole debt the the goods which came to his hands be of small value
In such case he shoud plead plene administravit
There can be no Exr de son tort of a term in diversion.
The bare naming an Exr in a will makes it a will & is a gift of the goods & chattels undispos'd of
Any words which shew a mans intentio that such a one shou'd be his Exr are sufft
Any word in a will which suspends the assignation of an Exr in expectation of some future event makes the Exr.ship conditional. The condition must relate to something in contingency. Cautious conditions con- trary to the disposition made are void. So of necessary XX conditions either in fact or law.
The time & power of an Exr may be limited.
Acts done by one Exr which relate either to the deli -very gift sale, paymt possession or release of the testa- -tors goods are deemd in law the acts of all.
But one Exr shall not be charg'd with the devastavit of another.
In chancery if two Exrs join in a receipt & one only receives the money both are chargeable as to creditors Secus as to Legatees & those who claim distribution
Page 106
EXrs and ADMrs Godol.135 Off.Exr. 99 3.Leon.209 [ ] Godol.134 Off.Exr.104 22.G.2 Ch.3.160 162 Cr.El.92 Off.Exr.37 Godol.141 Vent.303 Dyer.166 Off.Exr.59
One Exr cannot regularly sue his coexr touching any thing which is relating to his testators will If one Exr has possession of the testators goods which are taken from him both must join in action of trespass
If one Exr alone sells the goods of the testator he alone may maintain Debt for the money
The will of any person who dies shall be prov' d in that Cty where his mansion house or known place of abode is, if there be no such place, in the Cty where the lands devis'd lie, if the lands lie in sevl Ctys then in that in which he died & if he died in another Cty then in any one of those in which his lands lie.
Ct immediately to receive proof of a will but when lands are devis'd from the heir at law he must be summond to appear at the next Ct & if he be not known proclamation must be made. The Ct may compel any person to produce the will of a person deceas'd.
The refusal of an Exr must be enterd & recorded in Ct When an Exr has once admd he cannot afterwards refuse to prove the will
Whatever the Exr does with relation to the goods &c of the testator which shews an intention in him to take upon him the Exr.shp will amount to
Page 107
EXrs and ADMrs 22.G.2.Ch.3 162 167 Lev.186 Yent. 303 Sid quere 6.Co.18 Cr.El.459 Sal.302 5.Co.9 2. Will. 576 pl.188 2.Ver.514 Sal. 36 pl.2
an admn &. whatever acts will make a man liable as Exr de son tort will be deemd an election of the Exrship
An Exr or Admr must return a true inventory of the estate of the deceas'd when requir'd by the Ct Wherever an estate is of gra~ter value than £100 pro- -bate may oe granted by the Genl Ct.
When admn has been unduly obtaind it may be revok'd. If Admr has been granted to any person who is not of kin to the intestate it may be revok'd & granted to the next of kin on his application
If an Admr be appointed & after an Exr appears & proves a will all meane acts of the Admr shall be avoided. If th Admr sells goods after Admn is repeald & gran- -ted to another yet the sale is good
Tho' an Exr may commence an action in right of his testator yet he cannot declare before -probate
Admn may be granted during the absence of an Exr & pendente lite of a will Admn may be granted to two or more & if one of them dies yet tb admn does not cease. Also admn has to a particular thing may be granted to one & as another part of the estate to another, but sevl Admi- nistrations cannot be granted for one & the same thing.
Page 108
EXrs and ADMrs Godol.180 Off. Exr. Off.Exr.65 Do. 60 Do. 71 3.Leon.51 Vent.161 Cr.El. 644 see Cr.Ch.207 Co.L.47 Latch.99 Cr.El.217 [ ] law Off.Exr.4 2.Bl.314-16 Prec.Ch..323 1.P.Wm7.541 2.do 333. 3d.43 Str.559 Ver.473 Abr.eq.24
All the testators personal estate how remote so ever situated is assets in the hands of the Executor
Debts due to the testator are not assets till reco- -ver'd, yet if the Exr releases the debt he is answer- -able to the value. Th possession of chattel real which are corporal is not in the Exr till entry.
If the Exr submits to arbitration the debt or dama- -ges to which he is entitled in right of his testator & a release &c is awarded he shall be chargd as if he had recd the money.
