c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
Dorothy Margery survived and is since dead The Question was whether upon this Reservation the Beast of any person being upon the Land may be distreined for an Heriot Mr. Pollexfen argued that it could not because the words in the Reservation ought to be taken very strictly and not to be carryed farther than the plain expression Where words are doubtful they have been always expounded against the Lessor Cro. Eliz. 217. 2 Roll. Abr. 448. Latch 99. as if a Lease be made for years reserving a Rent durante termino to the Lessor his Executors or Assigns the Lessor dies his Heir shall not have the Rent because 't is reserved to the Executors But here is no room for any doubt upon these words for if a Lease for years be made in which there is a Covenant that the Lessee shall pay the Rent without any other words this determines upon the death of the Lessee So where a Lease was made for 99 years if A. B. C. 2 Rol. Abr. 451. Hetley 58. Cro. Car. 314. or any of them should so long live reserving Rent to him and his Executors and also at or upon the death of either his or their best Beast in the name of an Heriot provided that if B. or C. die living A. no Heriot shall be paid after their deaths A. assigns his Term and the Beast of the Assignee was taken for an Heriot but adjudged that it could not for the words his or their shall not be carried farther than to the persons named in the Limitation The Books that affirm that a Man may seize for an Heriot Service cannot be brought as Authorities in this Case because they are all upon Tenures between Lord and Tenant and not upon particular Reservations as this is The old Books say that if a Tenant by Fealty and Heriot-Service Broke tit Heriot 2. made his Executor and died that the Lord might seize the best Beast of his Tenant in the Hands of the Executor and if he could not find any Beast then he might distrain the Executor Plo. Com. 95. and the reason of this seizure was because immediately upon the death of the Tenant a Property was vested in the Lord but it was held always unreasonable to put him to distrain when he might seise And it is now held that for Heriot-Service the Lord may either distrain or seise but then if he makes a seisure Cro. Car. 260. Jones 300. it must be the very Beast of the Tenant but if he distrain he may take any persons Cattle upon the Land So that admitting this to be Law yet it proves nothing to this matter because such Services being by Tenure shall not be extended to those which are created within time of memory upon particular reservations for by those ancient Tenures the Lords had many Priviledges which cannot be upon Reservations Besides the seisures in those Cases were by the Lords who continued so to be at the very time of the seisure but in our Case the Lease is determined by the death of the last Life so the Priviledge is lost and then it must stand upon the particular words in the Deed. Sed adjornatur into the Exchequer Chamber the Iudges being divided in Opinion Vid. 2 Sand. 165. Shipley versus Chappel Pasch 3 Jac. Rot. 404. THE Plaintiff Shipley as Administrator of Hannah his Wife Condition of two parts in the disjunctive and one part becomes impossible to be done yet the other must be performed according to the subsequent matter brought an Action of Debt upon a Bond against Chappel an Attorny for 140 l. The Defendant craved Dyer of the Condition which was Viz. Whereas Hannah Goddard who was Wife to the Plaintiff and Thomas Chappel of Greys-Inn in the County of Middlesex are Coparceners according to the Common-Law of one House with the Appurtenances in Sheffeild in the possession of William White and whereas the said Hannah Goddard hath paid unto Thomas Chappel the Father for the use of his Son the Sum of 72 l. in consideration that the said Thomas Chappel the Son when he attains the Age of 21 years which will be about Midsomer next do by good Conveyance in the Law at the costs and charges of the said Hannah Goddard convey his said moiety of the said House with the Appurtenances unto her and her Heirs Now the Condition of this Obligation is such That if the said Thomas Chappel the Son shall at the Age of 21 years convey his said moiety of the said House or otherwise if the said Thomas Chappel the Father his Heirs Executors or Administrators shall pay or cause to be paid the sum of 72 l. with lawful Interest for the same unto the said Hannah Goddard her Executors Administrators or Assigns that then this Obligation to be void Then he pleaded that his Son Thomas Chappel was Coparcener with Hannah Goddard as Co-heires of Elizabeth Goddard that Thomas came of Age and that before that time Hannah died without Issue The Plaintiff replied that true it is that before Thomas Chappel the Son came of Age the said Hannah died without Issue of her Body that Elizabeth Goddard before the making of the said Bond died seised in Fee of the said Messuage but that she first married with one Malm Stacy by whom she had Issue Lydia that Malm her Husband died and Elizabeth married John Goddard by whom he had Issue Hannah their only Daughter and Heir that John Goddard died and that Lydia Stacy married the Defendant Thomas Chappel by whom he had Issue Thomas Chappel his Son that Lydia died in the life-time of Elizabeth that Thomas Chappel hath not paid the 72 l. to Hannah in her life time or to John Shipley after her death The Defendant demurred and the Plaintiff joyned in Demurrer The Question was since the word Heirs in the Condition being a word of Limitation and not of any designation of the person whether the death of Hannah Goddard before Chappel the Son came of Age and who was to make the Conveyance shall excuse the Defendant from the payment of the Mony Those who argued for the Defendant 5 Co. 21. b. chiefly relied upon Laughter's Case which was viz. Laughter and Rainsford were bound that if R. after marriage with G. together with the said G. shall sell a Messuage c. if then R. do or shall in his life-time purchase for the said G. and her Heirs and Assigns Lands of as good value as the Mony by him received by the said Sale or leave her as much Mony at his decease then c. G. died R. did not purchase Lands of an equal value with that he sold and upon Demurrer it was held that where a Condition consisteth of two parts in the disjunctive and both possible at the time of the Bond made and afterwards one is become impossible by the act of God there the Obligor is not bound to perform the other part because the Condition is made for
may forfeit their Charter by it Now I do not deny but it is the Duty of the Mayor and it is the equal Duty of the Aldermen to see a time be appointed for an Election And as the Mayor is the Chief in pre-eminence so it aggravates his neglect if he refuses it But his neglect of his Duty will not excuse the rest of the Electors for the not doing of their Duty and the performing of their Qaths If it be said What if they do not agree upon the time but are divided I Answer Whoever can carry an Election when they are met and chuse shall also govern in the time of meeting if there be any difference about it and that is not the Mayor but the Major pars eorum c. Now this agrees with the Rule of the Law in the like Cases In a Commission of the Peace to try Felonies c. And to hold a Court of Quarter-Sessions Who shall issue out the Summons and appoint the Time Answ Those that constitute the Court and are to Exercise the Power must issue out the Summons If twenty Iustices of the Peace not having one of the Quorum amongst them should issue out a Summons for a General Quarter-Sessions it would be void for twenty Iustices of the Peace cannot hold such a Sessions if there be not one of the Quorum among them Nor can the Custos Rotulorum alone do it though he is commonly most Eminent Thus is it in the Commission of Gaol-Delivery and of Dyer and Terminer We may see the Forms of them in Crompt Jurisd of Courts f. 121 125. The express words of their Commission for appointing time and place Ad certum diem quem vos tres vel duo vestrum Quorum vos A. B. C. D. unum esse volumus ad hoc provederitis And therefore there was no need of any more express Provision in the Charter for a Summons for an Election of an Alderman or the appointing of a time In the next place for the necessity of the Mayor's being present as well as their meeting by his Summons I see no reason for it It is true there is a Case in Print that seems to make for it tho' I never yet heard it so much as mention'd either at the Trial for I was not there or throughout the whole Case yet it is fit for me to take notice of it for I make no doubt but before we have done we shall hear of it It is in Serjeant Rolls's Abridgment Part I. Tit. Corporation f. 513 514. Case 5 6 7. Between Hicks and the Borough of Launceston in Cornwal Resolved per Curiam which were only two Iudges viz. the Chief Iustice Richardson and Iustice Croke no other of the Iudges being there That if a Corporation consists of a Mayor and eight Aldermen with a Clause in the Patent That if any of the Aldermen dye that then the Mayor and the rest of the Aldermen within eight days after shall Elect another though it be not limited that they or the greater number of them may elect yet the greater number of them may elect And if the Mayor at the time of the death of an Alderman be absent at London till after the eight days and the rest of the Aldermen within eight days come to the Deputy Mayor and require him to make an Assembly of them to elect another within the eight days and he refuse and upon that the greater number of the Aldermen meet without the Mayor or his Deputy and Elect an Alderman that it is a void Election for the Mayor ought to be present at it by the Words of the Grant This seems to be a stronger Case than ours for there is a certain time limited by which they must make their Election viz. eight days I first Observe That this Case as far as I can find was not a Case depending by any Suit or Action for in that Case it is said That a Writ was granted to make a new Election of an Alderman So that I suppose it was upon a Motion only I have a Copy of the Rules which shews it to be so as I take it Then it does not appear to be upon an Argument for had it beén so two Iudges I presume would not have determin'd it but have put it off till the Court had been full as usually they do therefore it was not so solemn nor has not so great Authority But take it as it is The time of eight days being limited by which the Election was to be made makes the Case never a whit the stronger for there the Iudges declare that there may be an Election after the eight days and the limiting that time was to quicken them Then observe the ground those two Iudges went upon they do not say it ought to be so at the Common Law as doubtless they would had they thought that the Common Law would have ruled it for if the Common Law serves for it it was idle to resort to any other ground But the Iudges in the Case of Launceston say that the Mayor must be present at the Election by the Words of the Grant So that they went by that Rule which I have urged which is the words of the Grant 't is the Charter only must give the Rule as I have Argued all this while Now what the words of the Charter were in the Case of Launceston does not appear in the Report of that Case Perhaps there was an express Provision in the Charter requiring the meeting of the Aldermen by the Summons of the Mayor and in his presence which if so then there is no disputing against it And the drawer of the Indictment against us has so drawn it as if the Charter in our Case did so require it too But there is nothing to that purpose nay as I have observ'd there are concomitant Clauses that give another construction and argue to the contrary Therefore the Case of Launceston differs from ours But there is another thing wherein the Case of Launceston and ours differs I am no Enemy to the Government I Live under if any man think otherwise of me I care not because I cannot govern another Man's Thoughts I do agree that this Sovereign Court of the King's Bench as is resolv'd in James Bagg 's Case hath a super-intendency and a special Authority in Cases of this nature which more concern matter of Government and the publick Peace and Order than any Man 's private Right or Property And in such Cases this Court governs it self much by the Circumstances of the Case Now let us mind the Circumstances of the Case Reported by Serjeant Rolls and of our Case and let them be compar'd and there will be a very wide difference between them And therein I dare appeal to any rational unbiass'd Man in the World for the Innocency of our proceedings in the whole matter The Mayor in the Case of Launceston happen'd to be in London at the death
