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TYTE

บ.

STEVENTON.

Rules of the Court require, upon an original notice. But the word continue is not to be found in the Rule: So that it is not a technical term, but a mere colloquial expression. I give no opinion as to the waiver, as I find the officers of the Court have some doubts about it.

NARES, J., of the same opinion. It is not uncommon to construe the Rules of 1654 according to the spirit, and not the letter, as in the case of rules to plead, &c. I think this a good original notice; and also that the objection (if any) has been waived. DE GREY, C. J., absent.

Rule discharged, but without costs (a).

(a) Boyes v. Twist, Barnes, 292, Pr. Reg. 396, acc. See Tidd's Pr. 795, (ed. 1821).

A subsequent confession of a juryman to the defendant's at

torney, that the jury drew lots which six of

AYLETT v. JEWEL, Executor.

IN an action of assumpsit against the executor of Samuel Foote, Esq.; he pleaded two judgments and non assets ultra, to which it was replied, that one of the judgments was fraudulent, and that there were sufficient assets beyond the other, on which two issues were joined and tried at the Sittings in this them should de- Term, at Westminster, before BLACKSTONE, J., when, the jury termine the ver- having been out a considerable time and not likely to agree, he dict, and not adjourned to his house in Lincoln's Inn Fields, at about six ed to the Court, in the evening. At half past eight the jury came thither in no ground for a coaches (b), and (the Court being opened) gave a verdict for the plaintiff on both the issues, with great apparent unanimity.

otherwise prov

new trial.

[ *1300 ]

*Walker moved for a new trial, on an affidavit of the defendant's attorney, that some of the jury had confessed to him, that not being able to agree in their verdict, they consented that all the jurors' names, being separately written on papers, and shook together in a hat, the first six that should be drawn should decide the verdict, and they all agreed to conform to the opinion of the major part of those six; which was accordingly carried into execution, and so the verdict was produced (c).

But there being no affidavit by the jurymen, or any other that was cognizant of this transaction, but merely this hearsay affidavit, the Court (absente DE GREY, C. J.) thought it too dangerous to call a verdict in question, that had been so deliberately given, upon so loose and slight a suggestion (d): So refused a rule to shew cause, and Walker

(b) R. v. Kinnear, 2 B. & A. 462.
(c) The jury having cast lots for their
verdict, is a good ground for a new trial.
Bull. N. P. 326; Hale v. Cove, 1 Stra.
642; Philips v. Fowler, Barnes, 441.

(d) S. P. Parr v. Seames, Barnes, 438.
Yet in Dent v. Hundred of Hertford, Salk.
645, a new trial was granted upon affi-
davit, that the foreman declared the plain-

Took nothing by the motion.

tiff should never have a verdict, whatever witnesses he produced. But it is now settled, that an affidavit, that the jury decided by lot, cannot be received from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but the Court must derive their knowledge from some other source; such as from some person having seen the transaction

through a window, or by some such other means; Vasie v. Delaval, 1 T. R. 11; Owen v. Warburton, 1 N. R. 326. See

Clark v. Stevenson, ante, 803, and cases
referred to in the note.

AYLETT

บ. JEWEL.

IN THE EXCHEQUER CHAMBER.

Cheveley v. Morris.

ERROR of a judgment in the King's Bench, on an action on the case, for the use and occupation of a house. The plaintiff declared, 1. On indebitatus assumpsit for 401., for two years and a quarter's rent. 2. On a quantum meruit for other 408., but laid his damages at only 201. Judgment by default; and, on writ of enquiry executed, the jury assessed damages 317. 10s., costs 20s.; to which 97. costs de incremento being added, final judgment was signed the 14th of November, 1774, for 417. 10s. On which a writ of error was brought the 17th of February, 1775. And on the 18th of July, 1778, the plaintiff in error (the defendant below) assigned for special error, that the damages found by the jury, and for which judgment was entered up, exceeded the damages laid in the declaration.

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*In the interim the Court of King's Bench had been moved [1301 ] to amend the record, by taking judgment for only 207. damages, or by suffering the plaintiff to enter a remittitur for the surplus (e). But it being out of time, and the plaintiff having acted oppressively in suing out execution and taking the defendant's books, (who was a gentleman at the bar), in a very insolent and invidious manner, the Court refused the motion.

And now, on the motion of Davenport, for the plaintiff in error, (nobody appearing for the defendant), all the Justices and Barons, in the absence of DE GREY, C. J., agreed unanimously, that the verdict and judgment thereon were erroneous; (See Fitzh. Abr. tit. Damage, 7, 13, 16; Yelv. 45, 70; Cro. Jac. 297, 1 Bulstr. 49); and consequently

Reversed the judgment (ƒ).

