Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE REPORTS OF Sir Peyton Ventris Kt. Late One of the JUSTICES of the COMMON-PLEAS In Two Parts The First PART Containing Select CASES Adjudged in the Kings-Bench in the Reign of K. CHARLES II. WITH Three Learned ARGUMENTS One in the Kings-Bench by Sir Francis North when Attorney General and Two in the Exchequer by Sir Matthew Hale when Lord Chief Baron With Two TABLES One of the Cases the other of the Principal Matters The Second PART Containing choice CASES Adjudged in the Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q MARY while he was a JUDGE in the said Court With the Pleadings to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the Lord Keeper and all the Judges LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper and the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in the Fleetstreet MDCXCVI WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Publick approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1695. THE FIRST PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Kings-Bench in the Reign of King CHARLES II. WITH THREE LEARNED ARGVMENTS One in the Kings-Bench by Sir FRANCIS NORTH when Attorney General And Two in the Exchequer by Sir MATTHEW HALE when Lord Chief Baron With Two exact TABLES One of the Cases the other of the Principal Matters With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in the Fleetstreet MDCXCVI TO THE READER THE Name of the Reverend and Learned JUDGE who was the Compiler of these REPORTS will be a sufficient Invitation to the Understanding Reader not only to cast his Eye upon but seriously to peruse them And as my Lord Coke in his Commentary upon Littleton fol. 249. b. says That for the most part the latter Resolutions and Judgments are the surest and therefore best to Season Students with at the Beginning both for the settling of their Judgments and retaining of them in Memory and easier to be understood than the Ancient So it is to be hoped that these following REPORTS Collected with Care Diligence and Experience by the Learned Author thereof will fully answer these Directions given by that before-mentioned Famous Lawyer The Author of these REPORTS was so Eminent in his Profession of the LAWS that should I presume to give a Character of him it would come very short of His great Worth and therefore I shall only commend him to the Courteous Reader where he will find his own Character given by himself Vale. THE NAMES OF THE CASES IN THE FIRST PART A ABram v. Cunningham p. 303 Adams v Guy 109 Amhurst's Case of Grays-Inn 187 Anger v. Brewer 348 350 Anonymus's 2 3 4 5 9 10 11 12 13 17 18 20 21 24 26 28 31 32 33 34 37 38 39 40 41 42 43 45 46 48 49 51 53 54 55 59 60 61 63 65 69 71 74 75 87 89 92 93 98 100 105 107 108 109 111 114 115 117 120 126 127 132 133 135 142 143 146 165 166 191 211 212 213 214 222 233 234 236 239 247 248 249 252 253 256 257 258 259 261 262 264 265 266 267 268 272 274 276 292 293 295 296 298 306 308 309 310 315 323 325 327 328 329 330 331 332 333 335 336 337 338 343 344 345 346 348 349 350 352 353 355 356 357 359 361 362 366 367 369 Astree v. Ballard 315 Atkyns Sir Robert v. Holford Clare 399 Auberie v. James 70 Aubin St. v. Cox 180 Austin's Case 183 Austin's Katharine Case 189 B BAins versus Biggersdale 5 Baker v. Bulstrode 255 Baker v. Bakers 313 Baldway and Ouston 71 Baltinglasses Lady Case 64 Barber v. Fox 159 Barkly v. Paine 28 Barnard v. Mitchel 114 126 Barnes v. Bruddel 4 Barnes v. Hughes 8 Barrett v. Milward al' 75 Bateman 's Sir Anthony Case 166 Bates 's William Case 41 Batmore Vx ' v. Graves 260 Bayly v. Murin 244 Beasly 's Case 301 Bedniff Vx ' v. Popli Vx ' 220 Bell v. Thatcher 275 Bellew Monsieur Norman sen ' Norman jun ' 254 Bernard v. Bernard 72 Berry v. Bowes 360 Best v. Yates 268 Billingham and Vavasor 6 Biron 's Lord Case 100 Blackamore v. Mercer 221 Blackman 's Case 304 Blake v. 240 Bolton v. Cannon 271 Bosvile v. Coates 58 Bourne v. Mason al' 6 Bovye 's Sir Ralph Case 193 211 217 Bradnox 's Case 195 Braithwaite 's Case 19 Brell v. Richards 165 Brown 's John Case 243 Brown v. London 152 Brown v. Wait 299 Bulmer v. Charles Pawlet Lord St. John 160 Burfoot v. Peale 262 Burgen 's Thomas Case 13 Burrough 's Case 305 Burwell 's Case 48 Butcher v. Cowper 183 C CAptain C 's Case 250 Cabell and Vaughan 34 Calthorpe v. 108 Cartwright v. Pinkney 272 Castilian v. Platt 190 Catterel v. Marshal 99 Chester v. Wilson 78 Chesters Lady Case 207 Clarke v. Phillips al. 42 Clarke 's Case 327 Clayton v. Gillam 363 Clerke v. Cheney 13 Clipsham v. Morris 9 Clue v. Baily 240 Cole v. Levingston 224 Colepepper 's Case 349 Collet v. Padwel 93 Collingwood v. Pace 413 Cooke v. Fountain 347 Coriton Sir John and Harvey versus Lithby 167 Cotton Sir Robert v. Daintry 29 Cousin 's Case 69 Cox v. Matthews 237 239 Crawfoot v. Dale 263 Crispe and Jackson v. The Mayor and Commonalty of Berwick 58 90 Crosse v. Winter 22 Crossing v. Scudamore 137 Curtis al' v. Collingwood 297 Curtis v. Inman 364 Cuts v. Pickering 197 D DAcon 's Case 107 Dacres v. Duncomb 235 Davenant v. The Bishop of Salisbury 223 Davis v. Wright al' 120 Davis v. Price 317 Davison v. Hoslip 152 Day v. Pitts 10 Day v. Coppleston 356 Dean and Chapter of Durham v. The Lord Archbishop of York 225 Debt 233 Denison v. Ralphson 365 Dier v. East 42 146
for if a Man Covenants to stand seized to a Contingent Use and afterwards is attainted of Treason before the Contingency happen the Contingency shall never rise for the King has the Estate discharged and the Use is to rise out of the Estate of the Covenantor so is Moor Sir Tho Palmers Case 815 In Moors Rep. of my Lord Pagets Case 194. It s said that W. Paget had an Amoveas manus for the Estate of the Queen leased by the Death of my Lord Paget In Sir Francis Englefeilds Case Popham 18. n. 7. It s resolved that no Use rises because t is that it shall Discend Remain or Come which is uncertain but if he had Covenanted that after his Death he and his Heirs would have stood seized to the Use of John an Use would have resulted to Sir Francis Second Point I conceive if it be impossible for Ralph to take by Discent this would be a Contingent Use in him by Purchase The great Objection against this is that the Limitation is to an Heir and an Heir which ought to take by Purchase ought not to be only Heir of the Body c. but Heir general Of this I am not well satisfied I conceive the Remainder being limited to the Heirs of the Body of Jane begotten by Michael such a Limitation will make a special Heir to serve the turn and t is not to be resembled to Shelley's Case My Reasons are First Because at the Common Law before the Statute de Donis notice was taken that this was a special Heir and therefore 't is no wrong done to make him here a qualified Heir In the Statute de Donis 't is said When Lands are given to Man and his Wife and the Heirs of their