that 'twas his Intent to give his Heir at Law any Thing out of his Real Estate; that his Determination to settle his Manor, with the Appurtenances, was to settle the Whole; that what is not disposed of in Particulars, is to be directed by the Court of Chancery; that that Court hath done Right in directing it in Augmentation of the Charities mentioned, because the Testator's Intent was most in Favour of those which are so mentioned: That if the Quære were askt, What shall be done with the Surplus, if any? The Answer is natural, viz. I am determined to settle the Manor, that is the whole, on Charitable Uses: That the Testator by his Will expressed some Care for his Sister, and for John Boucher his Nephew, and other his near Relations; but neither by any Expression or Implication pointeth at any Provision designed for his Heir at Law; but for the Excluding him of all Pretences hath bequeathed him 40s. and no more: That the other is to contradict his plain Intent; 'tis to make a new Will for him, contrary to the Determination which he saith he had made: And accordingly the Decree was affirmed.
Sir Richard Dutton, Plaintiff; Richard Howell, Richard Grey, and Robery Chaplain, Executors of Sir John Witham deceased [1693].
[15 Lds. Jo. 354. Consid. and dist. in Hill v. Bigge, 1841, 3 Moo. P.C.C. 465, at p. 482.]
Imprisonment by Governour, &c. Plantations.&enps;Colonies. Plantation Laws. 3 Mod. 159. Declaration for false Imprisonment.—Writ of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton, and the Award of Execution thereof upon Scire Fac' brought by the Defendants, as Executors of Sir John Witham; and affirmed in the Exchequer Chamber in Trespass and False Imprisonment. The Case on the Record was thus: The Plaintiff William did declare versus Dutton, for that he with Sir Robert Davis Bart. Sir Timothy Thornhill, Henry Walrond, Thomas Walrond, and Samuel Rayner, did 14 Octob. 36 Car. 2 at L. in Par' & Ward', &c. assault, beat, and wound the Plaintiff, and imprisoned him, and his Goods then found did take and seize, and the Plaintiff in Prison, and the Goods and [25] Chattels from the Plaintiff did detain and keep for three Months next following, by which the Plaintiff lost the Profit he might have made of his Goods, and was put to Charges, &c. Contra pac' & ad damp' 13000l.
Not guilty as to Part. Justification as to Part, as Governor of Barbadoes, &c.—The Defendant pleads Not guilty as to the Venir' vi & armis, and all the Assault, Imprisonment, and Detainer in Prison before the Sixth of November, and after the Twentieth of December in the same Year; and as to the Beating, and Wounding, and Taking, Seizing and Detaining his Goods, and thereupon Issue is joined; and as to the Assault, Taking and Imprisoning the Plaintiff the Sixth of November, and Detaining him from thence until in and upon the Twentieth of December, the Defendant doth justify, for that long before, viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court, did constitute and appoint the Defendant his Captain General and Chief Governor in and upon the Islands of Barbadoes, and &c. and the rest of the Islands lying, &c. and thereby commanded him to do and execute all Things that belonged to that Government, and the Trust in him reposed, according to the several Powers and Directions granted to the Defendant by the Letters Patent, and Instructions with them given, or by such other Powers or Instructions as at any Time should be granted or appointed the Defendant under the King's Sign Manual, and according to the Reasonable Laws, as then were, or after should be made by the Defendant, with Advice and Consent of the Council and Assembly of the Respective Islands; appoints twelve Men by Name, viz. Sir P.L. H.D. H.W. S.N. T.W. J. Witham the Plaintiff, J.P. J.S. R.H. E.S. T.W. and H.B. to be of the King's Council of the Island, during the Pleasure of the King, to be Assistant to the Defendant with their Counsel in the Management of the Things and Concerns of the Government of the said Island, in relation to the King's Service and Good of his Subjects there; and gives Power to the Defendant, after he himself had taken the Oath of Office, to
