Selected quad for the lemma: death_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
death_n	charles_n	king_n	son_n	5,345	5	5.4847	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A80192	The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.	Colquitt, Anthony.; Washington, Joseph, d. 1694.; Great Britain. Court of Exchequer.; England and Wales. Court of Common Pleas.; England and Wales. Court of Chancery.; England and Wales. Court of King's Bench.	1698 (1698)	Wing C5416; ESTC R171454	291,993	354

Governour of Barbadoes and the Council there have power of probate of Wills and granting of Administration that the Secretary belongs and is an Officer to the said Governour and Council as Register and is concerned about the registring the said Wills and so his Office concerns the Administration of Iustice and then sets forth that this Covenant upon which the Plaintiff brought his Action was entred into upon a corrupt Agréement and for that reason void The Plaintiff replies protestando that this Office concerned not the Administration of Iustice and protestando that here was no corrupt Agréement pro placito he saith that Barbadoes is extra quatuor Maria and was always out of the Allegeance and power of the Kings of England till King Charles the First reduced that Island to his Obedience which is now governed by Laws made by him and not by the Laws of England The Defendant rejoyns protestando that this Island was governed by the Laws of England long before the Reign of King Charles the First and confesses it to be extra quatuor Maria but pleads that before King Charles had that Island King James was seised thereof and died such a day so seised after whose death it descended to King Charles the First as his Son and Heir and that he being so seised 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent absque hoc that King Charles the First acquired this Island by Conquest Baldwyn Serjeant demurred for that the Traverse is ill Ex parte Quer. for the most material thing in the Pleadings was whether Barbadoes was governed by the Laws of England or by particular Laws of their own And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place He said that it was but lately acquired and was not governed by the Laws of England that it was first found out in King James his Reign which was long after the making of that Statute and therefore could not extend to it The Statute of 1 E. 6. cap. 7. Enacts That no Writ shall abate if the Defendant pending the Action be created a Duke or Earl c. And it has béen doubted whether this Act extended to a Baronet being a Dignity created after the making thereof Sir Simon Bennets Case Syd 40. Cro Car. 104. Statutes of England extend no more to Barbadoes than to Scotland or Virginia New England Isles of Jersey and Gernsey 't is true an Appeal lies from those Islands to the King in Council here but that is by Constitutions of their own No Statute did extend to Ireland till Poyning's Law nor now unless named In Barbadoes they have Laws different from ours as That a Deed shall bind a Feme Covert and many others Ex parte Def. Seys Serjeant contra He agreed that the Traverse was ill and therefore did not indeavour to maintain it but said there was a departure betwéen the Declaration and the Replication for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes viz. in Parochia Sancti Martini in Campis and in the Replication he sets forth that this Isle was not in England which is in the nature of a departure as Debt sur obligat ' 1 Maii the Defendant pleads a Release 3 Maii the Plaintiff replies primo deliberat ' 4 Maii 't is a departure for he should have set forth that the Bond was 4 Maii primo deliberat ' Quaere Bro. Departure 14. So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary The Plaintiff replies Quod tali die anno he presented his Clerk and the Bishop refused him the Bishop rejoyns that at the same day another presented his Clerk so that the Church became litigious and the Plaintiff surrejoyns that after that time the Church was litigious he again presented and his Clerk was refused this was a Departure Bro. Departure So likewise as to the place the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress and the Tenant saith that he gave it at L. after he was discharged and at large 40 E. 3. Bro. 32. 1 H. 6.3 The Plaintiff might have said that Nokes was admitted here in England without shewing it was at Barbadoes for the Grant of the Office of Secretary might be made to him here under the Great Seal of England as well as a Grant of Administration may be made by the Ordinary out of his Diocess 2. Except Viz. By the Demurrer to the Rejoynder the Plaintiff hath confessed his Replication to be false in another respect for by that he hath owned it The Defendant hath pleaded that King James was seised of this Island and that it descended to King Charles c. and so is a Province of England whereas before he had only alledged that it was reduced in the time of King Charles his Son and so he hath falsified his own Replication And besides this is within the Statute of 5 Ed. 6. for the Defendant saith that the Plaintiff hath admitted Barbadoes to be a Province of England and it doth not appear that ever there was a Prince there or any other person who had Dominion except the King and his Predecessors