of the Alderman to supply whose place there needed the Election He was not in the Town that was to chuse whereof he was Mayor when the Election was made The Aldermen were under an apprehension that they should be guilty of a great omission and neglect of their Duty and perhaps had some thought of their being under an Oath too and that they might be liable to punishment if they did not chuse within the eight days prescrib'd by their Charter nay 't is likely they thought they could make no choice at all if they did it not within the eight days Tho' all this was but their mistake of the Law yet it was very pardonable in them The Iudges in their Resolution upon that Case rectifie that Mistake and a new Election is thereupon order'd by this Court The Mayor there was not wilfully absent for he was at London when the Alderman died he was at a very great distance from his Town too viz. Launceston about 200 miles as I take it so that he could hardly hear of the death of the Alderman in the eight days time and go down thither before the end of the eight days there was no great necessity of an Election so soon And the Aldermen had done what they did out of a zeal for the Publick though it were a zeal without knowledge But I do not find that the void Election and the Aldermens meeting about it was held a Ryot or an unlawful Assembly No they were not so much as blam'd for what they did nay sure they were rather to be commended for their just intentions But our Case was quite another thing And all our Circumstances and the very plain words of our Charter that appoints the manner of our Election we had to our great charge and upon good advice drawn up in a special Plea for the Question truly arises upon the words of the Charter and the construction of them How it happen'd I cannot tell but a Iudge ruled us to plead not Guilty our chargeable special Plea came in a little too late It was a matter of Record and of Law and fitter to be determin'd by the Iudges than by a Iury. But these in truth were our Circumstances as I shall briefly relate them and I am ready to make out the truth of them An Alderman of Bristol tho' chosen yet cannot officiate till he be sworn he cannot be sworn by the express words of the Charter but before the Mayor and Recorder both I being the Recorder of Bristol happenn'd to be there some time before the day of chusing Members to the Oxford Parliament not long after Sir John Lloid's death I was indeed invited thither Sir Richard Hart the then Mayor and all of us I think not one Alderman absent were then met in the Council Chamber the usual place for that purpose we had nothing else to do It was mov'd that we might then make choice of a new Alderman while not only Mr. Mayor was present but while the Recorder was there too So that the Party chosen might instantly have been sworn and enter'd upon his charge for they have their distinct Wards And the Recorder many times comes not thither in a year or two for I live forty Miles from them and I seldom tarry above two nights at a Gaol-Delivery but then as it fell out I was there upon another occasion None oppos'd it but Mr. Mayor and he did it upon a Ceremony and Complement as he pretended because Sir John Lloid as he said was not yet buried Out of respect to Mr. Mayor we did forbear Some good time after and after Sir John Lloid had been buried I happen'd unexpectedly to be there again and Mr. Mayor was earnestly press'd again then to go to an Election upon the former reason that the new Alderman might presently be sworn Mr. Mayor still refus'd I do not remember but all the rest were very willing to have gone to an Election We did the second time forbear tho' I think we were all there I am sure a great number I tarried then four or five days it was at the Election to Parliament the Poll lasted six days but I left them at the Poll I was not fond of being chosen The Evening as I take it before I went away we were again upon the place and the Mayor with us and he was again press'd to it but wilfully went away and we still forbore But that night some of us sign'd a Writing desiring Mr. Mayor to joyn with us and we declar'd in it if he did not joyn we would proceed without him being the major pars This shews we had no design to chuse in his absence nay it plainly appear'd that the design was on the Mayor's part for he knew I could not stay and he was desirous to chuse in the absence of some of us that he might carry the Election against the person next in course to be chosen and every way qualified viz. Alderman Day I consulted the Charter and found it as I have now observ'd upon it and was clearly of Opinion for the Reasons I have offer'd that in such Circumstances the major part might chuse We gave notice to the Mayor and all the Aldermen then in Town and tho' the Government is most miserably divided yet in this Business there was nothing of Faction and the different Parties were not engag'd only the Mayor had his Design For we were six Aldermen at the Choice Sir Robert Cann an intimate Friend of the Mayor's being lame of the Gout sent us an Excuse but would approve of our Choice Another of our number one of our six is a zealous Man of Mr. Mayor's way yet not taking that to be now concern'd joyned with us and voted the same way We were six and this appears by the Indictment and we were unanimous in the person we chose No other person was so much as nam'd nor I believe thought on by any Body unless by Mr. Mayor there were but four Aldermen more in being for Mr. Mayor was none And the person chosen was not only next in course but every way qualifi'd has a great Estate worth three or four of some of the Aldermen no Tang of a Fanatick a constant Churchman he had but one great Fault he gave his Vote at the Election to Parliament for my self and Sir John Knight against Mr. Mayor and Sir Tho. Earl The person is not sworn to this day nor does desire the Office but rather declines it being fit for it He should have been Mayor this Year in course but is put by it and he is contented There has been another since chosen in his place by the Votes of five only Sir Richard Hart the Mayor being one I am sure they are not major pars And for this choice by six who are Iustices of the Peace as well as Mr. Mayor and the other four we who are four of six are all Indicted for a Ryot upon the account of this
eldest Son for sixty years if he so long lived Remainder to Thomas for Life and that John made a Lease to the Plaintiff for a year The Defendant replied that after the Devise R. Frances made a Feoffment in Fee of the same Lands amongst others to the use of himself for Life Then as to the other Lands to divers Vses contained in the Deed but as to those Lands in which the Distress was taken to the same Vses as in the Will in which Conveyance there was this Priviso That if John should disturb his Executors in the quiet Enjoyment c. or if he shall not suffer them to carry away the Goods in his House then the Uses limited to him should be void He did hinder the Executors to carry away the Goods yet it was adjudged that he should keep his Estate because being a Stranger to the Feoffment he shall not lose it without notice of the Proviso But in answer to that Case notice was not the principal matter of that Iudgment it turned upon a point in Pleading for the Avowant had not shewed any special act of disturbance and a bare denial without doing any more was held to be no breach of the Condition Some other Authorities may be cited to prove notice necessary Green's Case 6 Co. 24. as where Tenant for Life of a Mannor to which an Advowson was appendant did in the year 1594. present Durston who neglecting to read the Articles was deprived nine years afterwards by the Ordinary at the Suit of the Patron who presented him who also dyed two years after the Deprivation then the Queen presented by Lapse whose Presentee was inducted and six years afterwards Durston dyed after whose death he in Remainder presented Green now though the Patron was a Party to the Suit of Deprivation and thereby had sufficient notice that the Church was vacant yet it was adjudged that a Lapse should not incurr but only after notice given by the Ordinary himself and not by any other person whatsoever But this Case may receive this Answer viz. That notice had not been necessary at Law but it was provided by a particular Act of Parliament 13 Eliz. ca. 12. that no Title by Lapse shall accrue upon any deprivation but after six months notice thereof given by the Ordinary himself to the Patron 'T is true the Law is very tender in divesting the Rights of the Subject but where an Estate is created by the Act of the Party and restrained by particular limitations without any appointment of notice there the Law will not add notice and make it necessary because the person who made such a disposition of his Estate might have given it upon what conditions he pleased Therefore it may seem hard that this Estate should be determined by the neglect or omission of the Trustees to give notice of this Proviso but 't is apparent that it was the intent of the Father it should be so for by this Limitation the Estate is bound in the Hands of an Infant the reason is because there is a Privity between an Heir and an Ancestor and therefore the Heir is bound to take notice of such Conditions which his Ancestor hath imposed on the Estate 2. This Estate is determined by the Marriage of the Daughter with Mr. Villiers because there is an express Limitation in the Deed for that very purpose she is enjoyned to marry a Fitzgerald or one who should take upon him that name which is still more extensive and she having neglected to do the one and her Husband having refused to do the other the Aunt in Remainder shall take advantage of this Non-performance And 't is this Remainder over which makes it a Limitation 1 Ventr 202. Owen 112. Goldsb 152. Lit. Sect. 723. for if it had been a Condition then the intent of the Father had been utterly defeated for none but the Heir at Law can enter for the breach of a Condition and such was Katharine in this Case The Proviso in this Deed depends upon another Sentence immediately going before 2 Co. 70. to which it hath reference and then by the express resolution in Cromwel's Case 't is a Limitation or Qualification of the Estate and not a Condition which Estate is now determined without Entry or Claim It was argued that in this Case three things are to be considered E contra 1. The Nature of the Proviso 2. That Notice is absolutely necessary 3. That the Notice given was not sufficient being not such as is required by Law As to the 1st The very nature of this Proviso is condemned by the Civil Law and because it works the destruction of Estates it hath never been favoured at the Common Law All Conditions to restrain Marriage generally are held void by both Laws so likewise are such which restrain people from marrying without the consent of particular persons because they may impose such hard terms before they give their consent that may hinder the Marriage it self and therefore a bare request of such without their subsequent assent has been always allowed to preserve the Estate 2. And which was the principal Point Notice in this Case is absolutely necessary both by the intent of the Father and by the construction of the Law There are three things of which the Law makes an equal Interpretation viz. Uses Wills and Acts of Parliament in which if the intention of the Parties and of the Law makers can be discerned the Cases which severally fall under the direction of either shall be governed by the intention without respect to the disagreeing words nay sometimes the Law will supply the defect of words themselves The Books are full of Authorites where Constructions have been made of Acts of Parliament according to the intent of the Makers and not according to the Letter of the Law As in Eyston and Stud's Case in the Commentaries Plowd Com. 2 pt 463. where the Husband and Wife levyed a Fine of the Lands of the Wife and declared the Vses to their Heirs in Tail the Remainder to the Heirs of the Wife they had Issue and the Husband died the Widow married a second Husband and he and his Wife join in a second Fine and declared the Vses thereof to themselves for Life the Remainder to the Husband and his Heirs for sixty years the Remainder in Tail to their Issue the Remainder to the Heirs of the Wife the Issue of the first Husband entred supposing the Estate had been forfeited by the Statute of H. 7. 11 H. 7. c. 20. which Enacts That if a Woman hath an Estate in Dower or in Tail jointly with her Husband or to her self of the Inheritance or Purchase of him and she doth either sole or with another Husband discontinue it shall be void and he in the Remainder may enter Now this Case was directly within the words of the Statute for the Woman had an Estate Tail in possession jointly with her first Husband