If a man posess'd of a term for 50 years makes a lease (struck through)for his (struck through)/for 20 years/reserving rent to him & his Heirs the rent is extinct at his death but had the reservation been during the term/the Exr shou'd have recd the rent
Where the Exr has no legacy at all the residuum shall genly be his own, but whereever the re is sufft on the face of the will (by means of a compe- -tent legacy or otherwise) to imply that the testator intended his Exr shou'd not have the residue the undevis'd surplus of the estate shall go to the next of kin.
So if there be any fraud in obtaining the Exrship
Page 109
EXrs and ADMrs 2.Ver.736 Abr.eq.246 Gil.rep.125 [ ] ver.252 2.Str.865 Ray.496 Sal.250 pl.1 Abr.eq.249 Vent.316 2.Lev.173 Eq.Ca.Abr. 249 pl.7 Carth.51 Swin.217 2.Ver.438
Parol proof will be admitted in affirmation of the intention of the testator to give the Exr the undevi- sed surplus but not to proove the contrary.
On the Stat. of distributionsthe following points have been resolv'd.
The clause which says there [sha]ll be no representati- -ons beyond Brothers & sisters children must be intended Brothers & sisters of the intestate.
The half blood shall come in for a share with the whole blood being as near a kin to the the intestate.
The distribution to be per Capita when they all claim in their own rights.
If a Person entitled to a distributive share dies before distribution his part goes to his Exr.
Such advancemt as will exclude a child from his share of his fathers estate must be given by his Father to him & not to any other in in use for him
Where the heir at law has a settlemt made on him on his fathers marriage out of the personal estate to entitle him to any more he must bring such adancement into Hotch pot
Page 110
EXrs and ADMrs Off.of Exr. 156 Godol.203 Off.Exr.159 6.Mod.181 Cr. El.43 2.Lev.189 Off.Exr. 171:159 3.Leon.51 [ ].31 159 2. Bl. 511
A devastavit is a mismanagement of the estate & effects of the decd in squandering & misapplying the assets contrary to the trust & confidence repos'd in them & for which Exrs & Admrs shall answer out of their own pockets as far as they had or might have had assets of the decd
Acts of negligence & wrong admn which will dis- -appoint creditors of their debts amoumt to a devastavit.
So if an Exr submits whatever he is entitled to in right of his testator, to arbitration
The Exr or Admr must first pay funeral expenses & the expence of proving the will &c then debts due to the King (now I presume the com- mowealth) on record or specialty. Thus such debts as are by act of Assembly directed first to be paid as money due on protested bills of exchange & where a person dies chargeable with the estate of any Orphan or of of any decd person commit- -ted to his care, then debts of recd as judgemts, debts by special contract & lastly debts due by simple contract.
Page 111
EXrs and ADMrs Co.143 Lev.355 Cr.El.315 Plow.279 Sid.230 Cr.El.793 10.Co.47 Cr.Ja.191 571 672 Vent.30 Cr.El.406
A decree in a ct of eqy is equal to a judgmt at law & the filing a bill in equity is equal to filing an original at law to prevent the alienation of assets
If an action be brought agt an Exr on a simple contract he may plead in bar a bond enterd into by his testator & payable at a future day.
But if the Exr has no notice of the specialty it is no devastavit to pay debts by simple contract first. But at their Peril they must take notice of debts on recd
If a man is both Exr & devisee & he enters on the thing devis'd. without claim or demonstration of election he shall have it as Exr.
If an Exr is sued & pleads ne unques Exr & it is found agt him the judgemt shall be de bonis testatoris &c [ ] de bonis propriis
But is an Exr pleads that such a deed is not the deed of his testator, or that a release was given to the testator yet the judgemt shall be de bonis testatoris
An Exr may bring ejectmt for an ejectmt in the life of his testator.
An Exr cannot in the same action join a demand in his own right & what he hath in right of his testator
Page 112
EXrs and ADMrs Cr.El.711 Sal.297.pl.6 Off.Exr.119 sid.397 O.co.87 Cr.Ja.293 405 @.G.2.ch3. 166 Cr.Ja.228 Vent.92 Cr.E.503 Cr.Ja.350
If an Exr takes an obligation for a debt to the testator in debt on this contract the writ shall be in the debet & detinet. So in trespass for goods taken out of the possession of the Exr.
