is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
Land cum pertinentiis in Sandridge aforesaid That long before the Caption Ralph Rowlett Knight was seis'd of the Mannor of Sandridge in the said County whereof the said place is and was parcel time out of mind Grant of the Rent June 26 8 Eliz. That the said Sir Ralph 26. June 8 Eliz. at Sandridge aforesaid by his Deed in writing under his Seal produc'd in Court thereby granted and confirmed to Henry Goodyeare then Esquire and after Knight and to the Heirs of his Body a yearly Rent of 30 l. out of all his said Mannor and other his Lands in Sandridge aforesaid payable at the Feasts of St. Michael the Arch-angel and the Annunciation The first payment at such of the said Feasts which should happen after the expiration surrender or forfeiture to be made after Sir Ralph Rowlett's death of certain terms of years of parcel of the Premisses made to one William Sherwood and Ralph Dean severally With Clause of Entry and Distress to Henry and the Heirs of his Body if the Rent were unpaid And that Sir Ralph gave the said Henry seisin of the said Rent by payment of a peny as appears by the Deed. Rowletts death 1 Sept. 33 Eliz. Sir Ralph Rowlett after the First day of September 33 Eliz at Sandridge aforesaid died That after the Second day of September Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired whereby the said Henry became seis'd of the said Rent in tail That Henry had Issue the said Elizabeth and Mary Hen. Good-year died 1. Octob. 33 Eliz. and one Anne his Daughters and Coheirs and died 1. Octob. 33 Eliz so seis'd That the said Coheirs being seis'd of the said Rent Mary married Samuel 1. May 1634. and Anne the same time married John Kingston to them and the Heirs of their Bodies the First of May 1634. Mary married the said Samuel Hildersham and Anne married one John Kingston whereby the said Elizabeth and Samuel and Mary in right of the said Mary and John and Anne in right of Anne were seis'd of the Rent December 25. 1635. Anne had Issue by John her Husband Anne had Issue Frances and Theodofia she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia and John her Husband and Anne died 1. Januarii 1635. That thereby Elizabeth Samuel and Mary in right of Mary Frances and Theodosia became seis'd of the Rent April the 10th 1647. Frances married the said Biddulph and Theodosia the said Humphrey Holden whereby Elizabeth Samuel and Mary in right of Mary Biddulph and Frances in right of Frances and Holden and Theodosia in right of Theodosia became seis'd of the Rent And for 120 l. for four years arrear after the death of John and Anne ending at the Feast of St. Michael 1655. being unpaid at the time and place c. the Defendant as their Bailiff entred and distrained the said Cows The Plaintiff demands Oyer of the Deed of Grant and hath it in these words c. And then the Plaintiff replies that before the time of the Caption that is A die Paschae in quindecim dies a Fine was levied in the Court of Common Pleas in the One and twentieth of the King before the Iustices there c. between Richard Harrison Esquire and the Avowants of the said Rent with Warranty to the said Richard and his Heirs And that this Fine was to the use of the Conizors and their Heirs and demands Iudgment The Defendant thereupon demurrs WHERE the Law is known and clear though it be unequitable and inconvenient the Iudges must determine as the Law is without regarding the unequitableness or inconveniency Those defects if they happen in the Law can only be remedied by Parliament therefore we find many Statutes repealed and Laws abrogated by Parliament as inconvenient which before such repeal or abrogation were in the Courts of Law to be strictly observed But where the Law is doubtful and not clear the Iudges ought to interpret the Law to be as is most consonant to equity and least inconvenient And for this reason Littleton in many of his Cases resolves the Law not to be that way which is inconvenient which Sir Edward-Cook in his Comment upon him often observes and cites the places Sect. 87. In the present Case there are several Coparceners whereof some have Husbands seis'd of a Rent Charge in tail the Rent is behind and they all levy a Fine of the Rent to the use of them and their Heirs If after the Fine levied they are barr'd from distraining for the Rent arrear before the Fine is the Question It being agreed they can have no other remedy because the Rent is in the reality and still continuing If they cannot distrain the Consequents are 1. That there is a manifest duty to them of a Rent for which the Law gives no remedy which makes in such case the having of right to a thing and having none not to differ for where there is no right no relief by Law can be expected and here where there is right the relief is as little which is as great an absurdity as is possible 2. It was neither the Intention of the Conizors to remit this Arrear of Rent to the Tenant nor the Tenants to expect it nor could the Conizors remit it but by their words or intentions or both nor did they do it by either 3. It is both equitable in it self and of publick convenience that the Law should assist men to recover their due when detain'd from them 4. Men in time of Contagion of Dearth of War may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives or others and consequently