two Bodies begotten Secondly Vpon the special penning of the Deed it is apparent that Michael took notice that he had an Heir at Common Law therefore it can't be intended that he meant here such an Heir that should be Heir general to him this would be Contradictio in Adjecto Litt. Sect. 352. puts this Case If a Feoffment be made upon Condition that the Feoffee shall give the Land to the Feoffor and his Wife and the Heirs of their two Bodies begotten In this Case if the Husband dye living his Wife before the Estate Tail is granted to them the Feoffee ought to make the Estate as near the Condition and as near the intent of the Condition as may be viz. To let the Land to the Wife for her Life without impeachment of Wast the Remainder to the Heirs of the Body of the Husband on her begotten If the Husband and Wife dye before the Gift made then the Feoffee ought to make it to the Issue and to the Heirs of the Body of his Father and Mother begotten Suppose that this had been to a second Wife and there had been Issue by a former the Book of 12 H. 4. 3. says that there it shall be in another manner but Litt. says it shall be as near vid. Litt. Sect. 22. Morevils Case Fitzh Tail 23. 2 Ed. 3. 1. 4. Ed. 3. 50. by all these Cases it appears that no regard is had whether the Son be Heir of the Husband if he be Heir of their two Bodies Therefore it seems that by this Limitation Ralph shall take by way of Contingent Remainder For Heirs of the Body of the second Wife is a good name of Purchase I have not read any Case against this Hill 16. or 26 Eliz. there was this Case A Man taking notice in his Will that his Brother who was dead had a Son and that he himself had three Daughters who were his right and immediate Heirs he gave them 2000 l and gave his Land to the Son of his Brother by the name of his Heir Male. Provided If his Daughters troubled his Heir then the Devise of the 2000 l to them should be void And it was resolved that the Devisor taking notice that others were his Heirs the Limitation to his Brothers Son by the name of Heir Male was a good name of Purchase and this agrees with Cownden and Clarks Case in Hob. Wild Justice said he was of the same Opinion with Hale in this last Point And Iudgment was given for the Defendant Three Learned ARGUMENTS One in the Court of Kings-Bench BY Sir FRANCIS NORTH Attorny General And Two in the Court of Exchequer BY Sir MATTHEW HALE Chief Baron there The Argument of Sir Francis North. In Banco Regis Potter and Sir Henry North. IN a Replevin for taking of an Horse in a certain place called the Fenn at Milden-Hall in the County of Suffolk the Defendant makes Cognizance as Bayliff to Sir Henry North and saith That the place Where c. containeth Ten thousand Acres of Pasture in Milden-Hall whereof a certain place called Delfe is parcel and that it is Sir Henry North's Freehold and the Horse was Damage feasant there c. The Plaintiff Replies Confessing the Soyl to be the Freehold of Sir Henry Norths but says That time whereof c. the place Where hath been parcel of the Fenn and parcel of the Mannor of Milden-Hall of which Sir Henry North is seised in Fee and that the Plaintiff was at the time c. seised of an Ancient Messuage one of the Freeholds holden of the Mannor by Rents and Services and parcel of the said Mannor and that Time out of Mind there were divers ancient Freehold Messuages holden of the said Mannor by Rents and Services and divers Copyhold Messuages parcel of the said Mannor by Custom of the said Mannor demised and demisable by Copy of Court Rolls of the said Mannor And the several Tenants of the said Freehold Tenements being seised in their Demesn as of Fee and they whose Estate they have in the same Time out of mind have had together with the Customary Tenants of the said Customary Tenements the sole and several Feeding of 100 Acres of Pasture for all Beasts except Hogs Sheep and Northern Steers levant and couchant upon their several Freeholds every year at all times of the year as to their several Freeholds belonging And that within the said Mannor there is and Temps d'ont c. hath been such a Custom that the several Tenants of the Customary Messuages together with the Freeholders aforesaid have used and accustomed to have the sole and several Feeding of the said 100 Acres of Pasture for all their Beasts except Sheep Hogs and Northern Steers levant and couchant upon their several Copy-holds every year at all times in the year tanquam ad seperal ' Tenementa customar ' spectant ' pertinent ' and the Plaintiff being seised put in his Horse c. and so Iustifies Vpon this the Defendant demurs generally This Prescription is naught in substance and Judgment ought to be given for the Defendant upon these Four Exceptions First That several Freeholders cannot joyn or be joyned in a Prescription to claim an entire Interest in another mans Soyl as
' de Banco evacuat ' fuit adnullat ' prout idem Robertus superius inde placitando allegavit absque hoc quod Intrac ' ill ' facta fuit per ipsum Robertum falso fraudulent ' ac in decepconem ejusdem Cur ' modo forma prout praedict ' Willielmus superius inde replicando allegavit Et hoc parat ' est verificare Unde ut prius petit Judicium Et quod praedict ' Willielmus ab accon ' sua praedict ' inde versus eum habend ' praecludatur c. The Plaintiff Demurrs to the Rejoynder Et praedict ' Willielmus dic ' quod ipse per aliqua per praed ' Robertum superius rejungen ' allegat ' ab accon ' sua praedicta inde versus ipsum Robertum habend ' praecludi non debet quia dic ' quod placit ' praedict ' per eundem Robertum modo forma praedict ' superius rejungen ' placitat ' materiaque in eodem content ' minus suffic ' in lege existunt ad ipsum Willielmum ab accon ' sua praedicta versus praefat ' Robertum habend ' praecludend ' Ad quod idem Willielmus necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' respons ' in hac parte idem Willielm ' petit Judicium dampna sua praedicta sibi adjudicari c. Et praedict ' Robertus ex quo ipse sufficien ' The Defendant joyns in Demurrer materiam in lege ad praedict ' Willielm ' ab accon ' sua praedicta versus ipsum Robertum habend ' praecludend ' superius rejungen ' allegavit quam ipse parat ' est verificare quam quidem materiam praed ' Willielm non dedic ' nec ad eam aliqualit ' respond ' set verificationem ill ' admittere omnino recusat ut prius petit Judicium Et quod praed ' Willielm ' ab accon ' sua praed ' versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super praemissis praed ' unde partes praedict ' posuer ' se in Judic ' Cur ' priusquam Judic ' inde reddant dies dat' est partibus praed ' hic usque à die Paschae in quindecim dies de audiend ' inde Judic ' eo quod iidem Justic ' hic inde nondum c Carr versus Donne IN an Action of Trespass the Plaintiff declared upon an Assault Battery Wounding and Imprisonment The Defendant as to the Vi armis vulnerationem