USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. I > Part 22
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October 1729 [121]
1MUTLOW US BALLARD Case Fr Plt.
"Pocky Whore" actionable.
Case for Speaking the following Words "You are a Pocky Whore and are now full of the foul disease And your Father is Obliged to keep Doctors to keep you Salved up with Plaisters, insomuch that they drop from you as you walk the Earth. And also your Father has Doctors frequently at his House to keep you Salved up And now you are full of the foul Disease and have got so many Plaisters that they drop from you as you walk along and you are Offensive " Of w'ch the Deft. is found Guilty and £18 Damages assessed. Now the Question is Whether the words are Actionable and without doubt they are.
All words charging either Man or Woman with having the French Pox have ever been held Actionable, tho' to say of one he has the Pox without other words to Explain that he meant the French Pox is not Actionable
Pocky Whore can in the natural Signification of the words signify nothing else but that she has that Pox so incident to Whores. That it has been Adjudged between Hunt and Jones. Cro. Ja. 499. that Scurvy Pocky Whore are not Actionable and Cro. Ja. 514. That Pocky whore is not Actionable yet between Marshall and Chickall 5. Sid. 30. you are a Whore and a cursed Pocky Whore Adjudged Actionable For where Whore and Pox are joined together it is apparent that the French Pox is in- tended Being Salved up with Plaisters Implies her having Sores which are the Consequence of the Veneral Pox and having a Doctor to lay on the Plaisters is still stronger
But saying that she has the foul Disease is the same thing as saying that she has the Veneral Pox, for the Synonimous
1S. C. in MSS. Virg. Reps. in Congr. Libry. [Note by W. G.]
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VIRGINIA COLONIAL DECISIONS
Terms and taking all the words together it cannot be intended that anything else was meant and they shall be taken according to Common Acceptance. Skinner 183. 184.
Milnors Case 1. Rol. Abr. 66. p. 16. and Cro. Ja. 430. Mrs. Milnor is a Whore and has the Pox and had holes in her face that she might turn her fingers in them and Ring The Apothe- cary gave her a Diet Drink therefore take heed how you drink with her Adjudged Actionable, for all the words joined together it plainly appears that he intends the great Pox
Mod. Cases. 148. It is say'd by the Court that if it were a new Thing it were reasonable the Word Whore shou'd be Action- able. For no greater misfortune can befall a young Woman whose well being depends upon her having a good Husband than to be reputed a Whore
[122] But the Authoritys are too many and too great to run Counter to them And Leving in Skinner 83. Says he was for taking Words in their natural sense and not according to the Witty constructions of Lawyers, but According to the Appre- hension of bystanders.
P. Deft. It was objected, first, That Pocky Whore are not Actionable because spoken adjectively 2. Foul disease can't be explained by an Innuendo to mean the French Pox. 3. And the rest of the Sentence are nothing because she may have Sores from another Cause than the French Pox, and the case in Cro. Ja. Cited and 4. Co. Jamesses's Case, full of the Pox, innuendo the French Pox, the innuendo can't alter the meaning of the Words and therefore not Actionable Mod. Cas. 24, Baker and Pierce also Cited Fr Holt, there is no rule for Words. every Case for words stands upon its own feet and the Opinions of later times have in many Cases been different from the former Days Fr Holt
But the Motion was overruled by the whole Court.
1BOOTH US DUDLEY Ejectm't Fr Deft.
Some conversation about the Act of Lim'on -a plt's laying lease & entry within 20 years shall not save Act of Lim'on altho deft. is obliged by rule of Court to confess lease entry & ouster - convey'c by hus- band of wife's land binding on heir with assets.
In Ejectment upon a Lease made by Robert Dudley Upon not Guilty this Case is agreed between the Parties "That Peter
'S. C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
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SIR JOHN RANDOLPH'S REPORTS
Ransom was seized of 1100 acres of Land having Issue, James, George and Wm. by his last Will and Testam't. (a) Devised 350 Acres the Land in Question to George and his Heirs forever and died
George entered and was seized and by his last Will & Testa- m't. (b) Devised this Land by the Name of 500 Acres to Eliz'a his only Child, and if she depart this Life without Heirs of her Body then his Brother James Ransom and his Heirs to enjoy his Daughter's Legacy. But before this last Clause he directs that his Wife shall have the management of his Daughters Legacy (giving Security) during her Life, and if she should die during the nonage of his Daughter his Brother James should take care of his Daughter's Estate and several Chattles are given to her besides in the same Clause
George died and Elizabeth his Daughter and Heir entered and was seized and Intermarried with Rob't Dudley some time in the year 16. and they had Issue Rob't Dudley the Lessor of the Plt.