In debt agt Exr for the arrearages of rent incur'd in his time the writ shall be in the debet & detinet But the Exr may plead that he has not assets & that the land is of less value than the rent & de- mand judgemt of he ought not to be charged in the detinet only
After judgemt agt an Exr one may in a new action in the debet & detinet, suggest a devastavit & (struck through)demand(struck through) charge him de bonis propriis.
It is now agreed that, where there is a duty as XXXX well as a wrong an action lies an Exr or Admr.
Exrs & Admrs of Exrs & Admrs chargeable for devastavits in same manner as their testators or intestates might have been charged.
Exrs & Admrs when Plfs pay no costs, unless they bring an action in their own right
An Exr deft pays costs in all cases
Exrs & Admrs are not to be held to special bail
Page 113
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Page 114
EXTINGUISHMENT Pollex.142 [ ] ex.17 Vaugh.34 Cr.El.47 10.Ca. 48 4. Co.52 Vent.277 Burro.9 6.Co.44 2.Leon.110 Cr.Ja.579 Cr.El.304 Cr.El.920
If the Lessor purchases the land demased from the Lessee, or if the Lessee be evicted the rent is extinguish'd. But if the conveyance to the Lessor be on condition or if only part of the land be evicted the rent in the one instance is only suspended, in the other is proportiond
A Lessor's entering wrongfully into part of the lands demised suspends the whol rent.
It seems to be agreed as a genl rule that a cre -ditors accepting a higher security than he had be- -fore is an extinguishmt of the first debt.
But this must be understood where the debtor himself enters into these securities
The accepting a security of a lower nature or of an equal degree is no extinguishment
If an Inft becomes 'indebted for necessities & the creditor takes his bond this shall not wxtin -guish the simple contract debt, because the bond is of no force
Page 115
EXTORTION Co.L.368 2.Co.102 Ray.315 Inst.209
Extortion is the taking of money by any officer under color of his office, either where none at all is due, or not so much is due, or where it is not yet due
This offence is punishable at common law by fine & imprisonment & also by removal from the office, & the Stat. of West. 1. enacts that no Sheriff nor other Kings Officer shall take any reward to do his office but shall be paid of that which they take of the King: & that he who so doth shall yield twice as much & shall be punishd at the Kings pleasure
Page 116
FELONY
Hawk. P.C.94 Cr.El. 536 H.P.C.61 Hawk. P.C. XX 69 Hawk P/C.90 3.Inst.108
There may be felony in taking goods the owner wrhereof is unknown
A man may be guilty of felony in stealing goods the absolute property whereof is in himself as where one delivers goods to a carrier or Taylor &c. afterwards with an intent to charge such carrier or Taylor fraudulently & secretly takes them away.
To constitute an offense felony there must be an actual taking as well as an in- tent to steal & every indictmt for larceny must have both the words cepit & aspor XXXX- -tavit.
If I send a box to a carrier, & he sells it this is not felony, but if the box be broke open & the goods carried away this is felony, so if he carry the goods to the place & then take them away
He who ags the bare charge of goods may be guilty of larceny in taking them away, also he who intending to steal them obtains a delivery of them, as from a sheriff by virtue of a
Page 117
FELONY 4.P.C.63 Hawk. P.C.90 3.Inst.108 Hawk. P.C.2 H.P.C.70 Hawk P.C.95
replevin, or by way of execution of a judgemt obtain by imposition on a Ct witht any color of title by false affidavits &c Also he who steals goods from one who has stolen them from me
If a felon be caught in the first act of carrying the goods away before he is out of the house it is a felony
A feme covert shaill not suffer any thing for committing a bare theft in company with or by coercion of her husband.
It is said to be no felony for a person reducd to extreme necessity to take so much of anothers (struck through)goods(struck through) victuals as will save him from starving.
If two or more persons steal goods above the value of 12d this is grand larceny in each of them. If a person is indicted for stealing goods to the value of 10/ & the jury find him guilty but find specially that the goods are not worth more than 10d he shall have only judgemt of petit larceny, whlch is forfeiture of goods & whipping or other corporal punishment.
Page 118
FELONY H.P.c.232 Hawk P.C,342 Hawk PlC.98
Wherever a person is denied his clergy except in high treason or sacrilege such denial must be grounded on some Act of Parliament.
