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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
body_n	default_n	heir_n	male_n	7,362	5	13.0772	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A47712	The fourth part of the reports of several cases of law argued and adjudged in the several courts at Westminster, in the time of the late Queen Elizabeths reign collected by a learned professor of the law, William Leonard, Esq. ... published by William Hughes of Grayes-Inn, Esq. ; with tables of the names of the cases, and of the matters contained in this book.; Reports and cases of law argued and adjudged in the courts at Westminster. Part 4	Leonard, William.; Hughes, William, of Gray's Inn.	1687 (1687)	Wing L1102; ESTC R19612	240,523	272

the Covenant shall enure to defeat and determine the Warranty And afterward Iudgment was given against the Plaintiff CCLXXIII Sir Francis Englefields Case Vide this Case Reported by Cook in Rep. 7. and by Popham 18. THe Case to recite at large was this Sir Francis Englefield Kt. being seized in Fee of the Manor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by Licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his Licence whereby the Queen by her Warranty under her Privy Seal required him to return upon which he was warned but did not come whereupon the Queen seized his Lands for his contempt After which the Statute of Fugitives was made 13 Eliz. upon which by Commissions found upon this Statute all his Lands were newly seized and afterwards 17 Eliz. by Indenture made between him and his Nephew and Sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of Advancement of his Nephew and after consideration to raise an use that he and his Heirs and all others seized of the said Manor c. shall hereafter stand and be seized of them to the use of himself for the term of his life without impeachment of Waste and afterwards to the use of his Nephew and of the Heirs Males of his Body and for default of such Issue to the use of the right Heirs and Assigns of the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his Body that then all the said Vses and Limitations shall be void and that the said Manors c. shall be as before Afterwards the said Sir Francis was attainted of Treason supposed to be committed by him 18 Eliz. at L. in partibus transmarinis and the Attainder was first by Outlary and afterwards by Act of Parliament 28 Eliz. by which the Forfeiture of the said Condition was given to the Queen and at the same Parliament it was Enacted That all and every Person and Persons which had or claimed to have any Estate of Inheritance Lease or Rent they not entred of Record or certified into the Court of Exchequer of into or out of any Manors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8 day of Feb. 18 Eliz. or within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the Court of the said Exchequer or cause to be openly shewn the same his or their Grant Conveyance or Assurance and there in the Term time in open Court the same shall offer and Exhibit upon his or their Oath affirming that they have not the same nor can come by it or that it was never put in writing then the Effect thereof to be entred and inrolled of Record or else every such Assurance should be void and of none Effect to all intents and purposes saving to every person and persons other than the parties and privies to such Conveyance and such as shall not Exhibit the said Conveyance according to the true meaning of this Act all such rights c. Whereupon the said Francis the Nephew the 20 day of November 30 Eliz. in his own person affirmed upon his Oath that he had not the said Conveyance nor knew not how to come by it but delivered the Effect of the Assurance omitting the time when it was made otherwise than that it was made after the beginning of the Queens Reign and before the Treason committed by Sir Francis and before the Statute of 13 Eliz. against Fugitives and omitting also the last clause of the tender of the King and this he offered openly in the Court of the Exchequer the same day After which the Queen being moved with the said Condition made a Warrant by Letters Patents under the Great Seal dated 17 Martii 13 Eliz. to Rich. Broughton and Henry Bourcher Esquires for her and in her place and stead to deliver or tender to the said Francis the Nephew a Ring of Gold to the intent to make void the uses and limitations limited by the said Indenture and to return their proceedings upon it into the Court of Exchequer whereupon they made a tender of a Ring of Gold to the said Francis the Nephew the 18 day of November 31 Eliz. which he refused to receive And the two years after the said Session of Parliament was the 13 day of March 31 Eliz. and the said Broughton and Bourcher returned all this that they had done as before with their Commission out of the Exchequer And this Case being a great