not seasonably distrain them and it would be a general inconvenience in such case to lose all their Rents in Arrear So as both in Equity and Conveniency the Law should be with the Avowants In the next place we must examine Whether the Avowants that is the Conizors of the Fine be clearly barr'd by Law to distrain for the Rent arreare before the Fine For it must be agreed they have no other remedy by the Common Law or otherwise to which purpose I shall open some Premises that my Conclusion may be better apprehended 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained that the Tenant may know to whom the Rent or other Duty ought to be paid and likewise know a lawful distress from a tortious taking of his Cattel 2. This privity is created by Attornment either in Fact or in Law by the Tenant to the Lord to the Reversioner to the Grantee of a Remainder or of a Rent by Deed or by Fine Litt. Sect. 579. For this Sir Edward Cooe upon the 579th Section of Littleton and in many other of his Sections The Conizee of a Fine before Attornment cannot distrain because an
it is said The Rent was granted out of the Twenty Acres being the Locus in quo by the Name of all the Grantors Lands and Hereditaments in King's Norton and that a per nomen in that Case is not good The Case of Grey and Chapman was urg'd 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House and Twenty Acres of Land by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were The Court was of Opinion in Arrest of Judgment that the naming of the Vill in the per nomen was not material Another Case to the same purpose was urg'd of Gay against Cay where a Grant in possession was pleaded 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion And upon view of the Record the Grantor had granted Tenementa praedicta per nomen of a Mesuage which A. P. held for life where the per nomen was adjudg'd not to make good the Grant The Court is of Opinion notwithstanding these Cases That in the present Case the per nomen is well enough because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton whereof the locus in quo being Twenty Acres is parcel By reason whereof the Rent being granted out of every parcel of the Two hundred Acres it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton because the Twenty Acres are alledg'd to be parcel of all his Lands there being Two hundred Acres But in Chapman's Case It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen of which the Twenty Acres were to pass As for the second Case of Gay it was not possible that Lands granted as in possession should pass per nomen of Land that was in Reversion The second Exception is Because the Clause of Entry and Distress in the Deed upon Oyer of it differs from the Clause of Entry and Distress alledg'd in the Conizance For in the Conizance it is said It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due that is at any Feast that should first happen after the death of Anne or Thomas Greaves for the Rent did not commence before But by the Deed If the Rent were behind at any the Feasts the Entry and Distress is made to be lawful for it during the joynt Lives of Anne and Thomas Greaves the Uncle and during their joynt lives it could not be behind for it commenc'd not till one of them were dead Scarplus Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected So as the sense must run That if the Rent were behind it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves which was before it could be behind for it could not be behind till the death of one of them Therefore those words during their joynt natural lives being insensible ought to be rejected For words of known signification but so placed in the Context of a Deed that they make it repugnant and sensless are to be rejected equally with words of no known signification Judgment pro Defendent The Chief Justice delivered the Opinion of the Court. Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted That where any person hath or shall have any Child or Children under the Age of One and twenty years and not married at the time of his death It shall and may be lawful to and for the Father of such Child or Children whether born at the time of the decease of the Father or at that time in ventre sa mere or whether such Father be within the Age of One and twenty years or of full Age by his Deed executed in his life time or by his last Will and Testament in writing in the presence of two or more credible Witnesses to dispose of the custody and tuition of such Child or Children for and during such time as he or they shall respectively remain under the Age of One and twenty years or any lesser time to any person or persons in possession or remainder other than Popish Recusants And such disposition of the Custody of such Child or Children made since the Four and twentieth of February 1645. or hereafter to be made shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised as aforesaid shall and may maintain an Action of Ravishment of Ward or Trespass against any person or persons which shall wrongfully take away or detain such Child or Children for the Recovery of such Child or Children and shall and may recover Damages for the same in the said Action for the use and benefit of such Child or Children And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised shall and may