Reversion to his own right Heirs after which Michael dyed leaving Issue Robert his Son and Heir by a first Venter and the said Ralph by Jane his second wife after the death of Michael Robert entred and from Robert by divers Mesne Conveyances a Title was deduced to the Heir of the Plaintiff Ralph had Issue Robert the Defendant And in this special Verdict the question was If any Vse did arise to Ralph by this Indenture 23 Jan ' 21 Jac ' Hales Rainsford and Wyld against the Opinion of Twisden Michael Mitford took an Estate for life by implication and consequence and so had an Estate Tail Hales 1 said it were clear if an Estate for life had been limited to Michael and to the Heirs males of the body of Michael to be begotten on the body of his second wife that had been an Estate Tail 2 Which way soever it be the Estate is lodged in Michael during his life 3 There is a great difference between Estates to be conveyeyed by the rules of the Common Law and Estates conveyed by way of Vse for he may mould the Vse in himself in what estate he will These things being premised he said This Estate being turned by operation of Law into an Estate in Michael is as strong as if he had limited an Estate to himself for life 2 A Limitation to the Heirs of his body is in effect a Limitation to the Vse of himself for his Heirs are included in himself 3 It is perfectly according to the intention of the party which was that his eldest Son should not take but that the Issue of the second wife should take His intent appears to be 1 Object that it should take effect as a future use When a man limits a Vse to commence in futuro Respons and there is such a descendible quality left in him that his Heirs may take in the mean time there it shall operate solely by way of future Vse as if a man Covenant to stand seized to the use of J. S. after the expiration of 40 years or after the death of J. D. there no present alteration of the Estate is made but it is only a future use because the Father or the Ancestor had such an Interest left in him which might descend to his Heir viz. during the years or during the life of J. D. But when no Estate may by reason of the Limitation descend to the Heir until the Contingency happen there the Estate of the Covenantor is moulded to an Estate for life This would be to create an Estate by implication 2 Object We are not here to create an Estate Respons but only to qualifie an Estate which was in the Ancestor before That the old Fee-simple shall be left in him 3 Object Yet the Covenantor had qualified this Estate Respons and converted it into an Estate Tail viz. part of the old Estate That the intention of the parties appears that it should operate by way of future use 4 Object for that of other Lands he covenanted to stand seised to the use of himself and his Heirs of his body It is not the intention of the party that shall comptroll the operation of Law Respons and to the case 1 Inst 22. though it be objected that it was not necessary at the Law to raise an Estate for life by implication yet my Lord Coke hath taken notice what he had said in the case of Parnell and Fenn Roll Rep. 240. if a man make a Feoffment to the use of the Heirs of his body that is an Estate for life in the Feoffor and in Englefields case as it is reported in Moore 303. it is agreed that if a man Covenant to stand seised to an use to commence after his death that the Covenantor thereby is become seised for life As to the second point Twisden Rainsford and Wyld held that no future use would arise to Ralph because he is not heir at Common Law and none can purchase by the name of heir unless he be heir at Common Law But Hales was against them in this point and he held that it Ralph could not take by descent yet he might well take by purchase 1 Because before the St ' de Donis a limitation might be made to this heir and so he was a special heir at Common Law 2 It is apparent that he had taken notice that he had an heir at the Common Law Litt. Sect. 35. 1 Inst 22. So his intent is evident that the heir at the Common Law should not take But on the first point Iudgment was given for the Defendant Term. Mich. 25 Car. II. in Communi Banco Anonymus IF a man be lyable to pay a yearly sum as Treasurer to a Church or the like to a Sub-treasurer or any other and dies the money being in arrear an Action of Assumpsit cannot be maintained against his Executors for these arrears For although according to the resolution in Slade's case 4 Report which Vaughan Chief Iustice said was a strange resolution an Assumpsit or an Action of Debt is maintainable upon a Contract at the parties Election yet where there is no Contract nor any personal privity as in this case there is not an Assumpsit will not lye And in an Action of Debt for these Arrears the Plaintiff must aver that there is so much money in the Treasury as he demands and in this case of an Action against Executors that there was so much at the time of the Testators death c. for the money is due from him as Treasurer and not to be paid out of his own Estate As in an Action against the Kings Receiver the Plaintiff must set forth that he has so much money of the Kings in his Coffers Magdalen Colledge Case INdebitat ' Assumpsit against the President and Scholars of Magdalen Colledge in Oxford for thréescore pounds due for Butter and Cheese sold to the Colledge The Chancellor of the Vniversity demanded Conisance by virtue of Charters of Priviledges granted to the Vniversity by the Kings Progenitors and confirm'd by Act of Parliament whereby amongst other things power is given them to hold plea in personal Actions wherein Scholars or other priviledged persons are concerned and concludes with an express demand of Conisance in this particular cause Baldw. Their priviledge extends not to this case for a Corporation is Defendant and their Charters mention priviledged persons only Their Charters are in derogation of the Common Law and must be taken strictly They make this demand upon Charters confirm'd by Act of Parliament and they have a Charter granted by King Henry 8. which is confirm'd by an Act in the Queens time but the Charter of 11 Car. 1. which is the only Charter that mentions Corporations is not confirm'd by any Act of Parliament and consequently is not material as to this demand For a demand of Conisance is stricti Juris But admitting it material the Kings Patent
proof upon them that claim liberam piscariam But in case of a River that flows and re-flows and is an Arm of the Sea there prima facie it is common to all and if any will appropriate a priviledge to himself the proof lyeth on his side for in case of an Action of Trespass brought for Fishing there it is prima facie a good justification to say that the locus in quo is brachium maris in quo unusquisque subjectus Domini Regis habet habere debet liberam piscariam In the Severne there are particular restraints as Gurgites c. but the Soil doth belong to the Lords on either side and a special sort of Fishing belongs to them likewise but the common sort of Fishing is common to all The Soil of the River of Thames is in the King and the Lord Mayor is Conservator of the River and it is common to all Fisher-men and therefore there is no such contradiction betwixt the Soil being in one and yet the River common for all Fishers c. Sedgewick Gofton HAles said That a Writ of Error in Parliament may be retorned ad prox Parliament such a day but if a particular day be not mentioned then it is naught and although there be a particular day expressed yet if that day be at two or thrée Terms distance the Court will adjudge it to be for delay and it shall be no Supersedeas And he said he had looked into the Books upon the point In the Register he said there is a Scire fac ad prox Parliament but not a Writ of Error Term. Pasch 26 Car. II. 1674. in B. R. Fountain Coke A Trial at Bar. Hales An Executor may be a witness in a cause concerning the Estate if he have not the Surplusage given him by the Will and so I have known it adjudged If a Lessee for years be made Tenant to the Praecipe for suffering a common Recovery that doth not extinguish his term because it was in him for another purpose which the whole Court agreed Jacob Aboab DEbt upon a Bond was brought against him by the name of Jacob and he pleaded that he was called and known by the name of Jaacob and not Jacob but it was over-ruled Sir John Thorowgood's Case IT was moved to quash an Indictment because it ran in detrimentum omnium inhabitantium c. Rolls 2 part 83. Wyld I have known it ruled naught for that cause So quashed Benson versus Hodson A Writ of Error of a Iudgment in the County Palatine of Lancaster in Replevin The Defendant makes Conusance as Bayliff to Ann Mosely The Lands were the Lands of Rowland Mosely and he covenanted to levy a Fine of them to the use of himself and the Heirs males of his body the remainder in Tail to several others the remainder to his own right Heirs Provided that if there shall be a failer of Issue Male of his body and Dame Elizabeth be dead and Ann Mosely be married or of the age of 21 years then she shall have 200 l. per annum for ten years Then Rowland dies leaving Issue Sir Edward Mosely Sir Edward makes a Lease for 1000 years then levies a Fine and suffers a Recovery Then dies without Issue Male And the Contingents did all happen The question is whether this Rent-charge of 200 l. per annum be barred by the Fine and Recovery and shall not operate upon the Lease Levings I conceive the Fine is not well pleaded for nothing is said of the Kings Silver and if that be not paid it is void Then they have pleaded a Common Recovery but not the Execution of it by Entry Now I conceive the Common Recovery doth destroy the Estate Tail but not the Rent The reason why a common Recovery is a Bar is because of the intended recompence Now that is a fictitious thing 9 Rep. Beamonts case 1 Cro. Stone and Newman Cuppledicks case Now this Rent is a meer possibility and hath no relation to the Estate of the Land Then again when the Recovery was suffered the Rent was not in being Now a Recovery will never bar but where the Estate is dependant upon it either in Reversion or Remainder For that case of Moor pl. 201. I conceive he is barred because the Reversion is barred by the Fine 3 Cro. 727. 792. White and Gerishe's case the same case 2 And. 190. Noy p. 9. Another reason is because the Rent remains in the same plight notwithstanding the Fine Another reason is it was a meer possibility at the time of the Fine and Recovery Pell and Brownes case is for me In our case is no Estate in esse to be barred Then this Estate is granted out of the Estate of the Feoffeés As in Whitlocks case 8 Rep. 71. the Estates for years which there is a power to make shall be said to precede all the Limitations There is no other way for securing younger Childrens Portions by the same Deéd but it may be done by another Déed as in Goodyer and Clarkes case Mr. Finch contra I conceive the Rent is barred upon the reason of Capells case They say not 1 Because it doth only charge the Remainder 2 The intended recompence doth not go to it 3 This Lease for 1000 years doth precede the Fine The Law will never invert the operation of a Conveyance but ut res magis valeat Bredon's case Then for the intended recompence that cannot be the reason of barring a Remainder for the Estate Tail was barred before 3 Leon. 157. But Moor fol. 73. saith it is the favour the Law hath for Recoveries And till the Reversion takes place in possession the Rent cannot arise out of the Reversion nor so long as this Lease is in being Hales You make two great points 1 Whether the Rent be barred by the Common Recovery 2 Whether the Rent-charge shall arise out of the Lease for years This is plain if Tenant in Tail grant a Rent-charge and suffer a Common Recovery the Rent-charge will not be avoided So that if Tenant in Tail grant a Rent a Recovery will not bar that though it doth a Reversion but the reason of these cases is because the Estate of him that suffers the Recovery is charged with the Rent Therefore if there be a Limitation of a Vse upon Condition and Cestui que use suffers a Recovery that will not destroy the Condition the Estate being charged with it for the Recoveror can have the Estate only as he that suffered the Recovery had it And therefore there is an Act of Parliament to enable Recoverors to distrein without Attornment Therefore so long as any one comes in by that Recovery he comes in in continuance of the Estate Tail and coming in so he is lyable to all the charges of Tenant in Tail Now what is the reason why Tenant in Tail suffering a Common Recovery a Rent by him in Remainder shall be barred The reason is because the Recoveror comes in
