Tenant to the Praecipe the Statute shall be so construed that the intent of the Parties shall stand 5. The Lands in the Parishes pass 1 Anders 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law and therefore as a Construction is not to be made upon part but upon the whole Deed so not upon the Deed or Recovery alone but upon both together 2 Co. 75. Lord Cromwel's Case 6. Antea 'T is the Agreement of the Parties which governs Fines and Recoveries and Lands shall pass by such Names as are agreed between them though such Names are not proper and therefore a Fine of a lieu conus is good though neither Vill or Parish is named therein Poph. 22. 1 Cro. 270 276 693. 2 Cro. 574. So if a Fine be levied of a Common of Pasture in Dale Cro. Car. 308. Winch 122. Sid. 190 191. Antea 't is good though Dale be neither Vill or Hamlet or lieu conus out of a Vill 2 Roll. Abr. f. 19. So in Sir George Symonds his Case Lands as parcel of a Mannor were adjudged to pass though in truth they were used with the Manor but two years and the reason of all these Cases is because it was the Agreement of the Parties that they should pass Object If it be objected That all these Authorities are in Cases of Fines but the Case at Bar is in a Common Recovery which makes a great difference Answ The proceedings in both are amicable and not adversary and therefore as to this purpose there is no difference between them and for an Authority in the point the Case of Lever and Hosier was cited which was adjudged in this Court Trin. 27 Car. 2 Where the Question was Antea whether upon a Common Recovery suffered of Lands in the Town of Sale or the Liberty thereof Lands lying in Dale being a distinct Vill in the Parish of Sale should pass or not and after divers Arguments it was allowed to be well enough being in the Case of a Common Recovery And so was the Case Pasch 16 Car. 2. in B. R. In a special Verdict the Case was That Sir Thomas Thinn being seised of the Mannor of Buckland in Tail and of twenty Acres of Land called and known by a particular name which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Mannor and always used with it Sid. 190. sold the said Mannor and all the Lands reputed parcel thereof with the Appurtenances of which he did suffer a Common Recovery and it was adjudged upon great consideration that though the Recovery did not mention the twenty Acres particularly yet it did dock the Entail thereof because the Indenture which leads the Vses of the Recovery was of the Lands reputed parcel thereof or enjoyed with it and that the shortness in the Recovery was well supplied by the Deed in which Case the Court were guided by the resolution in Sir George Symond's Case Vide 6 Co. Sir Moyle Finch's Case The Authorities against this Opinion are two Antea Lever and Hosieâ— 1. That of Stock versus Fox Cro. Jac. 120. There were two Vills Walton and Street in the Parish of Street and a Fine was levied of Lands in Street it was adjudged that the Lands in Walton did not pass by this Fine But there is another Report of this very Case by my Lord Chief Iustice Roll in his Abr. tit Grants 54. where 't is said if there be in the County of Somerset the Vill of Street and the Vill of Waltham within the Parish of Street and a Man being seised of Lands in the Vill of Street and of other Lands in the Vill of Waltham all within the Parish of Street and he Bargains and Sells all his Lands in Street and having Covenanted to levie a Fine doth accordingly levie it of Lands in Street and doth not mention either in the Indenture or in the Fine any Lands in Waltham the Lands lying there shall not pass from which Report there may be a fair Inference made That it was the Lord Rolls his Opinion that if Waltham had been named in the Indenture though not in the Fine the Lands would have passed and in this Case the Parishes are named in the Indenture of Bargain and Sale but besides in that Case the Party had Lands both in Street and Waltham and so the Conveyances were not in vain as they must be here if the Lands in the Parishes do not pass Antea 2. The other Case is that of Baker and Johnson in Hutton 106. But this Case is quite different from that because there was neither Vill or Parish named in the Indenture but here the Indenture was right for the Lands are mentioned therein to lie in the Parishes c. And for these Reasons Iudgment was prayed for the Defendant This Case was afterwards argued in Michaelmas-Term following by Serjeant Pemberton and Maynard for the Plaintiff who said Ex parte Quer. That the Government of this Nation was Ecclesiastical and Civil the Ecclesiastical runs by Parishes and the Civil by Vills That a Parish is constituted by the Ecclesiastical Power and may be altered by the King and Ordinary of the place that the Parson was superintendent of the Parish and the Constable of the Vill which was also constituted by the Civil Magistrate and from hence it is that in real Actions which are adversary Lands ought not to be demanded as lying in a Parish but within a Vill that being the place known to the Civil Iurisdiction and if a Trespass which is local be laid at Dale generally there being both the Parish and Vill of Dale the proof of the Trespass done in the Parish is not good for it must be at the Vil. They agreed that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded if the Vill be only named without the Parish nothing doth pass but what is in the Vill because where a place is alledged in Pleading it must be of a Vill Moor 710. 1 Inst 125. b. 2 Cro. 121. And this was the ancient way of demanding Lands in a Praecipe quod reddat because of the Notoriety of Vills from whence Visnes do arise and because the Vill is more particular and of more certainty than a Parish and therefore 't is requisite that the Demandant should be very particular in his Demand that the Tenant may know how to make his defence and the Sheriff of what to deliver possession Besides a Vill is more ancient than a Parish and Lands have been demanded within them time out of mind so that the Demand when 't is doubtful of what 't is made shall be supposed of that which is most ancient and such Construction is most conformable to the like Cases