sell them so that a Retorn could not be made to the Party distraining therefore it directs that the Sheriff shall take Pledges for returning the Beasts if a Return should be awarded which would be to little purpose if such Pledges were not liable upon the Retorn of Elongar Now as to the removing of the Pleint by Certiorari that makes the Case more strong in the Plaintiffs behalf because the Record it self una cum omnibus ea tangen is removed but by an Habeas Corpus the person is only removed and the Court hath thereby a Iurisdiction over his Cause which the inferior Court hath lost because it hath lost his Person 2. This Scire Facias is not brought too soon as hath been objected for 't is in vain to bring an Alias Pluries after the Sheriff had returned Elongat ' 't is like the common Case where a Scire Facias is brought against the Bail and Non est inventus is returned after which there never was an Alias or Pluries Capias And afterwards in Michaelmas-Term following Iudgment was given that the Pledges are liable Palmer versus Allicock BY the Statute of Distribution of Intestates Estates 't is provided 22 23 Car. 2. cap. 10. That in case there be no Wife then the Estate of the Husband dying intestate shall be distributed equally amongst the Children and if no Child then to the next of Kin of the Intestate in equal degree and to those who legally represent them A Man died intestate having no Wife at the time of his death and but one Child who was an Infant afterwards Administration was granted of the Fathers Estate durante minore aetate of the Child who died before the Age of seventeen Then Administration was granted by a peculiar to the next of Kin of the Infant and an Appeal was brought in the Arches by the next of Kin of the Father to revoke that Administration In a Prohibition the Question was Whether Administration de bonis non c. of the first Intestate shall be granted to the next of Kin of the Father or the Child Mr. Pollexfen argued this Term for the Plaintiff in the Prohibition viz. That the Statute gives a power to the Ordinary to take Bonds of such persons to whom Administration is committed the Forms of which Bonds are expressed in the Act and the Conditions are to make a true and perfect Inventory and to exhibit it into the Registry He hath also a power to distribute what remains after Debts Funeral Charges and Expences Thus the Law stands now Then as to the Case at the Barr three things are to be considered 1. If a Man dies intestate leaving two Sons and no Wife each hath a Moiety of his personal Estate immediately vested in him so that if one Brother should afterwards die intestate the other shall have the whole 2. If an Interest be vested in two then by this Statute the like Interest is vested in one so that if he die Intestate his Administrator shall have the Estate 3. If so then the consequence will be that in this case Administration de bonis non of the first Intestate shall go to the next of Kin of the Infant By Interest is meant a Right to sue for a share after Debts paid which Interest every person hath in a chose in action As if a Man doth covenant with two that they shall have such an Estate after Debts paid an Interest vests in them by this Covenant and if they die it goes to their Executors such also is the Interest of every Residuary Legatee Now if any of them die before the Residue can be distributed the Wife or Children of him so dying shall have it And to make this more clear it will be necessary to consider how the Law stood before the making of this Act. At the Common Law neither the Wife Child or next of Kin had any Right to a Share of the Intestates Estate but the Ordinary was to distribute it according to his Conscience to pious Vses and sometimes the Wife and Children might be amongst the number of those whom he appointed to receive it but the Law entrusted him with the sole disposition of it 2 Inst 399. Afterward by the Statute of Westm 13 E. 1. c. 19. 2. he was bound to pay the Intestate's Debts so far as he had Assets which at the Common Law he was not bound to do and an Action of Debt would then and not before Pl. Com. 277. Greisbrook versus Fox lie against him if he did alien the Goods and not pay the Debts Then the Statute of * 31 E. 1. c. 11. 31 E. 1. was made by which he was impowred to grant Admstration to the next of Kin and most lawful Friend of the Intestate 1 Inst 133. b. 2 Inst 397. 9 Co. Hensloes Case and by this Statute the person to whom Administration was committed might have an Action to recover the Intestate's Estate for at the Common Law he had no remedy But then afterwards the Statute of 21 H. 8. cap. 5. Enacts That the Ordinary shall grant Administration to the Widow or next of Kin of the person deceased or to both and this was the first Law which gave any Interest to the Wife to whom Administration being once granted the power of the Ordinary was determined Hob. 83. 1 Cro. 62 202. and he could not repeal it at his pleasure as he might at the Common Law But after the making of this Statute many mischiefs did still remain because the Administration being once committed the person to whom it was granted had the whole Estate and the rest of the Relations of the deceased were undone and therefore if his Children were under Age or beyond the Seas and a Stranger had got Administration it would have been a Bar to them And thus it continued many years the Ordinary still making distribution as he thought fit taking only a Bond from the person to whom he granted Administration for the purposes aforesaid and sometimes to dispose the Surplus after Debts and Legacies as he should direct and no Prohibition was granted to remedy these inconveniences till about the 12th year of King James the First Hob. 83. But now by this Act a good remedy is provided against these mischiefs and 't is such which takes away the Causes thereof which is that the Administrator shall not have the whole Estate but that a Distribution shall be made The Title of the Act shews the meaning thereof to be for the better Settlement of Intestates Estates and the Body of it shews how Distribution shall be made so that such Bonds which were usually given by the Administrator before this Law to make Distribution as the Ordinary should direct are now taken away and other Forms are prescribed and there can be no remedy taken upon such new Bonds till the Ordinary hath appointed the Distribution so that in effect this Act makes the Will
and Lodington cited in Mathew Manning's Case which was A Man being possessed of a Term for years devised it to his Wife for life and after her death to her Children unpreferred and made her Executrix and died she married again and had but one Daughter unpreferred and after the death of the Mother this Executory Devise was held good to the Daughter though it was by the Name of Children and she enjoyed the Term. 3. Object That this Act should be construed according to the Spiritual Law Answ That cannot be for all Statutes ought to be expounded according to the Rules of the Common Law and not according to their Law for they have no Law which gives power to sue nor to distribute to the Wife or next of Kin but the usual course was for the Ordinary to dispose of Intestates Goods to pious uses Then admitting this to be an Interest vested the consequence will be that it shall go to the Administrator and then Administration must be granted where the Estate legally ought to go The Administration of the Husband to the Goods of the Wife is grounded upon this reason 4 Co. 51. Ognel's Case 1 Cro. 106. because the Marriage is quasi a gift to him in Law It was not the only mischief before this Law that the Administrator run away with the whole Estate for if a Man died intestate leaving but one Son then beyond Sea and Administration was granted to a Stranger he who had right could not appeal after fourteen days which the Son could not do at that distance and so by this means a wrongful Administrator was entituled to the whole and he whose right it was had no remedy to recover at his return But now this inconvenience is likewise redressed by the Statute of Distributions for when the Son returns he may put the Bond in suit and for these reasons it was prayed that the Prohibition might stand Mr. E contra Williams argued for the Defendant in Easter-Term 2 Jacobi the substance of whose Argument was that though the Plaintiff had gotten Administration yet no Interest was thereby vested in him but that the Appeal was proper and for this he cited the Case of Beamond and Long Cro. Car. 208. which was Baron and Feme Administratrix of her former Husband recover in Debt the Feme died the surviving Husband brought a Scire Facias to have Execution and upon a Demurrer all the Court but Hide agreed that the Scire Facias would not lie for the Husband alone because it was a debt demanded by the Administratrix in auter droit This Statute hath not wholly altered the Common Law in this matter it only limits the Practice of Ecclesiastical Courts and makes provision for particular purposes viz. That Distribution shall be made to the Wife and Children and their Children which is so far introductory of a new Law but no farther so that the Right of Administration is as it was before and therefore must be granted to the next of Kin of the Father This Court hath no power to grant a Prohibition in such a Case and if it should 't is the first which ever was granted of this kind for it ought not to be determined here but in an Ecclesiastical Court which hath an original Iurisdiction of this Cause and the Appeal is in proprio loco To which Mr. Pollexfen answered that the contrary was very plain for here have been many Prohibitions granted even upon this very Act and the Question now before the Court is not concerning the manner of Distribution but the Right of Administration whether any Interest is vested in the Son or not 'T is true the Estate in Law goes to the Administrator but the Interest and Right to sue for and to recover the Estate goes to the Son so that if he should die before he is in actual possession his Administrator shall have it to pay Debts and to distribute c. In the Case of a Will if a Man should devise his Estate to his Wife and Children after Debts and Legacies paid an Interest vests in those Children which doth not differ from the Case at the Bar but that in the one Case the Testator makes the Will and in the other 't is made by an Act of Parliament Some Inconveniencies have been already mentioned if the Law should be otherwise taken but there be many more for if no Interest should vest in the Child till actual Distribution he could neither be trusted for his Education or Necessaries whilst living and no body would bury him if he should happen to die before the year and a day for the Funeral Charges would be lost It will likewise occasion delays in Administrators to make Distribution in hopes of gain neither will any honest man take an Administration upon himself because he can neither pay Mony safely or take a Release for if the Infant die before distribution it is void But notwithstanding these Reasons the Court gave Iudgment in Michaelmas-Term following That a Consultation should go the Chief Iustice being absent DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Coram Georgio Jefferies Mil ' Capital ' Justic ' Francisco Wythyns Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis Rex versus Marsh and others JAmes Marsh Information for a Forgery John W. and John L. were indicted upon the Coroners Inquest for the Murder of R. D. at H. in Kent and upon this Indictment they were arraigned and tried at the Barr this Term. The Fact upon the Evidence appeared to be that the Prisoners were Custom-House Officers who suspecting that some Wool would be transported went to the Sea-side in the Night time where there happened an Afray and the Prisoner Marsh was twice knocked down and recovering himself shot the deceased they were all acquitted of the Murder and then upon complaint made that Marsh was only found guilty upon the Coroners Enquest two of the said Iury were now sworn in Court who deposed that they upon the Coroners Enquest found the Indictment against Marsh alone which Indictment was in English but that one J.D. who was then Mayor of H. and who by virtue of that Office was also Coroner took the Indictment and told the Iury it must be turn'd into Latin which was done and he then inserted the Names of the two other Prisoners now at the Barr whereupon the said Mr. D. was now called and he appearing was bound in a Recognizance to answer this matter and the two Prisoners who were acquitted were likewise bound to prosecute him and the Iury Men were ordered to put their Affidavit in writing and swear it in Court An Information was afterwards exhibited against Mr. D. which was tried at the Barr in Trinity-Term following and he was found guilty but having spoke with the Prosecutor in the long Vacation he was only fined 20 Nobles in Michaelmas-Term Roberts versus Pain IN a Prohibition to
Daughters for the Testator having two Sons and four Daughters it cannot be collected by these words how they shall take and by consequence it cannot be an Estate Tail by implication Now suppose one of the Daughters should dye without Issue 't is uncertain who shall have her part and therefore there being no appointment in what order this Estate shall go it cannot be an Estate Tail and to maintain this Opinion this Case was cited One Collier was seised in Fee of three Houses 2 Cro. 655. Gilbert versus Witty and had Issue three Sons John Robert and Richard he devised to each of them a House in Fee Proviso if all my Children dye without Issue of their Bodies then the Houses to be to his Wife The two eldest Sons died without Issue the younger had Issue a Daughter who married the Lessor of the Plaintiff The Question was Whether by the death of the eldest Son without Issue there was a cross Remainder to Richard and the Heirs of his Body or whether the Wife shall take immediately or expect till after the Death of all the Sons without Issue And it was adjudged that the Wife shall take immediately and that there were no cross Remainders nor any Estate by implication because it was a devise to them severally by express limitation So that if no Estate tail ariseth to the Daughters in this Case by implication Cro. Eliz. Taylor versus Sawyer then 't is no more than a devise to his Issue which extends to them all and gives only an Estate for Life For the Defendant it was argued Ex parte Def. that the Sons and Daughters have no Estate Tail by implication It was agreed that Nicholas had only an Estate for Life and that the word Estate in this case means the Houses and not the Interest in them 'T is true there is no express Limitation of any Estate to them but there is an express determination of it Now if this be not an Estate Tail by implication then the words dying without Issue are void A devise to his Son More 127. and if he dye not having a Son then 't is devised over This is an Estate tail in Remainder It cannot be a doubt who shall take first for the Daughters shall take it Dyer 333. and after them as 't is most natural the