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
from the 20th of November for five years And the question upon a special Verdict was whether this were a good or a void Lease Serjeant Jones There are many cases in which the Law rejects the limitation of the commencement of a Lease if it be impossible as from the 31st of September or the like now this being altogether uncertain and since there is nothing to determine your Iudgments what November he meant whether last-past or next-ensuing it amounts to an impossible limitation Rolls tit Estate placito 7. 849. ibid. placito 10. betwixt Elmes Leaves Baldwin contra The Law will reject an impossible limitation but not an uncertain limitation Vaughan Atkyns The Law rejects an impossible limitation because it cannot be any part of the parties agreement but an uncertain limitation vitiates the Lease because it was part of the agreement but we cannot determine it not knowing how the Contract was There are many examples of Leases being void for uncertainty of commencements which could not have béen adjudged void if the limitation in this case were good Wyndham Ellis contra And that it should begin from the time of the delivery It was moved afterward and Ellis being absent it was ruled by Vaughan Atkyns against Wyndham's Opinion and Iudgment was arrested Fowle Doble's Case FOrmedon in the Remainder The case was thus There were three Sisters the eldest was Tenant in Tail of a fourth part of 140 Acres c. in thrée Villes A. B. C. the Remainder in Fee-simple to the other two the Tenant in Tail takes Husband Dr. Doble the Defendant The Husband and Wife levy a Fine sur conisance de droit to the use of them two and the heirs of the body of the Wife the Remainder in Fee to the right Heirs of the Husband and this Fine was with warranty against them and the heits of the wife The wife dies without issue living the Husband against whom Lucy and Ruth the other two Sisters to whom the Remainder in Feé was limited bring a Formedon in the Remainder The Defendant as to part of the Lands in demand viz. 100 Acres pleaded Non-tenure and that such a one was Tenant To that plea the Plaintiff demurred As to the rest of the Lands he pleaded this Fine with warranty The Plaintiffs made a frivolous replication to which the Defendants demurred The Plaintiffs Councel excepted to the Defendants plea of Non-tenure 1. That he does not express in which of the Villes the 100 Acres lie 5 Ed. 3. 140. in the old Print 184. 33 H. 6. 51. Sir John Stanley's case But this was over-ruled for the Formedon being of so many several Acres he is not obliged to shew where those lie that he pleads Non-tenure of he tells the Plaintiff who is the Tenant which is enough for him 2. Because he that pleads Non-tenure in abatement ought to set forth who was Tenant die impetrationis brevis orig c. But this was over-ruled also for he says that himself was not Tenant die impetrationis brevis origin but that such another eodem die was Tenant which is certain enough When the Tenant pleads Non-tenure to the whole he needs not set forth who is Tenant otherwise when he pleads Non-tenure of part 11 H. 4. 15. 33 H. 6. 51. At the Common Law if the Tenant had pleaded Non-tenure as to part it would have abated all the Writ 36 H. 6. 6. but by the Statute of the 25 Ed. 3. cap. 16. it was enacted that by the exception of Non-tenure of parcel no Writ should be abated but only for that parcel whereof the Non-tenure was alledged A third exception was taken to the pleading of the Fine viz. because he pleaded a Fine levied of a fourth part without saying in how many parts to be divided This was also over-ruled and 1 Leon. 114. was cited where a difference is taken betwixt a Writ and a Fine and in a Fine it is said to be good that being but a common assurance aliter in a Writ 19 Ed. 3. Fitz. br̄e 244. This exception seems level'd against the Plaintiffs own Writ in which he demands a fourth part without saying in how many parts to be divided The matter in Law was whether or no this warranty being against the husband and wife and the heirs of the wife were a bar to the Plaintiffs or survived to the Husband and it was resolved to be a bar for this warranty as to the Husband was destroyed as soon as it was created the same breath that created it put an end to it for the Husband warranted during his life only and took back as large an Estate as he warranted which destroys his warranty and this is Littleton's Text if a man make a feoffment in Feé with warranty and take back an Estate in Fee the warranty is gone But the destruction of the husbands warranty does not affect the wives 20 H. 7. 1. and Sym's case upon which Ellis said he much relyed Herberts case 3 Rep. can give no rule here for that here the husband is seiz'd only in right of the wife Vaughan said That if the Fine in this case had beén levied to a stranger for life or in Fée who had béen impleaded by another stranger that in that case the Tenant ought to have vouched the surviving husband as well as the heir of the wife or else he would have lost his warranty 2. He said if the Fine had been levied to the use of a stranger who had been impleaded by the heirs of the wife he questioned whether or no the Tenant could have rebutted them for any more then a moity and he questioned the resolution of Sym's case 8 Rep. there is a Case cited in Symme's case out of the 45 Edw. 3. 23. which is expresly against the resolution of the case it is said in the Reports that no Iudgment was given in that case which is false and that the case is not well abridged by Brook which is also false If in case of a voucher a man loseth his warranty that does not vouch all that are bound why should not one that 's rebutted have the like advantage There is a resolution quoted in Sym's case out of 5 Edw. 2. Fitz. tit garranty 78 upon which the Iudgment is said to be founded being as is there said a case in point but he conceived not for Harvey that gave the rule said le tenant poit barrer vous touts ergo un sole in the case there were several co-heirs and if all were demandants all might have been barred and if one be demandant there 's no question but she may be rebutted for her part But Sym's case is quite otherwise for there one person is co-heir to the garranty that is not heir to any part of the Land In 6 Ed. 3. 50. there is a case resolved upon the ground and reason of the 45 Ed. 3. for these reasons he said he could not rely upon Sym's case He agreed
common right the words of reservation ought to be pursued but as to this the Court delivered no Opinion Ognell versus the Lord Arlington Guardian of Sir John Jacob. UPon a Trial at Bar the Court delivered for Law to the Iury that if there be Tenant by Elegit of certain Lands and a Fine be levied of those Lands and five years with non-claim pass that the interest of the Tenant by Elegit is bound according to Saffyn's case 5 Rep. otherwise if the Land had not been actually extended Also that if an Inquisition upon an Elegit be found the party before entry has the possession and a fine with non-claim shall bar his right for before actual entry he may have Ejectione firmae or Trespass and so not like to an interesse termini Barry Trebeswycke IF a Parson have a Pension by Prescription he may either bring an Action at the Common Law or commence a Suit in the Spiritual Court but if he brings a Writ of Annuity at the Common Law he can never after sue in the Spiritual Court for that his Election is determined Wakeman Blackwell IN a Quare impedit the Defendant pleaded a recovery in this manner viz. that John Wakeman Grandfather to the Plaintiff was seized in fee of the Mannor to which c. and that a Praecipe was brought against one Prinne Philpotts adtunc tenentes liberi tenementi c. who appeared and vouched John Wakeman c. and that this Recovery was to the use of J. S. under whom the Defendant claims Strode pro Defendente it is not necessary that the Tenant in a Common Recovery have a Freehold at the time of the purchase of the Writ if he have at the time of the return it sufficeth 7 Ed. 3. 42. 7 Ed. 3. 70. Ass of no. diss 43 Ed. 3. 21. in these Authorities the person against whom the Praecipe is brought comes in by right after the purchase and before the return of the Writ But in 26 Ed. 3. 68. there is an example where the Tenant to the Praecipe comes in by tort but there is this difference if he comes to the Land by his own act be it by right or by wrong there he makes the Writ good otherwise if he come to it by act of Law 8 Ed. 3. 22. a. Formedon 25 H. 6. 4. the reason why you shall not abate the Plaintiffs Writ by your own act is because you cannot give him a better The demandant here is estopped to say that there was not a Tenant to the Praecipe in this Recovery for the Writ is but abatable if brought against one that is not Tenant and as long as it stands not abated but is pleaded to c. it shall conclude all that are parties and privies and all claiming under them 34 Ed. 3. F. tit droit 39. here is in our case an estoppell with a recompence Wakeman the Grandfather who was the first Vouchee in this Recovery might have counterpleaded the lien and extorted the warranty but having vouched over he is past that advantage and is concluded being made a party by Voucher This being a common Recovery the Court will do all they can to make it good A Fine is levied by Dedimus potestatem by Baron and Feme The Commissioners did not return the examination of the wife and yet that is the discriminating difference upon which depends whether the wife shall be bound by the Fine or not 15 Ed. 4. 28. a. Litt. Sect. 670. 6 Ed. 3. 