and then the Case will be no more than if the King of England take possession of an Island where before there was vacua possessio by what Laws shall it be governed certainly by the Laws of England This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer for which Process might issue and it descends to the Heirs of the Earl at the Common Law And if it be objected that they have a Book of Constitutions in Barbadoes that is easily answered for 't is no Record neither can the Iudges take any notice of it 'T is reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction and that it should be interpreted to extend as well to those Plantations as to England for if another Island should be now discovered it must be subject to the Laws of England Curia advisare vult Lever versus Hosier THIS was a special Verdict in Ejectment Recovery suffered of Lands in a Liberty passeth Lands in a Vill distinct within that Liberty Mod. Rep. 206. Postea The Case upon the Pleading was viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury and whether the Lands in Cotton which is a distinct Vill though within the Liberties shall pass was the Question And it was argued

Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words

Termino Paschae Anno 27 Car. II. in Communi Banco Naylor versus Sharpless and other Coroners of Lancashire AN Action on the Case was brought for a False Return in which the Plaintiff sets forth Case for a false Return Mod. Rep. 198. that upon a Writ issuing out of this Court to the Chancellor of the Dutchy of Lancaster Process was directed to six Coroners being the Defendants which was delivered to one of them being then in the presence of the Party who was to be arrested but he did not execute it and afterwards at the Return of the Writ they all returned Non est inventus This Action was laid in Middlesex and upon Not-Guilty pleaded the Cause came to Tryal and there was a Verdict for the Plaintiff Baldwyn Serjeant moved in arrest of Iugdment 1. Except That the Action ought not to be laid in Middlesex but in Lancashire where the Tort was committed But as to that it was answered by Serjeant Turner when two Matters both of which are material and are laid in two Counties the Action may be brought in either as if two libel in the Admiralty for a Contract made at Land in Dorsetshire and for which the Plaintiff brings an Action in London against one of them it has been adjudged the Action lies in either County 2. Except The Action will not lie against the six Coroners for the Tort was done by one alone As to that it was said all the Coroners are but one Officer so if one Sheriff suffer an Escape both are liable but in this Case it had been ill to have brought the Action only against one because the ground of it is the false Return which was made by six Coroners And as to the first Exception there could be no doubt now since after Verdict 't is * Stat. 16 17 Car. 2. c. 8. helped though the Trial be in a wrong County But the Court said that Statute helps a Mistrial in the proper County but not where the County is mistaken and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner but if it had béen for not arresting the Party in such a Case it ought to have been brought against the Coroner who was present with the person to be arrested for that had béen a personal Tort which could not have been charged upon the rest Edwards versus Roberts That he did totally forbear and doth not say hucusque good THE Plaintiff declares that the Defendant promised to pay him so much Mony in consideration that he would forbear to sue him and then he avers that he did extunc totaliter abstinere c. Vpon Non Assumpsit pleaded a Verdict was found for the Plaintiff And it was now moved by Turner Serjeant in Arrest of Iudgment 1. Except The consideration intends a total forbearance and the averment is that from the making of the promise he did totally forbear but doth not say hucusque Sed non allocatur for that shall be intended And it was the Opinion of the whole Court that if the Consideration be as in this Case wholly to forbear the Plaintiff by an Averment that from the making the promise hucusque he did forbear is well entituled to an Action A like Case was this Term where the Consideration was as before and the Averment was that he forbore seven Months and being moved in Arrest of Iudgment by Serjeant Baldwyn because 't is not said hucusque which implies that after the seven Months he did not forbear it was notwithstanding held good it being a reasonable time and the rather because if the Action had been brought within the seven Months and the Plaintiff had averred that hucusque he forbore it had been good enough Quaere Reed versus Hatton IN a special Verdict in Ejectment the Question did arise upon the construction of the Words in a Will Devise paying 5 l. per annum 't is a Fee The Case being this John Thatcher was seised in Feé of the Houses in question and did devise them to his Son Robert in which Will there was this Clause viz. Which Houses I give to my Son Robert upon this Condition that he pay unto his two Sisters five pounds a year the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator so as the said Feast be a Month after his death with a Clause of Entry for Non-payment The Testator dies the Houses are worth 16 l. per annum and whether