Where an offense is made felony by stat. it shall have the benefit of clergy unless ex- pressly excluded. An indictmt must bring a mans case expressly within the words of the Stat. which denies him his clergy. A stat. by excluding principals doth not therby exclude accessories from their clergy likewise.
Where clergy is allowable those who stand mute or challeng above twenty, or are outlaw'd are as much entitled to it as those who are convicted. Also a stat. by taking away Clergy from those who shall be found guilty doth not take it away from those who stand mute who challenge above twenty or are outlaw'd, but it extends to those who shall confess themselves guilty upon record. B the 8th of Eliz. ch.4. Clergy is taken from all those who steal goods from the person of another to the value of 12.
By the 1 Ed. 6.ch.18.& 2&3.E.6.ch.33. Horse stealers are excluded the benefit of clergy
Page 119
FELONY 4.G.2 ch.3.p.92 9.G.2.ch 2.315
Burning any Tobacco house, ware house store house /or any other house/ or abetting the same or breaking any ware house or store house & taking from thence goods to the value of 20/ sterling felony witht benefit of clergy.
Persons stealing slaves felons with<sup clergy.
Person
Page 120
FEOFFMENT
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Page 121
FEOFFMENT
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Page 122
FORCIBLE ENTRY & DETAINER 2 Inst.235 sec.1. Hawk P.C.145 [ ] 136 Hawk P.C.145-147 Cr. Ja.190 Dalt. 315 Dalt. 300
If a man whose entry is lawful entice another out of the house & enter the door being open or only latch'd, his entry is justifiable
If he who hath an estate in land by a defensible title continues with force in the possession thereof, after a claim made by one who had a right of entry thereto, he shall be adjudged to have enter'd forcibly
The same circumstances of violence or terror which will make an entry forcible will make a detainer forcible likewise
A joint Tent or Tent in common may offend agt
the purport of these statutes.
An inft at the age of 18 some say l4 or a feme co- -vert by their own acts may be guilty of a forcible entry
Page 123
FORCIBLE ENTRY & DETAINER
Page 124
FORGERY
Haw. P.C. 186 11.Co.27 Nay. 101 3.Ins. 170 2d Ld.Ray 1461 Hawk. P.C.182
If a man makes a deed of feoffment to J.S. & after makes a deed of a prior date to J.D. tis forgery.
Also to insert legacies in a will without the direction of the testator. So to incert in an indictmt the names of those agt whom it was not found.
The fraud & intention to deceive by imposing on the world that as the act of another, which he never consented to are the principal in- XXXX -gredients which constitute this offence.
To counterfeit a release or acquittance for a sum of money tho' witht seal is forgery.
Forgery at common law is punishable with fine & imprisonment or such other corpo- -real punishment as the ct shall think fit
By 5th of El. any person guilty of forging, assent- -ing to or causing to be forged any writing seal court roll or th e will of any person to the intent that the estate of freehold
Page 125
FORGERY
or inheritance of any person to any lands may be molested, or shall pronounce publish or shew it forth in evidence as true (except an attorney for his client who was not /party or/ privy to th for- -gery he shall pay to the party griev'd his dou- ble costs & damages, shall be set upon the pillory in some open place & there have both his ears cut off, also his nostrils slit & cut & sear'd with a hot iron & shall forfeit to the King the whole issues & profits of his lands and suffer perpetual imprisonment. And if any person shall forge or cause or assent to be forged any false writing to the intent that any person shall or may have or claim any estate or interest for term of years of in or to any lands or annu- -ity; or shall forge &c. any Obligation or any discharge of any debt &c or shall pronounce pu- -plish or give in evidence &c. He shall pay to the party griev'd his double costs & damages shall be sat in the pillory & there have one of his ears cut off & shall suffer imprisonment for one year. A second offence is felony witht benefit of clergy
Page 126
FORGERY
3. Inst.170 Nay.42 Hawk. P.C.186 3.Leon.170 3.Ins.171 Keb.707 2.Str.901
The forgery of a lease for years or of a grant of a rent charge for years in the name of one who is seised of the Freehold is within the first branch/of the statute; & the words in the 2d part which relate to such estates are meant only for those which were in esse before
The forgery of a deed containing a gift of mere personal chattels is not within the XXX statute
He who is truly inform'd by another that a deed is forged is in danger of the statute if he afterwards publish the same to be true
Though the 2d offence be not of the same nature with th first yet the person is guilty of felony.