22. a. The Court must needs in this case intend that Prinne Philpots came in by conveyance because Wakeman came in upon the Voucher which he would not have done if there had not been a lien He cited Cro. Jac. 454. Lincoln Colledge case 3 Rep. 48. Hob. 262. Duncomb Wingfield's case To which Pemberton answered that tunc tenens is a sufficient averment in the pleading of a Recovery which is favoured in Law but it is not good alone when in the same sentence a matter is set forth that is inconsistent with it and plainly contradictory as in this case and of that opinion was the Court. The case in Hob. they said was upon a special Verdict where many things may be intended which shall not be so in pleading and in Lincoln Col ' case the Writ is said to be brought against one Edw. Chamberlain in one part of the Record and the Mother is said to be Tenant in another part of the Record and by the other party but here in the same sentence unto flatu there is a flat contradiction Burrow Haggett FOrmedon in the descender The Defendant pleaded in abatement of the Count and took these exceptions 1. That the demandant declares that the right descended to him after the death of Leonard as Brother and heir to Leon and Son and Heir of the Donee but does not alledge that Leonard died without issue 8 Rep. 88. Buckmere's case In ancient Registers the clause is eo quod the issue dyed without issue Co. Ent. 254. b. c. Rast Entr. 365. C. Yelv. 227. Glasse Gyll's case 9 Ed. 4. 36. a man that entitles himself as heir must shew how he is heir Seyse contra The presisidents are on our side and the difference is betwixt a Formedon in the descender and a Formedon in the remainder or reverter In the former they do not mention the dying without issue of him after whose death they claim for the Count there is in effect only to set out their pedigreé but in a Formedon in the Remainder or Reverter it is otherwise 39 Ed. 3. 27. Old Book of Ent ' 339. tit Formed ' bar plac ' 3. Co. Lit. Mandevile's case 26 b 7 H. 7. fol. 7. b. there our case is put in express terms the exception taken to the Count there by Keble is the same that is taken to ours here and there it is over-ruled North I have looked into presidents and find the Count in this case according to them It is a plain and reasonable difference betwixt a Formedon in the discender and a Formedon in the remainder or reverter nor could the demandant be brother and heir to Leonard if Leonard had left children c. Another exception was that the demandant does not set forth that he was Son and heir of John begotten on the body of Jane his wife for it was a gift in special tail But this was over-ruled for in the Writ that is set forth and in the Declaration after the words filio haeredi praedict Johannis came an c. which c. let the words of the Writ into the Count and so it was held good The Prothonotaries said that the forms of Counts were accordingly And Iudgment was given to answer over Nisi causa c. Term. Mich. 28 Car. II. in Communi Banco Blythe versus Hill DEbt upon an Obligation for the payment of money at a day certain The Defendant pleaded that the Plaintiff being
another Bond in full satisfaction of the former Vpon this issue being joyned it was found for the Defendant It was said for him that one Bond might be taken in satisfaction of another and 1 Inst 212. b. 30 Ed. 1. 23. Dyer 29. were cited North Chief Iustice If the second Bond had been given by the Obligor himself it would not have discharged the former but here being given by the Administrator so that the Plaintiffs security is bettered and the Administrator chargeable de bonis propriis I conceive it may be a sufficient discharge of the first Bond. Wyndham accord ' else the Administrator and Heir might both be charged Scroggs accord Atkyns There are many Authorities in the point and all directly that one Bond cannot be given in satisfaction of another So is Cr. Eliz. 623 697 716. 727. and many others But yet I hold that Iudgment ought to be given for the Defendant for though it be an impertinent issue yet being found for him he ought by the Statute of 23 H. 8. to have Iudgment If no issue at all had been joyned it would have been otherwise 2 Cro. 44. 575. Serjeant Maynard cites 9 H. 6. but that case was before the Statute so I ground my Iudgment upon that point North. I took it that unapt issues are aided by the Statute but not immaterial ones And so said Scroggs Judic ' pro Defendente Nisi c. Southcot Stowell Intrat ' Hill 25 26 Car. 2. Rot. 1303. COvenant for non-payment of money The case was thus viz. Thomas Southcote had issue two Sons Sir Popham and William and in consideration of the marriage of his Son Sir Popham covenanted to stand seized to the use of Sir Popham and the heirs Males of his body and for default of such issue to the use of the heirs Males of his own body the remainder to his own right heirs Sir Popham dies leaving issue Edward his Son and four Daughters then Thomas the Father died and then Edward died without issue and the question was whether Sir Pophams Daughters or William had the better title Two points were made 1. Whether the limitation of the Remainder to the Heirs Males of the body of the Covenantor were good in its creation or not 2. Admitting it to be good originally whether it could take effect after the death of Edward he leaving Sisters which are general heirs to the Covenantor North Wyndham Atkyns upon admission of the first point were of opinion for William and that he should have the Estate not by purchase but by descent from Edward for after the death of the Father both the Estates in tail were vested in him and he was capable of the remainder by purchase and being once well vested in a purchaser the Estate shall afterwards run in course of descent Scroggs doubted But they all doubted of the first point and would advise V. infr ' Pasch 29 Car. 2. It was said by the Iustices in the Countess of Northumberlands case That if a Knight be but returned on a Iury when a Nobleman is concerned it is not material whether he appear and give his Verdict or no. Also that if there be no other Knights in the County a Serjeant at Law that is a Knight may be returned and his priviledge shall not excuse him Gayle Betts DEbt upon a Bond. The Defendant demands Oyer of the Bond and Condition which was to pay forty pounds per annum quarterly so long as the Defendant should continue Register to the Arch deacon of Colchester and says that the Office was granted to A. B. C. for their lives and that he enjoyed the Office so long as they lived and no longer and that so long he paid the said 40 l. quarterly The Plaintiff replies that the Defendant did enjoy the Office longer and had not paid the money The Defendant demurs supposing the replication was double Cur ' The Replication is not double for the Defendant cannot take issue upon the non-payment of the money that would be a departure from his plea in bar so if upon a plea of nullum fecit arbitrium the Plaintiff in his Replication set forth an award and a breach the Defendant cannot take issue upon the breach for that would be an implicite confession of what he had denied before North. If the Defendant plead that he did not exercise the Office beyond such a time till which time he paid the money the Plaintiff may take issue either upon the payment till that time or reply upon the continuance but if he do the latter he must shew a breach for the continuance is in it self no breach Ellis Yarborough ACtion upon the Case against a Sheriff for an Escape The Plaintiff declares that one G. was endebted to him in 200 l. and that the Defendant took him upon a Latitat at the Plaintiffs suit and afterward suffered him to escape The Defendant pleads the Statute of 23 H. 6. cap. 10. and that he let G. out upon Bail according to the said Statute and that he had taken reasonable Sureties A. B. persons having sufficient within the County The Plaintiff replies and traverses absque hoc that the Defendant took Bail of persons having sufficient within the Country the Defendant demurs Skipwith The Sheriff is compellable to take Bail If he take insufficient Bail the course is for the Court to amerce the Sheriff and not for the party to have an Action upon the case Cr. Eliz. 852. Bowles and Lassell's case and Noy 39. if the Sheriff takes no Bail an Action lies against him and all Actions brought upon this Statute are founded upon this suggestion 3 Cro. 460. Moor. 428. 2 Cro. 280. but if he take insufficient bail it is at his own peril and no Action lies the Sheriff is Iudge of the bail and the sum is at his discretion Cr. Jac. 286. Villers Hastings and so are the number of the persons he may take one two or three as he pleaseth He cited Cr. Eliz. 808. Clifton Web's case Besides the traverse is pregnant for it implies that the persons have sufficient out of the County and the Sheriff is not bound to take bail only of persons having sufficient within the County Serjeant Barrell contra The Court not agreeing in their Opinions upon the matter of Law it was put off to the next Term to be argued Baldwin for the Defendant cited 3 Cr. 624. 152. 2 Cr. 286. Noy 39. Rolls tit Escape 807. Moor 428. that the Sheriff is compellable to let him to bail and is Iudge of the sufficiency of the Sureties The Statute was made for the Prisoners benefit for the mischief before was that the Sheriff not being compellable to bail him would extort money from him to be bailed and the word sufficient is added in favour of the Sheriff and so are the words within the County The Sheriff is not compellable to assign the bail Bond and then if the Plaintiff cannot
proceed against the whole Parish to have it repair'd they cannot Rate any particular person towards the repair of it But the Church-wardens must summon the Parish and that needs not be from house to house but a general publick Summons at the Church is sufficient and the major part of them that appear may bind the Parish If the Church and Chancel be out of repair the Parishioners are only chargeable to be contributory towards the Repairs of the Navis Ecclesiae If a Libel be against the Parish for not repairing the Church though the word Ecclesia may include the Chancel yet we will not grant a Prohibition If a Tax be set by the major part of the Parish pro reparatione Ecclesiae it is well enough and afterward any part of the money raised be laid out upon the Chancel the Parish ought not to allow it upon the Church-wardens accounts But if a Tax be imposed expresly for the repair of the body of the Church and of the Chancel we will not suffer them to proceed Or if a Libel be against a Parish for not repairing the Navis Ecclesiae and the Chancel we will prohibit them If a Church be down and the Parish encreased so that of necessity they must have a larger Church the major part of the Parish may raise a Tax for the enlarging it as well as the repairing it per Cur. It was insisted on at the Bar that to a Tax for the encreasing of a Church the consent of every Parishioner must be had But the Court was of another Opinion Southcote Stowell super Mich. 28 Car. 2. BAldw for the Plaintiff Thomas the Covenantor may be said to take an Estate for life by implication and then it will be all one as if an express Estate for life had been limited to him with a remainder to his Heirs males which would be a fée-tail executed in himself and if so then William has a good Title 1 And. 265. the Lord Paget's Case 1 Rep. 154. in the Rector of Chedington's Case Fenwyke and Mittfords Case Moor. 284. 