Robert the Son shall have an Estate for Life only or in Fee was the Question This was argued by Jones Serjeant for the Plaintiff and by Seys Serjeant for the Defendant And for the Plaintiff it was said Ex parte Quer. that Robert had but an Estate for Life 'T is true in most Cases the Word paying makes a Fee where there is no express Fee limited but the difference is viz. where the Mony to be paid is a Sum in gross let it be equivalent or not to the value of the thing devised the Devisee shall have a Fee though the Estate be not devised to him and his Heirs but if it be an annual payment out of the thing devised as in this Case it will not create a Fee without apt words because the Devisée hath no loss and therefore it hath beén held that if a Devise be made to two Sons to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life the Sons had only an Estate for Life because 't is quasi an annuel Rent out of the Profits and no Sum in gross * Jones 211. Cro. Car. 157. Broke Abr. tit Estate 78. And * 6 Co. 16. Colliers Case was much relied on where this very difference was taken and allowed that paying 25 l. in gross makes a Fee but paying 50 s. per annum creates only an Estate for Life All Devises are intended for the benefit of the Deviseé and therefore where a Sum in gross is devised to be paid which is done accordingly in such Case if the Deviseé should die soon after the Mony would be lost if he should have only an Estate for Life but in the Case at Bar the Testator by a nice calculation had appointed when the first payment should be made viz. not until a Month after his decease which hath prevented that damage which otherwise might have happened to the Devisee if no such provision had béen made Vide Hob. 65. Green's Case Ex parte Def. But on the other side it was said that Robert had a Fée for though here is a Sum to be paid annually 't is a Sum in gross and Collier's Case was also relied upon on this side It was agreed where payment is to be made by which the Devisee can sustain no loss the Word Paying there will not make a Fée but if there

Trusteés therein named are appointed to sell it for payment of Debts and raising this Portion by which Act all Conveyances made by old Sir Robert Carr since the year 1639. are made void except such as were made upon valuable considerations but all those made by him before the said year with power of revocation if not actually revoked are saved and in the year 1636. he had executed a Conveyance by which he had made a Settlement of his Estate in Tayl with a power of revocation but it did not appear that he did ever revoke the same The greatest part of the Lands appointed by this Act of Parliament to be sold by the Trustees are the Lands comprised in that Settlement and now after the death of Sir Robert Carr the Plaintiff exhibits his Bill against the Son not knowing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer and by this Bill he desires that the Trustees may execute their Trust c. and that he may have relief On the Defendants side it was urged Ex parte Def. that after the Marriage there was a Bond given for an additional Ioynture and it was upon that account that the Defendant was drawn in to execute these Articles And if the very reason and foundation of his entring into them failed then they shall not bind him in Equity and in this Case it did fail because the Plaintiff had disabled himself to make any other Ioynture by a Pre-conveyance made and executed by him of his whole Estate and if this agreement will not bind him then this Court cannot enlarge the Plaintiffs remedy or appoint more than what by the Articles is agreed to be done neither can the Defendants sealing incumber the Estate Tayl in Equity because the Lands were not then in him his Father being Tenant in Tayl and then living and the subsequent descent by which the Lands are cast upon him alters not the Case for the very right which descends is saved by the Act from being charged But on the other side it was argued that though the Marriage did proceed upon the Defendants sealing yet the Assurance which was to be made was a principal Motive thereunto and it being agreed before Marriage though not executed it was very just that he should Seal afterwards and though the additional Ioynture was not made yet there was no colour that the Defendant should break his Articles for that reason because if the Bond be not performed 't is forfeited and may be sued and nothing appeared in the case of any Conveyance made by Sir Francis whereby he had disabled himself to make an additional Ioynture and he hath expresly denied it upon his Oath And though it was was objected that the Money was raised by the old Lady Carr and by the direction of the Trustees lodged in the hands of one Cook who is become insolvent It was answered that there was no proof of the consent of the Trustees and therefore this payment cannot alter the case After the matter thus stated the Lord Chancellor delivered his Opinion That the 6000 l. is doe to the Plaintiff unpaid and unsatisfied for though the Marriage had not taken effect yet the Covenant binds the Defendant because a Deed is good for a Duty without any consideration 2. The Plaintiff has remedy against the person of the Defendant at Law for this 6000 l. 3. He has remedy against such of the Defendants