one Prescription is directly contrary to the other and for that reason one must be traversed but here the Defendant hath confessed that the Plaintiff hath a Right of Common but t is not an absolute but a qualified Right against which the Defendant may Enclose and here being two Prescriptions pleaded and one of them not being confessed it must from thence necessarily follow that the other is the Issue to be tryed which in this Case is whether the Defendant can enclose or not The Chief Iustice and the whole Court were of Opinion Curia that where there are several Free-holders who have Right of Common in a Common Field that such a Custom as this of enclosing is good because the remedy is reciprocal for as one may enclose so may another But Iustice Atkyns doubted much of the Case at Bar because the Defendant had pleaded this Custom to Enclose in barr to a Freeholder who had no Land in the Common Field where he claimed Right of Common but prescribed to have such Right there as appendant to two Acres of Land he had alibi for which reason he prayed to amend upon payment of Costs Attorny General versus Sir Edward Turner in Scaccario Exposition of the Kings Grant INformation The Case was Viz. The King by Letters Patents granted several Lands in Lincolnshire by express words and then this Clause is added upon which the Question did arise Nec non totum illud fundum solum terras suas contigue adjacen ' to the Premisses quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari and afterwards a great quantity of Land was gained from the Sea and whether the King or the Patentee was intituled to those Lands was the Question Devise of a possibility good by a common person 2 Cro. 509. pl. 21. 1 Bulst 194. Sawyer for the King argued that he had a good Title because the Grant was void he having only a bare possibility in the thing granted at the time But Levins on the other side insisted that the Grant of those Lands was good because the King may Grant what he hath not in possession but only a possibility to have it But admitting that he could not make such a Grant yet in this Case there is such a certainty as the thing it self is capable to have and in which the King hath an Interest and it is hard to say that he hath an Interest in a thing and yet cannot by any means dispose of it If it should be objected that nothing is to pass but what is contigue adjacen ' to the Premisses granted and therefore an Inch or some such small matter must pass and no more certainly that was not the intention of the King whose Grants are to be construed favourably and very bountifully for his Honour and not to be taken by Inches Postea Company of Ironmongers and Naylor If there are two Marshes adjoyning which are the Kings and he grants one of them by a particular name and description and then he grants the other contigue adjacen ' ex parte australi certainly the whole Marsh will pass and 't is very usual in pleading to say a Man is seised of a House or Close and of another House c. contigue adjacen ' that is to be intended of the whole House In this Case the King intended to pass something when he granted totum fundum c. but if such construction should be made as insisted on then those words would be of no signification 'T is true the word illud is a Relative and restrains the general words and implies that which may be shewn as it were with a Finger and therefore in Doddington's Case 2 Co. 32. a Grant of omnia illa Mesuagia scituate in Wells and the Houses were not in Wells but elsewhere the Grant in that Case was held void because it was restrained to a certain Village and the Pronoun illa hath reference to the Town but in this Case there could be no such certainty because the Land at the time of the Grant made was under Water But if the Patent is not good by the very words of the Grant the non obstante makes it good which in this Case is so particular that it seems to be designed on purpose to answer those Objections of any mistake or incertainty in the value quantity or quality of the thing granted which also supplies the defects for want of right instruction given the King in all cases where he may lawfully make a Grant at the Common Law 4 Co. 34. Moor pl. 571. Bozuns Case And there is another very general Clause in the Patent viz. Damus praemissa adeo plene as they are or could be in the Kings hands by his Prerogative or otherwise * Ante Adeo plene are operative words Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum refluxum maris 'T is true Sid. 149. these words praemissis praed ' spectan ' do follow from whence it may be objected that they neither did or could belong to the Premisses and admitting it to be so yet the Law will reject those words rather than avoid the Grant in that part In the Case of the Abbot of * 9 Co. 27. b. Strata Marcella the King granted a Mannor Et bona catalla felonum dicto Manerio spectan ' now though such things could not be appendant to a Mannor yet it was there adjudged that they did pass Such things as these the King hath by his Prerogative and some things the Subject may have by Custom or Prescription as Wrecks c. and in this very Case 't is said that there is a Custom in Lincolnshire that the Lords of Mannors shall have derelict Lands and 't is a reasonable Custom for if the Sea wash away the Lands of the Subject he can have no recompence unless he should be entituled to what he gains from the Sea and for this there are some Authorities as Sir Henry Constable's Case 2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor But no Iudgment was given Morris versus Philpot in B. R. Release by an Executor before Probate THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant as Administrator to S. for a Debt due from the said intestate to the Plaintiffs Testator The Defendant pleads that the Plaintiff released to him all Brewing Vessels c. and all other the Estate of S. lately deceased this Release was before probate of the Will to which Plea the Plaintiff demurred and whether this Release was a good Barr to the Plaintiffs Action was the Question Ex parte Quer. It was said for the Plaintiff that it was not for if a Conusee release to the Cognisor all his right and title to the Lands of the Cognisor and afterwards sues out