eldest Son for where there is the same proximity of Blood the Estate shall go to the eldest As for instance Hob. 33. one Chapman being seised in Fee of two Houses and having three Brothers devised the House which A. dwelt in to his said three Brothers and the House in which his Brother Thomas Chapman did dwell he devised to the said Thomas paying so much c. or else to remain to the Family of the Testator provided that the Houses be not sold but go to the next of the Males and the blood of the Males Thomas died without Issue the eldest of the two surviving Brothers had Issue a Daughter and died the Question was whether that Daughter or the youngest Brother of the Testator should have the House It was adjudged that the Daughter should have it in tail For the Proviso that the Houses be not sold c. made it a tail and the words viz. to remain to the Family must be intended to the eldest If this be not an Estate tail then the Devise over to Anne Warner is void As to the Case of Gilbert and Witty that moves upon another reason for there every one took by a distinct and separate Limitation Curia In that Case all the Estate was limited distinctly to the three Sons but in this 't is otherwise for the Testator had two Sons and no Estate was limited to one of them before then he saith If all my Sons and Daughters dye without Issue then c. And thus the Cases differ which creates the difficulty But no reason can be given why this Court should not construe Wills according to the Rules of Common Law where an Estate by implication is so incertain for when Men are sick and yet have a disposing power left they usually write Nonsense and the Iudges must rack their Brains to find out what is intended This cannot be an Estate tail in the Daughters and therefore the Heir must come in for his fourth part Iudgment for the Plaintiff Dixon versus Robinson THIS was a special Issue directed out of Chancery Wayhil Fair. and tried this day at the Bar by a Middlesex Iury. The Question was Whether Ballivus probi homines Burgenses Burgi de Andover in Hampshire had power to keep a Fair at Wayehil in any one place where they please the Bill being Exhibited to confine the Fair to a particular place which Fair was granted to them by Charter from Queen Elizabeth They who would have it confin'd to a certain place gave in Evidence that the Hospitaller of Ewelme in Oxfordshire was seised in Fee of the Manor of Rambridge within which Manor the place was where the Fair was always kept and that the Parson of Andover had Glebe there That this place was called Wayehil and that the profits did arise by Piccage and Stallage to the yearly value of 200 l. That it was an ancient Fair held there by Prescription before the Town of Andover had a Charter That upon the late Surrender of Charters the Town of Andover did likewise surrender and took a new Charter in which liberty was given to them to keep this Fair in what place they would That both the Hospitaller and Parson petitioned the King in Council and obtained an Order to Try where the Fair ought to be kept which was tried accordingly at the Exchequer Bar and a Verdict for the Parson Chief Justice If the Fair belongs to Andover they may chuse whether they will keep it at any place and that may create another Question Whether they may not forfeit this Franchise by disuser But certainly if the place be not limited by the King's Grant they may keep it where they please or rather where they can most conveniently and if it be so limited they may keep it in what part of such place they will Dawling versus Venman AN Action on the Case was brought against the Defendant Action for a Scandalous Affidavit in Chancery for making a Scandalous Affidavit in Chancery in which were these words Viz. Mr. Dawling is a Rogue and a Knave and I will make it out before my Lord Chancellor and I will have him in the Pillory Vpon not Guilty pleaded there was a Verdict for the Plaintiff and damages entire It was moved in arrest of Iudgment for that the truth of on Oath shall not be liable to a Trial in an Action on the Case for the Law intendeth every Oath to be true Before the Statute of 3 11 H. Cro. Eliz. 521 2 Cro. 607. Sid. 50. Hutt 11. 7. which gives power to examine Perjury there was not any Punishment at
Sir Thomas claimed a Property whereupon he was ordered to amend his Return and then the Court of Common-Pleas bailed him Banson versus Offley AN Appeal of Murder was tried in Cambridgshire against three persons An Appeal of a Murder was tried not where the Stroak was given but where the Party died and the Count was that Offley did assault the Husband of the Appellant and wounded him in Huntingtonshire of which Wound he did languish and dye in Cambridgeshire and that Lippon and Martin were assisting The Iury found a special Verdict in which the Fact appeared to be that Lippon gave the Wound and that Martin and Offley were assisting The first Exception to this Verdict was that the Count and the Matter therein alledged must be certain and so likewise must the Verdict otherwise no Iudgment can be given but here the Verdict finding that another person gave the Stroak and not that person against whom the Appellant had declared 't is directly against her own shewing 2. This Fact was tried by a Iury of Cambridgshire when it ought to have been tried by a Iury of both Counties The Court answered to the first Exception that it was of no force and that the same Objection may be made to an Indictment where in an Indictment if one gives the Stroak and another is abetting they are both principally and equally guilty and an Indictment ought to be as certain as a Count in an Appeal As to the second Exception 't is a good Trial by a Iury of Cambridgshire alone and this upon the Statute of 2 3 Ed. 6. 2 3 Ed. 6. cap. 24. the Words of which Statute are viz. Where any person c. shall hereafter be feloniously striken in one County and dye of the same Stroak in another County that then an Indictment thereof found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon the sight of the Body or before the Justices of the Peace or other Justices or Commissioners who shall have Authority to enquire of such Offences shall be as good and effectual in the Law as if the Stroak had been in the same County where the Party shall dye or where such Indictment shall be found 'T is true 4 Inst 49 that at the Common Law if a Man had received a mortal Wound in one County and died in another the Wife or next Heir had their Election to bring an Appeal in either County but the Trial must be by a Iury of both Counties But now that mischief is remedied by this Statute which doth not only provide that an Appeal shall be brought in the County where the Party dyed but that it shall be prosecuted which must be to the end of the Suit Adjornatur Dominus Rex versus Hinton and Brown AN Indictment was brought against the Defendants setting forth Subornation of Perjury that a Conventicle was held at a certain place and that they movebant persuadebant subornaverunt a certain person to swear that several Men were then present who really were at that time at another place They were found guilty and a Writ of Error was brought to reverse the Iudgment the Error assigned was that the Indictment doth not set forth that any Oath was made so it could not be Subornation There is a difference between the persuading of a man to swear falsly and Subornation it self for an Indictment for Subornation always concludes contra formam Statuti Curia 'T is not enough to say a Man suborned another to commit a Perjury but he must shew what Perjury it is which cannot be without an Oath for an Indictment cannot be framed for such an Offence unless it appear that the thing was false which he was perswaded to swear The Question therefore is If the person had sworn what the Defendants had persuaded him to do whether that had been Perjury There is a difference when a Man swears a thing which is true in Fact and yet he doth not know it to be so and to swear a thing to be true which is really false the first is Perjury before God and the other is an Offence of which the Law takes notice But the Indictment was quashed because the Words Per Sacramentum duodecim proborum legalium hominum were left out They held that if the Return had been right upon the File the Record should be amended by it Blaxton versus Stone THE Case was this viz. A Man seised in Fee c. What words make an Estate Tail in a Will had Issue two Sons he devised all his Land to his eldest Son and if he die without Heirs Males then to his other Son in like manner The Question was Whether this was an Estate Tail in the eldest Son Curia 'T is plain the Word Body which properly creates an Estate Tail is left out but the intent of the Testator may be collected out of his Will that he designed an Estate Tail for without this Devise it would have gone to his second Son if the first had died without Issue 'T is therefore an Estate Tail DE Termino Paschae Anno 3 Jac. II. in Banco Regis 1687. Herbert Chief Justice Wythens Justices Holloway Justices Powel Justices Dominus Rex versus William Beal MEmorandum A Souldier executed not in the County where he wes condemned That on Saturday April 15. Mr. Attorny moved that this Court would award Execution upon the Defendant who was a Souldier for deserting of his Colours and was condemned for the same at the Affizes at Reading in Berks and reprieved and that he might be executed at Plymouth where the Garrison then was The Chief Iustice in some heat said that the Motion was irregular for the Prisoner was never before the Court. Mr. Attorny then moved for a Habeas Corpus and on Tuesday April the 18th the Souldier was brought to the Barr and Mr. Attorny moved it again But it was affirmed by the Chief Iustice and Iustice Wythens that it could not be done by Law for the Prisoner being condemned in Berks and reprieved by the Iudge to know the Kings Pleasure and now brought hither cannot be sent into another County to be executed it may be done in Middlesex by the Prerogative of this Court which sits in that County but no where else but in the proper County where the Trial and Conviction was so the Prisoner was committed to the Kings Bench and the Record of his Conviction was not filed But it was the King's Will that this Man should be executed at Plymouth where the Garrison was that by this Example other Souldiers might be deterred from running from their Colours SIR Robert Wright who was made Chief Justice of the Common Pleas in the room of Sir Henry Beddingfield who died the last Term as he was receiving of the Sacrament was on Friday following being the 21st of April made Chief Justice of this Court in the place of
the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the
the benefit of the Obligor and shall be taken most beneficially for him who had election either to perform the one or the other to save the penalty of the Bond. But the Council for the Plaintiff said that the whole intent of the Condition in that Case was to provide a Security for G. who died before her Husband so that no body could be hurt for the non-performance of that Condition there being no manner of necessity that any thing should be done in order to it after her decease 'T is quite otherwise in the Case at Bar for Hannah Goddard paid Mony for the House and certainly it was never intended that Chappel the Father to whom the Mony was paid should have both House and Mony If she had lived the House ought to have been conveyed to her now she is dead the Mony ought to be paid for 't is not lost by her death In Laughter's Case the person who was to do the thing was the Obligor himself but here the Father undertakes for his Son that he should convey when he came of Age or to repay the Mony so that 't is not properly a Condition in the disjunctive for 't is no more than if it had been penn'd after this manner Viz. The Father undertakes for his Son that he shall convey at the Age of 21 years if he refuse then the Father is to repay what mony he received Besides Cro. Eliz. 399. Laughter's Case is Reported by Iustice Croke and therein he cites two other Cases of Chew and Baker That of Chew was viz. A. promised B. that if C. did not appear at Westminster such a day he would pay him 20 l. The Defendant pleaded that C. died before the day and ruled to be no Plea for he ought to pay the Mony which Case is parallel to this for 't is the same in Reason and Sense That of Baker was viz. A Man was bound that A. should appear the first day in the next Term at the Star-Chamber or he would pay 20 l. A. died before the day so as by the act of God he could not appear yet it was adjudged that the Mony must be paid The like Case was adjudged between Huntley and Allen in the Common-Pleas in my Lord Hale 's time 't is entred Pasch 1658. Rot. 1277. The Rule in Laughter's Case cannot be denied viz. where the Condition is in the disjunctive consisting of two parts and one becomes impossible by the act of God the Obligor is not bound to perform the other but then it must be governed by the subsequent matter As in Greningham's Case Cro. Eliz. 396. Moor 395. viz. Debt upon Bond conditioned that if the Defendant delivered three Bonds to the Plaintiff wherein he was bound to the Defendant or a Release of them as should be advised by the Plaintiff's Council before such a day then c. The Defendant pleaded that neither the Plaintiff or his Council did advise a Release before the day c. and upon Demurrer it was adjudged that the Plea was good for the Defendant had an election to deliver or release as the Plaintiff should devise which if he will not do the Defendant