take into his or their custody to the use of such Child or Children the profits of all Lands Tenements and Hereditaments of such Child or Children and also the custody tuition and management of the Goods Chattels and personal Estate of such Child or Children till their respective Age of One and twenty years or any lesser time according to such Disposition aforesaid and may bring such Action or Actions in relation thereto as by Law a Guardian in Common Soccage might do By the Will is devised in these words I do bequeath my son Thomas to my Brother Robert Towray of Rickhall to be his Tutor during his Minority Before this Act Tenant in Soccage of Age might have dispos'd his Land by Deed or last Will in trust for his Heir but not the Custody and Tuition of his Heir for the Law gave that to the next of Kinn to whom the Land could not descend But Tenant in Soccage under Age could not dispose the Custody of his Heir nor devise or demise his Land in trust for him in any manner Now by this Statute he may grant the Custody of his Heir but cannot devise or demise his Land in trust for him for any time directly for if he should the devise or demise were as before the Statute as I conceive which is most observable in this Case I say directly he cannot but by a mean and obliquely he may for nominating who shall have the Custody and for what time by a consequent the Land follows as an incident given by the Law to attend the custody not as an Interest devis'd or demis'd
a House Barns and Tithe of Woolney and thereof seis'd in the right of his Prebendary makes a Lease to Astly of the Prebend una cum the Glebe House Barn and Tithe for Three Lives rendring the accustomed and ancient Rent of Five pounds Twelve shillings Astly demiseth to Taverner the House Glebe and Barn for a year reserving Twenty shillings and dies the Cestuy que vies living As I concluded before Taverner is Occupant of the House Barn and Glebe-land and consequently lyable to pay the whole Rent being Five pounds twelve shillings yearly though the Land House and Barn be found of the yearly value of Twenty shillings only but because the Rent cannot issue out of Tithes or things that lye in Grant it issues only out of the House Barn and Land which may be distrain'd on 2. If Taverner being Occupant of the Land shall not have the Tithes which remain'd in Astly according to his Lease for three Lives at the time of his death and whereof by their nature there can be no direct Occupancy It follows that the Lease made by Doctor Mallory is determin'd as to the Tithe for no other can have them yet continues in force as to the Land and House and all the Rent reserv'd which seems strange the Land and Tithe being granted by the same Demise for three Lives which still continue yet the Lease to be determined as to part 3. Though the Rent issue not out of the Tithe yet the Tithe was as well a Consideration for the payment of the Rent as the Land and Houses were and it seems unreasonable that the Lessor Doctor Mallory should by act in Law have back the greatest Consideration granted for payment of the Rent which is the Tithe and yet have the Rent wholly out of the Land by act in Law too which cannot yield it 4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only to bind his Successor upon a Lease for Lives more than out of a Fair though it were as the ancient Rent and had been usually answered for the Fair as is resolv'd in Jewel Bishop of Sarum's Case Jewell's Case 5 Rep. Yet in this Case where the Tithe together with Land out of which Rent could issue was demis'd for the accustomed Rent the Successor could never avoid the Lease either in the whole or as to the Tithe only 13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith All Leases made by any Spiritual or Ecclesiastical persons having any Lands Tenements Tithes or Hereditaments parcel of the Possessions of any Spiritual Promotion other than for One and twenty years or three Lives whereupon the accustomed yearly Rent or more shall be reserv'd shall be void Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent this Statute intended that Leases in some sense might be made of Tithes for One and twenty years or Three Lives and an ancient Rent reserv'd but of a bare Tithe only a Rent could not be reserv'd according to Jewell's Case for neither Distress nor Assise can be of such Rent though an Assise may be de Portione Decimarum as is clear by the Lord Dyer 7 E. 6. and the difference rightly stated Therefore a Lease of Tithe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intention of the Statute or Tithe could in no sense be demis'd 5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent to Waste to Forfeiture Conditions and all things that Astly the Lessee or his Assignee if he had made any had been subject to Also Coke's Litt. 41. He must claim by a que Estate from Astly he must averr the Life of Cestuy que vie so as he becomes to all intents an Assignee in Law of the first Lessee 6. Without question the Occupant being chargeable with the Rent shall by Equity have the Tithe which was the principal Consideration for payment of the Rent when no man can have the benefit of the Tithe but the Lessor Doctor Mallory who gave it as a Consideration for the Rent which he must still have Therefore I conceive the Reason of Law here ought necessarily to follow the