If the conveyance be defective so as not to pass the thing intended to be conveyed still it is a forgery
For a bare non feasance a man cannot be guilty of forgery unless by th omission he con- veys a difft, estate to another than he woud have taken
Person counterfeiting inspectors receipt or stamp or knowing by tendering forg'd receipt, exporting tobacco with forg'd stamp or demanding it by forg'd receipt guilty of felony witht clergy.
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FORFEITURE Co.L.8 3.Inst.19 3,Co. 2-3 7.Co.17 3.Ins.19 Cr.Ja.312 2.Rob.564 Lev.279 Mod.16.31 Vent.128 Hales P.C.271 5.Co.ll6
By the common law all right of inheritance to lands whereof the offender is seised in his own right, & all rights of entry to lands in the hands of a wrongdoer are forfeited on an attainder of high treason or of petit treason; in the latter case to the Lord.
It seems agreed that no right of action to lands of inheritance cou'd ever be forfeited, neither coud a right of entry into lands whereof there was a tent by title, nor an use except where lands had been fraudulently convy'd with an intent to avoid forfeiture
All personal things settled by way of trust on the offender are as much forfeited as if he had the legal interest
But the power of revocation of the trust of a settlement is not liable to be forfeited if it depends on something personal to be done by the grantor himself.
A man forfeits all his personal estate on convic- tion of treason or felony, upon the Coroners inquest taken on view of the dead body & finding him guilty either as principal or as Accessory, before the fact & that he fled for the same whereby he forfeits his goods absolutely & the issues of his lands till he bw acquitted or pardon'd.
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FORFEITURE Hales B.C.271 5.Co.110 5.Co.129 3.Inst.134 Cr.El.694
Upon a Jury's finding that a deft fled at the same time that they acquit him of any capital felony but such finding causes no forfeiture of the profits of his lands, neither will it affect the goods if the indictmt was insufficient or if the flight be disprov'd on a traverse
The goods of a person outlaw'd are forfeited, so of he makes default till the award of an exigent
If a man be felo de se, or if a felon be killed in the robbery, or in attempting to escape by resisting or if a felon waives his goods.
By 26 H 8th Ch.13th it is enacted that any offender who shall be lawfully convicted of any manner of high treason shall forfeit all such lands &c which he shall have of any estate of inheritaince in use or possession, saving to every person &c.
By the 33.H.8.ch.20. it is enacted that if any person be attainted of high treason by the course of the common law or statutes of this realm, every such attainder by the common law shall be of as much force as if it had been done by authority of Parliament.
Neither a right to a writ of error to reverse an erroneous common recovery, nor
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FORFEITURE 3.Co.2-3 Cr.El.289 14.Co.48 Blow 381 Blow. 488 Co.L.2 8.Co.170
a mere right of action to lands in the hands of a stranger as a discontine[sic], or of the heir of the disseisor are forfeited by either of the Statute. Secus of rights of entry. But there must be office found & scier facias or siesure on such office.
A power of revoking the uses of a settlement may be forfeited if the execution of it only require what may be done by another person.
Neither an annuity granted pro consilio XXX [ ] nor an office granted for life & requiring skill & confidence are forfeitable by these statutes Secus of such an office in fee.
The forfeiture upon an attander either of trea- -son or felony has relation to the time of the offence committed as lands, but to the conviction or fugam fecit found only as to chattels unless the party were kill'd in flying from or in resisting those who had arrested him
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FRAUD Co.L.3 Sid.312 Co.L.35 4.Inst.984 Abr. in Eq.357 Sevl other cases in point 2.Ver.123
It may be laid down as a genl rule that witht the express provision of any act of Parliamt all deceitful practices in defrauding or in- -deavoring to defraud another of his known right by means of some artful device are condemn'd by the common law.
Such as causing an illiterate person to execute a deed to his prejudice by reading it over to him in words difft from those in which it was written. Also a wrongful manner of exe- cuting a thing shall avoid a matter which might have been executed lawfully
All deceits for which there is no remedy by the common course of law are properly in the Cts of equity. As where A by marriage settlemt was tent for life of certain Mills remr to his first son in tail & the son who knows of the settlemt encourages a person to take a lease for thirty years of those mills & to lay out considera- -ble sums of money in improving them. this is such a fraud as ought to be discountenanc'd in equity.