is discharged by the neglect of the Plaintiff for the Defendant being at his choice to perform the one thing or the other 't is not reason that the Plaintiff should compel him to perform one thing only It was argued on the other side E contra that this is a disjunctive condition and not only an undertaking of the Father for the Son Where a Condition is to perform two things and if either be done no Action will lye such Condition is in the disjunctive as in this Case if the Son had conveyed or the Father repaid the Mony By the Condition of this Bond the Father did as much undertake for his Son as Laughter did for Rainsford viz. to convey the House or pay the Mony to Hannah Goddard now the last part of the Condition being discharged by the Act of God he is acquitted of the other Suppose the Condition had been single to convey to Hannah Goddard if she die the Bond is void There is an Authority to this purpose Cro. Eliz. 380. Reported by Iustice Croke which was an Action of Debt was brought by the Plaintiff as Executor c. The Condition of the Bond was for the yearly payment of a Sum of Mony twice in a year viz. at Michaelmas and Lady day during the Life of a Lady or within 30 days after either of the said Feasts the Lady died after one of the Feasts but within the 30 days it was adjudged that by her death that payment which was due at the Feast preceding was discharged In the Case at Bar the Condition is that if the Son should not convey when of Age or otherwise if the Defendant re-pay c. Now certainly these words or otherwise make the Condition disjunctive 'T is like the common Case of Bail entred into in this Court whereby the Parties undertake that the Defendant shall render himself to Prison if condemned in the Action or they shall pay the condemnation mony this is a disjunctive condition and if the Defendant dye before the return of the second Sci. Fa. the Bail are discharged Iustice Allibon said Roll. Abr. tit condition 450. pl. 4. that if a condition be to make an Assurance of Land to the Obligee and his Heirs and the Obligee dies before the Assurance made yet it shall be made to the Heir for this copulative is a disjunctive Sed Adjornatur Franshaw versus Bradshaw Mich. 1 Jac. Rot. 45. DEbt upon a Iudgment obtained in this Court 34 Car. 2. Matter of Form not amendable upon Demurrer setting forth the said Iudgment c. Sicut per Recordum processum inde remanen ' in eadem Curia nuper Domini Regis coram ipso Rege apud Westmonast plenius liquet apparet And upon a Demurrer to the Declaration this Objection was made viz. It doth not appear that the Iudgment was in force or where the Reeord was at the time of this Action brought he should have declared Coram ipso nuper Rege apud Westm sed jam coram Domino Rege nunc residen ' c. plenius liquet c. The Court held it was but matter of form but being upon a Demurrer it was not amendable Letchmere versus Thorowgood al' Vic. London TRespass by the Assignees of Commissioners of Bankrupcy for taking of their Goods When a Judgment is once executed the Goods are in Custodia Legis and shall not be taken away by an Exchequer Process or Assignment of Commissioners of Bankrupts upon not Guilty pleaded the Iury find a special Verdict the substance of which was viz. one Toplady a Vintner on the 28th of April became a Bankrupt against whom a Iudgment was formerly obtained the Iudgment Creditor sued out a Fi. Fa. and the Sheriffs of London by virtue thereof did
Contract for that Service with the Master was at Land But the principal reason why Mariners Wages are sued for in the Admiralty is because the Ship is liable as well as the Master who may be poor and not able to answer the Seamen Curia Take a Trial upon the necessity in this Case Anonymus THE Plaintiff recovered a Verdict against the Defendant in an Action upon the Case The Defendant now moved by his Council The Court will not order a Plaintiff to file the Venire Facias that the Plaintiff should file the Venire Facias and Distringas because all Writs which are returnable in this Court ought to be filed otherwise a Damage may ensue to the Officers and a Wrong to the King upon the Forfeitures of Issues by the Iurors which are always estreated upon the coming in of the Distringas The Council insisted upon it that it was the Common Law of this Realm and that it was the Right of the Subject that all Writs which issue out of the King's Courts should be filed that the Panel of the Venire Facias is part of the Record and that an Attaint could not be brought against the Iury if these Writs were not filed because non constat de personis This matter was referred to some of the ancient Clerks of the Court and to the Secondary Aston who reported that the Court never ordered a Plaintiff to file a Venire Facias against his Will Davies 's Case TRespass against Davies and Powel for breaking of the Plaintiffs Close and chasing and killing of Fowl in his Free Warren Prescription for all the Tenants of a Mannor to fowl in a Warren good though it was objected that it was too large The Defendant as to all the Trespass but chasing and killing of the Fowl pleaded Not-Guilty and as to that he sets forth that the Dean and Chapter of Exeter were seized in Fee of the Mannor of Brampton of which the said Warren was parcel and that they and all those whose Estates they had c. had liberty for themselves their Tenants and Farmers to fowl in the said Warren that the Dean and Chapter did make a Lease of parcel of the said Mannor to the Defendants for one and twenty years reserving a Rent c. and so they justifie as Tenants c. they did fowl in the said Warren The Plaintiff replied de injuria sua propria Vpon which they were at Issue and there was a Verdict for the Defendants Mr. Pollexfen moved in arrest of Iudgment because 't is an unreasonable Prescription for an interest in every Tenant of the Mannor to fowl in that Warren It hath been so ruled for a Common Roll. Abr. 399. without saying for his Cattle Levant and Couchant for it must be for a certain number In this Case the Prescription is not only in the person of the Lord but for all his Farmers and Tenants who cannot prescribe to have a free Warren in alieno solo E contra E contra It was argued that such a Prescription might not be good upon a Demurrer but 't is well enough after a Verdict 'T is not an Objection to say that this Prescription is too large for all Tenants as well Freeholders as Copyholders to prescribe in the Soil of another and so there may not be enough for the Lord himself Yelv. 187. 2 Cro. 256. because this is a Profit apprender in alieno solo and for such the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord and of that Opinion was the Court so the Defendant had his Iudgment Anonymus NOTA. An Information was brought in this Court for throwing down of Hedges and Ditches in which there were several Defendants who pleaded specially and the Clerk of the Crown Office demanded 13 s. and 4 d. for every Name which came to 17 l. for his Fees in this Plea and by reason of the great charge the Defendants did not plead but let Iudgment go by default Mr. Pollexfen moved that the Plea might be received and that it might be enquired what Fees were due which the Court would not try upon a Motion but advised an Indictment of Extortion if their Clerk was guilty Rex versus Inhabitantes de Malden SErjeant Shaw moved to affirm an Order made upon an Appeal to the Quarter Sessions of the Peace for the County of Essex The Case was viz. Order of Sessions quashed for settling a poor Man because he had not given formal notice in writing John Pain served an Apprentiship at Malden where he married and had several Children His Wife died he marryed another Woman who had a Term for years of an House in the Parish of Heybridge where he lived for a year and left Malden Afterwards he returned to Malden was rated to the Poor and lived there two years then he dyed In a short time after his death his Widow and Children were removed by an Order of two Iustices to Heybridge from which Order they appeal and by the Order of Sessions they were declared to be Inhabitants of Malden It was now moved by Mr. Pollexfen to quash it because it doth not appear that he gave any formal Notice in Writing to the Overseers of Malden when he returned from Heybridge and therefore ought to be settled there and not at Malden for being taxed to the Poor will not amount to Notice and he cited a stronger Case which was viz. The Churchwardens of Covent Garden certified under their Hands that such a person was an Inhabitant within their Parish but because no Note was left with them pursuant to the Statute notwithstanding such Certificate he was held to be no Inhabitant within their Parish and of that Opinion was all the Court. Anonymus IN Replevin three persons made Cognizance as Bayliffs to A. Whether an Infant should make Cognizance per Attorn or per Guardianum and so justifie the taking of the Cattle Damage Feasant in his Ground The Plaintiff replied that the Cattle were taken in his Ground and traverseth the taking in the place mentioned in the Cognizance There was Iudgment for the Defendant upon which a Writ of Error was brought and the Error assigned was that one of the Bayliffs was an Infant and made Cognizance per Attornatum when he ought to do it per Guardianum Mr. 2 Cro. 441. 2 Sand 212. 1 Rol. Abr. 228. 3 Cro. 441. Pollexfen This might be pleaded in Abatement but 't is not Error for an Infant Administrator may bring an Action of Debt per Attornatum because he sues in the Right of another and so his Infancy shall be no impediment to him The Bayliff in this Case is as much a Plaintiff as the Administrator in the other for he makes Cognizance in the Right of another and in such case if two are of Age and one is not they who are of Age may make an Attorney for him who is not So if there are two
Executors one of them of Age 2 Sand. 212. and the other not one may make an Attorney for the other There is no difference between Executors and Infants in this Case for Executors recover in the right of the Testator and the Bayliffs in the Right of him who hath the Inheritance Besides the Avowants are in the nature of Plaintiffs and whereever a Plaintiff recovers the Defendant shall not assign Infancy for Error Adjornatur Capel versus Saltonstal INdebitatus assumpsit in the Common Pleas Where there are several Plaintiffs in a personal thing and one dyeth before Judgment the Action is abated in which Action there were four Plaintiffs one of them died before Iudgment the others recover and now the Defendant brought a Writ of Error in this Court to reverse that Iudgment and the Question was whether the Action was abated by the death of this person Those who argued for the Plaintiffs in the Action held that the Debt will survive and so will the Action for 't is not altered by the death of the party for where Damages only are to be recovered in an Action well commenced by several Plaintiffs and part of that Action is determined by the Act of God or by the Law and the like Action remaineth for the residue the Writ shall not abate As in Ejectment if the Term should expire pending the Suit 1 Inst 285. the Plaintiff shall go on to recover Damages for though the Action is at end quoad the possession yet it continues for the Damages after the Term ended So if the Lessor bring Waste against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for Damages but the Survivor So where Trover was brought by two 2 Bulst 262. 1 Inst 198. and after the Verdict one of them died the Iudgment shall not be arrested because the Action survives to the other Mr. Pollexfen contra He admitted the Law to be that where two Iointenants are Defendants the death of one would not abate the Writ because the Action is joint and several against them But in all Cases where two or more are to recover a personal thing there the Death or Release of one shall abate the Action as to the rest though 't is otherwise when they are Defendants and are to discharge themselves of a personalty 6 Co. 25. b. Ruddock's Case 2 Cro. 19. And therefore in an Audita Querela by two the death of one shall not abate the Writ because 't is in discharge Now in this Case Iudgment must be entred for a dead Man which cannot be for 't is not consistent with reason The Case of Wedgewood and Bayly is express in it which was this Trover was brought by six and Iudgment for them one of them died the Iudgment could not be entred 'T is true where so many are Defendants and one dies the Action is not abated but then it must be suggested on the Roll. Curia Actions grounded upon Torts will survive but those upon Contracts will not The Iudgment was reversed Fisher versus Wren In the Common-Pleas THE Plaintiff brought an Action of Trespass on the Case Prescription and Custom alledged together and declared that he was seized of an ancient Mesuage and of a Meadow and an Acre of Land parcel of the Demesnes of the Mannor of Crosthwait and sets forth a Custom to grant the same by Copy of Court Roll and that there are several Freehold Tenements parcel of the said Mannor and likewise several Customary Tenements parcel also thereof grantable ad voluntatem Domini and that all the Freeholders c. time out of Mind c. together with the Copyholders according to the Custom of the said Mannor have enjoyed solam seperalem Pasturam of the Ground called Garths parcel of the said Mannor for their Cattle Levant and Couchant c. and had liberty to cut the Willows growing there for the mending of their Houses and the Defendant put some Cattle into the said Ground called Garths which did eat the Willows by reason whereof the Plaintiff could have no benefit of them c. Vpon Not Guilty pleaded there was a Verdict for the Plaintiff And now Serjeant Pemberton moved in arrest of Iudgment and took these Exceptions 1. As to the manner of the Prescription which the Plaintiff had laid to be in the Freeholders and then alledged a Custom for the Copyholders c. and so made a joint Title in both which cannot be done in the same Declaration because a Prescription is always alledged to be in a person and a Custom must be limited to a place and therefore an entire thing cannot be claimed both by a Prescription and Custom Vaughan 215. Carter 200. 