Reason of Equity and that the Occupant shall have the Tithe not as being immediate Occupant of the Tithe whereof no occupancy can be but when by his possession of the Land he becomes Occupant and the Law casts the Freehold upon him he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest and consequently of the Tithe An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years or Three Lives is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men as is resolv'd in Elsemere's Case Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law the Law will do it for him and none fitter to be so than the Occupant in case of a Lease pur auter vie as this is And if the Occupant being Assignee hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant Pasch 22 Car. II. Judgment for the Defendant Three Justices against the Chief Justice Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell In a Prohibition for his Marriage with Jane the Relict of Bartholomew Abbot his Great Uncle The Questions are Quest 1 WHether the marriage of Thomas Harrison the Plaintiff with Jane his now wife being the Relict of Bartholomew Abbot his great Vncle that is his Grand-fathers Brother by the Mothers side be a lawful marriage within the Act of 32 H. 8. cap. 38 Quest 2 Admitting it to be a lawful marriage within the meaning of that Act Whether the Kings Temporal Courts are properly Judges of it because the unlawfulness or lawfulness of it by that Act doth depend upon its being a marriage within or without the Levitical Degrees For if within those Degrees it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees must arise from the right knowledge ot the Scriptures of the Old Testament specially the Interpretation of which hath been and regularly is of Ecclesiastick Conizance and not of Lay or Temporal Conizance in regard of the Language wherein it was writ and the receiv'd Interpretations concerning it in all succession of time Quest 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other special Conizance of the Levitical Degrees and of marriages within them And though this be no marriage within the Levitical Degrees it being articled in general to be an Incestuous marriage
during the wives life which was not to be intended 15 El. Moore f. 123. n. 265. Another Case I shall make use of is a Case Paschae 15 El. A man seis'd of a Messuage and of divers Lands occupied with it time out of mind leased part of it to a stranger for years and after made his last Will in these words I will and bequeath to my wife my Messuage with all the Lands thereto belonging in the occupation of the Lessee and after the decease of my Wife I will that it with all the rest of my Lands shall remain to my younger Son The Question in that Case was Whether the wife should have the Land not leased by implication for her life because it was clear the younger Son was to have no part until the death of the wife And the Lord Anderson at first grounding himself upon that Case in Brook as it seems of 29 H. 8. twice by Brook remembred in his Title Devise n. 28. and after n. 52. was of opinion That the wife should have the Land not leased by implication But Mead was of a contrary opinion for that it was expresly devis'd That the wife should have the Land leas'd and therefore no more should be intended to be given her but the Heir should have the Land not in lease during the wives life To which Anderson mutata opinione agreed Hence perhaps many have collected That a person shall not take Land by Implication of a Will if he takes some other Land expresly by the same Will but that is no warrantable difference For vary this Case but a little as the former case was varied That the Land in lease was devis'd to the wife for life and after the death of the wife all the Devisors land was devis'd to the youngest Son as this Case was and that after the death of the wife and the youngest son the Devisors Heir should have the Land both leas'd and not leas'd it had been clear that the Heir exactly according to the Case of 13 H. 7. should have been excluded from all the Land leas'd and not leas'd until after the death of the wife and the younger son And therefore in such case the wife by necessary implication should have had the Land not leas'd as she had the Land leas'd by express devise and that notwithstanding she had the leas'd Land by express devise for else none could have the Land not leas'd during the wives life Horton vers Horton 2 Jac. Cr. f. 74. 75. Wadham made a Lease for years upon condition the Lessee should not alien to any besides his Children The Lessee deviseth the term to Humphrey his son after the death of his wife and made one Marshall and another his Executors and died The Lessor entred as for breach of the Condition supposing this a devise to the wife of the term by implication The opinion of the Judges was It was no devise by implication but the Executors should have the term until the wives death but it was said If it had been devis'd to his Executors after the death of his wife there the wife must have it by implication or none could have had it But Popham denied that Case because if the devise had been to the Executors after the wives death the Executors should when the wife died have had the term as Legatees but until her death they should have it as Executors generally which by all opinions fully confirms the difference taken That a devise shall not be good by implication when the implication is not necessary and in this Case all agreed the Case in 13 H. 7. to be good Law because the implication there was necessary Edward Clatch being seis'd of two Messuages in Soccage tenure Dyer 15 16 El. 4. 