If a security be obtain'd from a person by fraud & practice upon pretence of a demand that is fic- -titious it ill be releiv'd agt in equity.
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FRAUD 2Ver.307 3.Co.83 3.Co.81 Moor.638 2.Bulst.226 Cr.El. 810
So where A by means of an Attorney prevail'd on E a woman to levy a fine of some houses & to exe -cute a deed leading the uses thereof to A & his heirs, & it being prov'd that she at the time declar'd she must make use of some friends name in trust & devis'd it to J.S. & his heirs subject to the paymt of her debts, decreed that A shou'd convey the estate to the devisee
By the common la a man had right to a thing or a just debt owing to him, he might avoid any fraudulent conveyance made to deceive him of that right or debt, but if the gift or conveyance were precedent to that right or debt there was no way to set it aside to remedy this the Statutes of the 13.& 27.of El.were enacted in the construction of which statutes it/hath been determin'd that where the vendor remains in possession of the goods the sale shall be deem'd fraudulent as to creditors & bona fide purchasers
A.to defraud his creditors makes a fraudulent gift of certain goods to his daughter & dies B intermeddles with them the daughter takes possession of them by force of the gift, Administration of all the goods of A is then granted to B on an action brought it agt him as Exr
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FRAUD B.A. 606 [ ] 2 Trin.1706 Baker & Lloyd per.H.C.J. Moor 615 5.Co.60 Co.L.3 Sid.134 5.Co.60
it was decreed that the gift was fraudulent, that by intermedling he became Exr de son tort & liable as such & that the law continued the possession in him.
If A makes a bill of sale to Ba creditor & after -wards to C another creditor & delivers possession at the time of the sale to neither & after C gets possession of them & B takes them out of his possession C cannot maintain trespass
If a gift be made to deceive one creditor tis XXX void agt all
It is not necessary that he who contracted the debt shoud make the fraudulent conveyance.
A has a lease of certain lands for 60 years & for- ges a lease for 90 years, by indenture reciting this forged lease he bargains & sells it with all his interest in the lands to B. in this case Bis not a purchaser within the 27 of El. to defeat the purchases of the true lease of 60 years.
A deed though it be fraudulent in its creation yet by matter ex post facto may become good As where the feoffee aakes a feoffment to another for valuable consideration
It has been held that fraud may be given in evidence to defeat a fraudulent & covinous
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FRAUD
conveyance & that the party alledging it need not plead it.
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GAOL & GAOLER [remainder blank]
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GRANTS Co.L.327 Co.L.233 3.Co.45 Co.L.41 Cr.El.721 [ ] 12 13
There can be no discontinuance of things which lie in grant
Of things which can be transfer'd witht the notoriety of livery of seisin, which lie in grant a man cannot by any disposition or act in pais forfeit them
So there can be no occupant of things which lie in grant & which cannot pass witht deed.
The law distinguishes between grant of Infants which are void & merely voidable, the first of which are all such gifts, grants, or deeds made by an inft as do not take effect by delivery of his hand, as if an Inft give a horse & do not deliver the horse with his hand & the Donee take the horse by force of the gift the Inft shall have an action of trespass.
But if an Inft enters into an obligation or makes a feoffmt there are only voidable
If an Inft grant a rent charge by deed to be issu- -ing out of a carve of land & the grantee distrein he shall punish him as a trespasser.
If a single woman by deed grant a rent charge to issue out of a carve of Land & delivers the deed to a stranger as an escrol, upon condition that if the grantee got to Rome return by
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GRANTS XXXXXXXXX Per.Sci.36 Dyer 279 Co.L.3 Cr.Ja.558 Co.L.214 Per.Sci.65 4.Co.66 Ray.144 [ ] Ch.Ca.8-11 Hob.132 Co.L.54
Easter that then he shall deliver the same escrol as her deed to the Grantee. The woman marries & before Easter during the coverture the Grantee goes to Rome & returns & the stranger delivers the escrol as the deed of the woman. The Grant is good.