pleaded Not guilty quoad resid ' transgr ' insult ' imprisonament ' he Iustified for that he obtained Judgment against the Plaintiff in the Common Bench and that a Capias ad satisfaciend ' was thereupon awarded to the Sheriff which being delivered to the Sheriff he at the Request of the Defendant Mandavit Executionem inde cuidam eo quod executio inde extra eandem libertatem fieri non potuit c. Which said Bayliff had the Return and Execution of all Warrants Precepts Mandates c. by virtue of which the said Bayliff molliter manus imposuit upon the Plaintiff and arrested him c. Vpon a Demurrer it was Adjudged for the Plaintiff for an apparent fault in the Plea which was that he had not pleaded to the Battery Powel said that the Plea was also naught because it sets forth a Mandate to the Bayliff of the Liberty and did not shew that it was under the Hand and Seal of the Sheriff Norwood versus Woodly IN an Indebitat ' assumpsit for Goods sold The Defendant pleaded the Statute of Limitations The Plaintiff Replied That before the Six years were out he brought an Original in Trespass against the Defendant ea intentione to Declare against the Defendant in an Assumpsit secund ' consuetud ' Cur ' de tempore cujus c. The Defendant said that there was no such Record and the Plaintiff produced an Original in Trespass brought within the time against the Defendant and two others and it was in Trespass and insult ' in London And it was moved that this Record did not make good the Replication for 't is against Three and it should have been in a Clausum fregit for that was said to be the course of the Court to declare in any thing upon such a Writ But the Prothonotary Informed the Court that the Original being in London the Cursitor would not make a Clausum fregit into London for which no Reason was given and that therefore tho' in other Counties it is to be a Clausum fregit yet Trespass and Insult would do in this Case and so was the constant Practice And the Plaintiffs Replication is that he brought an Original in Trespass generally so it may be applied to this and 't is not material tho' others be joyned in the Writ with the Defendant But the Court doubted of the Practice Anonymus AN Attachment was granted against an Attorney for a Misdemeanor in Practice and upon a Rule of Court it was referred to the Prothonotay to tax Costs for the party grieved which were taxed accordingly and then came out the Act of General Pardon which discharged the Contempt The Court inclinced that the Costs were also discharged tho' taxed before the Pardon for that they are not Costs upon a Judicial Proceeding but a kind of Composition with the Offender who submits to pay Costs to the Injured party to the eased of the Penalty for his Contempt and so not like Costs taxed in the Ecclesiastical Court ê“ reformatione morum as in 5 Co. 51. and in 3 Cro. 6. Nota In the Dutchy Court this Term in a Suit in Equity Costs were taxed upon a Contempt to the party grieved before the Pardon And the Opinion of the Lord Chief Baron Atkyns and Justice Ventris who attended there as Assistants was That the Costs were not discharged But that was in a Court of Equity where Costs are at the pleasure of the Judge Anonymus IN an Action of Trespass Quare clausum fregit where as to some part there was Not guilty pleaded and as to the other a Special Justification and a Verdict upon the General Issue for the Plaintiff and upon the Special Issue for the Defendant The Court took this to be within the late Statute for the Plaintiff to have no more Costs than Damages because the Issue upon the Matter specially pleaded was found for the Defendant and so the same thing if the General Issue had been only pleaded and found for the Plaintiff Fagg versus Roberts al' NOta Vpon a Trial at Bar in an Ejectment where two were made Defendants and had entred into the Common Rule and at the Trial one appeared and confessed Lease Entry c. but the other did not And after Evidence given the Plaintiff was Non-suited and Costs taxed for the Defendants The Court said that both
these Defendants were entitled to these Costs and he that did not appear might release them to the Plaintiff but they said that if there should appear to the Covin between the Lessor of the Plaintiff and the Defendant who did not appear to release the Costs the Court supposed that they might correct such Practice when it should be made appear Bright versus Addy AN Action of Trespass Quare clausum fregit was brought by Baron and Feme Pollexfen Chief Justice was of Opinion that the Feme could not be joyned tho' it was her Land Ventris contra For this Action will survive and they have election either to joyn or to bring it alone 1 Brown l. 21. 1 Ro. Abr. 348. Hob. 189. 1 Cro. 96. 3 Cro. Tregniel and Reeve Mo. 5. In an Action of Forcible Entry upon the Wives Land after the Coverture she was joyned with the Husband Adjornatur Anonymus IN an Assumpsit against the Administratrix the Defendant pleaded quod ipsa non assumpsit instead of the Intestate After Verdict a Repleader was awarded and no Costs to either party upon a Repleader Marks versus Nottingham THe Defendant pleaded in Abatement that the Plaintiff was dead at such a place before the Action brought The Court doubted whether such Plea could be received but upon view of Rastall's Entries 161. pl. 6. where the like Plea was Powell and Ventris conceived it to be a good Plea Pollexfen Ch. Justice and Rokeby said that that in Rastall differed because there were two Plaintiffs so that Issue might be joyned with the other Plaintiff Sed vide librum where the Replication to that Plea is that W.H. praedict ' R.B. Attornat ' praed ' J. which J. was pleaded to be dead nomine pro ipso J. Magistro suo dicit quod breve praed ' ratione praeallegat ' cassari non debet quia dicit quod praed ' J. superstes in plena vita existit viz. apud L. in Com. N. non mortuus prout praed ' W. superius allegavit hoc petit quod inquiratur per Patriam praed ' W. similiter c. Adjornatur Haselwood versus Mansfield IN Debt for 150 l the Plaintiff declared upon a Charter-party which contained divers mutual Agreements and in performatione conventionum praed ' ex parte dicti Magistri ipse obligasser se dicto Mercatori in penali summa 150 l ad performationem convention ' praed ' ex parte dicti Mercator ' obligasset se dicto Magistro c. in simili penali summa 150 l c. And this Action was brought by the Master of the Ship against the Merchant The Defendant pleaded an Insufficient Plea to which there was a Demurrer But it was moved that the Declaration was Insufficient for when it comes to the Penalty on the Merchants part it is only obligasset se omitting ipse or ipse praed ' Mercator obligasset se so 't is not expresly declared that the Defendant was bound And of that Opinion were Pollexfen Chief Justice Powell and Rokeby Ventris contra For it is obligasset