330. b. and having Issue a Son and two Daughters by three several Venters His Son being dead in his life time and leaving two Daughters who were Heirs at Law to the Father devis'd one of the Messuages to Alice his Daughter and her Heirs for ever and the other to Thomazine his Daughter and her Heirs for ever with limitation That if Alice died without Issue living Thomazine Thomazine should then have Alice's part to her and her Heirs and if Thomazine died before the Age of Sixteen years Alice should have her part in Fee also And if both his said Daughters died without Issue of their bodies then the Daughters of his Son should have the Messuages The youngest daughter of the Testator died without Issue having past her Age of sixteen years It was resolv'd That the words in the Will If his two Daughters died without Issue of their Bodies did not create by implication cross remainders in tayl to the Devisors Daughters whereby the eldest should take the part of the youngest but her part should go to the Heirs at Law according to the Limitation of the Will and those words were but a designation of the time when the Heirs at Law should have the Messuages Note That one of the Daughters dying without Issue the Heirs at Law by the Will had her part without staying until the other Daughter died without Issue 1. From these Cases I first conclude That only possible implication by a Will shall not give the Land from the right Heir but a necessary implication which excludes the right Heir shall give it 2. That the difference taken is not sound That one shall not take by implication of a Will any Land where the same person hath other Land or Goods expresly devis'd by the same Will for if the implication be necessary the having of Land or any other thing by express devise will not hinder another taking also by implication as appears in the three Cases by me made use of viz. 13 H. 7. 3 E. 6. 15 Eliz. cited out of Moore 3. Whether any thing be given expresly by Will or not a possible Implication only shall not disinherit the Heir where it may as well be intended that nothing was devis'd by implication as that it was But if any man think that to be material in this Case the Daughters had respective Portions expresty devis'd them viz. Six hundred pounds to each of them and therefore shall not have the Land also by implication only possible to disinherit the right Heir Quest 2 For the second point These words My Will is if it happen my Son George Mary and Katharine my Daughters to dye without Issue of their Bodies lawfully begotten then all my Free-lands shall remain and be to my said Nephew William Rose and his Heirs for ever are so far from importing a devise of the Land to the Son and Daughters for their lives with respective Inheritances in tayl by any necessary implication that both Grammatically and to common intendment they import only a designation and appointment of the time when the Land shall come to the Nephew namely when George Mary and Katherine happen to dye Issuless and not before And where
to dispense with a Corporation as it seems K. James had in this Case when the Patent was granted but by Law cannot his Power and consequently his Prerogative is less than if he could 1. Malum prohibitum is that which is prohibited per le Statute Per le Statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case For it is said The King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with cure which were mala prohibita by the Canon Law and by the Council of Lateran not by Act of Parliament 2. Many things are said to be prohibited by the Common Law and indeed most things so prohibited were primarily prohibited by Parliament or by a Power equivalent to it in making Laws which is the same but are said to be prohibited by the Common Law because the Original of the Constitution or prohibiting Law is not to be found of Record but is beyond memory and the Law known only from practical proceeding and usage in Courts of Justice as may appear by many Laws made in the time of the Saxon Kings of William the First and Henry the First yet extant in History which are now received as Common Law So if by accident the Records of all Acts of Parliament now extant none of which is elder than 9 H. 3. but new Laws were as frequent before as since should be destroyed by fire or other casualty the memorials of proceeding upon them found by the Records in Iudicial proceeding would upon like reason be accounted Common Law by Posterity 3. Publique Nusances are not mala in se but mala politica introducta though in some passages of Coke's Posthuma's they are termed mala in se because prohibited at Common Law which holds not for the reasons before given For liberty of High-ways strangers have not in Forreign Territories but by permission therefore not essential to Dominion because it may be lawfully prohibited 2. Liberty of the High-ways is prohibited with us in the night by the Statute of Winchester in some seasons of the year and in times of warr and for apprehension of Thieves in time of Peace c. The