In grants if there be sufft shewn to asscertain the grantor & grantee the grants will be good
It seems that a mistake of the Christian name will vitiate the grant. Secus of the surname
Regularly by the common law a possibility. Right of entry, thing in action, cause of suit, or title for a condition broken cannot be granted or assignd over.
A man cannot grant or charge that which he hath not.
If there be a devise of a term to A for life remr to B cannot grant over his interest.
If a lease be made to Baron & feme for their lives remr to the /Exrs of the/ survivor of them, the Husbd cant grant it.
A man may grant that which he hath potentially
If A makes a lease of lands to B for life remr to his Exrs for years, the term vests in B so that he can grant it over
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GRANTS Per.Sci.99 Co.L.169 Moor 831.pl.13 Moor 496 2.Co.35 Hob.229 2.Mod.3 Co.86 2.Co.36
A personal trust which one Man reposes in another cannot be assign'd over
Incorporeal inheritance which lie in grant cannot pass from one to another witht XX Deed.
If a man by indenture demises to J.S.the manor of D & bargains & sells to him all the woods & trees &c. on the sd manor to be filled & carried away at plea- -sure, Habendum the sd Manor for life, this is an absolute sale of the woods & trees.
If a feoffmt be made of a manor in lease for years & livery/is made witht ouster of the lessee by which the feoffmt is void, yet if the lessee attorns this shall be good as a grant of the riversion
When the words of a grant allow a double way of taking it the grantee shall judge which way is most be- -neficial
A slight mistake or error in the /description of the/thing to be pass'd will not vitiate the grant.
But where the thing is not granted by an express name there if a falsity is in the description of that thing the grant is void.
If a man grant twenty acres parcel of his manor witht any other description of them yet the grant is not void for an acre is a
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GRANTS Noy.29 Co.L.6 Hob.313 Cr.Ja.564 Salk.346 Co.L.146 6.Co.87 Br.tit.lease. 13.22 Co.L.183
thing certain & the situation may be reducd to a certainty by the election of the Grantee.
No Person not nam'd in the premises of the deed can take any thing by the deed tho' he be after- -wards namd in the habendum.
But a man not nam'd in the premises may take an estate in remr by limitation in the habendum.
The Habendum cannot pass any thing which is not espressly mention'd as contain'd by im -plication in the premises of the deed.
Where the Habendum is repugnant to the pre -mises tis void.
Grants are to be construed according to the inten -tion of the parties & if there aupears any doubt or repugnancy in the words such construction is to be made as is most strong agt the grantor
Where a proviso destroys the grant tis void
If one makes a lease for ten years at the will of the lessor tis a good lease for ten years certain
Tis a genl rule that where it is impossible the grant shoud take effect according to the letter The law will make such constructions
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GRANTS Sid.211 Lev.131 [ ] 736 1.Salk. 346
the gift by possibility may take effect.
It was found by special verdict that A was sei- -sed of a mill in fee & that he built a kiln at the end of the close wherein the mill stood & then granted the Mill with its appurtenances & if the kiln pass'd was the question. The Ct held that if it had been found that the kiln was necessary to the Mill, or that it was built for the use of the Mill, it wou'd have pass'd by a grant of the mill.
It is holden by C.J.Holt that if a termor grants the land the grantee is but tent at will.
If a man grant a thing to be taken yearly & the grantee neglects to take it for one year he cannot take doublt the next. Secus if the grantor be to ren- -der the thing
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GUARDIAN Co.L.87 Co.L.84 Co.L.88 Vaugh.179 Vaugh178 XXXXX Vaugh.184-5
By the common law if Tent in socage die his heir being under fourteen, the next of blood to the heir to whom the inheritance cannot descend shall be guardian of his body & land till his age of fourteen
A guardian by nature is the Father or Mother
Guardian by nurture hath only the care of the person & education of the infant & hath nothing to do with his lands merely in virtue of his office.
On the 12th of Ch.2.Ch.24, similar to which is the 22.G.2.Ch.25. the following determinations have been made. That a testamentary Guardian or one form'd according to this Stat. comes in lo -co parentis & is the same in Office & interest with a Guardian in socage
A person under age disposing of his child such disposition draws after it the land.