1 Sand. 351. because the Grant to the Freeholders and this Vsage amongst the Copiholders could not begin together 2. As to the Custom 't is not good as pleaded to exclude the Lord for it can never have a good Commencement because Copyholders have Common in the Lords Soil only by permission to improve their Estates which Common being spared by the Lord and used by the Tenant becomes a Custom but no Vsage amongst the Tenants or permission of the Lord can wholly divest him of his Soil and vest an Interest in them who in the beginning were only his Tenants at Will 2 Sand. 325. 3. The third Exception and which he chiefly relyed on was viz. That this is a Profit apprender in alieno Solo to which all the Tenants of the Mannor are entituled and that makes them Tenants in Common and therefore in this Action where Damages are to be recovered they ought all to join 'T is true in real Actions Tenants in Common always sever 1 Inst 197 198. Godb. 347. but in Trespasses quare Clasum fregit and in personal Actions they always join and the reason is plain because in those Actions though their Estates are several yet the Damages survive to all and it would be unreasonable to bring several Actions for one single Trespass E contra It was argued that it cannot be denied E contra but that there may be a Custom or Prescription to have solam seperalem pasturam but whether both Prescription and Custom can be joyned together is the doubt now before the Court and as to that he held it was well enough pleaded 1 Sand. 351. for where there is an unusual Right there must be the like remedy to recover that Right it was thus pleaded in North's Case But admitting it not to be well pleaded 't is then but a double Plea to which the Plaintiff ought to have demurred and this may serve for an Answer to the first Exceptions Then as to the last Objection that 't is a Profit apprender in alieno solo for which all the Tenants ought to join 't is true a Common is no more than a Profit apprender
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
visitation of God by which he was disabled for a time to do any reasonable thing whatsoever and this may be as well done as to plead duress from Men which the Law allows to make compulsary Acts void My Lord Coke in Beverly's Case taking notice of the great reason of the Civil Law in Cases of this nature 4 Co. 123. which maketh all Acts done by Ideots void without their Curator's concurrence and that it was objected as a defect in the Common Law that Tutors were not assigned to such persons he answereth that our Law hath given the custody both of them and their Lands to the King which is directly contrary to his own Opinion in his 2d Institutes 2 Inst 14. where paraphrasing upon the fourth Chapter of Magna Charta which prohibits Wast in the Land of Wards from thence he inferrs that at that time the King had no Prerogative to entitle him to the Lands of Ideots for if he had that Act would have as well provided against Wast in their Lands as in those of Wards He farther adds that the Guardianship of Ideots did belong to the Lords according to the course of the Common Law Be it how it will 't is clear by all the Books that both by the Common and Civil Law their Acts are void and my Lord Coke esteemed it as a very unreasonable thing that they should not be avoided even during the life of the Party himself but it was never yet denied that they may be avoided after his death by his Heir or Executor and by parity of reason the Law will prevent Strangers from being prejudiced by such Acts. There is an Objection that some Acts done by Ideots are unavoidable as Fines levyed by them c. 'T is true such are not to be avoided not because they are good in themselves but the reason is because they are upon Record against which the Law will not suffer any Averment to be made presuming that the Courts and Iudges in Westminster-Hall would not admit an Ideot or Infant to levy a Fine This being therefore a void Surrender by a person Non compos the Estate is still in the Surrenderor and so the contingent Remainder upon his death is well attached in Charles Leach the Lessor of the Plaintiff But supposing 't is not void yet there will be scintilla juris left in Simon Leach to support the Contingency and to prove this the Case of Lloyd and Brookin was relied on which was this viz. Thomas Bradshaw was Tenant for Life 1 Mod. 92. 1 Vent 188. 2 Keb. 881. the Remainder in Tail to his first Son c. the Remainder to Paul for Life the Remainder to his first second and third Sons in Tail Thomas accepted a Fine from Paul who had then a Son born then he made a Feoffment and afterwards Paul had another Son born His eldest Son died without Issue and it was adjudged that the contingent Remainder to his second Son was not destroyed by this Feoffment because it was preserved by the right of Entry which his elder Brother had at the time it was made 2. If this Surrender is only voidable then whether Charles Leach claiming by a collateral Title can avoid it It was argued that he may for it would be absurd that he should have a Right to the Remainder and yet have no Remedy to recover it My Lord Coke in Beverly's Case tells us that there are four sorts of Privities 1. In Bloud as Heir 2. In Representation as Executor 3. In Estate as Donee in Tail the Reversion or Remainder in Fee 4. In Tenure as Lord by Escheat He affirms that the two first may shew the Disability of their Ancestor and Testator and avoid their Grants 'T is true in the third Article he is of Opinion that Privies in Estate shall not avoid the Acts of their Ancestors and he puts the Case of a Donee in Tail making a Feoffment in Fee within age and dying without Issue the Donor shall not enter because no Right did accrew to him by the death of the Donee there being only a Privity of Estate between them But this Opinion is denied to be Law by Iustice Dodderidge in his Argument of the Case between Jackson and Darcy Palm 254. who said that the Donor might enter because otherwise he would be without remedy for he could not maintain a Formedon because the Feoffment made by the Infant was no Discontinuance Besides 't is not possible there should be any Privity in Blood between the Donee in Tail and the Reversioner in Fee so that Article must be intended where they are Strangers in Blood and Privies in Estate which doth not at all concern the Case in question because William Leach is privy in Blood to his Father who made the Surrender and my Lord Coke tells us in the first Article of his distinction that such a Privy may avoid the Acts of his Ancestor It may be objected that this distinction was not then the Iudgment of the Court for it was not material to the Point in Issue which was no more than thus viz. Snow gave Bond to Beverley and exhibited his Bill in the Court of Requests to be relieved against it because at the time of the sealing and delivery thereof he was Non compos mentis But the like distinction was made in Whittingham 's Case many years afterwards 8 Co. 42. which was thus viz. Whittingham being seised of Lands held of the Queen in Soccage devised the same to Prudence his Bastard Child and her Heirs she during her Infancy made a Feoffment thereof to another and died in her Nonage without Issue the Question then was whether that Feoffment should prevent the Queen of the Escheat And adjudged it should not In which Case it was held that Privies in Blood inheritable shall take advantage of the disabilities of their Ancestors as if an Infant who is seised in Fee maketh a Feoffment and afterwards dieth his Heir may enter and avoid it The Law is the same in the Case of one Non compos mentis as in that of an Infant as to the avoiding of the Acts of their Ancestors so that Mr. Leach being privy in Blood according to my Lord Coke's Opinion in those Cases shall avoid the Acts of his Father he being Non compos at the executing of this Surrender If it should be objected that this part of the distinction ought to be taken restrictively and must be tied up to such an Heir at Law who takes an immediate possession by descent from his Ancestor the Answer is that if this Surrender is avoided Mr. Leach will take by immediate descent from his Father for though nothing but a Reversion in Fee descended to him yet he is a compleat Heir But after all this distinction made by my Lord Coke is founded upon no manner of Authority 't is only his extrajudicial Opinion for there is no reason to be given why Privies in Estate should
said Feoffees made a Feoffment of the Land in Fee without any consideration afterwards Christopher had Issue two Sons Now the Vses limited by the Feoffment of Sir R. C. being only contingent to the Sons of Christopher and they not being born when the second Feoffment was made to their Father the Question now was whether they shall be destroied by that Feoffment before the Sons had a Being in Nature or whether they shall arise out of the Estate of the Feoffees after their Births And it was adjudged in the Exchequer Chamber that the last Feoffment had divested all the precedent Estates and likewise the Vses whilst they were contingent and before they had an existence and that if the Estate for Life which Christopher had in those Lands had been determined by his death before the birth of any Son the future Remainder had been void because it did not vest whilst the particular Estate had a being or eo instanti that it determined So in this Case Mr. Leach cannot have any future Right of Entry for he was not born when the Surrender was made so that the contingency is for ever gone Suppose a Feoffment in Fee to the use of himself and his Wife and to the Heirs of the Survivor The Husband afterwards makes another Feoffment of the same Lands Cro. Car. 102. and dies and the Wife enters the Fee shall not vest in her by this Entry for she had no right the Husband has destroyed the contingent use by the last Feoffment so that it could not accrew to her at the time of his death Nay tho' the particular Estate in some Cases may revive yet if the contingency be once destroyed it shall never arise again As where the Testator being seized in Fee of Houses 2 Sand. 380. devised the inheritance thereof to such Son his Wife should have after her Life if she baptized him by his Christian and Sir-Name and if such Son dye before he attain the Age of 21 years then to the right Heirs of the Devisor He died without Issue the Widow married again then the Brother and Heir of the Testator before the birth of any Son conveyed the Houses thus Viz. To the Husband and Wife and to their Heirs and levied a Fine to those uses Afterwards she had a Son baptised by the Testator's Christian and Sir-Name Then the Husband and Wife sold the Houses to one Weston and his Heirs and levied a Fine to those Vses It was adjudged that by the Conveyance of the Reversion by the Brother and Heir of the Testator to the Baron and Feme before the Birth of the Son her Estate for Life was merged and tho' by reason of her Coverture she might waive the Joint-tenancy 2 Roll. Abr. 796. Wigg versus Villiers and reassume the Estate for Life yet that being once merged the contingent Remainders are all destroied Curia Cro. Car. 502. The Grants of Infants and of persons non compos are parallel both in Law and Reason and there are express Authorities that a Surrender made by an Infant is void therefore this Surrender by a person non compos is likewise void If an Infant grants a Rent-charge out of his Estate 't is not voidable but ipso facto void for if the Grantee should distrain for the Rent the Infant may have an Action of Trespass against him In all these Cases which have been cited where 't is held that the Deeds of Infants are not void but voidable the meaning is that non est factum cannot be pleaded because they have the form though not the Operations of Deeds and therefore are not void upon that account without shewing some special matter to make them of no efficacy Therefore if an Infant maketh a Letter of Attorny though 't is void in it self yet it shall not be avoided by pleading non est factum but by shewing his Infancy Some have endeavoured to distinguish between a Deed which giveth only authority to do a thing and such which conveys an interest by the delivery of the Deed it self that the first is void and the other voidable But the reason is the same to make them both void only where a Feoffment is made by an Infant 't is voidable because of the solemnity of the Conveyance Now if Simon Leach had made a Feoffment in Fee there had still remained in him such a Right which would have supported this Remainder in Contingency This Surrender is therefore void and all persons may take advantage of it Afterwards a Writ of Error was brought to reverse this Iudgment in the House of Lords but it was affirmed Cases Adj. 150. Hall versus Wybank THE Statute of Limitations is Statute of Limitations whether it extendeth to the Defendant being beyond Sea six years 21 Jac. cap. 16. that if any person be entituled to an Action and shall be an Infant Feme Covert Imprisoned or beyond Sea that then he shall bring the Action at full Age Discovert of saue Memory at large and returned from beyond Sea The Plaintiff brought an Indebitatus Assumpsit to which the Defendant pleaded non assumpsit infra sex Annos The Plaintiff replied that the Defendant was all that time beyond Sea so that he could not prosecute any Writ against him c. And upon a Demurrer Serjeant Tremaine argued that the Plaintiff was not barred by the Statute which was made to prevent Suits by limiting personal Actions to be brought within a certain time and it cannot be extended in favour of the Defendant who was a Debtor and beyond Sea because 't is incertain whether he will return or not and therefore there is no occasion to begin a Suit till his return 'T is true the Plaintiff may file an Original and Outlaw the Defendant and so seise his Estate but no Man is compelled by Law to do an act which is fruitless when 't is done and such this would be for if the Plaintiff should file an Original 't is probable the Defendant may never return and then if the Debt was 1000 l. or upwards he would be at a great Expence to no purpose or if the Party should return he may reverse it by Error 'T is a new way invented for the payment of Debts for if the Debtors go beyond Sea and stay there six years their Debts would by this means be all paid The words of the Statute do not extend to this Case for the Proviso is That if the Plaintiff be beyond Sea when the cause of Action doth accrew Cro. Car. 246. 333. that then he have shall liberty to continue it at his return yet 't is within the equity of Law for him to bring his Action when the Defendant returns who cannot be sued 'till then That Statutes have been expounded according to Equity is not now a new Position 2 Roll. Rep. 318. for Constructions have been made according to the sense and meaning and not according to the Letter of many Statutes