Lands which are not comprised in the Settlement made 1636. for as to them the Trustees may be enjoyned to execute the Trust And he desired the Opinions of the two Iustices if any thing more could be done in this case Iustice Windham was of Opinion that nothing more could be done but to make a Decree to enforce the execution of the Trust And Iustice Wild said that the Plaintiff has his remedy at Law against the Defendant and upon the Act of Parliament against the Trustees but upon these Articles no Decree could be made to bind the Lands for that would be to give a much better security than the Parties had agreed on But if there had been a Covenant in the Articles that a Fine should be levied it might have been otherwise 't is only that a Fine is intended to be levied But as to that the Lord Chancellor was of Opinion that it was a good Covenant to levy a Fine for the words Articles of Agreement c. go quite through and make that Clause a Covenant but because Iustice Wild was of another Opinion he desired the Attorny General to argue these three Points 1. Whether this was a Covenant to levy a Fine or not 2. If it was a Covenant whether this Court can decree him to do it for though the Party has a good remedy at Law yet whether this Court might not give remedy upon the Land 3. If it was a Covenant to levie a Fine and the Court may decree the Defendant to do it yet whether such a Decree can be made upon the prayer of this Bill it not being particularly prayed for the Plaintiff concluded his Bill with praying relief in the execution of the Trust c. In Trinity-Term following these Points were argued by Serjeant Maynard Sir John Churchil and Sir John King for the Plaintiff Mr. Attorny and Mr. Solicitor and Mr. Keck for the Defendant all in one day and in the same order as named The Councel for the Defendant urged Ex parte Def. that this was no Covenant in Law to enforce the Defendant to levy a Fine 'T is agreéd that there is no need of the word Covenant to make a Covenant but any thing under the Hand and Seal of the Parties which imports an Agreement will amount to a Covenant so in 1 Roll. Abr. 518. these words in a Lease for years viz. That the Lessee shall repair make a Covenant so in the Case of Indentures of Apprentiship there are not the formal words of a Covenant but only an Agreement that the Master shall do this and the Apprentice shall do that and these are Covenants but in all these Cases there is something of an undertaking as in 1 Roll 519. Walker versus Walker If a Deed be made to another in these words viz. I have a Writing in my custody in which W. standeth bound to B. in 100 l. and I will be ready to produce it This is a Covenant for there is a present engaging to do it but there are no such words here 't is only a recital That whereas a Fine is intended to be levied to such Uses c. 'T is only Introductive to another Clause without positive or affirmative words and therefore can never be intended to make a Covenant but are recited to another purpose viz. To declare the Use of a Fine in case such should be levied If Articles of Agreement are executed in consideration of an intended Marriage and one side Covenants to do one

upon the pleading because the Defendant had justified the taking of a Distress by vertue of a Lease for a Term of years if three live so long and did not aver that any of the Lives were in being 2. He sets forth that one of them was seised and being so seised dyed but doth not say obiit inde seisit̄ and these were held incurable faults Anonymus Exceptions to the Count in a Formedon in Discender Mod. Rep. 219. 8 Co. 88. IN a Formedon in Discender The Tenants by Turner Serjeant of Council with them took three Exceptions to the Count. 1. The Demandant being Brother to the Tenant in Tail who died without Issue sets forth that the Land belonged to him post mortem of the Tenant in Tail without saying that he died without Issue In the ancient Register in a Formedon 't is pleaded that the Tenant in Tail died without Issue and so it is in Co. Entr. 254. b. Rast Entr. 341. b. quae post mortem of the Donee reverti debeant eo quod the Donee obiit sine haerede all the Presidents are so 9 E. 4. 36. 2. The Demandant makes as if there were two Heirs of one Man which cannot be pleaded for he counts that his eldest Brother was Heir to his Father and that after his death he is now Heir which cannot be for none is Heir to the Father but the eldest Son and therefore when they are both dead without Issue the next Brother is Heir to him who was last seised and not to the Father and then he ought to be named which is not done in this Case Hern's Pleader fol. 'T is true in a Formedon in Reverter the Tail being spent the Donor ought not to name in his Count every Issue inheritable to the Tail because he may not know the Pedigree and therefore 't is well enough for him to say quae post mortem of the Donee ad ipsum reverti debeant eo quod he died without Issue but in a Formedon in Discender 't is presumed that the Demandant knowns the descent and therefore he ought to name every one to whom any Right did discend Jenkins and Dawson's Case Hetley 78. Dyer 216. 