se dicto Magistro so none but the Merchant can be understood to be bound and if it were ipse obligasset it had been good and that is understood But Judgment was given for the Defendant Snode versus Ward IN an Indebitat ' assumpsit for Goods sold The Defendant pleaded quod ipse infra sex annos proxime ante diem impetrationis Brevis Originalis ipsius Quer ' non assumpsit To which the Plaintiff demurred 1. Because the late Statute of 1 Willielmi Mariae for reviving of Process doth Enact That the Time from the 11th of December 1688 to the 13th of February then next following should not be accounted as any part of the Time upon the Statute of Limitations And therefore the Defendant should have pleaded that he did not assume within six years and so many days as were between the 11th of December and the 13th of February And it was said so had the Pleading been ever since the said Statute But the Court Resolved that the Pleading might be still in such manner as before the Statute For the Statute is that those Days shall be no part of the time and therefore pleading non assumpsit infra sex annos is to be understood of Six years exclusive of those Days between the 11th of December and the 13th of February 2. Another Exception was taken to the Plea for that it is ante impetrationem Brevis Original ' ipsius Quer ' and doth not say praed ' brevis and so it may be referred to some other Writ the Plaintiff might have Pollexfen Chief Justice inclined that it was naught for this Cause Adjornatur Vid. 8 Co. 57. The Earl of Rutland's Case He pleads that he was seised of the Park of Clipsham and granted officium Parci sui and not said praed ' Parci and held it good Vid. 2. Cro. 288. Burton and Eyre Humphreys versus Bethily IN an Action of Debt upon a Penal Bill where the Defendant was to pay 10 s upon the 11th of June and 10 s more upon the 10th of July next following and so 10 s every three Weeks after till a certain Sum were satisfied by such several payments And for the true payment thereof the Defendant obliged himself in the Penal Sum of 7 l The Plaintiff in facto dicit pleaded that the Defendant did not pay the said Sum or any part thereof upon the several days aforesaid unde actio accrevit for the 7 l The Defendant pleaded that he paid 10 s upon the 11th of June hoc paratus estve rificare c. The Plaintiff Replyed that he did not pay it hoc petit quod inquiratur per Patriam To which the Defendant demurred The Plea was held altogether Insufficient But then Pollexfen Chief Justice observed that the Declaration was naught for he should have declared that the Defendant failed in payment of one of the Sums which would have been enough to have entitled him to the Penalty but he says The said several Sums of Money or any of them and this is double and he inclined that it was not aided by Answering over or by the General Demurrer Adjornatur Vide Saunders and Crowley 1 Ro. 112. Thompson versus Leach IN an Ejectment by Thomas Thompson against Sir Simon Leach and divers other Defendants upon the Demise of Charles Leach of the Mannor of Bulkworthy and divers Messuages Lands and Tenements Vpon Not Guilty pleaded a Special Verdict was found to this effect Viz. That Nicholas Leach was seised in Fee of the said Mannors Lands and Tenements in the Declaration and by his last Will in Writing bearing date the 9th day of December in the 19th year of the Reign of the late King Charles the Second devised the Premisses to his Brother Simon Leach for Life remainder to the first Son of the Body of the said Simon and the Heirs Males of the
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
words twice or thrice Raymond's Rep. fo 97. It was held that would not pass the Land for it was said that it were hard that Lands should pass by a Parol Will by Custom unless there be express and plain words to shew the Intention Chapman versus Flexman The Style of the Court of the Exchequer Chamber PLACITA in Camera Scaccarij apud VVestm ' coram Thoma Street Mil ' Edwardo Lutwich Mil ' duobus Justic ' domini Regis de Communi Banco Thoma Powell Mil ' un ' Baron ' de Scaccario domini Regis de gradu de la Coife die Sabbati vicesimo quinto die Novembr ' anno regni domini Jacobi secundi Dei gratia Angliae Scotiae Franciae Hiberniae Regis Fidei defensor ' c. quarto Dominus Rex mandavit dilecto fideli suo Roberto Wright Mil ' The Writ of Error Capitali Justic ' suo ad placita coram ipso Rege tenend ' assign ' Breve suum Clausum in haec verba Jacobus secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor ' c. Dilecto fideli nostro Roberto Wright Mil ' Capital ' Justic ' nostro ad placita coram nobis tenend ' assign ' salutem Cum in Statuto in Parliamento Dominae Elizabethae nuper Regin ' Angl ' apud Westm ' vicesimo tertio die Novembr ' anno regni sui vicesimo septimo tent ' edit ' in t ' caetera inactitat ' fuit authoritat ' ejusdem Parliamenti quod ubi aliquod Judic ' ad aliquod tempus extunc postea reddit ' foret in Cur ' de Banco Regis in aliqua secta aut accone debiti detencon ' convencon ' compoti accon ' super Casum Ejeccon ' firmae aut Transgr ' primum inchoat ' aut primum ibidem inchoand ' pÌ„terea tantum ubi nos foremus pars sequen ' aut defend ' contra quam aliquod tal ' Judic ' reddit ' foret ad suam eleccon ' prosequi potest extra Cur ' Cancellar speciale breve de Errore devisand ' in dicta Cur ' Cancellar ' Capitali Justic ' dictae Cur ' de Banco Regis pro tempore existen ' dirigend ' mandans ill ' causare dict' Record ' ae omnia concernen ' dict' Judic ' Transferri coram Justic ' de Communi Banco Baron ' de Scaccario in Camera Scaccarij ibidem examinand ' per dictos Justic ' de Communi Banco Baron ' praed ' Qui quidem Justic ' de Communi Banco tales Baron ' de Scaccario qui sunt de gradu de la Coife aut sex illorum ad minus virtute ejusdem Actus superinde plenam potestat ' authoritat ' habuerunt ad examinand ' omnes tales Error ' qual ' assignat ' aut invent ' fueirnt in aut super aliquod tale Judic ' superinde reversare aut affirmare dict' Judic ' prout lex requiret praeterquam pro Erroribus assignand ' aut inveniend ' pro aut concernen ' Jurisdicconem praed ' Cur ' de Banco Regis aut aliquem defect ' form ' in aliquo Brevi retorn ' Querela Billa Declaracone aut in alio placito processu veredicto aut procedencia quibuscunque Et quod postquam dict' Judic ' affirmat ' aut revocat ' fuit dict' Record ' ac omnia ill ' concern ' in dictam Cur ' de Banco Regis removend ' reducend ' erunt ut talis ulterior ' process superinde fiat tam pro execucon ' quam alit ' prout pertinebit sicut in dicto Statuto plenius continetur Ac quia in record ' c ê“cess ac etiam in reddicone Judic ' loquelae quae fuit in Cur ' nostra coram nobis per billam inter Rogerum Flexman Johannem Chapman de quadam Transgr ' super Casum eidem Rogero per praefat ' Johannem illat ' ut dicitur Error intervenit manifestus ad grave dampnum