If a man devise t he custody of his son & heir apparent & mentions no time, this is a good devise XX if the heir be under fourteen at the death of the father, but if above
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GUARDIAN Vaugh.185-6 22.G.2. ch,22 p.156 [ ] Cr.Ja.55 Cr.El.678 734
fourteen tis void for uncertainty.
That this testamentary Guardian hath the custo- -dy of all lands & goods any way acquird or purchas'd by the infant
Genl Cts & Cty Cts have power to take cognizance of all matters concerning Orphans & their estates To appoint Guardians where necessary & take se- curity XXXXX for orphans Estates. Guardian to exhibit at the next ct after his appointmt on oath an acct of his orphans estates & an acct of his profits & once a year which is to be enter'd by the Clerk in a book. Guardian wasting &c orphans estate, neglecting his educa- -tion &c or likely to become insolvent Cts to make orders for securing the estate &c or to anpoint another Guardian. Their Accts to be examind &c in Augt. their mismanage- ment &c. to be enquird into at any time.
If a Guardian in socage makes a lease for years to continue beyond the time of his guardianship such lease seems not to be absolutely void by the Infts coming of age but only voidable.
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GUARDIAN Blow. 293 2.Rol.Abr. 256 2.B.Ab.68 [ ].79 Mod.259 Vent.72 Ray.311 [ ] pr.229 [ ].4 Str.506 Abr.Eq.261 Ver.436 XXXXXX 2,Ch.Ca.197 2. Ver. 606 Ver.403 435 [ ]2.Ver.193
If a woman who is guardian in socage to her son marries again & her husbd & she join in a lease of the infts lands the lease upon the death of the hus -band becomes void.
A Guardian or prochein Amy may make partition in behalf of the inft & it shall bind the inft if equal
If a Guardian puts in an answer /for an inft/to a bill in Chan cery on oath such answer shall not conclude the inft or be read in evidence agt him for the effect of infts answer is only to make proper parties so as to take depositions & examine witnesses.
A Guardian witht any direction may pay the interest of any real /incumbrances/(struck through)estate(struck through) & the principal of a Mortgage
He may pay off a judgmt with the profits of the infts estate.
A Guardian not compeliable to apply the profits of the estate of the inft heir to nay off the bond debts.
Tis not in the power of the Guardian witht the direction of the court to turn the personal into real estate
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HEIR & ANCESTOR Vent.311 Ray.330 2.Lev.232 2.Ver.215 Abr.Eq.265 See 1.Ver.16
A person may take by purchase or descriptio personae by the name of heir even in the life time of the ancestor for Heirs males now living in a will are a full description of the person who is then heir apparent to the person nam'd & is known by the devisor to be so.
If the ancestor agrees to convey lands & receives part of the purchase money but dies before conveyance, heir will be decreed to convey
If a father conveys to a younger son by a defective conveyance & dies the heir at la will in two cases be oblig'd to make it good 1st. Where there is a covt for farther assurance binding the heir. 2d. Where there is a provision made by the father in his life-time for the heir or when he hath such provision by descent from his father
The heir at law is bound by a decree obtaind agt the Ancestor which may be carried into execution two ways. 1st. If the decree is enrolled the par -ty may sue out a subpoena scire facias agt the heir to shew cause agt the decree. 2d. The Plf may bring his bill of revivor to
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HEIR & ANCESTOR Co.L.233 8.Co.44 10.Co.41 Vent.199 Cr.El.833 2.Ver.519 8.Co Frances's case 2.Ch.re.26 Co.L.164 Dyer 90 1.Leon.261 3.Co.12 Cr.Ja.450 Abr.Eq.44
carry the decree into execution
As the heir at law is the only person who can take advantage of conditions &c annex'd to the real estate, so shall he be bound by all such conditions &c which run with the land.
Where a condition is annex'd to the estate gi -ven to the heir & which goes in abridgement & restraint thereof the same shall in some cases be construed a limitation
But wherever the ancestor makes a conveyance or disposition on condn wh goes in restraint & abridgemt of the estate of the heir he must have notice of it.
The heir may bring any real action or action droitural in right of his ancestor but no personal action
Also if an erroneous judgemt be given agt the ancestor by which he loseth the lan the heir may bring a/writ of error
When the ancestor binds himself & his Heirs in an obligation the Obligee may sue the heir or Exr & may have execution of the land descended to the heir.