(c) Robert Dudley and his Wife by Deeds of Lease and [123] Release sell and Convey this 350 Acres of Land to James Ran- som and his heirs with Warranty which Deeds were acknowledged in Gloucester Court but the Wife was not privately Examined.
Robert Dudley the Father died (e) Elizabeth the Mother died (f)
James Ransom entered and was Seized and by his last Will and Testament (g) Devised the Land to his 3 Sons George, Robert and Peter, who by several Conveyances Conveyed the same to the Deft. And this is the Defts. Title And James Ransom and those claiming under him have been in quiet and undis- turbed possession of the Lands in Question from the 16 of Aug. 1694 until the delivery of the Declaration in this Cause which was served October 5th 1726 And the Lessor of the Plt. hath Lands in fee Simple of greater value than the Lands descended to him from his Father Robert Dudley. Upon this Case I shall agree that Mrs. Dudley took an Estate tail and then the Ques- tions will be only 1. Whether the Entry of the Lessor of the Plt. is not taken away by the Act of Limitation
2. Whether he is not barred by the Fathers Warranty with Assets and 1. I think he is clearly by the act of Limitation a'o 1710 in which the Words so far as it concerns this Case are
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VIRGINIA COLONIAL DECISIONS
" That no Person or Persons that now hath or which hereafter " may have any Title of Entry into any Land shall at any time " hereafter make any Entry but within 20 years next after his " or their right or Title hath descended or accrued or hereafter " shall Descend or accrue, and in default thereof such Persons "so not ent'ring and their Heirs shall be utterly Excluded " and disabled from such Entrey after to be made." And there is Saving Clause to Infants, Feme Coverts &c.
16 Aug. 1694 Now to apply this Act to the present Case by the Conveyance from Rob't Dudley and his Wife to James Ransom, no thing passed from the Wife she not being privily Examined, but as to her it was void
20 Octob'r 1701 Then after her Husbands death her right of Entrey Accrued and from that time the 20 years given by the Act to be computed 17 years and 2 Months whereof were Lapsed when he died
23 Dec'r 1718 And the Lessor of the Plt. being at that time about 27 years of age he cou'd not make any Entry after the 20th of October 1721. when the 20 years were Complete and the Decl. in this Cause was not delivered October 1726. But if the Lessors Mother had been at the time of making the Act under Coverture, then I shou'd think she might be Construed to be under the saving Clause And indeed any other Construc- tion wou'd be neither Grammatical, nor reasonable as it was held by Lord Trevor Master of the Rolls and Ld. Chief Justice Eyre in the Appeal between Heal & Ball [124] heard before them in Aug't 1728. The words are "Provided neverth'ess that if any Person or Persons that hath or shall have such right of Title of Entrey be or shall be at the time of such right or Title "first Descended or Accrued within the age of 21. years " Feme Covert &c. that then such Person or Persons notwith- standing the s'd 20 years are expired may make his Entrey as he might have done before the making this Act so as it be done by him or his Heirs within ten years after his full age, Discoverture &c.
But for all that appears in the Case she was never Married after the death of the Lessor's father, tho the truth is that she afterwards married one Robert Dudley who died in the beginning of the year 1710, then she lived a Widow a year or less and married Thomas Elliot who died in the year 1716. Novem'r 19. and she was Certainly discovert the 25th October 1710. when
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SIR JOHN RANDOLPH'S REPORTS
the Act was made, so the time run against her from the death of her first Husband for it was her fault not to make her Entrey when she was sole after making the Act, and her disabling herself by the third marriage shall not excuse her Laches And the Lessor had almost 3 years after her death to make his entrey which he neglected Wherefore he being of age is without excuse likewise
Indeed the Plt. has taken care in the Declaration to lay the Lease and Entrey within 20 years. But notwithstanding that and the confession of Lease, Entrey and Ouster it appeared by the Record that the entrey was not till October 1726. And the Confession of Lease, entrey & Ouster by the Deft. which he was bound by Rule of Court to do shall not prejudice him. So it was in a Case much stronger than this Clerk & Philips's or Clerk & Pywell Vent. 42. Saund. 319. 1. Mod. 10. 2 Keb. 553.