(e) Ray v. Lister, Andr. 384, 2 Stra. 1110. (ƒ) See also Bac. Abr. Damages (D) 2.

FUTCHER v. SMITH.

Warrant of attorney to confess

a judgment to two, may be

entered for the

SMITH had given a warrant of attorney to confess a judg-
ment to Futcher and one Mereweather, who were partners, for
4007. Mereweather died, and made Futcher his executor.
Walker now moved for leave to enter up judgment at the suit
of Futcher only. No cause was shewn, and the Court, (ab- survivor.
sente DE GREY, C. J.), on the authority of Tod and Tod, in
B. R., T. 25 & 26 Geo. 2, Barnes, 48, and of Gladwin and
Scot, in C. B., P. 26 Geo. 2, ibid, 53, made the
Rule absolute.

estate in A. to my niece and her heirs (the

testator having only a copyhold

in fee, and a long term of years in that

parish) will carry both those interests to the

niece, if so in

tended by the

testator, though

there is a be

quest of all his

goods and per

sonal estate to

B.

[

ROE on the demise of PYE v. BIRD.

Devise of all my EJECTMENT for lands at Barney, in Norfolk, tried at the last Assizes, before ASHHURST, J. Verdict for the plaintiff, subject to the opinion of the Court on this special case. *John Meek and Elizabeth his wife, being possessed of an old 1000 years' term in a tenement, and half an acre of land in Barney, (the premisses in question) by indenture of the 30th of October, 1745, assigned the same by way of mortgage to Elizabeth Fairfax, her executors, &c. to secure the repayment of 1507. and interest at 5 per cent.; and also as a further security, covenanted to surrender to Fairfax and her heirs, a copyhold messuage and seven acres and a quarter of land, which was done accordingly. On the 11th of August, 1755, Elizabeth Fairfax, in consideration of 1807. for principal and four years' interest, and Meek and his wife, in consideration of the further sum of 201., assigned the residue of the said term to John *1302 ] Bailey, by way of mortgage, to secure the said 2007. and interest at 4 per cent., and surrendered the said copyhold as a further security. On the 5th of April, 1760, by indenture, executed by the said Bailey only, but reciting that John Gotts had purchased both leasehold and copyhold for 250l., (whereof 2091. 6s. 3d. was then paid to Bailey in full of principal and interest, and 407. 13s. 9d. had been before paid to Meek), John Bailey assigned to the said John Gotts all the residue of the said term, free and clear from all equity of redemption, and surrendered the said copyhold to the said John Gotts and his heirs, who was admitted, and surrendered the same to the use of his will. No evidence was given of any further payment of interest than appears on the face of the deeds, by which it is clear that Meek had paid up all interest to about the 11th of February, 1759. The leasehold, and three roods of copyhold were in the occupation of the same tenants, successively, from A. D. 1737 to the making of the will in question, A. D. 1769; but the remainder of the copyhold in the occupation of other persons. John Gotts being in the receipt of the rents of both the leasehold and copyhold estates aforesaid, a little before his death, by his will, dated the 14th of April, 1769, devised all [ *1303 ] *his messuages, lands, tenements, and hereditaments in Little

Walsingham and Barney to Margery his wife for her life; and after her decease, "all that his estate in Barney aforesaid to "his niece Mary Bowman and her heirs," and all that his estate in Little Walsingham aforesaid to his nephew John Hudson and his heirs; and bequeathed to the said Margery his wife "all his goods, chattels, household stuff, and implements "of household, ready money, bills, bonds, and other securities "for money, and all other his personal estate," she paying his debts, funeral expences, and the charges of proving his will, and appointed her his sole executrix. On the death of John Gotts, his widow Margery proved the will, and possessed herself of all his estates, and afterwards intermarried with John

Crisp. On her death, the 29th of September, 1777, said John Crisp took out letters of administration to her, and on the 25th of May, 1778, assigned the said leasehold premisses in Barney to John Pye the lessor of the plaintiff. Mary Bowman intermarried with the defendant Joseph Bird, who took possession of the premisses on the death of Margery Crisp. The value of the leasehold premisses in Barney is about 501., -of the copyhold about 2007.,-and of the estate at Walsingham (being also copyhold) about 55l. Qu. Whether the leasehold premisses in Barney passed under the will of John Gotts to his niece Mary Bowman the wife of the defendant Joseph Bird?

Sayer, for the plaintiff, contended, that the leasehold passed to the wife under the general residuary bequest of personal estate. In Rose and Bartlett, Cro. Car. 293, it is held, that where a man hath lands in fee, and lands for years, and deviseth all his lands and tenements, the fee-simple lands pass only, and not the lease for years. But if he hath no fee-simple, the lease for years passeth (ƒ). In that case the testator had a term absolute; here only a redeemable mortgage.