Defendant by the Steward of the Burrough of Southwark for that he refused to take the Oath and serve as a Scavenger in the said Burrough though duly Elected according to Custom there and upon nil debt pleaded the Iury found a special Verdict the substance of which was Viz. They find the Act of 14 Car. 2. cap. 2. And the Proviso therein which governed this Case viz. That all Streets and Lanes in London Westminster and the Liberties thereof shall be Paved as they have alwayes used to be Then follows another Clause by which it is Enacted That Scavengers shall be Chosen in the City of London and the Liberties thereof according to the Ancient Usage and Custom so likewise in the City of Westminster but nothing is therein mentioned of Southwark And in all other places a new form of choosing is prescribed Viz. In the other Parishes the Constables Church-Wardens c. shall meet in the Easter-Week and choose two Scavengers in every respective Parish so that the intent of the Act must be though Southwark is not named that still Scavengers shall be chosen there as formerly because London and the Liberties thereof are to follow their Ancient Custom in the choice of this Officer and Southwark is within the City Liberties But whether the Custom of choosing of him was not taken away by this Statute and so the Fine not well Assessed was the Question Ex partte Quer. Baldwyn for the Plaintiffs argued That admitting in Southwark a Scavenger may be chosen according to the new form prescribed in the Act yet this Statute was only in the * Hob. 173. Dyer 341. b. Affirmative and did not thereby take away the custom of choosing him at the Leet Like the Case in Dyer 50. An Act that the Youngest Son shall have an Appeal of the death of his Father Hob. 17. yet that doth not exclude the Eldest because 't is the Common Law and there are no words to restrain him In the 11 Co. 63. Doctor Foster's Case By the Statute of 35 Eliz. against Recusants which gives the Penalty of 20 l. ê“ Month against the Offender the 12 d. for the neglect of every Sunday given by a former * 1 Eliz. Statute is not taken away But where there is a Negative Clause in an Act of Parliament the Law is otherwise as an Act that the Sessions of the Peace shall be kept at Beaumarris tantum non alibi infra ComÌ„ c. and the Iustices kept it at another place and several were Indicted before them at that time but the Iustices were fined and all their proceedings held Coram non Judice by reason of the Negative Prohibition Dyer 135. 1 Inst Sect. 500. 2 Inst 68. By the Statute of Magna Charta cap. 34. a Woman shall bring no Appeal but for the death of her Husband which she might at Common Law before the making of this Statute if therefore she is Heir to her Father the Appeal which she might have brought for his death by these Negative words is taken away Ex parte Def. Barrell for the Defendant though this Law be in the Affirmative yet since it doth not prejudice any person neither can it be injurious if Scavengers are chosen as directed by the Act it shall be taken as a Negative Clause and for this many Instances may be given as the Statute for devising part of the Testators Land doth not take away the custom to devise the whole for that would be an apparent prejudice to the Parties but not so in this Case where 't is not found that the Lord of the Mannor sustains any loss for he is to have nothing when a Scavenger is chosen in the Leet nor are the Inhabitants prejudiced for by this New choosing their Streets shall be kept as clean as before The Form here established doth not consist with the Custom and so hath the Effect of a Negative Clause Hob. 298. It appears by the Scope of the Act That the intent of the Parliament was to take away those old Customs of choosing because the Customs are expressly saved in London and Westminster but in all other places a new way is appointed The pavement of the Streets in Southwark shall be as before but that Clause goes no farther and therefore concerns not the Case of a Scavenger whose duty is not to pave but cleanse the Streets And the words viz. Liberties of the City of London will not help because Southwark is not comprehended under them in that Clause no more than are the Lands which they have in Yorkshire for the word Liberties * Postea 48. there is taken for Limits and can admit of no other Construction Lastly that the Plaintiff cannot have Iudgment because he hath no alledged the Custom to be That the Steward may Fine in case of the refusal to take the Oath c. and Customs are to be taken stictly The Chief Iustice and Iustice Atkins said That 't is true Scavengers are under the power of the Court Leet by Custom and in case of refusal may be fined as well as an Ale-Taster But this Act of Parliament having taken notice that there were Scavengers before that time and Southwark being therein named as distinct from the Liberties of London for 't is provided That Westminster London and the Liberties thereof and Southwark are to have the Streets paved as before which doth not belong to the Office of a Scavenger and so that Clause in the Act concerns not this Case But where it Enacts That in London and Westminster Scavengers shall be chosen as before but in all other places appoints a new way this is as much as if it had said That Scavengers shall be chosen in every place as by the Act prescribed and no other way except in London and Westminster and so great is the inconsistency between the Custom and the Act that they cannot stand both together therefore though the Act is but temporary the Custom is suspended and though it may be some damage to the Lord to make such Construction yet that will not alter the Case for Law-Makers are presumed to have respect to the publick Good more than to any private Mans profit and the Lord may be said in this case to have dispensed with his Interest being a Party to the Act and consenting thereunto But Wyndham and Ellis Iustices inclined That the Custom did continue because the Act was in the Affirmative and therefore they would not construe it to take away a Mans Right and Interest or a Custom where he hath a benefit as the Lord of the Mannor had in this Case who is prejudiced by the loss of his Fees and the intent of the Statute seemed to them to be That Scavengers should be chosen where none were before but not to take away Customs for chusing of them But another Argument was desired by Serjeant Howel the Recorder of London Rozal versus Lampen Variance in the Actions no