3. The Demandant hath not set forth that he is Heir of J. begotten on the Body of his Wife 1 Inst 326. which he should have done because this being in the Discender he must make himself Issue to the Tail Ex parte Def. These Exceptions were answered by Serjeant Seys and as to first he said that in a Formedon in Descender he neéd not to set forth that the Tenant in Tail died without Issue which he agreed must be done in a Formedon in Remainder or Reverter 39 E. 3. 27. Old Entr. tit Formedon pl. 3. 7 H. 7. 7. b. a Case express in the Point To the second Exception he said that it was no Repugnancy in Pleading to say that two were Heirs to one Man for they may be so at several times and so it appears to be in this Case since 't is said post mortem of his Brother who was Heir To the third Exception 'T is well set forth that the Demandant was the Issue of Ingram begotten of the Body of Jane for he saith his Brother was so and after his death he was Brother and Heir of him which is impossible to be unless he was begotten as aforesaid and of this Opinion were all the Court viz. Judgment That 't is well enough set forth that the Tenant in Tail died without Issue for if he had any Children alive it could not discend to the Demandant as Brother and Heir which he hath alledged and they all agreed the difference between a Formedon in the Discender Remainder and Reverter And as to the second Exception there is no contradiction to say two are Heirs to one tempore diviso And the last Exception had no force in it But then it was observed that the Demandant in his Writ had set out his Title after the death of the Tenant in Tail and in the Count 't is only Quae post mortem c. But to that it was aswered it relates to the Writ and what is therein shall supply the Et caetera in the Count. Woodward versus Aston in Banco Regis INdebitatus Assumpsit for 10 l. in Mony received to the Plaintiffs use and upon a Trial at Barr this Term Joint Office for life and to the Survivor one consents that another shall be admitted 't is a Surrender 1 Ventris 296. The Case upon Evidence was viz. Sir Robert Henly Prothonotary of the Court of Kings Bench makes a Grant of the Office of Clark of the Papers which of right did belong to him unto Mr. Vidian and Mr. Woodward for their lives and the life of the longest liver of them Afterwards Mr. Vidian makes a parol Surrender of this Grant and then Sir Robert Henley makes a new Grant to Mr. Woodward and Mr. Aston the Defendant for their Lives and for the life of the Survivor Mr. Vidian dies and whether the Plaintiff Woodward should have all the profits of the Office by Survivorship was the Question It was agreed that this was one entire Office and as one of them cannot make a Deputy so he cannot appoint a Successor But the doubt was whether the Plaintiff had not consented that the Defendant should be taken into the Office and had agreed to the new Grant which was made afterwards for it was admitted that if he consented before Mr. Aston came in it must then be found for the Defendant for by his consent he had barred himself of his Right and Benefit of Survivorship and that by his consenting to the new Grant that in Law was a Surrender of the first Grant and then the Defendant is jointenant with the Plaintiff and if so his Action is not maintainable And upon these two Points only it was left to the Iury who found for the Defendant The Evidence to the first Point was that when Mr. Vidian proposed to the Court that the Defendant might succeed him after some opposition and unwillingness in the Plaintiff to agreé to it yet at length he declared that he did submit to it and accordingly the Defendant was admitted but there was no formal Entry of his Admittance as an Officer but only the Courts declaring their Consent that he should take his place Ex parte Quer. On the other side it was insisted on for the Plaintiff and proved that his Submission to the Court was with a salvo jure and what he did was reluctante animo thinking it was a hardship upon him as he often since declared so that it was quasi a compulsory Consent made in obedience to the Court with whom it was not good manners in him to contend Several Points were stirred at the Trial as 1. Whether a Surrender of the Grant of an Office by Parol was good 2. Whether if a Grant be made of an Office or of

Nomen collectivum and if twenty Breaches had been assigned he still counts de placito quod teneat ei Conventionem inter eos fact ' And of that Opinion was the Court and that the Breach being of all three Covenants the Recovery in one would be a good Barr in any Action afterwards to be brought upon either of those Covenants Parrington versus Lee. INdebitatus Assumpsit Limitation of personal Actions only extends to accompt between Merchants Mod. Rep. 268. 