ROE

V.

BIRD.

In Da- [ *1304 ]

vis and Gibbs, 3 P. W. 26, on a devise of all his lands, tenements and real estate in Kent, Essex, Bucks, Bedfordshire, and elsewhere to A., and of his personal estate, mortgages, bonds, specialties and credits to B., (the testator having feesimple lands in Kent, and a mortgage for years in Essex, and an estate by statute staple in Bucks,) the mortgage and estate by statute do not pass by the first devise. In Knotsford and Gardiner, 2 Atk. 450, where one devised all his estates in A. to his wife for life, remainder over in fee, and had both freehold and leasehold lands in the same parish of A., and it was suggested that all the freehold lands were settled on the wife by the marriage settlement, so that the will could only operate on the leasehold; Lord HARDWICKE cited Rose and Bartlett, and directed an issue to try what lands were comprised in the settlement; for if the testator had both freehold and leasehold to dispose of, though there could be no doubt of the testator's intention, yet the rule of law would prevail. In Chapman and Hart, 1 Vez. 272, Lord HARDWICKE again relies upon the case of Rose and Bartlett, and held that where the testator has both freehold and leasehold, by a devise of all his lands and tenements the leasehold will not pass. In the present case there are sufficient words to carry the mortgaged premisses to the wife, viz. goods, chattels, and securities for money. The intention of the testator was only to pass the copyhold in fee, for the limitations agree only with that estate, and not with a redeemable term of years.

Foster, for the defendant, argued,-1st. That if it was the testator's intention to give his niece the leasehold estate, the words are sufficient to pass it. A grant of "all his estate," passes every thing that the testator has; rents, leases, any

(f) But see Turner v. Husler, 1 Bro. C. C. 78.

ROE

บ.

BIRD.

[ *1305 ]

thing; 1 Salk. 236; 2 Wms. 523 (g): * Scot and Alberry, 2 Equ. Cases Abr. 302 (h), held that it extended to both real and personal: 2 Vern. 690, S. P.

The intention therefore must govern this case, as in Martin and Mowlin, 2 Burr. 969; a copyhold mortgage in fee did not pass under the words "all his lands within and parcel of the manor of W.," the testator having other fee-simple lands in the same manor; because from other circumstances it was evident, that the testator meant to devise the mortgaged premisses as money and not as land (i). 2. The testator, in the present case, meant to devise this as land. It lay contiguous to the copyhold in Barney, and was occupied together with it. The wife was to enjoy them together for her life, and he did not mean to separate them afterwards. As to the cases, I admit that according to Rose and Bartlett a leasehold will not pass by the words "lands and tenements," where there are freeholds to satisfy those words. But here the words are larger, " all my estate," which comprises whatever interest the testator has (k). Chapman and Hart is subject to the same answer. Knotsford and Gardiner is not a decided case; and if it was, the words there are "all my estates" in the plural number, which is an expression denoting locality, and not the quantity of interest, as "all my estate" in the singular number does. In Davis and Gibbs the testator expressly devises his mortgages to his executors, which seems to be the true ground of that determination: Though undoubtedly the case is a very strong one, if not so distinguished.

DE GREY, C. J.-I am perfectly satisfied that the true construction of this will is to give the leasehold estate to the wife of the defendant, the niece of the testator. The general intent of the testator is to provide for his wife for her life, and then for his nephew and niece. All the estate, that is given to the wife, [*1306 ] is intended to be afterwards * divided between his nephew and niece: and the niece is to have the better proportion, his estate in Barney; the nephew a less bounty, in Little Walsingham. The question then is, what estates were meant to be devised to the wife? The words of the will are, "all his messuages, lands, tenements, and hereditaments." Now by the strict rule of law, as he had no estates but copyhold and leasehold, none of them could pass by these words. But by recurring to the intention of the testator, they are all capable of passing, if all were intended to pass. The same rule must apply to both. And though the premisses in question were only a mortgage for years, and then redeemable, as between the mortgagor and mortgagee, yet undoubtedly a mortgagee in possession may, if he pleases, treat the mortgaged estate as land, and devise it as such, though it still remains redeemable in the hands of the devisee. By the transaction in 1760, it

(g) Barry v. Edgworth, where all the
cases are collected in Mr. Cox's note.
(h) S. C. 1 Com. Rep. 337.
(S. P. Noys v. Mordaunt, 2 Vern.

583. "The intention of the testator is the
polar star in construing wills;" per Cur.,
3 Wils. 143-generally a very dim star.
(k) See ante, 204, 939.

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