year before the Sale After Verdict for the Plaintiff it was moved in arrest of Iudgment by Serjeant Barrell because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words 2 Anders 57. as descending from his Father which Title of the Son the Defendant bought whereas if in truth the Title was in J. S. then nothing descended from the Father to the Son and so the Defendant bought nothing Sed non allocatur for if such construction should be allowed there could be no buying of a pretended Title within the Statute unless it was a good Title but when 't is said as here that the Defendant entred and claimed colore of that Grant or Conveyance which was void yet 't is within the Statute so the Plaintiff had his Iudgment Wine versus Rider al. TRespass against five Quare clausum fregerunt Traverse immaterial and took Fish out of the Plaintiffs Several and Free-Fishery Four of them pleaded Not Guilty and the fifth justified for that one of the other Defendants is seised in Fee of a Close adjoyning to the Plaintiffs Close and that he and all those c. have had the sole and separate Fishing in the River which runs by the said Closes with liberty to enter into the Plaintiffs Close to beat the Water for the better carrying on of the Fishing and that he as Servant to the other Defendant and by his Command did enter and so justified the taking absque hoc that he is Guilty aliter vel alio modo The Plaintiff replies That he did enter de injuria sua propria absque hoc That the Defendants Master hath the Sole Fishing The Defendant demurs Ex parte Def. and Newdigate Serjeant argued for him That the Iustification is good for when he had made a local justification 2 Cro. 45 372. he must traverse both before and after as he has done in this Case 2. The Plaintiffs Replication is ill for he ought not to have waved the Defendants Traverse and force him to accept of another from him because the first is material to the Plaintiffs Title and he is bound up to it Hob. 104. 3. There was no occasion of a Traverse in the Replication for where a Servant is Defendant de injuria sua propria is good with a Traverse of the Command Ex parte Quer. But on the Plaintiffs side Serjeant Baldwin held the Defendants Traverse to be immaterial for having answered the Declaration fully in alledging a Right to the sole fishing and an Entry into the Plaintiffs Close 2 Cro. 372. 't is insignificant afterwards to traverse that he is guilty aliter vel alio modo Then the matter of the Plea is not good because the Defendant justifies by a Command from one of the other Defendants who have all pleaded Not-guilty and they must be guilty if they did command him for a Command will make a Man a Trespasser Curia The Court were all of Opinion that Iudgment should be given for the Plaintiff For as to the last thing mentioned which was the Matter of the Plea they held it to be well enough for the * Mires and Solebay Post Servant shall not be ousted of the advantage which the Law gives him by pleading his Masters Command Then as to the Replication 't is good and the Plea is naught with the Traverse for where the Iustification goes to a time and place not alledged by the Plaintiff there must be a Traverse of both In this Case the Defendant ought to have traversed the Plaintiffs free fishing as alledged by him in his Declaration which he having omitted the Plea for that reason also is ill and so Iudgment was given for the Plaintiff DE Termino Paschae Anno 28 Car. II. in Communi Banco Lee versus Brown IN a Special Verdict in Ejectment The Case was this Where reputed Lands shall pass under general words viz. There were Lands which re vera were not parcel of a Mannor and yet were reputed as parcel A Grant is made of the Mannor and of all Lands reputed parcel thereof and whether by this Grant and by these general Words those Lands would pass which were not parcel of the Mannor was the Question This Term the Lord Chief Iustice delivered the Opinion of the Court That those Lands would pass Postea Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330 384. The King versus Imber Wilkins If the Iury had found that the Lands in question had beén reputed parcel of the Mannor it would not have passed had they found no more because the Reputation so found might be intended a Reputation for a small time so reputed by a few or by such as were ignorant and unskilful But in this Case 't is found that not only the Lands were reputed parcel but the reason why they were reputed parcel for the Iury have found that they were formerly parcel of the Mannor and after the division they were again united in the possession of him who had the Mannor which being also Copyhold have since béen demised by Copy of Court Roll togethet with the Mannor and these were all great marks of Reputation and therefore Iudgment was given that the Lands did well pass 2 Roll. Abr. 186. Dyer 350. Wakeman versus Blackwel Common Recoveries how to be pleaded QUare Impedit The Case was The Plaintiff entituled himself to an Advowson by a Recovery suffered by Tenant in Tail in pleading of which Recovery he alledges two to be Tenants to the Praecipe but doth not