Demise and the Word Assignes is in the Deed yet they are not bound if they have no Estate so that 't is not the naming of them but by reason of the Estate in the Land they are made chargeable No Iudgment is entred upon the Roll. FINIS ERRATA FOlio 88. Line 13. for Defendant read Plaintiff f. 106. l. 26. for no r. an f. 119. l. 7. after must be r. Error f. 147. l. 13 18 38. for coram r. quorum f. 189. l. 23. for reasonable r. unreasonable f. 196. l. 28. for devises r. demises f. 199. l. 1. for 23. r. 13. f. 201. l. 14. before merged r. not f. 218. l. 17. for 1672. r. 1679. f. 203. l. 31. after Berkley r. and Mr. Killigrew f. 222. l. 31. leave out and marrieth f. 226. l. 21. leave out she marrieth f. 237. l. 29. for devise r. demise f. 255. l. 31. for Father r. Nephew f. 256. l. 12. for joyned r. tryed f. 287. l. 6. after delivered r. tied f. 303. l. 16. for Grantee r. Guarantee f. 307. l. 36. for voidable r. void A TABLE to the Third Part of Modern Reports A. Abatement See Ioint Action 8. 1. DEBT was brought by four Plaintiffs one of them died before Judgment the Action is abated as to the rest 249 2. Waste is brought against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for the Damages ibid. 3. Two Jointenants are Defendants the death of one shall not abate the Writ for the Action is joint and several ibid. 4. Where two or more are to recover in a personal thing the death of one shall abate the Action as to the rest ibid. 5. But in Audita Querela the death of one shall not abate the Writ because it is in discharge ibid. Abeiance See Acceptance 1. Resignation of a Benefice passes nothing to the Ordinary but putteth the Freehold in Abeiance till his acceptance 297 See Acceptance Resignation Surrender Acts of Parliament See Iustice of Peace 2 Pardon 2 Ought to be construed according to the intention of the Law-makers and ought to be expounded according to the Rules of the Common Law 63 2. Where a particular punishment is directed by a Statute Law it must be pursued and no other can be inflicted upon the Offender 78 118 3. When an Act is penal it ought to be construed according to Equity 90 157 312 4. Preamble is the best Expositor of the Law 129 169 Action upon the Ease Assumpsit A Feoffment was made upon Trust that the Feoffee should convey the Estate to another the Cestuy que Trust may have an Action if the Feoffee refuseth to convey 149 2. In consideration that the Plaintiff would let the Defendant have Meat Drink c. he promised to pay as much as it was reasonably worth the word valerent was in the Declaration it should have been quantum valebant at the time of the Promise but held good after Verdict 190 3. Where a personal promise is grounded upon a real Contract the Action will lie 73 4. It will not lie for Rent reserved upon a Demise but where a Promise is made to pay Rent in consideration of occupying a House it will lie 240 Action on the Case See Bankrupts 2 Indictment 2 Slander where it lieth 1. He is a Papist spoken of a Deputy Lieutenant 26 2. Where the words injure a person in his Profession or bring him in danger of punishment 27 3. He stole the Colonel's Cupboard Cloth there being no precedent Discourse either of the Colonel or his Cloth 280 4. He is broken and run away and never will return again spoken of a Carpenter 155 5. He is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his door but he spoken of a Merchant who made a Bonefire at the Coronation of King James 103 6. He owes more Mony than he is worth he is run away and is broak spoken of an Husbandman 112 7. The Wife was called Whore and that she was the Defendant's Whore the Husband and she brought the Action and concluded ad dampnum ipsorum it lies without allegding special Damages 120 8. Sir J. K. is a buffle headed Fellow and doth not understand Law he is not fit to talk Law with me I have baffled him and he hath not done my Client Justice spoken of a Justice of Peace 139 9. J. P. is a Knave and a busie Knave for searching after me and other honest men of my sort and I will make him give satisfaction for plundering me spoken of a Justice of Peace no Colloquium was laid the Court was divided 163 Where it doth not lie Words were laid to be spoken ad tenorem effectum sequen ' which is not an express allegation that they were spoken 71 72 Action on the Case against a Common Carrier Where it was brought against him upon an Assumpsit in Law and likewise upon a Tort the Declaration is not good 322 Action on the Case for a wrong See Pleading For diverting of a Water-course the Antiquity of the Mill must be set forth 49 2. It lies against a wrong doer upon the bare possession only and the Plaintiff need not set forth whether he hath a Title by Grant or Prescription for that goes to the right 51 52 132 3. If the Declaratien is for the diverting of the Water ab antiquo solito cursu this amounts to a Prescription which must be proved at the Trial or the Plaintiff will be non-suited 52 4. Whether it lieth for the making of a scandalous Affidavit in Chancery 108 5. For selling of Oxen affirming them to be his own ubi revera they were not but doth not say sciens the same to be the Goods of another or that he sold them fraudulenter or deceptive 't is naught upon a Demurrer but good after Verdict 261 6. Where several are guilty of a wrong the Action may be brought against either 321 7. Debt upon the Statute of Ed. 6. for not setting out Tithes brought against two Tenants in Common one of them did set out the Tithes and the other carried them away it ought to be brought only against the wrong doer 322 8. For disturbing of a Man in a Common Passage or Common High-way no Action on the Case lieth without a particular damage done to himself for the proper remedy is a Presentment in the Leet 294 Administrator Vide Infant 18 Ordinary Interest 2 Pleading 2 Administrator durante minore aetate hath no power over the Estate 24 2. Administration could not be granted by the Spiritual Court before the Statute of Ed. 3. 24 3. Where 't is once granted whether it ought to be repealed 25 4. Administrator had the whole Estate in him before the Statute of Distributions 60 5. He then gave Bond to distribute as the Ordinary should direct ibid. 6. The Father died
intestate leaving one Son an Infant Administration was granted durante minore aetate he died before 17. whether Administration de bonis non of the Father shall be granted to the next of Kin of him or his Son 61 62 7. Whether an Interest is vested in an Infant where Administration is granted durante minore aetate so that if he die before 17. it goes to his Executor 61 8. Before the Statute of Distribution if there was but one Child he had a right of Administration but it was only personal and if he died before it was granted to him by the Court it would not go to his Executor 62 9. Husband hath a right of Administration to the Goods of the Wife because the Marriage is quasi a Gift in Law 64 10. If Administration had been granted to a Stranger before the Statute of Distributions and no Appeal within fourteen days he who had right though beyond Sea was barred 64 11. Husband and Wife Administratrix to her first Husband recover in Debt the Wife died and the Husband brought a Scire Facias to have Execution it will not lie by him alone because it was a Demand by the Wife as Administratrix in auter droit ibid. 12. Judgment was had in Somersetshire the Plaintiff died intestate Administration is committed by an inferior Diocess 't is void because the Entry of the Judgment in Middlesex where the Records are kept made him have bona notabilia in several Diocesses and so Administration ought to be granted in the Prerogative 324 13. If the Intestate hath two Sons and no Wife each have a Moiety of the personal Estate if but one an interest is vested in him 59 14. At Common Law none had a Right to an Intestate's Estate but the Ordinary was to distribute it to Pious Uses ibid. Admiral and Admiralty There was a Sentence in the Admiralty for taking of a Ship and afterwards Trover was brought for taking of the same Ship whether it lies or not 194 2. Pawning of a Ship for Necessaries at Land and a Libel was exhibited in the Admiralty whether good or not 244 3. Where things arising upon Lands may be sued for in the Admiralty 245 Addition See Indictment Where it makes a thing certain as an Ejectment de Tenemento is incertain but with the addition vocat ' the Black Swan 't is made certain 238 Admittance See Baron and Feme 9. A Custom cannot warrant an incertain Fine upon an Admittance to a Copyhold 133 2. The Lord may refuse to admit without a tender of the Fine where 't is certain ibid. 3. Where 't is incertain the Lord is to admit first and then to set the Fine ibid. 4. Custom that upon every Admission the Tenant should pay a years value of the Land as it was worth tempore admissionis t is good 132 5. For a Fine upon an Admission an Action of Debt will lye for though it favours of the realty yet 't is a certain duty 230 6. Before Admittance the Estate is in the Surrenderor and he shall have an Action of Trespass against any person who enters before another is admitted 226 7. Before an Admittance the Surrendree cannot enter but by special Custom to warrant it 225 Affidavit See Action on the Case for a Wrong 4. See Baron and Feme 11. Infant 21. Agreement and Disagreement Whether assent is necessary to a Surrender it being a Conveyance at the Common Law 't is not necessary in Devises or in any Conveyances directed by particular Statutes or by Custom 298 2. Whether the Estate shall be in the Surrendree immediately upon the execution of the Deed if he doth not shew some disassent to it 300 3. Agreement is not so much necessary to perfect a Conveyance as a Disagreement is to make it void ibid. 4. A Feoffment to three and Livery is made to one the Estate is in all till disagreement 301 Alien Leases made to Alien Artificers are void by the Statute of 32 H. 8. This Statute was pleaded by an Alien who was a Vintner and held to be no Artificer 94 Amendment See Mistrial Costs 2. 1. Of the Distringas by the Roll after a Verdict the Day and Place of Assizes being left out 78 2. In matters of Form the Court have sent for a Coroner to amend his Inquisition 101 3. Of a Mis-entry of a Writ of Enquiry without paying of Costs 113 4. Return to an Homine Replegiando amended by Rule of Court 120 5. A Riot was laid to be committed after the Indictment it was amended being only a Misprision of the Clerk 167 6. Where matter of Form is cured by a Verdict but 't is not amendable upon a Demurrer 235 7. Scire Facias upon a Recognizance to have Execution for 1000 l. juxta formam Recuperationis it should have been recognitionis amended after a Demurrer 251 Amerciament See Court 3. 1. Differs from a Fine for that is the act of the Court but an Amerciament is the act of the Jury 138 2. It need not be to a Sum certain for that may be affered 138 3. A Bailiff of a Liberty cannot distrein for an Amerciament Virtute officii but he ought to set forth the taking Virtute Warranti ibid. Appeal Against three for a Murder the Count was that O. gave the wound of which the person died the Jury found that L. gave the wound and that O. and M. were assisting this varies from the Count and yet held good 121 2. The Wound was given in one County and the Death ensued in another and the Party was Tryed where the Wound was given and held good ibid. 3. At Common Law it was at the Election of the Appellant to bring the Appeal in either County and the Tryal to be by a Jury of both but now it may be brought in the County where the Party died 122 4. Whether Auter foitz Convict of Man-Slaughter is a good Plea to an Appeal of Murder 156 157 5. If a Woman be slain her next of Kin shall maintain an Appeal 157 6. How many things are required by the Statute of Gloucester to be alledged in an Appeal of Murder 158 7. The Appellee pleaded in Abatement but did not plead over to the Felony whether good or not 267 8. Where the Appellee must plead in propria persona and where per Attornatum 268 Apportionment Where a Contract under Hand and Seal for a Sum certain shall not be apportioned in an Action pro Rata as if it be for a Years Service the Plaintiff must serve a Year and aver it tho' the Contract is executory 153 2. But if a Promise is for a Years Board an Action may be brought for three Quarters of a Year for if there is a Variance between the Agreement and the Declaration 't is for the benefit of the Defendant 154 Apprentice Whether Justices of Peace have any power to compel men to take poor Children Apprentices since the Statute gives power to Church-wardens to raise