Assise of Bread and Ale is constituted by Statute and may be taken away Forestalling the Market and ingrossing hath like institution the first was prohibited by Athelstans Laws and William the First 's and may be permitted by a Law the second is allowed by the late Laws when Corn is at a certain low price quaere the Law tempore Car. 2. the pulling down of Bridges wholly or placing them in other places may be done by a Law and what may be or not be by a Law is no malum in se more than any other prohibitum by a Law is Judgment was given by the Advice of the Judges in the Kings Bench Quod Quaerens nil Capiat In a formedon in the Reverter Mich. 25 Car. II. C. B. Rot. 253. John Bole Esquire and Elizabeth his wife and John Ely Gent. and Sarah his wife Demandants against Anne Horton Widow Tenant of _____ The Writ ONe Messuage Thirty Acres of Land Fifteen Acres of Meadow Twenty Acres of Pasture and of the third part of One Messuage One hundred and forty Acres of Land Four and forty Acres of Meadow Eighty three Acres of Pasture with the Appurtenances in Tickhill and Wellingly which William Vescy Gent. Grand father of the said Elizabeth and Sarah whose Coheirs they are gave to John Vescy during the life of the said John and after the decease of the said John to the heirs males of the body of the said John begotten and for default of such issue to Robert Vescy and the heirs males of his body begotten and for default of such issue to William Vescy son of the said William the Grandfather and to the heirs males of his body begotten and for default of such issue to Matthew Vescy and the heirs males of his body begotten And which after the death of the said John Robert William the Son and Matthew to the said Elizabeth and Sarah Cosins and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather ought to revert by form of the said gift for that the said John Robert William the Son and Matthew are dead without heirs males of their bodies lawfully begotten Then counts that The Count. William the Grandfather was seis'd of the Premisses in demand in his Demesne as of Fee and held the same in Soccage of the late King Charles as of his honour of Tickhill in the said County in free Soccage by fealty only and so seis'd the Eight and twentieth day of November 1628. at Tickhill aforesaid made his last Will in writing and thereby devised the said Lands to the said John Vescy for life and after to the heirs males of his body begotten And for default of such issue to Robert Vescy and the heirs males of his body and for default of such issue to William Vescy the Son and the heirs males of his body and for default of such issue to Matthew Vescy and the heirs males of his body and after the Six and twentieth of December 1628. at Tickhill aforesaid died so seis'd And the said John after his death entred and was seis'd by force of the said gift and died so seis'd without heir male of his body After the death of John Robert entred by vertue of his said Remainder and was seis'd accordingly and so seis'd died without heir male of his body after whose death William entred by vertue of his said Remainder and was seis'd accordingly and he being so seis'd Matthew died without heir male of his body and after the said William died seis'd of the premisses without heir male of his body After the death of which William the Son for that he died without heir male of his body begotten the right of the Premisses reverts to the said Elizabeth and Sarah who together with their said Husbands demand as Cosens and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather and which after the death of the said John Robert William and Matthew for that they died without any heir male of their bodies ought to revert to them The Tenant Anne for Plea saith That the said William The Barr. whose Cosens and Coheirs the said Elizabeth and Sarah are by his Deed dated the Seventh of November 1655. in consideration of a marriage to be solemnized between him and Anne the now Tenant then by the name of Anne Hewett and of 1200 l. marriage Portion and for a Ioynture for the said Anne and in satisfaction of all Dower she might claim out of his Lands And for setling the said Lands upon the issue and heirs of
the said William to be begotten of her the said Anne Infeoffed James Lane and John Lane Gentlemen of the said Premisses Habendum to them their heirs and assigns for ever To the use of the said William Vescy the Feoffer and his assigns for term of his life without impeachment of Waste and after to the use of the said Anne the Tenant if the Marriage succeeded between them for term of her life for her Joynture and after her decease to the use of the heirs males of his body on her body begotten forever and for want of such issue to the use of the heirs females of him the said William Vescy upon her body begotten and for want of such issue to the use of the right heirs of him the said William Vescy And bound him and his heirs to warrant the premisses as aforesaid to the said Feoffees and their Heirs to the uses aforesaid By vertue whereof and of the Statute of Uses the said William was seis'd for term of his life with the Remainder over as aforesaid And after the said marriage was had and solemnized between him and the Tenant Arine That William died so seis'd without any issue of his body and Anne surviv'd him and entred and by