shew how they came to be so or what Conveyance was made to them by which it may appear that they were Tenants to the Praecipe and after search of Presidents as to the form of pleading of Common Recoveries the Court inclined that it was not well pleaded but delivered no Iudgment Searl versus Bunion Justification where good IN Trespass for taking of his Cattel The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc adhuc ventur̄ and being so possessed the Plaintiffs Cattle were doing damage and he distrained them Damage fesant ibidem and so justifies the taking c. The Plaintiff demurrs and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years but only that he was possessed of an Acre for a Term of years to come and regularly where a Man makes a Title to a particular Estate in pleading he must shew the particular time of the Commencement of his Title that the Plaintiff may replie to it Curia The Chief Iustice and the whole Court held that the Plea was good upon this difference where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land he is supposed to be in possession
Authorities with great exactness and nicety yet this Matter of Livery upon Endorsements of Writing was always favourably expounded of later times unless where it plainly appeared that the Authority was not pursued at all Sid. 428. as if a Letter of Attorney be made to thrée joyntly and severally two cannot execute it because they are not the Parties delegated they do not agreé with the Authority And Iudgment was given accordingly Richards versus Sely. THIS was a Special Verdict in Ejectione firmae for Lands in the County of Cornwal The Case was this viz. Covenant made to enjoy a Copy-hold de anno in annum 't is a Lease and so a Forfeiture Thomas Sely was seised of the Lands in question for life according the Custom of the Mannor of P. and he together with one Peter Sely were bound in a Bond to a third person for the payment of 100 l. being the proper Debt of the said Thomas who gave Peter a Counter-bond to save himself harmless And that Thomas being so seised did execute a Déed to Peter as a Collateral Security to indempnifie him for the payment of this 100 l. by which Deéd after a recital of the Counterbond given to Peter and the Estate which Thomas had in the Lands he did covenant grant and agree for himself his Executors Administrators and Assigns with the said Peter that he his Executors and Administrators should hold and enjoy these Lands from the time of the making of the said Déed for seven years and so from the end of seven years to seven years for and during the term of 49 years if Thomas should so long live 2 Cro. 301. In which Déed there was a Covenant that if the said 100 l. should be paid and Peter saved harmless according to the Condition of the said Counterbond then the said Déed to be void The Question was whether this being in the Case of Copyhold Lands will amount to a Lease thereof and so make a Forfeiture of the Copyhold Estate there being no Custom to warrant it Ex parte Quer. This Case was argued this Term by Serjeant Pemberton for the Plaintiff and in Trinity Term following by Serjeant Maynard on the same side who said that this was not a good Lease to entitle the Lord to a Forfeiture It hath béen a general Rule that the Word Covenant will make a Lease though the Word Grant be omitted nay a Licence to hold Land for a time without either of those Words will amount to a Lease much more when the Words are to * 2 Cro. 92 398. Noy 14. 1 Roll. Abr. 848 849. Cro. Car. 207. have hold and enjoy his Land for a Term certain for those are Words which give an Interest and so it hath béen ruled in Tisdale and Sir William Essex's Case which is reported by several and is in Hob. 35. and 't is now setled that an Action of Debt may be brought upon such a Covenant And all this is regularly true in the Case of a Fréehold But if the construing of it to be a Lease will work a Wrong then 't is only a Covenant or Agreément and no Interest vests and therefore it shall never be intended a Lease in this Case because 't is in the Case of a Copyhold Estate for if it should there would be a Wrong done both to the Lessor and Lessée for it would be a Forfeiture of the Estate of the one and a defeating of the Security of the other It has beén generally used in such Cases to consider what was the intention of the Parties and not to intend it a Lease against their meaning for which there is an express Authority 2 Cro. 172. in the Case of Evans and Thomas Noy 128. in which Howel covenants with Morgan to make a Conveyance to him of Land by Fine provided that if he pay Morgan 100 l. at the end of thirtéen years that then the use of the Fine shall be to the Congnisor and covenants that Morgan shall enjoy the said Lands for thirtéen years and for ever after if the 100 l. be not paid The Assurance was not made and this was adjuged no Lease for thirtéen years because it was the intent of the Parties to make an Assurance only in the nature of a Mortgage which is but a Covenant And this appears likewise to be the intention of the Parties here because in the very Deed 't is recited that the Lands are Copihold It also sounds directly in Covenant for 't is that Peter shall or may enjoy without the lawful let or interruption of the Lessor All Agreements must be construed secundum subjectam materiam if the Matter will bear it and in most Cases are governed by the intention of the Parties and not to work a Wrong and therefore if Tenant in Tail makes a Lease for Life it shall be taken for his own Life and yet if before the Statute of Entails he made such Lease he being then Tenant in Fée-simple it had been an Estate during the Life of the Lessée but when the Statute had made it unlawful for him to bind his Heir then the Law construes it to be for his own Life because otherwise it would work a Wrong Hob. 276. Co. Lit. 42. So in this case it shall not amount to a Lease for the manifest inconveniency which would follow but it shall be construed as a Covenant and