2 Sand. 125 127. Pl. Com. 54. for Mony had and received to the use of the Plaintiff a quantum meruit for Wares sold and an Insimul computasset c. The Defendant pleads the Statute of Limitations viz. non assumpsit infra sex annos The Plaintiff replyed that this Action was grounded on the Trade of Merchants and brought against the Defendant as his Factor c. The Defendant rejoyns that this was not an Action of Accompt and the Plaintiff demurred for that this Statute was made in restraint of the Common Law and therefore is not to be favoured or extended by Equity but to be taken strictly and that if a Man hath a double remedy he may take which he pleaseth and here the Plaintiff might have brought an Action of Accompt or an Action on the Case grounded on an Accompt But Baldwyn Serjeant insisted that the Declaration was not full enough for the Plaintiff ought to set forth that the Action did concern Merchants Accompts and that the Replication did not help it The Court were of another Opinion for that it need not be so set forth in the Declaration because he could not tell what the Defendant would plead so that supposing him to be within the Saving of the Act his Replication is good and 't is the usual way of Pleading and no departure because the Plea of the Defendant gives him occasion thus to reply But the Saving extends only to Accompts between Merchants their Factors and Servants and an Action on the Case will not lie against a Bayliff or Factor where Allowances and Deductions are to be made unless the Accompt be adjusted and stated as it was resolved in Sir Paul Neals Case against his Bayliff Where the Accompt is once stated as it was here the Plaintiff must bring his Action within six years but if it be adjusted and a following Accompt is added in such case the Plaintiff shall not be barred by the Statute Mod. Rep. 71. because 't is a running Accompt but if he should not be barred here then the Exception would extend to all Actions between Merchants and their Factors as well as to Actions of Accompt which was never intended and therefore this Plea is good and the Saving extends only to Actions of Accompt whereupon Iudgment was given for the Defendant Astry versus Ballard In Banco Regis Principals in Execution the Bail are lyable 1 Ventris 315 THE Defendant became Bail for six persons against whom the Plaintiff got a Iudgment and two were put in Execution the Plaintiff afterwards brought a Scire Facias against the Bail who pleaded that two of the Principals were taken in Execution before the Scire Facias brought and whether the Bail was not discharged thereby was now the Question It was agreed that if five had surrendred themselves after Iudgment 2 Cro. 320. 1 Roll. 897. yet the Bail had been lyable but are not so if the Plaintiff as in this Case hath once made his Election by suing out Execution against the Principals and thereupon two are taken and in Custody Before the Return of the second Scire Facias they have Liberty by the Law to bring in the Principals but the Plaintiff having taken out Execution he hath made it now impossible for the Bail to bring them in to render themselves But Sypmson argued that the Bail was not discharged for he ought to bring in the other four or else he hath not performed his Recognizance and so it was adjudged by the Court Sid. 107. for the Law expects a compleat satisfaction The like Resolution was in this Court between Orlibear and Norris Steed versus Perryer IN a Special Verdict in Ejectment the Case was this Republication makes it a new Will viz. Robert Perryer being seised in Fee of the Lands in question had Issue two Sons William his eldest and Robert his youngest Son and being so seised he devises these Lands to his youngest Son Robert and his Heirs Robert the Devisee dies in the Life time of his Father Jones 135. 1 Ventris 341 Mod. Rep. 267. and leaves Issue a Son named Robert who had a Legacy devised to him by the same Will The Grandfather afterwards annexed a Codicil to his Will which was agreed to be a Republication and then he expresly publishes the Will de novo and declared that his Grandson Robert should have the Land as his Son Robert should have enjoyed it had he lived And whether the Grandson or the Heir at Law had the better Title was the Question Pemberton and Maynard Serjeants argued for the Title of the Plaintiff who was Heir at Law That if a Devise be to S. and his Heirs if S. dye living the Devisor the Heir shall take nothing because no Estate vested in his Ancestor so if a Devise be to the Heirs of S. after his decease the Heir shall take by Purchase for he cannot take as Heir for the Reason aforesaid By the death of Robert the Son the Devise to him and his Heirs was void and the annexing a Codicile and Republication of the Will cannot make that good which was void before if it cannot make it good then the Heir cannot take by Purchase and by descent he cannot take for his Ancestor had no Estate and therefore he shall have none Besides this is not a good Will within the Statute which requires it to be in Writing Now the Devise by the written Will was to the Son and the Republication to the Grandson was by Words and not in Writing so that if he cannot take by the Words of the Will he is remediless and that he cannot take as Heir because his Ancestor dyed in the Life time of the Testator Moor 353. Cro. Eliz. 243. Cro. Eliz. 422. Moor 353 404. Skipwith and Barrel on the other side That the new Publication makes it good for it makes a new Will in Writing and it shall take according to the Publication which makes it have the effect of a new Will 'T is true Deeds shall not be extended father than the intent and meaning of the Parties at the time of the Delivery but Wills are to be expounded by another Rule therefore though by the death of the Son the Will was void yet by the Republication it hath a new Life 1 Roll. Abr. 618. 5 Co. 68. 8 Co. 125. The Chief Justice Wyndham and Atkins Iustices were of Opinion for the Grandson against the Heir at Law viz. That the Republication made it a