But before the hearing of the Cause we found that the Mother married Elliot 21. Sep'r 1710 and was under Coverture at the time of making the Act of Assembly, and we amended the Case accordingly
For the Declaration was delivered about a Month before the 10 years expired after her last discoverture
2 The Warranty of the Lessors Father with Assets is a bar in this Case. If the Husband in the Life of the Wife, Aliens his Wifes Land with Warranty and Assets descended to the Heir from the Father the Heir is barred by the Warranty Lord Coke Comment upon the Stat. of Gloucester 2. Inst. 294. And by the Common Law Warranty without [125] Assets was a bar. So Warranty with Assets is a bar of the right in Tail and is not restrained by the Stat. de donis Co. Litt. 374. b. 393. b.
And there is no difference whether Lands of the Wife so Alien'd be Intailed or not This being clear tho' the Warranty is not Pleaded being found in Special Verdict it shall bind the Lessor of the Plt. and is a good Title in the Deft. which is Ad- mitted 10 Co. 95 b. Seymors Case In Kind and Fox's Case Cro. Car. 145. and is revoked in Smith and Tyndals Case 2. Salk. 685.
Obj. But perhaps it will be objected That the Conveyance to James Ransom is a harmless Conveyance and pass'd nothing by Transmutation of Possession But only what the Father of the Lessor cou'd lawfully pass, to wit a Descendable freehold during his Life and upon his death the Warr was Extinct and cannot bar the Estate Tail which was not displaced or turned
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VIRGINIA COLONIAL DECISIONS
into a Right by the Lease and Release And I must own this will be an Objection of some Weight and that Symon's Case in 10 Co. 95 is an Authority in point against me And vide 1. Saund. 261. Carter 210. Cro. Car. 429. 1. Bulst. 165. and 2. Bulst. 34. which proves that nothing passes by such a Conveyance but an Estate for Life of the Father.
To this I answer That (allowing the Objection in the General) in this Case the Lease and Release of the Lessors Father Acknowl- edged and Recorded in Gloucester County Court shall operate as a Feoffment by Virtue of the Act of Assembly of 1710 for Settling the Titles and Bounds of Lands which Enacts " That all " Deeds and Conveyances whatsoever where Livery or Seizin " might Otherwise have been required heretofore bona fide by any Person or Persons for any Lands &c. within this " Colony where the Person or Persons to whom the same have " been Conveyed have entered thereupon and they and those " who have their rights do still Continue in possession thereof " by virtue of such Deeds & Conveyances shall be Deemed. " Adjudged and taken and are hereby Declared to be to all " Intents, Constructions and purposes as firm and valid in Law "and shall enure and take effect as fully and Absolutely as if " Livery & Seizin had been thereupon made in due form of Law. Upon the appeal between Ball & Heal from a Judgm't of the Gen'l Court in April 1728 in a Verdict of right Where the Tenant Pleaded a Bargain and Sale with Warranty of the Demandant's Father it was Argued by the Tenants Council that the Bargain & Sale shou'd Operate a Feoffment by this Act and the Lord Trevor seemed of that1 - [four lines here undecipherable. W.W.S.]
[126] themselves to Warrant and forever defend the Promises) makes no Warranty and cited Let
2. Deeds of Lease and Release dated the same Day are void and the Warranty here is contained in a Release dated the Day of the Lease wherefore the Warranty is void and Hob. 22. Cited to that purpose 3. And the Stat. 32. H. S. against discontinuance was insisted upon
But the Court Adjudged the Lessor of the Plt. was barred by the Warranty of his Father with Assets
'The MS. of the Congressional Library, p 216, shows that these words are as follows: "opinion if it had been pleaded as a settlement. But Hopkins for the petr. only objected that the words (doth oblige."- R. T. B.
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SIR JOHN RANDOLPH'S REPORTS
1MEEKINS & VADIN US BURWELL and HOLDCROFT Ejectm't Fr Deft.
Exposition of a Will -precedents of Wills set aside for uncertainty - of bequests passing only an Estate for life-of recovered in Eject. set aside, because one who had no title, was joined in the lease or deton.