then no injury is done On the Defendants part it was argued by Serjeant Newdigate that though this was in the Case of a Copyhold Ex parte Def. that did not make any difference for the plain meaning of the Parties was to make a Lease But where the Words are doubtful and such as may admit of diverse constructions whether they will amount to a Lease or not there they shall be taken as a Covenant to prevent a Forfeiture So also if they are only Instructions as if a Man by Articles sealed and delivered is contented to demise such Lands and a Rent is reserved and Covenants to repair c. Or if one covenants with another to permit and suffer him to have and enjoy such Lands 1 Rol. Abr. 848. these and such like Words will not amount to a Lease because as hath béen said the intention of the Parties is only to make it a Covenant but here the Words are plain and can admit of no doubt But for an Authority in the Point the Lady * 2 Cro. 301. Mountagues Case was cited where it was adjudged that if a Copyholder make a Lease for a year warranted by the Custom sic de anno in annum during ten years 't is a good Lease for ten years and a Forfeiture of the Copyhold Estate Vide Hill 15 16 Car. 2. Rot. 233. the Case of Holt and Thomas in this Court The Court inclined that it was a good Lease Curia and by consequence a Forfeiture of the Copihold and that a Licence in this
of Record the Proceedings may be denied and tryed by Iury. But the Court inclined that it was pleaded well enough and that it was the safest way to prevent mistakes but if the Plaintiff had replied de injuria sua propria absque tali causa that had traversed all the Proceedings Quaere whether such a Replication had been good because the Plaintiff must answer particularly that Authority which the Defendant pretended to have from the Court but no Iudgment was given Sherrard versus Smith TRespass Quare clausum fregit and for taking away his Goods the Defendant justifies the taking by the command of the Lord of the Mannor of which the Plaintiff held by Fealty and Rent and for non-payment thereof the Goods were taken nomine Districtionis The Plaintiff replies that the locus in quo est extra Hors de son Fee when to be pleaded absque hoc quod est infra feodum The Defendant demurrs specially because the Plaintiff pleading hors de son fee should have taken the Tenancy upon him 9 Co. Bucknal's Case 22 H. 6. 2 3. Keilway 73. 14 Ass pl. 13. 1 Inst 1. b. where this is given as a Rule by my Lord Cook Serjeant Pemberton on the other side agreed Ex parte Quer. 13 Assize 28. 28 Assise 41. that in all cases of Assize hors de son fee is no Plea without taking the Tenancy upon him 2 Ass placito 1. And in 5 E. 4. 2. 't is said that in Replevin the Party cannot plead this Plea because he may disclaim but Brook placito 15. tit hors de son fee saith this is not Law and so is 2 H. 6. 1. and many Cases afterwards were against that Book of Ed. 4. and that a Man might plead hors de son fee as if there be a Lord and Tenant holding by Fealty and Rent and he makes a Lease for years and the Lord distrains the Cattel of the Lessee though the Tenant hath paid the Rent and done Fealty there if the Lessee alledge that his Lessor was seised of the Tenancy in his demesn as of fee and held it of the Lord by Services c. of which Services the Lord was seised by the hands of his Lessor as by his true Tenant who hath leased the Lands to the Plaintiff and the Lord to charge him hath unjustly avowed upon him who hath nothing in the Tenancy 't is well enough 9 Co. Case of Avowries and the reason given in 5 Edw. 4. about disclaimer will not hold now for that course is quite altered and is taken away by the Statute of the 21 H. 8. cap. 19. which Enacts That Avowries shall be made by the Lord upon the Land without naming his Tenant But in case of Trespass there was never any such thing objected as here for what Tenancy can the Plaintiff take upon him in this case He cannot say tenen ' liberi tenementi for this is a bare Action of Trespass in which though the pleading is not so formal yet it will do no hourt for if it had been only extra feodum without the Traverse it had been good enough and of that Opinion was the Court in Hillary-Term following when Iudgment was given for the Plaintiff absente Scroggs And the Chief Iustice said That the Rule laid down by my Lord Coke in 1 Inst 1. b. that there is no pleading hors de son fee without taking the tenancy upon him is to be intended in cases of Assize and so are all the Cases he there cites for proof of that Opinion and therefore so he is to be understood but this is an Action of Trespas brought upon the Possession and not upon the Title In the Case of Avowry a Stranger may plead generally hors de son fee and so may Tenant for years and this being in the Case of a Trespass is much stronger and if the Plaintiff destroys the Defendants justification 't is well enough Sir William Hickman versus Thorne alios Prescription against another Prescription not good without a Traverse IN a Replevin The Defendant justifies the taking for that the locus in quo was his Freehold and that he took the Cattel there damage fesant The Plaintiff in bar to the Avowry replies that the locus in quo c. is parcel of such a Common Field and prescribes to have right of Common there as appendant to two Acres which he hath in another place The Defendant rejoyns that there is a Custom that every Free-holder who hath Lands lying together in the said Common Field may enclose against him who hath right of Common there and that he had Lands there and did enclose The Plaintiff demurs and Serjeant Newdigate took Exceptions to the Rejoynder Ex parte Quer. 1. For that he did not averr that the Lands which he enclosed did lye together and therefore had not brought his case within the Custom alledged Sed non allocatur because he could not enclose if the Lands had not laid together 2. He gives no answer to the Plaintiffs right of Common but by argument which he should have confessed with a bene verum est