1 And. 256. Cr. Eliz. 321. Hodgekinson and Wood's Case 1 Cr. 23. Lane and Pannell's Case 1 Rolls But if this will not hold then William may take an estate by way of a future springing use for this he quoted 2 Rolls Uses p 794. Mills and Parsons num 7. If neither of these ways will serve yet the remainder to the Heirs males of Thomas may vest in Edward for Sir Popham died in the Covenantor's life-time and William may take by descent as special Heir per formam doni though he be not Heir of the body of Edward in whom the remainder first vests Stroud contr The limitation of a remainder in tail to the Heirs males of the Covenantor is bad in its original creation For no man can make himself or his own Heirs Purchasers without departing with the whole Fée-simple Dyer 309. b. 42 Ass 2. 1 H. 5. 8. per Skrene 24 Ed. 3. 28. Bro. Estates 23. 1 H. 8. 65. per Hull 42 Ed. 3. 5. Br. Estates 66. Dyer 69. b. 2 H. 5. 4. b. 1 H. 5. 8. 14 H. 4. 32. a. Cook 2 Inst 333. 1 Inst 22. b. 32 H. 8. Bro. Livery 61. but all these Cases are of Estates passed by Conveyance at Common Law and not by way of use But Vses are directed by the Rules of the Common Law and as to the vesting of them differ not from Estates conveyed in possession 1 Rep. 138. Chudleigh's Case No favourable construction ought to be made for Vses against a Rule of Law The Stat. of H. 8. seems intended to extirpate all private Vses and was in restitution of the Common Law He cited the Earl of Bedford's Case 1 Rep. 130. a. Poph. 3 4. Moor. 718. and Fenwyke and Miltford's Case 1 Inst 22. b. If Thomas took any estate by this settlement he took a Fée-simple For no estate being limited to him if he took any the Law vested it in him Now the act of Law will not settle in him an Estate tail which is a fettered Estate but a Fée-simple if any thing And the rather because the reason of it must be upon a supposition that the old Vse continues still in him being never well limited out of him Then he argued that admitting the limitation to be good yet since it vested in Edward as a Purchasor it is spent by his dying without issue But North Windham and Atkins were of Opinion That if an Estate limited to a man and the Heirs of the body of his Father vest in him be it either by descent or purchase that if he die without issue it shall go to his Brother c. so that in this case if the remainder to the Heirs males of Thomas ever vested in Edward it comes to William as Heir male of the body of Thomas and he is a special Heir to take by descent 2. They agreed that at the Common Law a man could not make his right Heir a Purchasor without parting with the whole feé but that by way of Vse he might Creswold's Case in Dyer is of an Estate executed They agreed the limitation of the remainder in this case to be good and that it vested in Edward as a Purchasor North. It cannot take effect as a springing Vse because where the limitation is of a remainder the Law will never construe it so as to support it any other way This he said he had known resolved in one Cutler's Case in the Kings Bench. Scroggs agréed to the Iudgment but said he went contrary to the Books in so doing which go upon nice and subtile differences little less than Metaphysical Justice versus Whyte IN an Action of Debt against the Defendant as Executor to John Whyte the Defendant pleaded That John did make a Will but made not him Executor and that the said John had bona notabilia in divers Diocesses and that the Archbishop of Canterbury committed Administration to the Defendant and concluded in bar to which there was a demurrer Serjeant Turner 1. This is a plea in a abatement only and the Defendant has concluded in bar Cr. Eliz. 202. Isham Hitchcot 2. The Defendant does not traverse absque hoc that he ever administred as Executor 20 H. 6. 1. b. per Fortescue 3. The Defendant does not shew when Administration was committed to him for if it were committed hanging the Writ it will not abate it 21 H. 6. 8. 5 H. 5. 10 11. Br. tit Executors 7. 4. Hob. 49. 4. The Defendant does not lay it expresly that John Whyte died intestate but only says that he made a Will but did not appoint him the Defendant to be his Executor by that Will and that Administration was granted to him Now also the Defendant was not made Executor by the Will yet he might have been made so by a Codicil annexed to the Will Rolls Rep. 2 part 285. 5. He says not in what Province the bona notabilia
in the Mannor 232 R. Recovery sc Common Recovery VIde Gardian Whether can an Infant that suffers a Common Recovery reverse it when he comes of age 49 What shall be bar'd by a Common Recovery and what not 108 109 c. A Common Recovery suffered of Lands in Shrewsbury and the Liberties thereof good to pass Lands in the Liberties of Shrewsbury though lying out of the Town of Shrewsbury 206 The pleading of a Common Recovery V. 218 219 There are two Parishes adjoyning Rippon and Kirby-Marstone and within those two Parishes are two Towns of the same names A man has Lands within the Parishes but not within those Towns and suffers a recovery of Lands in Rippon and Kirby-Marstone generally but the Deed to lead the Uses mentions the Lands as lying in the Parishes of Rippon and Kirby-Marstone 250 c. Recusance and Recusancy An Information for not coming to Church may be brought upon the Stat. of 23 Eliz. reciting the clause in it that refers to 1 Eliz. 191 To an Endictment for Recusancy Conformity is a good Plea but not to an Action of Debt 213 Reddendo singula singulis V. 33. Release A man makes a Release of all Demands and Titles quid operatur 99 100 Reparations of Churches Parishioners how compellable to repair their Parish-Church 194 236 237 The greater part of the Parish shall conclude the Lesser for enlarging the Church as well as repairing it 236 237 The Chancel of a Parish-Church whereof the Rectory is Impropriate is out of repair Whether can the Ordinary sequester the Tythes 258 259 c. Request An Action for keeping a passage stopt up so that the Plaintiff could not come to cleanse his gutter ought the Plaintiff to lay a Request 27 Reservation A Heriot or 40 s. reserved to the Lessor and his Assigns at the Election of the Lessor his Heirs and Assigns yet cannot the Devisee of the Lessor have either the Heriot or 40 s. 216 217 Return false Return Action upon the Case against a Sheriff for that he arrested such a one at the Plaintiffs Suit and suffered him to go at large and at the day of the return of the Writ returned that he had his body ready The Defendant demurs generally 57 In a like Action the Defendant pleads the Stat. of 23 H. 6. cap. 10. and adjudged against the Plaintiff 239 240 V. Action upon the Case Robbery An Action lies against the Hundred upon the Statute of Winchester though the Robbery were not committed in the High-way 221 S. Scandalum Magnatum MY Lord _____ is an unworthy person and does things against Law and Reason Actionable 232 233 c. Scire Facias Scire facias upon a Recognizance in Chancery there is a demurrer to part and issue upon part Judgment must be given in the Court of Kings Bench upon the whole Record 29 Scias facias against Executors to have execution of a Judgment obtained against their Testator they plead That a Ca. Sa. issued against him upon which he was taken and that he paid the money to the Warden of the Fleet who suffered him to go at large This held to be no plea. 194 Seal Whether does the Seals being broken off invalidate a Deed c. given in Evidence 11 Seisin of an Office What shall be a Seisin of an Office and what not 122 123 Serjeants at Law What Serjeants Rings ought to weigh 9 Priviledge of Serjeants 226 Statute-Merchant and Staple V. Administrators Summons V. 197. Supersedeas The very sealing a Writ of Error is a Supersedeas to the Execution 28 The Stat. of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to the Court of Kings Bench but only to the Chancery 45 A Writ of Error in Parliament in what Cases is it a Supersedeas and in what Cases not 106 285 V. 112 Whether is a Sheriff obliged at his years end to deliver a Writ of Supersedeas over to the new Sheriff 222 Survivor The Condition of a Bond is That if the Obligor shall pay yearly a sum of money to two strangers during their two lives that then c. Resolved that the payment is to cease upon the death of either of them 187 T. Tenant in Common TEnant in Common sues without his Companion 102 Tender and Refusal Where ever Payment will do Tender and Refusal will do 77 78 Toll Toll-thorough 47 48 V. Prescription Toll-thorough and Toll-traverse 231 232 Trespass Justification in Trespass 75 Whether does an Action of Trespass lie for immoderately riding a lent Mare 210 In an Action of Trespass it appears upon Evidence that the Fact if true was Felony yet does not this Evidence destroy the Plaintiffs Action Otherwise if it had appear'd upon the Declaration 282 283 Trover and Conversion A Sheriff may have an Action of Trover and Conversion for Goods taken by himself in Execution upon a Fieri facias 30 31 Trover and Conversion decem paririum tegularum valorum Angl. of ten pair of Curtains and Vallance held good 46 47 V. 135 136 c. many Cases of Trover and Conversion and of pleading in that Action Trover and Conversion de tribus struibus foeni 289 290 Trial. Motion for a new Trial. 2 An Action of Covenant is laid at York issue is joyn'd upon a matter in Barwick where shall the Trial be 36 37 c. Tythes Turfe Gravel and Chalk not tythable 35 If the Endowment of the Vicarage be lost small Tythes must be paid according to Prescription 50 Tythes of Cattel feeding in a Common where the Parish is not certainly known 216 A modus to the Rector is a good Discharge against the Vicar ibid. A Parson shall not have Tythe both of Corn and of Sheep taken in pro melioratione agriculturae infra terras arabiles c. ibid. V. tit Custom V. Venire Facias A Venire Facias returnable coram nobis apud Westm held good 81 Venue A Venue refused to be changed because the Plaintiff was a Counsellor at Law 64 Verdict When a Declaration will bear two Constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense 42 43 Matters helpt after Verdict 70 74 75 V. tit Jeofails View A Jury never ordered to View before their appearance but in an Assize 41 Ville What makes a Ville in Law 78 117 118 Visitation of Churches What Ecclesiastical Persons are visitable and what not 11 12 Vniversity Indebitat assumpsit against a Colledge in Oxford the Chancellor of the University demands Conusance whether is his Cause within the Priviledge of the University or not 163 164 Voluntary Conveyance What shall be said to be a Voluntary Conveyance within the Statute of Bankrupts and what not 76 Voucher A Tenant in an Assize avoucheth out of the line is it peremptory or not 7 8 Vses V. Covenant to stand seised V. 175 176 c. A man granted a Rent to one to the use of another and Covenants with the Grantee to pay the Rent to him to the use of the Cestuy que use The Grantee brings an Action of Covenant 223 Whether is the reservation of a Pepper-Corn a sufficient Consideration to raise an Use or not 262 263 Vsury V. 69. W. Wages IF a Mariner or Ship-Carpenter run away he looseth his Wages due 93 Warrant of Attorney Judgment enter'd of another Term than is expressed in the Warrant of Atturney 1 Warranty Feme Tenant in tail remainder to her Sisters in Fee the Tenant in tail and her Husband levy a Fine to the use of them two and the Heirs of the body of the Wife the remainder to the right Heirs of the Husband with Warranty against them and the Heirs of the Wife The Wife dies without issue 181 He that comes to Land by the limitation of an Use may rebut 192 193 Waste What is Waste and what not 94 95 Will. A Will drawn in the form of a Deed. 117 Whether must the Will of a Feme Covert be proved 211 The pleading of a Will of Land 217 Witnesses Who are good Witnesses and who are not 21 73 74 107 283 FINIS