case and consisting of many doubts and questions was often argued And this Term scil 33 Eliz. It was argued by Moor of Counsel on the part of Francis Englefield and he said when Sir Francis Englefield covenanted to stand seized to the use of himself for life c. this was not any new use but part of the ancient use which was in Sir Francis before for there was no Consideration to raise a new use to himself for a Consideration is a cause or an occasion meritorial requiring a mutual recompence in fait or in Law Dyer 16 Eliz 33. b. mutual 1. of each part and here this ancient use remaineth For Sir Francis cannot simul semel agree and suffer and here is a bare Covenant without any Consideration on the part of Sir Francis which see Dr. and Student 100. cited by Br. Feoffments to Uses 46. A man cannot limit an use to himself to be a new use upon an Estate executed as upon a Feoffment but it shall be the ancient use much less upon a Covenant And that was Milfords Case Pasch 31 Eliz. Rot. 154 in the Kings Bench where an use limited to the right Heirs of the Feoffor was holden the ancient use quod vide also in the case of the Earl of Bedford and there is no difference between our case and the said cases unless in the said cases the use is limited in the end and in our case in the beginning of the Conveyance But perhaps it will be Objected That the particular Estate shall be good for necessity for to support the Estate limited in the Remainder which is limited upon good consideration for otherwise the Remainder shall be distrained That is not any reason for that conceit in Bayntons case in Plow Com. 307. 8 Eliz. hath been over-voted to be no Law in the case of the Lord Paget in this Court very lately And he said That the condition conceived in the Proviso is not given to the King. By the Common Law in case of Escheat the party comes in the Post but a Condition runs in privity And although

he conceived that during the vacation the rent should go to the King and therefore perhaps he especially limited it to be paid to the Dean and Chapter of York and there the Proviso did not make a Condition For although it was limited to be paid to the Dean and Chapter in the time of the vacation with a Proviso or by way of Promise yet there it is a Condition for all is one Corporation for the Dean and Chapter are part of the Corporation to whom it was reserved before for it was reserved before to the Bishop and his Successors But 15 and 16 Eliz. Andrews and Cromwells Case where John Blunt sold a Manor to Andrews and his Heirs and Blunt covenanted to suffer a Common Recovery for the better assurance thereof and afterwards there was a Proviso Provided always That Andrews re-grant the Advowson which was appendant to the Manor to Blunt for his life and because there it stands substantivè by it self therefore it was holden to be a Condition and yet truly it was not the meaning that for not granting of a pelting Advowson that the whole former Estate of the Manor being of great value should be defeated yet notwithstanding it was holden to be a Condition and there also the Opinion of Br. 35 H. 8. is controuled That where also the Opinion of Br. 35 H. 8. is controuled that where a Proviso is jumbled amongst Covenants that it doth not make a Condition Proviso never makes a Covenant therefore either the Sentence shall be void or it shall be a Condition As if a Lease for years be made Proviso that the Lessee for years do not commit Waste it is no covenant He said as to the second point that the same was adjudged between Andrews and Cromwel where a rent was payable every half year and there as here the whole rent was demanded and it was good for he is not to pay the one moiety and he is at his peril to pay the one moiety and he who denies the whole denies every part Et quicquid dicitur de toto dicitur de partibus It was adjourned Hil. 29 Eliz. In the Common Pleas. CLXII The Lord Mountjoyes and Barkers Case IN an Ejectione firmae upon a Special Verdict the Case was this King Ed. 6. granted the Manor and Hundred of Tremington in Fee rendring rent to hold of the Manor of East Greenwich in Socage reddendo annuatim 136 l. Queen Mary reciting the first Grant in the first year of her reign granted the rent and fealty and the Manors of Cauford D. S. Et etiam Manerium nostrum Hundredum de Tremington although she had not the Manor to the Marquess of Exceter after which the Marchioness being seized of the Manor of Cauford holden in Capite and of other Lands 4 and 5 Philip and Mary devised the Manor of Cauford D. S. and whereas she had nothing in the Manor of Tremington but the rent and fealty out of it she devised the same with the others to the Lord Mountjoy and also she devised divers Legacies and Annuities to her Servants and others And devised by the same Will that they should be levied of the Manor of Tremington and of the Manors of D. S. whereas