and then should have avoided it by alledging the Custom of Enclosure like the Case of * 2 Leon. 209. Russel and Broker where in Trespass for cutting Oaks the Defendant pleads that he was seised of a Messuage in Fee and prescribes to have rationabile estoverium ad libitum capiend ' in boscis the Plaintiff replies that the locus in quo was within the Forest and that the Defendant and all those c. habere consueverunt rationabile estoverium c. per liberationem Forestarii and upon a Demurrer the Replication was held naught because the Plaintiff ought to have pleaded the Law of the Forest viz. Lex Forestae talis est or to have traversed the Defendants Prescription and not to have set forth another Prescription in his Replication without a Traverse 3. The Defendant should have pleaded the Custom and then have traversed the Prescription of the Right of Common for he cannot plead a Custom against a Custom 9 Co. 58. Aldred's Case where one prescribes to have a Light the other cannot prescribe to stop it up Serjeant Pemberton contra Ex parte Def. He said that which he took to be the only Question in the Case was admitted viz. That such a Custom as this to enclose was good and so it has béen adjudged in Sir Miles Corbet's Case 7 Co. But as to the Objections which have been made the Defendant admits the Prescription for Right of Common but saith he may enclose against the Commoners by reason of a Custom which is a Barr to his very Right of Common and therefore need not confess it with a bene verum est neither could he traverse the Prescription because he hath admitted it 'T is true where one prescribes to have Lights in his House and another prescribes to stop them up this is not good because
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
and so North Chief Iustice said that it had been lately ruled in the Common Pleas. Afterwards the Court of Kings-Bench was moved for a Prohibition in this Case and it was denied so that in this Case there was the Opinion of all the three Courts This matter was so much laboured because twenty four Quakers were reported to be concerned in the Rate and they were unwilling to pay towards the Building of a Church Paget versus Vossius In B. R. A Trial at the Bar in Ejectione Firmae Judgment given upon the Construction of words in a Will Jones 73. 1 Ventris 325. in which the Iury found a special Verdict The Case was Viz. That Dr. Vossius the Defendant being an Alien and a Subject of the States of Holland falling into Disgrace there had his Pension taken from him by Publick Authority Afterwards he came into England and contracted a great Friendship with one Dr. Brown a Prebendary of Windsor Then a War broke out between England and Holland and the King issued forth his Proclamation declaring the said War and the Hollanders to be Alien Enemies Dr. Brown being seised of the Lands now in question being of the value of 200 l. per Ann. and upwards made his Will in these words in Writing Inter alia Viz. Item I give all my Mannour of S. with all my Freehold and Copyhold Lands c. to my dear Friend Dr. Isaac Vossius during his Exile from his own Native Country but if it please God to restore him to his Country or take him out of this Life then I give the same immediately after such restoration or death to Mrs. Abigal Hevenigham for ever A Peace was afterwards concluded between England and Holland whereby all Intercourses of Trade between the two Nations became lawful but Dr. Vossius was not sent for over by the States nor was there any offer of kindness to him but his Pension was disposed of and given to another That the Doctor might return into his own Country when he pleased but that he still continued in England And whether he or the Lessor of the Plaintiff Mrs. Heveningham had the better Title was the question Nota Dr. Vossius was enabled to take by Grant from the King Ex parte Quer. Pemberton Serjeant for the Lessor of the Plaintiff argued that the Estate limited to the Defendant is determined which depended upon the construction of this Devise He did agree that the Will was obscure and the intent of the Devisor must be collected from the circumstances of the Case and it is a Rule That according to the * 2 Cro. 62 371 416. intent of the Parties a Will is to be interpreted 'T is plain then that the Devisor never intended the Defendant an Estate for Life absolutely because it was to depend upon a Limitation and the Words are express to that purpose for he devises to him during his Exile c. Now the Question is not so much what is the genuine and proper sence and signification of those Words as what the Testator intended they should signifie 1. Therefore the most proper signification of the Word Exile is a penal Prohibiting a person from his Native Country and that is sometimes by Iudgment or Edict as in the case of an Act of Parliament and sometimes 't is chosen to escape a greater Punishment as in cases of Abjuration and Transportation c. But he did not think that the Testator took the Word Exile in this restrained sense for Dr. Vossius was never formally or solemnly Banished if that should be the sense of the Word then nothing would pass to the Doctor by this Will because the Limitation would be void and like to the Case of a Devise to a Married Woman durante viduitate and she dies in the life-time of her Husband or to a Woman Sole during her Coverture or of a Devise to A. the Remainder to the right Heis of B. and A. dies living B so that this could not be his meaning 2. The Word Exile in common parlance is taken only for absence from ones Native Country but this is a very improper signification of the Word and nothing but a Catachresis can justifie it and therefore the Testator could not intend it in this sense 't is too loose and inconsiderable an Interpretation of the Word for the Iudgment of the Court to depend on unless there were circumstantial Proofs amounting almost to a Demonstration that it was thus meant But it plainly appears by the following Words this was not the meaning of