that he had cured her the consideration of the first promise being future and both promises found and entire damages given Twisd It is well enough for now it lies upon the whole Record whether he hath cured her or no if it had rested upon the first promise it had been nought And in the second promise there is an averment that he had cured her So that now after a Verdict it is help'd and the want of an averment is holpen by a Verdict in many cases Iudgement nisi c. Twisd If a man be in prison and the Marshal dye and the Prisoner escape there is no remedy but to take him again Twisd Pleas in abatement come too late after imparlance Hall Sebright AN Action of Trespass wherein the Plaintiff declared That the Defendant on the 24th of January did enter and take possession of his house and did keep him out of possession to the day of the exhibiting the Bill The Defendant pleads that ante praedict tempus quo sc c. the Plaintiff did licence the Defendant to enjoy the house until such a day Saunders The plea is naught in substance for a licence to enjoy from such a time to such a time is a Lease and ought to be pleaded as a Lease and not as a Licence it is a certain present Interest Twisd It is true 5 H. 7. fo 1. is That if one doth licence another to enjoy his house till such a time it is a Lease but whether it may not be pleaded as a Licence I have known it doubted Judgment nisi c. Coppin versus Hernall TWisden said upon a motion in arrest of Iudgment because an Award was not good that the Vmpirage could not be made till the Arbitrators time were out And if any such power be given to the Vmpire it s naught in its constitution for two persons cannot have a several Iurisdiction at one and the same time The Law allows the Defendant a Copy of the Pannel to provide himself for his challenges Fetyplace versus ACtion upon the Case upon a promise in consideration that the Plaintiff would affeerere instead of afferre c. it was moved in arrest of Iudgment Cr. 3 part 466. was cited Bedel Wingfield Twisd I remember districtionem for destructionem cannot be help'd so neither vaccaria instead of vicaria So the Court gave directions to see if it were right upon the Roll. Holloway THe Condition of a Bond for performance of Covenants in an Indenture doth estop to say there is no such Indenture but doth not estop to say there are no Covenants Keel The course of the Court is that if a man be brought in upon a Latitat for 20 l. or 30 l. we take the bail for no more but yet he stands bail for all Actions at the same parties suit otherwise if a stranger bring an Action against him Twisd They cannot declare till he hath put in Bail and when we take bail it is but for the sum in the Latitat perhaps 30 l. or 40 l. but when he is once in he may be declared against for 200 l. Smith versus Wheeler A Writ of Error was brought to reverse a Iudgment given in the Common Pleas upon a special Verdict in an Ejectione firmae The Iury found that one Simon Mayne was possest of a Rectory for a long term and having conveyed the whole term in part of it to certain persons absolutely he conveyed his term in the residue being two parts in this manner sc in trust for himself during life and afterwards in trust for the payment of the Rent reserved upon the original Lease and for several of his Friends c. Provided that if he should have any issue of his body at the time of his death then the trusts to cease and the Assignment to be in trust for such issue c. and there was another Proviso that if he were minded to change the uses or otherwise to dispose of the premisses that he should have power so to do by writing in the presence of two or more Witnesses or by his last Will and Testament They further find that he had Issue male at the time of his death but made no disposition pursuant to his power and that in his life time he had committed Treason and they find the Act of his Attainder The question was whether the rest of the term that remained unexpired at the time of his death were forfeited to the King The points made were two 1. Whether the Deed were fraudulent 2. Whether the whole term were not forfeited by reason of the trust or the power of revocation Pemberton argued that the Deed was fraudulent because he took the profits during his life and the Assignees knew not of the Deed of trust The Court hath in these cases adjudged fraud upon circumstances appearing upon Record without any Verdict the case that comes nearest to this is in Lane 42. c. The King against the Earl of Nottingham and others 2dly He argued that there was a Trust by express words and if there be a Trust then not only the Trust but the Estate is vested in the King by the express words of the Stat. of 33 Hen. 8. The King indeed can have no larger Estate in the Land then the person attainted had in the Trust and if this Conveyance were in Trust for Simon Mayne only during his life the King can have the Land no longer but he conceived it was a Trust for Simon Mayne during the whole term A Trust he said was a right to receive the profits of the Land and to dispose of the Lands in Equity Now if Simon Mayne had a right to receive the profits and a present power to dispose of the Land he took it to be a Trust for him and that consequently by his attainder it was forfeited to the King Coleman contra As for the matter of Fraud first there is no Fraud found by the Iury and for you to judge of Fraud upon Circumstances is against the Chancellor of Oxfords case 10th Rep. As for the Trust it must be agreed that if there be any either Trust or Condition by construction upon these Provisoes in Simon Mayne in his life between Mich. 1646. and the time of making the Act the Trust will be vested in the King but whether will it be vested in the King as a Trust or as an Estate For I am informed that it hath been adjudged between the King and Holland Styles Reports That if an Alien purchase Copy-hold Lands the King shall not have the Estate but as a Trust and the particular reason was because the King shall not be Tenant to the Lord of the Mannor Keeling The Act of Parliament takes the Estate out of the Trustees and puts it in the King Coleman But I say here is no Trust forfeitable By the body of the Déed all is out of him If a man makes a feoffment in Fée to the use of his
the Spiritual Court for Tyth-wood Barrell prayed a Prohibition suggesting that time out of mind they paid no small Tythe to the Vicar but that small Tythes by the Custom of the Parish were paid to the Parson Twisden If the Endowment of the Vicarage be lost small Tythes must be paid according to prescription Jordan versus Fawcett ERror of a Iudgment in the Common Pleas. An Action was brought against an Executor who pleaded several Iudgments but for the last Iudgment that he pleads he doth not express where it was entred nor when obtained Coleman held it well enough upon a general demurrer Twisden It is not good for by this plea he is tyed up to plead nothing but nul tiel record He might if the Iudgment had been pleaded as it ought to have been have pleaded perhaps obtent per fraudem And Iudgment was given accordingly Love versus Wyndham Wyndham UPon an issue out of Chancery the Iury find a special Verdict viz. That one Gilbert Thirle was seized of the Lands in question for three lives and did demise the same to Nicholas Love the Father if he should so long live that he being so possessed made his Will and devised them in this manner viz. to his Wife for her life and after her decease to Nicholas his Son for his life and if Nicholas his Son should dye without Issue of his body begotten then he deviseth them to Barnaby the Plaintiff Then they find that the Wife was Executrix and that she did agree to this Devise And whether this be a good Limitation to Barnaby or not is the question Jones I conceive it is a good Limitation to Barnaby I shall enquire whether a Termor having devised to one for life and after his death to another for life may go any further And secondly admitting that he may go further whether the Limitation in our case which is to begin after the death of the second without Issue of his body be good or no For the first point he said the reason given in Plo. Com. 519. in 8. Co. 94. why an Executory Devise of a term is good in Law is because the Law takes it as devised to the last man first and then afterwards to the first man without which transposition it is not good for if it should be a Devise to the first man first there would be nothing left for the last but a possibility which is not grantable over Now then if a man may devise a term after the death of another then he may devise it after the death of two other It is true this cannot be in Grants for they are founded upon Contracts and there must be a certainty in them according to the Rector of Chedington's case Now if a Devise may be good after the death of one or two it is all one if it be limited after the death of five or six Now that a contingency may be devised upon a Contingency I take it that the Authorities are clear 14 Car. 1. Cotton Herle 1 Roll 612. resolved by three Iustices Et Hill 9 Jac. Rot. 889. 