Mony for putting them out which must be to such who are willing to to take them for Mony 270 Arbitrament To pay 5 l. presently and give Bond to pay 10 l. more on a day following and now to sign general Releases it shall only discharge such matters which were then depending at the time of the submission and not the Bond 264 2. A person who was a Stranger to the Submission was awarded to be a Surety 't is void 272 3. Submission was so as the Award be made c. ready to be delivered to the Parties or to such of them who shall desire it the Defendant must desire the Award and plead the matter specially and the Plaintiff need not aver that it was ready to be delivered 330 Assent See Agreement Assets Reversion in Fee Expectant upon an Estate Tail is not Assets but when it comes into possession then and not before 't is Assets 257 Assignment See Privity of Contract 2. Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurr'd after an assignment of the Term for the privity of Contract of the Testator is not determined by his Death but his Executor shall be charged with his Contracts so long as he hath Assets 326 Assizes The Method of arraigning an Assize the Title must be set forth in it 273 Attornment See Bargain and Sale Ejectment of a Manor parcel in Rents and parcel in Services the Attornment of the Tenants must be proved 36 Averment See Devise 4 The consideration of a Duty ought to be precisely alledged as in an Action on the Case for a Duty to be paid for weighing Goods it must be averred that the Goods were such which are usually sold by weight 162 2. The nature of an Averment is to reduce a thing to a certainty which was incertain before 216 3. Where it may be made against the express words of a Condition 217 4. Not allowed to be made against a Record 305 B. Bail IT was demised in a Scandalum Magnatum 4 2. Writ of Error pending in the Exchequer-Chamber the principal in the Action rendred himself the Bail are discharged 87 3. Scire Facias against Bail upon a Writ of Error who plead that the Principal rendred himself before Judgment 't is not good for the Bail are liable not only to render the Body but to pay the Debt ibid. 4. Proceedings were staied by Injunction above two Terms after the Bail was put in and before the Declaration delivered which was pleaded to a Scire Facias brought against them but held not good 274 Bankrupts An Inn-keeper is not within the Statutes of Bankrupcy 327 2. 'T is not actionable to call a Man Bankrupt unless it be laid that he was a Trader at the time of the words spoken 329 3. Inn-keeper buys and sells under a Restraint of Justices and Stewards of Leets which though for a Livelihood yet cannot be a Bankrupt 329 4. Whether a Farmer or Master of a Boarding-School be within the Statutes 330 Baretry Difference between Baretry and Maintenance 97 2. 'T is not Baretry to arrest a Man without a cause ibid. 4. If one design to oppress and to recover his own right 't is Baretry 98 5. Mony may be laid out to recover the just right of a poor man and no Baretry ibid. 6. But mony may not be expended to promote and stir up Suits ibid. Barbadoes It was gotten by Conquest and therefore to be governed by what Law the King willeth 161 Bargain and Sale What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment 237 Baron and Feme See Slander 7 Administrator 9 11 Sci. Fa. 7 1. Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her Dum sola 186 2. If a Judgment is recovered against her while sole then she marries and dies the Husband is not chargeable unless had likewise against him during the Coverture ibid. 3. A Debt is due to her whilst sole she marries and dies before 't is recovered it shall not go to the Husband by virtue of the marriage but he may have it as Administrator to his Wife ibid. 4. Judgment is obtained against her whilst sole she marries and a Sci. Fa. is brought against Husband and Wife and Judgment quod habeat executionem the Wife dies a Scire Fa. may be brought against the Husband alone 189 5. The Recovery upon a Sci. fa. is against both and is therefore joynt against both 188 6. Husband may have Execution of a Judgment recovered by him and his Wife after the Death of his Wife without a Sci. fa. 189 7. Devastavit against both the Wife being an Executrix and Judgment that the Plaintiff have Execution de bonis propriis the Wife dies the Goods of the Husband are liable ibid. 8. A Woman who had a Term for years married the Rent is arrear she died the Husband shall be liable because by the Marriage he is entituled to the Profits of the Land ibid. 9. Feme Covert Copy-holder her Husband made a Lease for years without Licence of the Lord 't is a Forfeiture during the Coverture 222 9. Feme Covert Heir to a Copyhold Estate her Husband after three Proclamations will not be admitted 't is a Forfeiture during Coverture 226 10. The Husband hath a Lease in Right of his Wife who was an Executrix and he grnats all his Right and title therein the Right which he had by his Wife passeth 278 12. A. Feme Sole had a Lease and Married then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife and to her Sons the Estate vests immediately in her without the assent of her Husband for the Law intends it her Estate till he dissassent 300 13. Feme Covert and another joint-Tenant for Life she and the Husband Lease their Moiety reserving a Rent during Life and the Life of her Partner the Wife died 't is a good Lease against the Surviving joint-Tenant till disagreement 300 14. The Husband made a Feoffment in Fee to the use of himself and Wife and to the Heirs of the Survivor he afterwards made another Feoffment of the same Lands and died the Wife entred but the Fee was not vested in her by the first Conveyance because the contingent right was destroyed by the last 310 Barr. Recovery in a personal Action is a Barr to an Action of the like nature where the same Evidence supporteth both Actions 2 Judgment in Trespass is no Barr to an Action of Detinue 2 Bill of Exchange The Drawer and Endorsers are all liable to payment but if Recovery be against one 't is a good Bar to an Action which may be brought against the rest 86 By-Law See Corporation 12. Trade 8. Where 't is too general and where not 193 C. Carrier See Pleading 11. Certainty See Custom Grants Certiorari
they are not properly sua 278 Exposition of Words and Sentences See Number Subsequent words may explain a former Sentence in a Deed but in Wills the first words guide all which follow 82 2. Action was brought by Original for that the Defendant prosecut ' fuit adhuc prosequitur in the Admiralty those words adhuc prosequitur shall not be construed to make it subsequent to the Original but must refer to the time of suing it forth 103 157 3. Doubtful Words must be Expounded always against the Lessor 230 4. To make an Assurance to the Obligee and his Heirs the Conjuction and shall be taken in the disjunctive 235 F. Fair See Trade IF the place where it should be kept is not limited by the Grant it may be kept where the Grantee will 108 False Imprisonment It will not lye against a Sheriff for taking the Body by vertue of a Casa upon an Erronious Judgment for the Execution is good till avoided by Writ of Error 325 Fees Of the Clerks of the Crown-Office the Court will not regulate upon a Motion but if oppressive they must be indicted for Extortion 297 Fines levied See Tenant at Will 6. One of the Cognisors died before the return of the Writ of Covenant 't is Error but not in the case of a Purchaser for a valuable consideratino for the Court will interpose 99 2. If the Cognisor doth dye after the Entry of the Kings-Silver the Fine is good 140 3. Writ of Covenant Teste 15th of January returnable in Crastino Purificationis taken by Dedimus 18th of Januarii The Cognizor died in Easter-Week following but four days before her Death the Kings-Silver was entred as of Hillary-Term precedent this was held a good Fine 141 4. Where a person is in possession by vertue of a particular Estate for Life and accepteth a greater Estate it shall not divest the Estate of those in Remainder for Life so as the same may be barred by Fine and Non-claim 195 5. Lease for one hundred years in Trust to attend the Inheritance cestuy que Trust being in possession Demises to another for fifty years and levied a Fine and the five years passed the Term for a hundred years is divested by this Fine and turned to a right and so barred 196 6. In what Cases a Fine is a Bar and what not 198 Fines upon Admittance See Admittance Copihold Debt 2. Infant 9. The Judges are to determine whether it be reasonable or not 134 2. Lord cannot enter for non-payment of an unreasonable Fine 134 Forfeiture If Tenant for years make a Feoffment 't is a Forfeiture but if he make a Lease and Release ' tho 't is of the same Operation yet 't is no forfeiture 151 Fraud See Evidence G. Grants Grantor and Grantee WHere an Interest is coupled with a Trust in a Grant it shall go to the Executor of the Grantee 43 2. Grants must be certain otherwise they are void 134 Grants of the King Not good for the sole Printing of Blank Bonds exclusive of all other Printers 75 2. A Grant to restrain trading to particular places is good 77 3. But of sole making Cards not good because it restrains a whole Trade ibid. 4. A Grant cannot divest the Subject of a Right enjoyed long before it was made ibid. 5. Cannot discharge a person of a Duty to which he is made lyable by a subsequent Act of Parliament 96 6. Difference between his Grants and Prohibitions 7. Where his Grants ought to be taken very strictly 168 8. In a Quo Warranto the Defendant pleaded that the King was seised in Fee of a Franchise who granted it to another Habendum the Hundred whether good or not 199 Gun See Iustice of Peace 3. Conviction before a Justice of Peace upon the Statute of H. 8. for keeping a Gun not having 100 l. per Annum quashed because it was said non habuisset instead of nunquam Habuit 100 l. per Annum 280 H. Habendum WHere it shall be said to explain the general Words preceding 81 2. Nothing passes in the Habendum but what was mentioned in the Premisses 199 Heir Error by the Plaintiff ut Consanguineus Haeres viz. Filius c. 't is sufficient without shewing the descent from more Ancestors 152 2. Where he shall take by Descent and where by Purchase 205 3. In a Bond where the word Heir is a word of Limitation and not a designation of the person 233 4. Reversion in Fee descended to an Heir after the Estate Tail spent and an Action was brought against him upon a Bond of his Ancestor 't is not necessary that the Plaintiff name all the intermediate Remainders but him who was last actually seized of the Fee 255 Heriot Lease for 99 years if A. B. C. so long live paying an Heriot upon the death of either A. assigns the term no Heriot shall be taken of the Assignee 231 2 May seize or distrain for Heriot Service if distrain it may be the Beast of any man upon the Land but if he seise it must be the very Beast of the Tenant ibid. 3. Where an Heriot is reserved upon a Demise it differs from those which are due by Tenure 231 4. Lease for 99 years if M. and D. so long live reserving an Heriot after death of either provided if D. survive no Heriot to be paid but M. survived the Court was divided whether a Heriot should be paid 230 Highways A Man cannot be exempted from repairing by the Grant of the King if made before the Statute of Ph. Mar. which charges him to repair 96 Homine Replegiando Brought for a Monster and upon the Return of the Sheriff that he had replevyed the Body he was bailed 121 2. Brought for a young Woman taken out of her Parents Custody and married against her Consent 169 Hue and Cry See Robbery Hundred Court This Court was first derived from the County Court 200 2 Hundreds were usually granted to Abbots and their Possessions coming to the Crown by dissolution of their Abbies are merged and cannot be regranted 200 I. Ideot HOW it differs from a Lunatick 43 2. The King hath power to grant his Estate to any person without Accompt to be given ibid. 3. Grant of an Ideot by the King the Grantee dieth his Executor hath an Interest in him ibid. Ieoffails See Indictment 8. Travers 4. Variance 2. None of the Statutes help an insufficient Indictment 79 2. Variance between original and declaration not aided by the Statute of Ieofails 136 3. Want of concluding without a Travers is but matter of form and aided 319 Indictment For using of Alias Preces than enjoined by the Book of Common Prayer it may be upon an extraordinary occasion and so no Offence 79 2. For scandalous words whether it lieth as it doth for Libels the one being a private the other a publick Offence 139 3. For Baretry in soliciting of a Suit against another who was not indebted to the person 97