ipsius Johannis sicut ex loquela sua accepimus Qui quidem Error nullo modo tangit nos aut Jurisdiccon ' praed ' Cur ' nostr ' de Banco Regis praedict ' aut aliquem defect ' formae in aliquo Brevi retorn ' Querela Billa Declaracon ' aut in alio placito vel ê“cedencia quibuscunque ut accepimus Nos igitur volentes Errorem si quis fuerit juxta formam Statut ' praed ' corrigi partibus praed ' plenam celerem Justic ' fieri in hac parte vobis mand ' quod si inde Judic ' reddit ' sit tunc Record ' ê“cess praed ' cum omnibuse a tangen ' coram dictis Justic ' de Communi Banco Baron ' de Scaccario nostro praedict ' in Camera Scaccarij nostri praedict ' die Sabbati videlicet vicesimo sexto die instantis mensis Novembr ' ven ' fac ' ut dicti Justic ' Baton ' vis ' examinat ' Record ' ê“cess praed ' ulterius inde Fieri fac ' quod de jure secundum formam Statut ' praed ' fuerit faciend ' Teste meipso apud Westm ' xiij die Novembr ' anno regni nostri tertio Davies The Return of the Writ Record ' ê“cess praed ' cum omnibus ea tangen ' de quibus in brevi praedict ' fit mencÌ„o sequuntur in haec verba Placita coram domino Rege apud Westm ' de Termino Sancti Hill ' annis regni domini Jacobi secundi nunc Regis Angliae c. secundo tertio Rot ' DCCCCLXMIIII The Memorandum Devon ' ss Memorandum quod alias scilicet Termino sancti Michaelis ult ' praeterit ' coram domino Rege apud Westm ' ven ' Rogerus Flexman per Johannem Clifton Attorn ' suum protulit hic in Cur ' dicti domini Regis tunc ibidem quandam billam suam versus Johannem Chapman in Custod ' Mar ' c. de placito Transgr super Casum Et sunt pleg ' de pros ' scilicet Johannes Doe Ric ' Roe quae quidem Billa sequitur in haec verba Declaration in a Special Action of the Case brought by a Lessee of an Ancient Mill for not grinding at his Mill. Devon ss Rogerus Flaxman queritur de Johanne Chapman in Custod ' Mar ' Maresc ' domini Regis coram ipso Rege existen ' pro eo videlicet quod cum quidam Johannes Speccott Armig ' secundo die Novembr ' Anno Domini Millesimo sexcentesimo octogesimo quinto diu antea continue postea hucusque fuit adhuc est seisit ' de in Maner ' Burgo de Torrington in Com' praed ' ac de septem antiquis molend ' aquat ' suffic ' ad molend ' omnia grana brasium inhabitantium infra Manerium Burgum praedict ' pro necessar ' usibus suis molit ' ibidem expendit ' sex eorum infra
requisicon ' praedict ' Rogeri Flexman ac per mandat ' Justic ' praed ' de novo apponuntur Quorum nomina Panello infrascript ' affilantur secundum formam Statut ' in hujusmodi casu edit ' provis ' ac Jur ' sic de novo apposit ' videlicet Hugo Bidwell Johannes Crauscombe VVillielmus Avent Johannes Sprye exact ' silit ' ven ' Qui ad veritatem de infracontent ' simulcum al' Jur ' praedict ' prius impannelat ' jurat ' dicend ' elect ' triat ' jurat ' dicunt super SacrumÌ„ suum quod praed ' Johannes Chapman est culpabilis de praemiss infrascript ' prout praed Verdict for the Plaintiff Rogerus Flexman interius inde versus eum queritur Et assidunt dampnum ipsius Rogeri Flexman occone inde ultra mis ' custag ' sua per ipsum circa sectam suam in hac parte apposit ' ad un ' denar ' Et pro mis ' custag ' The Judgment ill ' ad quadragint ' solid ' Ideo cons ' est quod praed ' Rogerus Flexman recuperet versus praefat ' Johannem Chapman dampna fua praedict ' per Jur ' praed ' in forma praed ' Asses necnon sexdecim libras pro misis custag ' suis praed eidem Rogero per Cur ' dicti domini Regis nunc hic ex assensu suo de IncroÌ„ adjudicat ' Quae quidem Dampna in toto se attingunt ad octodecim libras un ' denar ' Et praed ' Johannes in misericordia c. The Placita in the Exchequer Chamber Placita in Camera Scaccarij apud Westm ' coram Edw ' Atkyns Mil ' Capital ' Baron ' de Scac ' dnÌ„i Regis de gradu dela Coife Thoma Jenner Mil ' Richardo Heath Thoma Powell Mil ' tribus al' Baron ' de Scaccario dnÌ„i Regis de gradu de la Coife necnon Thoma Street Mil ' Edw ' Lutwich Mil ' Christof Milton Mil ' tribus al' Justic ' dnÌ„i Regis de Communi Banco vicesimo sexto die Maij anno regni domini Jacobi secundi Dei gratia Angliae Scot ' Franciae Hiberniae Regis Fidei defensor c. quarto Ad quem diem hic ven ' praedict ' The General Errors assigned Johannes Chapman per Johannem Lugg Attorn ' suum Et dic ' quod in Record ' ê“cess praedict ' ac etiam in reddicone Judic ' praed ' manifest ' est errat ' in hoc videlicet quod Judic ' praed ' in foima praed ' reddit ' reddit ' existit pro praedict ' Rogero versus praefat Johannem Chapman ubi per legem terrae hujus regni Angliae idem Judicium reddi debuisset pro praed Johanne Chapman versus praed ' Rogerum Ideo in eo manifeste est errat ' Et petit quod Judicium praed ' ob Errores praedict ' alios in Record ' ê“cess praed ac in reddicone Judicij praed existen ' revocetur adnulletur pro nullo penitus habeatur quod ipse ad omnia quae occone Judic ' praed amisit restituatur c. And a Scire facias ad audiendum Errores prayed Et petit breve domini Regis Vic' Devon ' dirigend ' ad praemuniend ' praefat ' Rogero essendi hic auditur ' Record ' ê“cess praed ' ei conceditur c. And awarded Ideo Praecept ' est Vic' quod probos c. Scire fac ' praefat ' Rogero quod sit hic die ê“x ' futur ' auditur ' Record ' ê“cess praedict ' si c. Et ulterius c. Idem dies dat' est eidem Johanni Chapman hic c. Et praedict ' Rogerus Flexman dic ' quod nec in Record ' ê“cess praedict The Defendant in the Errors appears and pleads in nullo est Erratum nec in reddicone Judic ' praed ' in ullo est erratum Et petit etiam quod Cur ' domini Regis dominae Reginae hic procedat ad examinacon ' tam Record ' ê“cess praed ' quam praed ' causae per ip mÌ„ Johannem Chapman superius ê‘ erroribus assign ' allegat ' Et quod Judic ' praed ' in omnibus affirmetur Et quia Cur ' dicti domini Regis dominae Reginae hic se advisare vult de super praemiss prius quam Judic ' inde reddat dies dat' est partibus praed ' usque diem Sabbati prox ' futur ' de Judicio suo inde audiend ' eo quod Cur ' domini Regis hic inde nondum c. Chapman versus Flexman IN an Action upon the Case in B. R. the Plaintiff declared That one Jo. Specot 2 Novembr ' 1685. diu ante was seiseo of the Mannor and Burgh of Torrington and of seven antient Water Corn Mills sufficient to grind the Corn of the Inhabitants within the Mannor and Burgh aforesaid for their necessary uses and that the Plaintiff was the day aforesaid continue postea Tenant at Will to the said Specot of the said seven Mills and had the Toll of Corn which was ground in the said Mills during the time aforesaid habere debuisset And whereas all the Inhabitants of any antient Messuage within the Mannor and Burgh aforesaid de jure debuerunt molere ad praed ' septem molend ' aliqua sive aliquod eorum omnia omnimoda grana sua infra Mess ' praed ' expendit ' ac solvere pro molitura inde rationab tolnetum And whereas the said Chapman the day aforesaid diu antea