D. S. were not Manors but Farms And one Barker was found Heir to the Devisor who claimed to have the third part The first question was If the rent and fealty here holden in Capite passed by the name of the Manor or not and if they passed what quantity passed Walmsley They do not pass by that name for this rent nec in rei veritate nec in reputatione was ever taken for a Manor Also she hath named it in her Will between those which are very Manors by which it appeareth that her intent was not to pass it unless it was a Manor as the other which sense is also fortified that they shall be levied parcelled and taken by which I conceive her meaning was that there should be some place to which the Devisees might resort to levy it Further It is taken for Law in Wills that a thing implyed shall not destroy a thing expressed But if by implication the Rent should pass then the Manor of Cauford should not pass which was her express will to pass As 16 Eliz. Dyer 330. where a man deviseth his Lands to one and his Heirs Males and if he dye without Heir of his Body c. Here he shall not have Tail general to the Heirs of his Body but to the Heirs males of his body for that was the express limitation and the other after but implication So 16 Eliz. Dyer 333. in Chapmans Case But our Case is better for that there are not words sufficient to warrant any implication for nec in veritate nor in common speech was it ever taken for a Manor 27 H. 6. 2. 22 H. 6. 39. Green Acre may pass by the name of a Manor although it be but an Acre of Land because it is known by such name In 27 H. 8. a man having suffered a common Recovery to his use willed that his Feoffees should sell c. So in Chapmans Case a man in his Will limited a Remainder to his Family there it is taken the same is a Remainder to those which are his next of Blood. So 41 E. 3. a man deviseth Land to A. his Daughter in truth she being a Bastard she shall have it because she is known by the name of Daughter So if there be Grandfather Father and Son the Father dyeth and the Son gives Lands to his Father and his Heirs the Grandfather shall have it for that the Son so called him 19 H. 8. Lands are devised to the right Heirs of J. S. who is attainted having Issue a Son the Son shall not have the Land for the word Heir intends one who may inherit but he cannot because a man attainted cannot have an Heir And that is a stronger Case than our Case in which there is not any affinity with a Manor for it is but a sum in gross but if it had been an Acre of Land peradventure it should have passed but being Rent Common Estovers or other Profits they cannot pass for they have not any resemblance to the Mannor but peradventure a man having a Manor parcel in Demesn and parcel in Services if he alieneth his Demesns and afterwards deviseth his Manor the Services will pass Gawdy All the difficulty of the Case is this If by the Devise the rent out of Tremington shall pass for if not then the third part thereof cometh to Barker And I conceive clearly That the rent shall pass for Wills shall have a favourable construction according to the intent of the Devisor and no part thereof shall be void if by any means it may be made good for intent then appeareth that something should pass out of the Manor of Tremington for otherwise a Clause in her Will would be frivolous For it is precisely found by the Iury that

on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of

rather a portion of the profits c. and therefore the Land shall be said the Chauntry and not the Sum and here the intent of the Statute extends to the intent of the Founder So that if the intent of the Founder was to give the Land to Superstitious Vses the same is within the Statute If Cestuy que use wills that his Feoffees have the profits of his Lands ut supra to the Sustentation of a Chauntry Priest and the Feoffees imploy but 20 l. per Annum whereas the Land is of the value of 100 l. per Annum by this Statute the King shall have all for the intent of the Founder was That all should be imployed And so here for upon the Matter the Dean and Chapter are but as Feoffees and see that this Statute of Chauntries makes a great difference between Obits and Lights and Chauntries for in the Case of Obits and Lights the King shall not have but that which was imployed Whetstones Case was That Whetstone seized of the Manor of Cocke made a Feoffment thereof to certain Feoffees to find two Obits in such a Chappel and with the residue of the profits to maintain the Chappel and Iudgment was given for the Queen Here the Condition knit to the Reversion upon a Lease made by the Dean and Chapter to Nicholas Wilford passeth to the King by the Act of Parliament for a Condition is an Hereditament and when the King grants over the reversion to Butcher the Condition also passeth by 32 H. 8. Bromley Solicitor The Statute extends to Chauntries in existence only and not