vertue of the said Feoffment and the Statute of Uses is seis'd in her Demesne as of Freehold for term of her life And that the said warranty of the said William descended from him to the said Elizabeth and Sarah as Cosins and Coheirs of him the said William the Son that is to say Daughters and Coheirs of John Vescy Brother and Heir of the said William the Son and demands Iudgment if against the said Warranty the Demandants shall be received to demand and avers her self and Anne Hewett named in the Feoffment to be the same person The Replication The Demandants reply and confess the Feoffment to uses of William as is pleaded in Barr to Lane and Lane and their heirs with warranty But further say That the said William Vescy the Son after that is the Four and twentieth of December 14 Car. 2. at Tickhill aforesaid died without any issue of his body which they are ready to aver and demand Iudgment if they shall be barred of their Action against the said Anne by the said Feoffment and warranty The Rejoynder Anne the Tenant rejoyns that the Replication is insufficient and demurs thereupon The matter of the Replication is all set forth in the Defendants Plea in Barr but only the time of William Vescy's death which was not material upon which the Demandants ought to have demur'd and not to have replyed impertinently The Case upon the Pleading William Vescy seis'd of the Land in question in his Demesne as of Fee held of King Charles the First in free Soccage as of his Honour of Tickhill by his last Will and Testament devis'd the same to John Vescy his eldest Son and the heirs males of his body and for default of such to Robert Vescy and the heirs males of his body and for default of such to William Vescy his Son and the heirs males of his body and for default of such to Matthew Vescy and the heirs males of his body and died Then John entred and died seis'd without issue male leaving two daughters Elizabeth and Sarah now Demandants together with their Husbands After his death Robert entred and died seis'd without issue male Then William entred and was seis'd and Matthew in the life of William died without issue male William by his Deed Indented in Consideration of an intended marriage with Anne the now Tenant and for other Considerations infeoffed James Lane and John Lane Habendum to them and their Heirs to the use of William the Feoffor for term of his life and after to the use of Anne Hewet now the Tenant for her life then to the use of the heirs males of his body upon her begotten and for default of such to the use of the heirs females of his body on her begotten and for default of such to the use of his right Heirs And bound him and his Heirs to warrant to the said Feoffees and their Heirs William by vertue of the said Feoffment and of the Statute of Uses was possessed and after he married the now Tenant and died seis'd as of his Freehold without any issue of his body After his death Anne his wife now Tenant by vertue of the said Feoffment and Statute of Uses entred and was posssessed Against whom Elizabeth and Sarah Daughters and Coheirs of John Vescy and Cosins and Coheirs of William the Devisor bring their Formedon in the Reverter Anne the Tenant in possession would rebutt and barr them by the said warranty of William Vescy the Son whose Cosins and Coheirs they are videlicet the Daughters and Coheirs of John eldest Brother of the said William And whether the said Anne Tenant by the said Feoffment and Statute of Uses can rebutt them by the said warranty is the general Question For Resolution of which I must make these previous Questions The first is If before the Statute of 27 H. 8. to Vses Tenant in tayl had made a Feoffment in Fee to uses with warranty to the Feoffees and their Heirs such Feoffees in a Formedon in the Reverter brought against them by the Heirs of the Donor could have rebutted and barr'd them by the warranty of the Tenant in tayl For if the Feoffees to use in such case could not have barr'd the Heirs of the Donor before the Statute by the warranty it is evident the Cestuy que use since the Statute cannot barr them for he can have no more power since the Statute than the Feoffees to use had before the Statute by the warranty I put the Case before the Statute for clearness sake only for though since the Statute there are Feoffees to use as before yet no question can be made upon their rebutter by a warranty because the Estate is out of them by the Statute as soon as it is in them And as to this the Case in effect is no more than Whether the warranty of Tenant in tayl which must be admitted to be a Collateral warranty descending upon the Donor or his Heirs will barr him or them of the Reversion The second Question I make admitting the Heirs of the Donor to be barr'd by the warranty of Tenant in tayl descending upon them is Whether after the Statute of Uses the Cestuy que use can have any benefit of the warranty granted to the Feoffees to use either by way of Voucher or Rebutter Because the Cestuy que use is not in possession in the per by the Feoffees but by the Statute of Uses The third Question is admitting generally that the Cestuy que use shall have benefit of the warranty made to the Feoffees to use Whether yet in this Case Anne the Tenant being a Cestuy que use shall have benefit of the warranty made to the Feoffees Because neither William