was Occupier of an antient Messuage within the Mannor and Burgh aforsaid the said Chapman the 2 of November c. Erected a certain Mill within the Mannor and Burgh aforesaid and within his said Messuage wherewith he did grind divers viz. 1000 Bushels of Malt which he spent in his said House by Reason whereof the said Flexman lost the benefit of the Tall of the said Malt which he should have had ad damnum c. The Defendant pleaded not Guilty and a Verdict was found Plaintiff and Judgment that he should Recover in B. R. And the Error now insisted upon was That the Plaintiff had not set forth any Title in his Declaration to the Toll or any Custom or Prescription for the Inhabitants of those antient Houses to bring their Corn to be ground there But the Opinion of all the Court the Judgment given in the Kings Bench was affirmed for t is sufficient to say in this possessory Action that during the time aforesaid he had and ought to have the Toll and that the Inhabitants debuerunt molere vide the Case of Dent and Oliver in 2 Cro. 43.122 vide Rastall Tit. molin ' in Action sur le Case fol. 90. F. N. B. 123. for an antient Water-course said currere consuevit Note That of Rastall cited by Pollexfen
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
void if Livery had been made It was Resolved not to enure as a Covenant to stand seised because the Deed was void in the frame of it The Lords affirmed the last Judgment given by the Lords Commissioners c. and held that no Vse would arise With the concurrent Opinion of Baron Nevil Justice Eyre and Justice Ventris THE ARGUMENT OF Mr. Iustice Ventris IN THE EXCHEQUER-CHAMBER UPON A Writ of ERROR out of the Kings-Bench Christopher Dighton Gent Plaintiff versus Bernard Greenvil Esq Defendant THE Plaintiff brought a Writ of Error upon a Judgment in an Action of Trespass and Ejectment in the Kings-Bench given for the Defendant where the Plaintiff declared upon the Demise of Theophilus Earl of Huntington of a Moeity of the Mannor of Marre and of divers Messuages Lands and Tenements lying in Marre Bentley in Baln in the County of York and also of the Demise of Robert Earl of Scarsdale of the other Moiety of the said Mannor and of the Demise of Elizabeth Lewis of the entire Mannor of Marre and that by Vertue of these several Demises he entred and was possessed until ejected by the Defendant Vpon Not Guilty pleaded the Jury found the Defendant Not Guilty of the Trespass and Ejectment upon the Demise of Elizabeth Lewis and as to the Demises of the several Moieties by the said Earls they found a Special Verdict to this effect Viz. That Thomas Lewis the 9 of April 20 Jac. 1. before the Mayor of Lincoln acknowledged a Statute Merchant to William Knight for 1200 l to be paid at the Feast of St. Philip and Jacob then next following and that the said Money was not paid at the day and that William Knight the 16 of November 1629. made his last Will and one Isaack Knight his Executor and died that Isack proved the said Will and in Trinity Term 20 Car. 1. sued a Cap. si laicus out of the Common Pleas against the said Thomas Lewis directed to the Sheriff of Lincoln returnable in Tres Trin. who returned quod laicus fuit sed not fuit inventus in balliva sua upon which issued a Writ hearing Teste the 7 of July 23 Car. 1. Vic Eborum to estate the Goods and Chattels and all the Lands and Tenements of the said Thomas Lewis tempore Recognitionis debiti praed ' returnable Mense Michael upon which the said Sheriff returns an Inquisition taken the 11 of October then next following whereby Thomas Lewis was found seised of divers Lands and Tenements parcel of the Lands in the Declaration mentioned to be demised by the said Earls which he the same day caused to be delivered to the said Isack to hold by Extent as his Free-hold until he should be satisfied of his said Debt with his Damages and Costs They further find That the said Thomas Lewis and one John Levet and Thomas Lever the 20 of Novemb. 13 Car. 1. acknowledged a Recognizance in nature of a Statute Staple before the Lord chief Justice Brampston to Richard Gerrard for 1000 l payable at Christmass then next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in the Chancery by John Gerrard surviving Executor of Richard Gerrard the 22 of June 24 Car. 1. there issued a Cap. si laicus and an Extent against the said Thomas Lewis to the Sheriff of the County of York retainable in Craft animar ' prox ' at which day the Sheriff returned all Inquisition by him taken whereby it appeared that the said VVilliam Lewis tempore Recogn ' debiti praed ' was sessed in Fee of the Mannor of Marre and of divers Messuages Lands and Tenements being the same Lands in the Declaration mentioned to be devised by the said Earls and the 29 of Novemb. 24. Car. 1. a Liberate was sued out returnable in quinden ' Hillar ' to the said Sheriff who returned that the 29 of Novemb. 24. Car. 1. he had caused to be delivered the said Mannor Messuages Lands and Tenements to the said John Gerrard to hold as his Free hold until he should be satisfied his said Debt will his Damages and Costs They further find That Thomas Lewis and Thomas Lever the 27 of May 15 Car. 1. acknowleged a Recognizance in nature the of a Statute Staple before the Lord Chief Justice Brampston to Sir Gervase Elwaies and William Burroughs for 5000 l payable at the Feast of St. John the Baptist next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in Chancery by the said Sir Gervase Elwaies and William Burroughs the 10 of Decemb. 15 Car. 1. there issued out a Cap. si laicus and an Extent against the said Thomas Lewis directed to the Sheriff of the County of York returnable in Quinden ' Hill prox at which day the Sheriff returned on Inquisition by him taken whereby it appeared that the said William Lewis tempore Recogn ' debiti praed ' was seised in Fee of a Capital Messuage in Marre and of divers Messuages Lands and Tenements being the same Lands mentioned in the Declaration to be demised by the said Earls and that the 10 of Febr. 15 Car. 1. a Liberate ' was sued out returnable in Quidden ' Pasch to the said Sheriff who returned that he had caused to be delivered the said Lands and Tenements to the said Sir Gervase Elwaies and William Burroughs to hold as their Free hold until they should be satisfied the said Debt with their Damages and Costs They find that Thomas Lewis was seised of all the Lands mentioned in the said several Inquisitions at the respective times of his acknowledgment of the said Statute and Recognizance They find that the 15 of July 1651. Isaack Knight and John Gerrard by their respective Deeds granted their said several extended interests to one Edward Lewis by vertue whereof the said Edward Lewis became possessed of the Mannor and the Tenements praed Edwardo sic possessionat existente praedictoque Thoma Lewis de Manerio omnib ' premissis seisit ' existen ' in actual reali possessione inde the said Thomas Lewis by his Indenture of Lease and Release dated the 25 and 26 of May 1657. for 4000 l conveyed the said Mannor and Premisses to John Lewis and his Heirs in which there is a Covenant to Levy a Fine before the end of Trinity Term then next ensuing and that accordingly in Trinity Term 1657. The said Thomas Lewis did Levy a Fine come ceo with Proclamations of the said Mannor and Premises to the said John Lewis to the uses in the said Indenture mentioned by vertue whereof the said John Lewis was seised in Fee of the said Mannor and Premises And that John Lewis being thereof so seised the 21 day of July 1670 made his last Will and Testament in Writing and thereby devised the said Mannor and Tenements to Edward Lewis and the Heirs Males of his Body and for want of such Issue to his