to Chauntries in reputation Chauntry hath divers significations in Law 1. For the Service which the Chauntry Priest is to do as cessavit de Cantaria 2 Sometimes for the Advowson of the Chauntry scil Quod permittat praesentare ad Cantariam 3. Sometimes for the Body of the Chauntry scil the Land of which it is endowed and in that sense it is taken by the Statute I will agree if the same had been an ancient Chauntry time out of mind c. and the Incumbents thereof had taken the profits and made Leases of it that then it should be a Chaunt●y within this Statute for it might be corporated by prescription But the Chauntry here in question is not a Chauntry by prescription for the beginning of it is known so it is a Chauntry in reputation only and not in facto And he said That in that case the rent limited to the sustentation of the Priest shall go to the King and not to the Land for the Land was not given for the sustentation of a Priest but the rent only so as the Land was not immediately imployed for the finding of the Priest And he resembled this case to the case lately in question upon the Statute of 31 H. 8. An Abbot was seized of a great Wood which was never imployed in kind to the use of the House being seven Miles distant from the House but was never in Lease but was yearly sold by parcels and the Woodward rendred an Account of the same to the Auditor And the Opinion was That a Lease for years made of it within a year before the Dissolution was not within the said Statute for it was not immediately imployed for Hospitality But see the same reported by the Lord Dyer to the contrary 3 4 Eliz. 207. that such a Demise was void although that the Wood was not immediately imployed c. And see also the words of the Statute scil That the Land shall be in the actual Possession of the King in as ample manner as the Priest had it and the Priest had nothing in the Land but only in the Rent It was adjorned to be further argued c. Temps Roign Eliz. CCLXVI. Harveys Case HArvey seized of a Manor made a Feoffment thereof to divers persons to the use of himself for life and after to the use of his Son and the Heirs Males of his Body and if the said Son or any of the Heirs males of his Body discontinue or alien otherwise than for 21 years or three lives that then his Feoffees should be seized to the use of Nic. Harvey his Brother in Fee the Feoffor dyed the Son made a Lease for 21 years and afterwards discontinued against the Proviso if that lease should bind Nic. Harvey who came in by the latter use c. Dyer It is hard to avoid the lease for at the time of the making of it the lessor had a good interest and authority to make the lease and the act which impeacheth the Estate of the lessor commenceth after the lease by the discontinuance and therefore shall not avoid the lease Manwood The second use doth determine the first use and all Estates derived out of it Mounson contr ' For here this word Otherwise than for 21 years c so as such a lease is excepted As if a man man makes a Feoffment in Fee to the use of J. S. and his Heirs until J. D. shall pay to him 20 l. and then to the use of J. D. and his Heirs here if J. S. makes a a lease for years and afterwards the Monies are paid to J. D. now J. D. shall hold the Land discharged of the lease for there is no word Otherwise c. for these words Otherwise qualifie the second use Dyer The word Otherwise amounts to an Exception Manwood doubted of it and moved and demanded if the wife of the Cestuy que use should have Dower or not Barham conceived that she should c. CCLXVII Mich. 31 Eliz. In the Common Pleas. TEnant in Socage made a lease for four years and dyed his Heir within age of 8 years the Mother being Guardian in Socage leased by Indenture to the same lessee for 14 years It was holden that in this Case the first lease is surrendred but otherwise it is of a lease made by Guardian in Nurture CCLXVIII Mich. 29 Eliz. In the Common Pleas. IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff released to the Defendant and the continuance was made until this Term scil Mich 29 Eliz. per Curiam advisare vult And now the Plaintiff against his own Release prayed and had Iudgment A Release pleaded after Judgment and Verdict without any knowledge to the Defendant and Process of Execution issued and now Walter a Clerk of the Court on the behalf of the Defendant shewed the Release to the Court and also the whole special matter and prayed the Release of the Court against this practice Anderson presently granted a Supersedeas But afterwards before the Process issued forth he and the other Iustices were of Opinion That the Defendant could not plead the said Release nor any further matter after Verdict and demanded the question of Nelson chief Prothonatory who advertised the Court That he could shew a President where an Arbitrement had been pleaded after a Verdict and Issue joyned upon it and that