Ejectment upon a Lease made by Meekins & Vadin of several parcels of Land in James City County
Upon not Guilty in the County Court this Special Verdict is found. That Thomas Meekins was Seized in fee of the Lands in Question and having four Children, Tho's, W'm Roger and Mary 7. Feb'y 1669. by his last Will dated as before Devised one Parcel to Tho's and his Heirs for ever and gives him a Legacy besides, another Parcel of the Land to William and his Heirs for ever and gives him a Legacy And another Parcel of the Land to Roger and his Heirs for ever with a Legacy
He gives a Legacy to his Daughter Mary and then adds this Clause "If it shall happen that any of my said Children die " with't Issue then that share shall equally be divided among " those that Survive. But if all my Children die without Issue, " then my Lands shall fall to my Heirs in England"
The Testor, died, Tho's W'm and Roger enter into their respective parts William died without Issue before the year 1682 (the certain time non constat) Tho's entered into his part and by Feoffment dated 7. 9'ber 1682 Conveys it to Humphrey Browning and W'm Brown in right of Roger Enters upon him, Browning brings his Ejectm't and by the Judgm't of the General Court 28 Sep'r 1683. recovered The Court holding that Tho's had a Fee in Williams part Feb. 169S. Browning Enfeoffs Lewis Burwell & 5 April 1700 Roger by several Deeds of Lease and Release Conveys [127] 43S Acres and 68 acres being his part as I suppose to Lewis Burwell
Lewis Burwell by his Will devised these Lands to his Son James Burwell and from him it descended to one of the Defend- ants Baron Burwell
Thomas Meekins the eldest Son of the Testor and his Wife by Deed 15 October 1684. Conveyed 150 Acres (I suppose of his own part) to Robert Martin in Fee
Martin 29. of Xber. 1691. Conveyed to Allex. Walker and from him it Descended to the Deft. Walker and the Deft. Hold-
'S. C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
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VIRGINIA COLONIAL DECISIONS
croft claims a third part of it in right of his Wife the late Wife of Allex. Walker for her Dower. Tho's Meekins died 2. March 1721. leaving Issue - Meekins one of the Lessors his Son and Heir
Roger Meekins died 2. March 1723. with't Issue the other Lessor Vadin is Son and Heir of Mary the Daughter who died Anno 1723. In the first part of the Will of Thomas Meekins the three sons took an Estate in fee Simple in the several Parcels of Land Devised to them which shall not be restrained by an Estate Tail unless the Testators meaning in the Subsequent words appears to be so If they be dark and doubtful the Fee Simple Estate stands uncontroverted vid. Polf. 426. So the Question will be Whether the latter Clause be so clear as to shew the Testator's Intent, That instead of a fee simple they shou'd have an Estate Tail in their several parts or what his Intent was
The words are very doubtful and uncertain and it is very difficult to Collect the Testors. intent'n from them
The first part of the Clause " if any of my Children die without " Issue that share shall be equally divided among those that survive is very uncertain and of a doubtful Construction
The other side will insist that this part of the Clause shall be Construed, That upon the death of one of the Sons without Issue, the Lands Devised to him shou'd remain to the other two Sons and the Daughter So upon the death of another of the Sons without Issue his part shou'd remain to the Surviving Son and the Daughter
And it must be upon such a Construction that Vadin one of the Lessors of the Plt. can have any right to part of the Lands in Question. But it is clear from the whole scope of the Will that the Testator Intended the whole Lands for his Sons in the first place. For the Daughter had no Land given to her and the Daughter by a possible implication only cannot have any Estate in Remainder by this Clause so as to Disinherit the Heir at Law; Which is a settled point since the Case of Gardener and Shelton in Vace 259. There the case was upon a Will
[128] If my son George and my Daughters Catherine and Mary die without Issue, then my Lands to remain to my Nephew and his Heirs forever And it was Adjudged that the Daughters took nothing by the Will. for where the Words of a Will are Am- biguous & doubtful Construction they shall not be interpreted to the disinheriting of the right Heir
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SIR JOHN RANDOLPH'S REPORTS
Therefore unless no other Construction cou'd possibly be made the Dauter can take nothing in Rem'r by this part of the Clause.