much less tell that Satisfaction will ever be acknowledged whereas other particular Estates have a known and determinate Limitation In the other Case it could not be computed within what compass of time a possession should be quieted and so the Statute of Fines in a great measure would be defeated of its end But 3ly and principally It should be in the power of the party that has the Extent in Reversion to protract the time as long as he pleased for till he thinks fit to bring the Scire facias ad computandum he nor no one else can say the Statute is satisfied For that must appear by an account taken in the Scire facias nor none can compel the acknowledging of Satisfaction and so it should be at the pleasure of Strangers to him that is in possession by a Fine to make his Estate liable to a future Claim as long as they pleased and sure this would render the Statute of Fines of little or no effect And this makes an Estate by Extent to differ wholly from an Estate for Life or Years or such other like particular Estate which will end of it self and cannot be protracted longer than the proper limitation of the act of any one whatsoever I will conclude with an Answer to an Objection that has been much insisted upon by those that Argued for the Defendant That an Extent begins by Record and cannot end but by Record viz. either by an account taken upon a Scire facias or Satisfaction acknowledged upon the Record of the Statute or at least he that is in Reversion is bound to take notice of any other determination of the Extent To which I Answer It begins by Record but it may end without Matter of Record for a Release by the Conusee after the Extent determines it to all intents and purposes and undoubtedly in such case he which hath a puisne Statute may enter an Extent upon an Elegit begins by Record yet when satisfied by perception of Profits he in Reversion may enter So that the Scire facias as appears by our Books is to be brought upon another Reason and not because the Extent cannot end but by Record but 't is because of the incertainty of the Expences that must be satisfied And why should not they which have had the right of Burroughs's Extent be bound to take notice of the Fines that have been levied as much as the acknowledging of Satisfaction And a Fine is much more a publick Record than the other especially since the Statute of the 4th of H. 7. has provided for the making of Proclamations upon it Some Remarkable and Curious CASES IN THE COURT OF CHANCERY Termino Sanctae Trinitatis Anno 22 Car. II. In Cancellaria Marsh versus Lee. A Bill in Chancery was brought by Marsh and an Answer put in thereto The Case was thus One English being seised of the Mannor of Wicksall and of the Mannor of Morfield in 1649. Mortgages part of the Mannor of Wicksall to Burrell for 1000 l Afterwards in 1655. he acknowledges a Statute to Burrell of 800 l for the payment of 400 l Afterwards in 1662. English Mortgages both these Mannors to Mrs. Duppa for 7000 l Afterwards in 1665. English Mortgages the Mannor of Wicksall to Lee for 2000 l Lee having no notice of the former Mortgages But afterwards Lee coming to have notice of the Mortgage to Duppa purchases in the two Incumbrances to Burrel Viz. the Mortgage of part of the Mannor of Wicksall and the Statute And now Marsh Executor of Duppa sues Lee who pleads this whole Matter My Lord Keeper assisted with Hale Chief Baron and Justice Rainsford held That Lee might make use of these Incumbrances to protect his own Mortgage For they said that he had both Law and Equity for him First He had Law for that he had a precedent Mortgage in 164â— which indeed was but upon part and also the Statute in 1655. so that while these remained in force Marsh could not come in Next He had Equity for he having a subsequent Mortgage yet it being without Notice he ought to be relieved in this Court. And therefore my Lord Chief Baron put the Case as if the first Mortgage had been of the Mannor of W. to Burrel and afterwards it had been mortgaged to Duppa and afterwards to Lee not having notice if afterwards Lee bought in Burrel's Mortgage he shall hold the Estate against Duppa until he be satisfied for both the Money which he paid Burrel and also his own Money lent upon the last Mortgage And for that he said that it had been so Adjudged in Camera Scaccarij in the Court of Equity since the King came in in one Shelley's Case Next he put the Case of the Statute which English entred in to Burrel in 1655. and was afterwards bought by Lee from Burrel He held that Duppa shall not bring Lee to any Account upon this Statute here in Equity any otherwise than he may do at Common Law Nota It was agreed that the Lands were extended upon the Statute at the third part of the true value Now at Common Law the Conusor or he that claims under him must bring a Scire facias ad computand ' as in the 4 Co. 69. b. But then the Conusee shall not account according to the true value but according to the extended value and also for the whole Statute And if the Conusee is satisfied by the extended value the Conusor shall recover or if the Conusor will pay down the rest of the Money which is behind with Damages he shall also recover But if the Conusor will sue the Conusee in a Court of Equity then he shall bring him to Account for what he hath received of the Profits above the extended value Now then our Case here is somewhat more for Lee has also Equity on his Side and therefore Duppa shall not bring him to Account for what he has received above the extended value unless he has also received enough to satisfie his own Mortgage of 2000 l as well as the Statute and therefore if Marsh will take off this Statute by a Suit in this Court he must be content that Lee doth account upon the extended value for the whole 800 l and Damages Secondly They held that whereas part of the Mannor of W. was mortgaged to Burrel but that now the whole Mannor was mortgaged to Lee that yet the first Mortgage should not extend to protect more than that part of the Mannor which was first mortgaged to Burrell And my Lord Chief Baron Hale put the Case thus If a man is seised of 60 Acres and mortgages 20 to A. and then mortgages the whole to B. and then mortgages the whole to C. and afterwards C. purchases in the first Mortgage that shall not protect more than the 20 Acres but it shall protect those 20 Acres so as B. shall never recover that until he pay C. all the Money upon the first and last Mortgage