2 Cr. 461. And for the case of Child and Bayly reported in 2 Cro. 459. and in Roll 613. I conceive it is not against our case for they held the Devise to be void not because it was a Contingency upon a Contingency but in respect of the remoteness of the possibility and because the term was wholly devised to a man and his Assigns So that by the express Authority of the two first cases and by the implication of this case I do think that a Devise to a man after such a manner is good provided that it do not introduce a perpetuity so that where there is not the inconvenience of a perpetuity though there are many Contingencies they are no impediment to the Devise Therefore where a Devise is upon a Contingency that may happen upon the expiration of one or more mens lives and where it is upon a Contingency that may endure for ever there is a great difference The reason of the Rector of Chedington's case was because of the uncertainty for in case of a grant of a term there is a great uncertainty but ours is in case of a Devise which is not taken in the Law by way of remainder 12 Ass 5. so that I conceive a Contingency may be limited upon a Contingency provided that it be not remote The second point is whether this Devise thus limited be a good Devise Now I conceive the limitation is as good as if it had been to his Wife for her life and after her death to Nicholas for life and after his death to Barnaby I agree that if these words if Nicholas dye without heirs of his body shall not be applied to the time of his death it will be a void Devise But the meaning is That if at the time of his death he shall have no Issue then c. Now that they must have such construction I prove from the words of the Will The limitation of the Remainder must be taken so as to quadrate with the particular Estate As if there be a Conveyance to one for life and if he dye without Issue to another this is a good Remainder upon Condition and the Remainder shall rest upon the determination of the particular Estate if the Tenant for life have no Issue when he dyeth but if a Man Convey to one and the heirs of his body and if he dye without Issue to another there it must be understood of a failer of Issue at any time because the precedent limitation goes further then his life But admitting there were no precedent words to guide the intention and that common parlance were against me yet if there be but a possibility of a good construction it shall be so construed and they may very well be understood of his dying without Issue of his body at the time of his death In Goodyer Clerk's case in this Court Trin. 12 Car. Rot. 1048. I confess it was adjudged that it should be understood of a failer of Issue at any time but in our case if you shall not understand it of a failer of Issue at the time of his death it cannot have any construction at all to take effect I think there are no express Authorities against me those that may seem to be so I will put and endeavour to give an answer to them As for Child Baylie's case Reports differ upon the reason of that Iudgment For Cro. says it was held to be a void Devise because it was taken if he dye without Issue at any time during the term But Sergeant Rolls goes upon another reason Rolls 613. there he says it is void because given absolutely to the Son and his Assigns before In Rolls first part 611. Leventhorp Ashly's case the Remainder there is said to be void because when he had devised the term to A. and the Heirs Males of his body it shall
go to the Executors of A. and the Remainder there was to begin upon his dying without Issue at any time The case of Saunders and Cornish will not come to ours for there were many limitations for life successively to persons not in being c. In the case cited 1st Report 135. of an Estate for life limited to one and to every heir successively an Estate for life the limitation was naught because it would make a perpetual Free-hold and no body would know where the absolute Estate should vest So he prayed Iudgment for the Plaintiff Coleman for the Defendant I conceive this to be a void limitation Mr. Jones would make this a middle case I shall discharge him of the first point though he has taken pains to argue it and I shall rest upon this That the limitation of a term after the death of a man without Issue of his body is void The case is put as a middle case to these two viz. If a man possessed of a Lease for years Devise it to I. S. for life the Remainder to J. N. for life the Remainder to J. G. for life these Remainders are good But if he do Devise to J. S. and the Heirs of his body the Remainder over this Remainder he admits to be void because it depends upon so remote a possibility as may never happen Now I conceive it is the same thing to limit it to one for life and if he dye without Issue then to another for life as to limit it to one and the Heirs of his body with a Remainder over He would tye it up from the ordinary and Legal Construction to issue at the time of his death If it be to be understood of dying without Issue at any time then Child Baylie's case and Cornishe's case are full Authorities in the point Vide 2 Cro. 459. Rolls 612 614. There Lessée for years deviseth to one for life and after to Wms. and his Assigns and if he dye without Issue then living the Remainder to I. G. This they say is good in case of a Fée-simple but they will not allow it in case of a term for years Now Mr. Jones would by Construction bring the words then living into our case The Legal Construction of the words dying without Issue is if there be a failer of Issue at any time to come In Pell Brown's case if the words then living had not been in the Will the case had not béen so adjudged Keeling You go up Hill a little Can Barnaby take so long as there is any Issue in being of Nicholas Jones He cannot Keeling Then Barnaby's Interest depends upon a Contingency that may never happen Jones I grant if Nicholas hath Issue at the time of his death that Barnaby shall never take but if he hath none he shall Keeling If I Devise Lands to A. for life and if he dye without Issue of his body to B. A. shall have an Estate Tail So in our case the words and limitation is the same though the Devisor having but a Lease for years there cannot be an Estate Tail of it yet he intended not that Barnaby should have any Estate as long as there were any Issue in being of Nicholas his body Twisden It appears to me upon the reason of the cases that have been cited that the Remainder to Barnaby must be void because of the remote possibility But then there will be a question to whom the Remainder of the term will go if Nicholas dye without Issue whether to the Executors of Nicholas or to the Executors of Doctor Love If A. Tenant for life of a term Devise it to B. for life the Remainder to C. for life the Remainder to D. for life I have heard it questioned whether these Remainders are good or not But it hath been held that if all the Remainder-men are living at the time of the Devise it is good if all the Candles be light at once good But if you limit a Remainder to a person not in being as to the first begotten Son c. and the like there would be no end if such limitations were admitted and therefore they are void And some Iudges are of the same Opinion to this hour If I Devise a term to A. for life after the death of A. his Executors shall not have it but it shall go to the Executors of the Devisor But if it be devised to A. generally without saying for life it shall go to his Executors after his death But a Devise for life vests in him only during his life and you may make a limitation over Keeling I take it that A. carries the whole term when devised to him for life because an Estate for life is larger then the longest term Twisden As a term for years doth admit of Remainders so it doth of Reversions if you will have it so and when he deviseth to A. during his life A. shall have it for his life but the Reversion shall be to the Devisors Executors But if he Devise it to A. for life and if he dye without Issue of his body the Remainder to B. what shall become of the Reversion then Keeling You start a new point Court You shall have our Iudgments this Term. Knowles versus Richardson ERror of a Iudgment in the Common Pleas in an Action upon the Case for obstructing a Prospect Sympson The stopping of a Prospect is no Nusance and consequently no Action on the Case will lie for it Aldred's Case 9th Report is express that for obstructing a Prospect being matter of delight only and not of necessity an Action will not lye Twisden Why may not I build up a Wall that another man may not look into my Yard Prospects may be stopt so you do not darken the light Iudgment nisi c. Twisden A man may be Indicted for Perjury in a Court-Baron Jones moved to have a Trial at Bar for Lands in Northumberland of 50 l. per annum Keeling It s a great way of off and never any Iury came from thence in your time Twisden But I have been of Councel in Causes wherein Trials have been granted at Bar for Lands there We have lost Cornwall no Iuries from thence come to the Bar and we shall lose Northumberland too The other side to shew cause Keeling upon a motion of Mr. Holt's said I have known many Attachments for Arresting a man upon a Sunday but still the Affidavit contained that he might have been taken on another day Twisd So for arresting a man as he was going to Church to disgrace him Term. Trin. 22 Car. II. 1670. in B. R. Parker VVelby AN Action upon the Case against a Sheriff for making a false Return The Plaintiff sets forth that one Wright was endebted to him in 60 l. and did promise to pay him and that thereupon a Writ was sued out against him directed to the Defendant being Sheriff of Lincolnshire who took him into his custody and after
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes
300 l. is as a penalty imposed upon him if he refuse to make such a Grant And if he shall not c. instead of the word not put the words refuse to c. and the case will be out of doubt Besides the annuity to be granted is but 20 l. per annum for a life and 300 l. in money is more then the value of it so that it cannot be intended a sum to be paid in lieu or recompence of it but must be taken for a penalty But suppose it to be a dis-junctive Condition then we ought to have an Election whether we would do but as this case is the Plaintiff by his negligence has deprived us of our Election For Authorities he cited Gerningham Ewer's case Cr. Eliz. 396. 539. 4 H. 7. fol. 4. 5 Co. 21. b. Laughter's case Warner Whyte's case resolved the day before in the Kings Bench. There is a rule laid down in Morecomb's case in Moors Reports 645. which makes against me but the resolution of that case is Law and there needed no such rule That case goes upon the reason of Lambs case 5 Rep. when a man is obliged to pay such a sum as J. S. shall assess J. S. being a meer stranger the Obligor takes upon him that J. S. shall assess a sum in certain and he must procure him to do it or he forfeits his Obligation But in our case nothing is to be done but by the Obligee himself Pemberton contra He argued that the Obligors Election is not taken away for though no Deed were tendred him he might have got one made and the tender of that would have discharged the Condition of his Bond. Indeed this will put him to charge but he may have an Action of Debt for what he lays out He cited the cases cited by Walmesley in Moor 645. betwixt Milles Wood 41 Eliz. Gowers case 38 39 Eliz. c. North. The case of Warner White adjudged yesterday in the Court of Kings Bench is according to Law the condition there was that J. S. should pay such a sum upon the 25th of December or should appear in Hillary Term after in the Court of Kings Bench. J. S. died after the 25th day of Dec ' and before Hill Term and had paid nothing upon the 25th of December In that case the Condition was not broken by the non-payment and the other part is become impossible by the act of God But I think that if the first part of a Condition be rendred impossible by the act of God that the Obligor is bound to perform the other part But in the case at the bar the Obligors Election is taken away by the act of the Obligee himself And I see no difference betwixt this case and that of Gerningham Ewer in Cr. Eliz. if the Condition of an Obligation be single to make such assurance as shall be advised by the Council of the Obligee there concilium non dedit advisamentum is a good plea and the Obligor is not bound to make an assurance of his own head no more shall he be bound to do it when the Condition is in the dis-junctive to save his Bond. In both cases the Condition refers to the manner of the assurance and it must be made in such manner as the words of the Condition import So he said he was of Opinion against the Plaintiff Wyndham Where the Condition