But the Testator seems rather to have intended by the Word .(share) That in Case of the death of any of his Children, the money and Goods he had before bequeathed to them shou'd be equally divided among the Survivors and not the Lands, For in the latter part of the Clause he says, if all his Children die without Issue his Lands shall fall to his Heirs in England, whereby he plainly excludes the Lands in the other part of the Clause Besides upon the death of the Daughter without Issue no Lands remained to the Sons which makes the Presumption Stronger, that it was not meant to extend to Lands, but to Personal Things, for he must intend a reciprocal Benefit to the Survivors upon the death of any one of the Children And it may be Objected that there be no Rem'r of a Chattle, so the Words will be useless unless they Relate to the Lands
That can be no Argument in this Case, for the Testator un- doubtedly by these words " If any of my s'd Children shou'd die &c. which extend to the Daughter as well as the Son must intend upon her dying without Issue that the Legacy shou'd remain to her Brothers And ignorant People who make their Will without Advice do not know but that their Goods may be disposed in this manner
But if this part of the Clause shall relate to the Lands the Daughter took nothing by implication and the words gave the two sons only an Estate for Life, the fee simple descending upon the eldest drowned [sic] his Estate and he might sell his reversion in Rogers part So that way we have a Title to Williams Land
For this vide Skinner Middleton's & Swans Case 339 Where a Devise was to H. and his Heirs and if he die before such an age his share shall go to the rest of his Children younger: and Share and Share alike
The younger Children had but an Estate for Life So in Skinner 363 Totam illiam partam with't Limitation of any Estate carry's but an [129] Estate for Life. But they will rely upon the Subsequent words " If all my Children die without Issue, then "my Land to fall to my Heirs in England " That they make an Estate tail to the Sons with cross Rem'r. To that I answer
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VIRGINIA COLONIAL DECISIONS
that Allowing the former Sentence not to extend to the Lands which is the most consistent Interpretation: Or if the Dauter took nothing by the first part of the Clause which I take to be very clear These Words must be void, Because as the Daughter has no Estate Limitted to her before it is uncertain in what Order the Rem'r shall go Whether the Daughter shall take a joint Estate with the Surviv'rs upon the death of one of the Sons without Issue; Or whether she shall wait till all the Sons die without Issue; and tho' Wills are to be favoured in their Con- struction as far as may be. Yet where they are so uncertain that the Intention cannot be Collected they ought to fall, for Men frequently upon their death Beds write Non- sense and it is not possible for the Judges to sift out their meaning tho' they rack their Brains ever so much. There- fore in such Cases their words shall rather be rejected than preserved, and for the uncertainty of this last Sentence in our Case it must be rejected. To which purpose there are several Authoritys.
In the Case of Taylor and Sayer Cro. Eliz. 742. A Man Seized in fee of Lands Devised them to his Wife for Life and after her death to his Issue when he had several Children, and because it was uncertain which of his Issue he intended the Devise was held void. In the Case of Hanchet and Thekwall 3. Mod. 104. There the Devise was to one of his Sons for Life Rem'r to his four Daughters Share and Share alike (without Limitting any Estate) And Price and Warran which is same Case in Skinner 266. And if all my Sons and Daughters die without Issue, then to my Sister and her Heirs. And because he had another Son who took no Estate by the Will It was uncertain in what Order the Estate shou'd go, there being no Appointment who shou'd have the part of any of the Daughters dying without Issue. Therefore it was Adjudged that the Daughters had no Estate Tail, but the Words, if all my Children die without Issue were void which is a Case in point if the first part of the Clause doth not extend to the Lands.
Then upon the whole matter the Estate given to the three Sons by the former part of the Will, will not be affected by this Clause. So Thomas and Roger had a fee Simple in the Lands in Question and our Title under them is good. So the Judgm't of this Court was 46 years ago.
But if it be construed that both parts of the last Clause [130]
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SIR JOHN RANDOLPH'S REPORTS
shall extend to the Lands, then I think upon the death of William without Issue his part vested in Tho's and Roger in Tail and that the Daughter cou'd take nothing by Implication till after the death of both other Brothers without Issue. So the Lessor Vadin can have no Title.
And the other Lessors Entrey as to half of William's part is taken away by the Stat. of Limitation, for Rogers right of Entry Accrued 47 years ago at least, And if the Daughters took anything in Remainder upon the death of William her issue is likewise barred.
So that the Deft. Burwell which way soever the Will is con- strued has a right in a Moiety of the Land Conveyed by Thomas Meekins to his Grand Father.
But the Conveyance from Browning to Tho's Meekins was a Discontinuance of the Estate Tail; So the entrey of the Lessor of the Plt. is taken away for the whole Lands in Question.
Upon the Argument of this Case The Judgment of the Gen'l Court between Browning and Browning 1683 was in the first place insisted on and that the recovery then did bind the right of and Interest of Roger in Williams Land and the Lessor Meekins cou'd not falsify it in the point tried unless it appeared that there was a joint Defence made. This was Argued upon a Saying Obitor of the Lord Chief Justice Holt in Williers and Harris's Case Salk 258 and Farresly 67.
But the Court over ruled us in this point because it did not Appear that any Counsel appeared for Roger.
Then upon the Merits of the Cause the Court were of Opinion That the three Sons had several Estates Tail in their Lands, and that Thomas and Roger had an Estate Tail in W'ms part and that the Daughter took nothing.
But they held that as to a Moiety of Williams part the Entrey of the Lessor of the Plt. was taken away by the Stat. of Limita- tion 1710. And the Judgment was to have been entered upon this Opinion.
But I excepted to the Declaration That the Plt. having De- clared upon a Lease made by Meekins and Vadin who took nothing in the Land cou'd not recover.
And I cited the Case of England and Long 2. Rol. Abr. 719.
And upon this Exception the Judgment was reversed for the whole.
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