his Assent to the Marriage of his Daughter with J.S. and that he would give her 1500 l And afterwards by another Letter upon a further Treaty concerning the Marriage he went back from the Proposals of his Letter And at some time after declared That he would agrèe to what was propounded in his first Letter This Letter was held a sufficient Promise in Writing within the Statute of 29 Car. 2. called the Statute against Frauds and Perjuries and that the last Declaration had set the Terms in the first Letter up again Anonymus WHere a man buys Land in anothers name and pays Mony it will be in Trust for him that pays the Mony tho' no Deed declaring the Trust for the Statute of 29 Car. 2. called the Statute of Frauds doth not extend to Trusts raised by Operation of the Law Anonymus AN Administrator de bonis non of the Conusee of a Statute had agreed with the Conusor to assign it in Consideration of a Sum of Mony which upon the said Agreement the Conusors had Covenanted to pay to him his Executors or Administrators and then the Administrator died The Court Decreed the Mony to be paid to the Executor of the Administrator and not to the New Administrator de bonis non altho' before the Extent it could not be assigned at Law Sed nota That there were not Debts of the first Intestate appearing Termino Sancti Hillarij Anno 35 36 Car. II. In Cancellaria NOte Suits in Chancery admitted for Distribution of Intestates Estates upon the Act of 22 Car. 2. Sir Thomas Draper Mil ' versus Dr. Crowther THe Bill sets forth a Contract under Seal with the Defendant for making of a Lease of certain Lands in Middlesex and to have an Execution of the Agreement The Defendant pleaded That he has Head of a Colledge in Oxford and sets forth the Charters of 14 R. 2. and 14 H. 8. Impowering the University to enquire and proceed in all Pleas and Quarrels in Law and Equity except concerning Freehold where a Scholar their Servants and Ministers sunt una partium c. ita quod Justiciarij de Banco Regis sive de Communi Banco vel Justiciarij ad Assisas non se intromittant c. And the Confirmation by an Act of Parliament of the 13th of Elizabeth and Concluded his Plea to the Iurisdiction of the Court. And it came to be Argued before the Lord Keeper Guildford 22 Febr. 1683. and the Plea was Over-ruled because the Charter ought properly to be extended to Matters at Common Law only or to Proceedings in Equity that might arise in such Cases and not to meer Matters of Equity which are Originally such as to Execute Agreements in specie Again Conuzance of Pleas is never to be allowed unless the Inferior Jurisdiction can give Remedy Here they can only Excommunicate or Imprison but cannot proceed to Sequestration of Lands in Middlesex If the Matter lay only in Damages it might be allowed to them because the Jurisdiction is given over all England but this is not to be intended where the Suit is for the thing it self and when 't is out of their reach A President was cited in the year 1663. before my Lord Clarendon Chancellor assisted with Hale then Chief Baron and Justice Wyndam where the Plea was Over-ruled Vide in the 3 Cro. 63. Wilcocks and Bradell's Case and Hallie's Case 87. Sir Robert Reeve's Case SIr George Reeve upon his Marriage with his Second Wife setled a Ioynture of divers of his Lands in Suffolk which he had before charged with his Daughters Portion viz. 3000 l which Daughter he had by a former Wife and by his last Will he mentioned that the said Joynture Lands were so incumbred and therefore he Devised certain Lands he had in Bickerton in Yorkshire to his Wife in lieu of such part of the Suffolk Lands as were charged with the Portion in case she would accept thereof But after his Decease it appeared that the Lands in Bickerton were not equivalent in Value to the Suffolk Lands and therefore she held to the latter and was not prejudiced by the Charge of the Portion because it appeared to be a Voluntary Settlement Nota In this Case the Lord Keeper Decreed that the Portion should be charged upon the Bickerton Lands for so much as it was defeated by the Settlement in Ioynture of the Suffolk Lands Anonymus ONe Devised his Lands to J.S. in Fee in Trust for Katharine and the Heirs of her Body and if Katharine died without Issue to Jane for life And in another Clause in the Will he devised That if Katharine died without Issue and Jane be then deceased then and not otherwise he gave the Land to J. N. and his Heirs Katharine died without Issue and Jane survived her and died A Bill was brought by J. N. against J. S. and the Heir at Law of the Testator to have this Trust executed My Lord Keeper Decreed it for J. N. altho' Jane survived Katharine because the words if Jane be then deceased seemed to be put in to express his meaning that Jane should be sure to have it for her life and that J. N. should not have it till she were dead and also to shew when J.N. should have it in possession Termino Paschae Anno 36 Car. II. In Cancellaria Wiliam Ragget and his Wife versus William Clarke THe Case was thus Nicholas Wheeler was seised of a parcel of Land for his own life and the lives of two others and prevailed with the Defendant to be bound with him for a Sum of Mony And that the Defendant might raise Mony for the discharge of the said Debt he permitted the Defendant to enter into the said Lands and to take the Profits for two years the said Lands being about 12 l yearly value and the said Land being so in the possession of the Defendant the said Wheeler died and made Isabel Wife of the now Plaintiff his Executrix And this Bill was brought by the said Husband and Wife to have an account of the Profits and that the possession of the Land should be delivered up to them The Defendant by Plea sets forth his Title as Occupant and it was allowed And the Bill was dismissed Bonham versus Newcomb ONe being seised in Fee in Consideration of 1000 l paid to him by a Person that married his Kinswoman Conveys to him and his Heirs and takes a Re-demise for 99 years if he should live so long And a Covenant therein That if he should pay 1000 l with the Interest that should be due for the same at any time during his life that the Grantee should Re-convey to him and his Heirs and that if he did not pay the Mony then that his Heirs c. should have no power to Redeem He died the Mony not being paid and his Heir preferred a Bill to Redeem it And it was urged for him That in a Conveyance which was a Security for Mony whatever