of an Obligation is in the disjunctive the Obligor must have his Election But in this case there is no such thing as a disjunctive till such time as there be a request made to seal a Deed of Annuity and then the Obligor will have an Election either to execute the assurance or to pay the 300 l. but no such request being made it should seem that the Obligor must pay the 300 l. at his peril Atkyns agreed with the Chief Iustice and so did Scroggs wherefore Iudgment was ordered to be entred against the Plaintiff Nisi causa c. within a week Quare impedit The Plaintiff declared upon a grant of the Advowson to his Ancestor and in his Declaration says hic in Cur̄ prolat ' but indéed had not the Deed to shew Serjeant Baldwin brought an Affidavit into Court that the Defendant had gotten the Deéd into his hands and prayed that the Plaintiff may take advantage of a Copy thereof which appear'd in an Inquisition found temp Edw. 6. Cur̄ When an Action of Debt is brought upon a Bond to perform Covenants in a Deed and the Defendant cannot plead Covenants perform'd without the Deed because the Plaintiff has the original deed and perhaps the Defendant took not a Counterpart of it we use to grant imparlances till the Plaintiff bring in the deed And upon Evidence if it be proved that the other party has the deed we admit Copies to be given in Evidence But here the Law requires that the deed be produced you have your remedy for the deed at Law We cannot alter the Law nor ought to grant an emparlance Stead Perryer EJectione firmae A man has a Son called Robert Robert has likewise a Son called Robert The Grandfather deviseth the Land in question to his Son Robert and his heirs Robert the deviseé dies in the devisors life time Afterwards the devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-child should take the Land in question per eandem voluntatem instead of his Father and dyed And all this was found by special Verdict upon a Trial betwixt Robert the Grand-child and a Daughter of the elder Brother of Robert the first devisee Pemberton The Land does not pass by this Will the devise to Robert became void by his death and cannot be made good by a republication A publication cannot alter the words of a Will so as to put a new sense upon them Land must pass by Will in writing Robert the Grand-son is not within this Will in writing The Grandfathers intention is not considerable in the case Skipwith contra I agree the case between Brett Rygden in the Commentaries to be Law but there are two great diversities between this case and that 1. There was no new publication 2. In this case Robert the Father and Robert the Son are cognominous He cited Dyer 142 143. Trevilians case Fuller Fuller Cr. Eliz. 422. Moor 353. Cr Eliz. 493. North Atkyns Without question Robert the Grand-child shall take by this Will If he never had had a Son called Robert or if Robert the Son had been dead at the time of making the Will the Grand-child would then without dispute have taken by these words Now a new publication is equivolent to a new writing The Grand-child is not directly within the words of the Will but they are applicable to him He is a Son though he be not begotten by the body of the devisor himself He is a Son with
the Lady Ann Countess of Newport all that my House called Newport-house and all other my Lands c. in the County of Middlesex for her life And after her death I give and bequeath the premisses to my Grand-child Ann Knollis viz. the Plaintiff and to the heirs of her body Provided always and upon condition that she marry with the consent of my said Wife and the Earl of Warwick and the Earl of Manchester or of the major part of them And in case she marry without such consent or happen to dye without Issue Then I give and bequeath it to George Porter viz. the Defendant The Earl dyed Ann the Plaintiff married Charles the Plaintiff she being then about fourteen or fifteen years old without the consent of either of the Trustees And thereupon now a Bill was preferred to be relieved against this Condition and Forfeiture because she had no notice of this Condition and Limitation made to her c. To this the Defendant had demurred but that was over-ruled Afterwards there were several Depositions c. made and testified on each side the effect of which was this On the Plaintiffs part it was proved by several that it was always the Earls intention that the Plaintiff should have this Estate and that they never heard of this purpose to put any Condition upon her and believed that he did not intend to give away the Inheritance from her But that this Clause in the Will was only in terrorem and Cautionary to make her the more obsequious to her Grandmother The two Earls swore that they had no notice of this Clause in the Will but if they had they think it possible such reasons might have been offered as might have induced them to give their consents to the Marriage and that now they do consent to and approve of the same Some proof was made that the Countess of Newport had some design that the Plaintiff should not have this Estate but that the Defendant should have it But at last even she viz. the Countess was reconciled and did declare that she forgave the Plaintiffs Marriage and that she shewed great affection to a Child which the Plaintiff had and directed that when she was dead the Plaintiff and her Child should be let into the possession of the premisses and should enjoy them c. It was proved also that when there had been a Treaty concerning the Marriage betweén my Lord Morpeth and the Plaintiff and the Plaintiff would not marry him her Grandmother said she should marry where she would she would take no further care about her the Countess was dead at the time of this Suit It was proved that Mr. Fry was of a good Family and that the Defendant had 5000 l. appointed and provided for him by his Grandfather by the same Will On the Defendants part It was sworn by the said late Countess of Newport viz. In an answer made formerly to a Bill brought against her by the now Defendant for preferring of Testimony which was ordered to be read that the Marriage was private and without her consent and approbation and that she did not conceive it to be a fit and proportionable Marriage he being a younger Brother and having no Estate The like was sworn by the Earl of Portland the said Countesses then Husband and that it appeared she leapt over a Wall by means of a Wheel-Barrow set up against it to go to be married and that as soon as the Trusteés did know of the Marriage they did disavow and dislike it and so declared themselves several times and said That had they had any hint of it they would have prevented it Others swore that the Earl of Portland declared upon the day of her going away That he never consented thereto and that the Countess desired then that he would not do any thing like it and that the Earl of Warwick said He would have lost one of his Arms rather then have consented to the said Marriage On hearing of this Cause before the Master of the Rolls viz. Sir Harbottle Grimstone Baronet the Plaintiff obtained a decretal Order viz. That Anne the Plaintiff and her Heirs should hold the Premisses quietly against the Defendant and his Heirs and that there should be an Injunction perpetual against the Defendant and all claiming under him And now there was an Appeal thereupon and re-hearing before Sir Orlando Bridgman Knight then Lord-Keeper assisted by the two Lord Chief Justices and the Chief Baron before whom it was argued thus Serjeant Maynard The Plaintiff ought not to have relief in this Case The Plaintiffs Mother had a sufficient provision by the Earl of Newport's Care And therefore there is less reason that this Estate should be added to the Daughter The noble Lords the Trusteés when the thing was fresh did disapprove the Marriage however they may consent thereunto now The Devise was to the Plaintiff but in tail and afterwards to the Defendant We disparage not Mr. Fry in blood nor Family But people do not marry for that only but for Recompence and like Fortune There was a publique Fame or Report it is to be presumed of this Will in the house and were there not yet it was against her Duty and against Nature that she should decline asking her Grand-Mothers consent and Mr. Fry in Honour and Conscience ought to have asked it And therefore this practice ought not to receive the least encouragement in Equity 'T is true when there was a Demurrer it was over-ruled because the Bill prayed to be relieved against a Forfeiture for which there might be good cause in Equity But now it does not appear there is any in the Case The Estate is now in the Defendant and that not by any act of his own but by the Devisor and the Plaintiff this is a Limitation not a Condition For my Lord Newport had Sons It is somewhat of the same effect with a Condition though it is not so We have a Title by the Will of the dead and the act of the other party without fraud or other act of us and therefore it ought not to be defeated I take a difference betweén a devise of Land and money For Land is not originally devisable though Money is By the Civil Law and amongst civil Lawyers it has beén made a question Whether there shall be Relief against such a Limitation in a Devise But be that how it will Chattels are small things but a Freéhold setled ought not to be devested thus No man can make a Limitation in his Will better and stronger to disappoint his Devise conditionally than this is made If my Lord Newport had béen alive would he have liked such a practice upon his Grand-daughters as want of Notice In Organ's Case and Sir Julius Caesar's Case there was a Grant to an Infant on condition to pay 10 s. and no Notice given thereof before 't was payable yet because no body was bound to give notice it was adjudged
tail and the remainder over is so too and both these parties are in aequali gradu to the Devisor and therefore their being both in a parity it would be hard to take the Estate from him to whom and in whose Scale the Law hath thrown the advantage 3 It appears by the body of the Will that the Earl did as really intend it should go over if she married without consent as if she died without Issue for they are both in the same clause There may be as much reason to turn it into a Fee-simple in case as she had died without Issue as in this case For so I doubt the penning of this decretal Order does And 4 I rest upon this It is a Case without a President I remember after that Lanyett's Case had been adjudged that 6 Car. there was a Case I suppose Saunders versus Cornish of a Limitation in Tail Cro 3 part fo 230 it was of a Lease for years and so was adjudged void and then a devise over and it was adjudged void And the Iudges said so far it is gone and we will go no further because we do not know where it will rest I know there is no intrinsical difference in Cases by Presidents But there is a great difference in a Case wherein a man is to make and where a man sees and is to follow a President in the one Case a man is more strictly bound up but in the other he may take a greater liberty and Latitude For if a man be in doubt in aequilibrio concerning a Case whether it be equitable or no in prudence he will determine according as the Presidents have been especially if they have been made by men of good authority for Learning c. and have been continued and pursued Here must be some boundary or we shall go we know not whither It were hard a Court of Equity should do that that is not fit to be done in any Court below a Parliament The Presidents do not come home to the Case Most of them are in case of money Legacies and in some of those Cases we may give allowance in respect of the Law of another forum to which they belong But this is in case of Land only vid ' Swynborne 4. Co. 12. chap. indeed he is no authority but there is a very good Exemplification of this matter 5 I shall consider the allays and circumstances which are observed and offered to qualifie this Case and induce relief 1 'T is said that this clause was only in terrorem and some Witnesses have been examined to prove it But I am not satisfied how collateral averments can be admitted in this case For then how can there be any certainty 2 Cro 145. A Will will be any thing every thing nothing The Statute appointed the Will should be in writing to make a certainty and shall we admit collateral averments and proofs and make it utterly uncertain 2 'T is said in this Case the effect of the Proviso has beén obtained for the Trustees have now declared their consent I must say it is not full for they do not say they would have consented but that possibly such reasons might have been offered as they should have done it And possibly I say not They like good men have only declined the shewing an ineffectual contradicting of a thing which is done and cannot now be recalled undone or altered Besides if there had been but a circumstantial variation the consent afterwards might have been somewhat But here it is in the very substance In the Case before cited at the Bar by Mr. Serjeant Ellis where the consent was to be had in writing and it was had only by Paroll there was great Equity that it should be relieved because it was only a provident circumstance and wisdom of the Devisor viz. for the more firme obliging the party to ask consent which the Devisor considered might be pretended to be had by slight words in ordinary and not solemn Communication or else in passion and heat as in this case when the Plaintiff would not consent to the approved Marriage with the Lord Morpeth the Countess said she might marry where she would Which words imported a neglect of care for the future over the Plaintiff because she would not be ruled by the Countess in accepting the tender of so commendable a Marriage as also for the benefit of the Devisee in the Case aforesaid That in case the Devisee did marry with the consent of the Trustee he might not after through prejudice c. avoid it by denial of such consent and so defeat or perplex the Devisee for want of proof of such his consent 3 'T is said the party is an Infant Why an Infant is bound by a Condition in Fact by Law 't is true we are now in Equity But in Equity since this refers to an Act which she though an Infant is capable of doing viz. to marry it were unreasonable that she should be able to do the Act and not be obliged by Equity to observe the Conditions and Terms which concern and relate to that Act. So that it is all one as if she had been of full age The Statute of Merton cap. 5. provides that Usury shall not run against Infants and yet the same Statute cap. 6. appoints That if an Infant marry without the Licence of his Lord c. he shall forfeit double the value of his Marriage and it is reasonable because Marriage is an Act which he may do by Law while he is under age 4 As to the point of Notice 1 Whether Notice be requisite or no in point of Law I will not determine But I must needs say that it must be referred to Law But 2 If it be not requisite in Law how far a Court of Equity might relieve for want of it I will not now take upon me to determine I will not trench upon matters Gratis of which I know not what will be the consequence But I conceive in this case the Fact is not yet settled whether there were notice or not and it were a hard matter That because no Notice is here proved it should be taken for granted there was none For here are several circumstances that seem to shew there might be Notice and a publick voice in the House or an accidental Intimation c. may possibly be sufficient Notice I shall therefore leave it as a fit thing to be tryed and till that the case in my understanding is not ripe And therefore I will add no more I think this Decree ought to be altered if not set aside But as this Case is there ought to be no relief Vaughan Chief Justice I shall conclude as my Lord Chief Baron did That as this case is there ought to be no relief I will single out this case from several things not material to it as my Lord Chief Baron did c. I think if Land be devised on Condition to pay
had bona notab in divers Diocesses and the Archbishop of Canterbury committed Administration to the Defendant and concludes in Bar. V. Divers exceptions taken to the Plea 239 V. Administrators Evidence V. Copy A suspension of a rent may be given in Evidence upon nil debet pleaded 35 118 Evidence of a Deed. 94 An Action of Debt brought upon an Escape May a fresh Suit be given in Evidence upon nil debet pleaded 116 Copies and Exemplifications allowed to be given in Evidence when the Originals are burnt 117 Pleinment administer pleaded Payment of some Debts c. and delivering over the residue of the personal Estate to the Infant Executor when he comes of age may be given in Evidence 174 In an Action of Assumpsit grounded upon a Promise in Law payment may be given in Evidence not where the Action is grounded upon an express Promise 210 Hear-says how far allowable in Evidence 283 Depositions in Chancery allow'd to be read 283 284 F. False Imprisonment IN an Action of false Imprisonment the Defendant Justifies by vertue of a Warrant out of a Court within the County Palatine of Durham V. 170 171 172. several exceptions to the pleading The Defendant in false Imprisonment justifies by vertue of an Order of the Court of Chancery nought 272 Felony To cut down Corn and carry it away at the same time is no Felony But to cut it down and lay it by and carry it away afterwards is Felony 89 Feme sole Merchant V. 26. Fieri facias The Sheriff may execute a Writ of Fieri facias upon the Goods of the Defendant in the hands of his Administrator he dying after the Teste of the Writ and before Execution 188 Fine V. Ejectione firmae An interest for years in what Cases bar'd by a Fine and in what not 217 Fishing Common and several Pischary and fishing in publick and in private Rivers 105 106 Forcible Entry Enditement of forcible Entry 73 Forfeiture A man settles a term in trust for himself during his life and afterwards in trust for several of his Friends provided that if he have any issue of his body at the time of his death the trust shall cease and the assignment be to the use of such issue provided also that if he be minded to change the Uses that he may have power so to do by writing in the presence of two or more Witnesses or by his last Will. Then he commits Treason and is attainted by Act of Parliament and dies having issue Male at the time of his death but without making any revocation of the Uses of this settlement no more of this term is forfeited than during his own life only 16 17 38 39 40 Forma Pauperis A man that is admitted in Forma pauperis is not to have a new Trial nor is suffer'd to remove an Action out of an inferior Court 268 Formedon in Descender Exceptions to the Count. 219 220 Foreign Attachment Whether or no is a Debt due to a Corporation within the Custom of Foreign Attachment 212 Fraudulent Conveyance A Deed may be voluntary and yet not fraudulent V. 119 G. Gager de Ley. A Man cannot wage his Law in an Action brought upon a Prescription for a duty 121 Gardian Infant Tenant in a Common Recovery is admitted by Gardian ad sequendum whether that be Error or not 48 49 Gavelkind A Rent de novo granted out of Gavelkind-land shall descend according to the descent of the Land 96 97 c. Grant le Roy. V. 195 196 c. H. Habeas Corpus WHat time to plead has the party that comes in upon a Habeas Corpus 1 Habeas Corpus to remove one out of the Cinque-Ports 20 V. Excise Though the Return be filed the Court of Kings Bench may remand or commit the Prisoner to the Marshalsey at their Election 144 A Member of the House of Lords committed by the House for a Contempt cannot be set at liberty the Court of Kings Bench upon a Habeas Corpus be the Cause of his Commitment what it will 144 145 146 c. Habeas Corpus though returnable two days after the end of the Term yet ties up the inferior Court 195 Whether does a Habeas corpus ad subjiciendum lie in Court of Common Pleas 235 Heir Two Actions of Debt against an Heir upon two several Obligations of his Ancestor The Plaintiff in the second Action obtains Judgment first and whether shall be first satisfied 253 I. Jeoffails WAnt of an averment helpt after Verdict 14 V. 199 Inclosures Inquisition upon the Statute against pulling down Inclosures 66 Indebitatus assumpsit Indebitat assumpsit pro opere facto lies well enough 8 For money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant Good after a Verdict 42 Lies not against the Executors of a Treasurer of Sub-Treasurer of a Church or the like 163 An Action is brought upon an indebitat assumpsit and quantum meruit the Defendant pleads That the Plaintiff and himself accounted together and that the Plaintiff in consideration that the Defendant promised to pay him what was found due to him upon the foot of the Account discharged him of all former Contracts 205 206. and held to be a good Plea Indebitat assumpsit will not lie upon a Bill of Exchange accepted 285 286 Indebit assumpsit for Wares sold and no Evidence given of an agreement for the price 295 Indictment An Act of Parliament creates a new Offence and appoints other ways of proceeding than by Endictment yet if there are no negative words an Indictment lies 34 Indictment for these words viz. When ever a Burgess of Hull puts on his Gown Satan enters into him 35 Moved to quash an Inditement because the year of our Lord in the caption was in figures 78 Infant A man declares That the Defendant in consideration that the Plaintiff would let him take so much of his Grass promised c. held to be good Consideration though the Plaintiff were an Infant 25 V. tit Appearance V. tit Apprentice V. tit Recovery V. tit Notice Information An Information does not lie against a Lord for taking unreasonable Distresses of several of his Tenants 71 288 V. tit Recusants Intendments V. 67. Issue V. 72. Judge No Action upon the Case lies against a Judge upon a wrongful commitment 184 185 Juries If a Knight be but return'd on a Jury when a Peer is concern'd it 's not material whether he appear and give his Verdict or no 226 L. Labourers AN Enditement for retaining a Servant without a Testimonial from his last Master quasht for imperfection 78 Lease A Licence to enjoy till such a time whether it be a Lease or no and how to be pleaded 14 15 Uncertain limitations and impossible limitations of commencements of Leases 180 A Bishops Lease good upon which the whole rent is reserved upon part of what was accustomably demised 203 204 Libel V. 58. Limitation V. Condition