the Testator for 't is said If it please God to restore him to his Country which shews that there was some Providence or other which obstructed his return thither and so could not barely intend a voluntary absence for if so he might have expressed it viz. during his absence from his Country or till his return thither or whilst he should stay in England and not in such doubtful Words 3. By the Word Exile is meant a persons lying under the displeasure of the Government where he was born or of some great persons who have an Influence upon the Government or have an Authority over him which makes him think convenient considering such circumstances to withdraw himself and retire to some other place and this is a sense of the Word between both the former and even in the Common Law we are not strangers to the acceptation of the Word in that sense There is a Case omni exceptione major in the Writ of Waste which is fecit vastum de domibus venditionem de boscis exilium de hominibus 't is in the Register and in the Writ on the Statute of Marlebridge cap. 24. where by the exilium de hominibus is meant the hard usage of Tenants or the menacing of them whereby they flie from their Habitations 2 H. 6. 11. 'T is found in this Case that the Defendant was under the displeasure of his Governours the War broke out and therefore it might not then be safe for him to return and for that reason he might think it safe for himself to abide here and this Dr. Brown the Testator might know which might also be the reason of making the Will But now all acts of Hostility are past and so the Defendants recess is open and it hath pleased God to restore the Doctor but he is not pleased to restore himself for the Iury find he is not returned now if a Man hath an Estate under such a Limitation to do a thing which may be done when it pleaseth the party in such case if he neglect or refuse to do the thing the Estate is determined 15 H. 7. 1. If I grant a Man an Annuity till he be promoted to a Benefice and I provide a Presentation for him and he will not be Instituted and Inducted the Annuity ceases so shall the Estate in this Case because the Devisor seems to appoint it to the Defendant till he may return
Trotter versus Blake In Scaccario THIS was the Case of my Lord Hollis upon a Tryal at the Barr in the Exchequer in an Ejectione firmae Ejectment will not lie for a Forfeiture where the Tenant refused to pay a Fine being doubtful wherein the Case was this viz. The Lord Hollis was seised of the Mannor of Aldenham in the County of Hartford in Fee and the Lands in question were held of the said Lord by Copy of Court Roll and are parcel of the aforesaid Mannor That the Defendant was admitted Tenant and a Fine of 8 l. imposed upon him for such admittance payable at three distinct payments that the 8 l. was personally demanded of him by the Lord's Steward and he refused payment whereupon the Lord enters and seises the Estate for a Forfeiture which he would not have insisted on but that the obstinacy of the Defendant made it necessary for him to assert his Title and Right Mr. Walker the Lord Hollis his Steward being sworn gave Evidence that a Fine of 8 l. was set upon the Defendant when he was admitted and that the Lands to which he was admitted were usually lett for 7 l. per annum so that the Fine was but a little more than a years value That he himself demanded the 8 l. of the Defendant being a Seafaring-man who refused to pay it That he knew the Defendant to be the same person who was admitted to this Copyhold That the Demand was made at the Stewards Chamber in Staple Inn and because it was payable at three several days he then demanded of him only 2 l. 13 s. 4 d. as a third part of the 8 l. and that he did enter upon the 25th day of November last for Non-payment of the said 2 l. 13 s. 4 d. The Council for the Defendant insisted that the Steward ought to produce an Authority in Writing given to him by the Lord to make this Demand and Entry upon refusal Ex parte Def. for the Lords owning it afterwards will not make a Forfeiture But the Court held clearly that there was no need of an express Authority in Writing Curia and that it was not necessary for the Steward to make a Precept for the seizure but that it was necessary that the Demand should be personal The Reason why the Defendant refused to pay this Fine was because he said that by a Decree and Survey made of this Mannor in the Reign of Queen Elizabeth the Fine to be paid for this Copyhold was setled and it was but 3 l. and no more And Sir Francis Winnington Solicitor General said for the Defendant that the Case was very penal on his side but that he would make it clear that there was no colour for the bringing of this Action either as to the Matter or the Form He said that the Mannor of Aldenham had not been long in this noble Lord he came in as Purchaser or a Mortgagee under the Family of the Harvies whose Inheritance it was anciently and there has been some doubt whilst it was in their possession what Fines were customary to be paid upon Descents and Alienations but that is now settled and the Defendant was in the Case of a descent for which the Fine is not to be arbitrary at the Will of the Lord but is reduced to a certainty in Queen Elizabeth's Reign by Consent and Agreement between the Lord and Tenants and that a Survey was then made by vertue of a Commission directed to some Men of Credit and Worth in those days who were impowred to set forth the quantity of Land and the value thereof which was done accordingly and it was then agreed that a year and an halfs value in case of a Descent and two years value in case of an Alienation should be paid as a Fine to the Lord and the proportion of the value was then computed by the Commissioners and decreed by the Court of Chancery to be binding to the Lords and Tenants for ever The Question now is how this years value shall be computed the Lord would have it according to the improved value the Tenant will pay according as it was rated in Queen Elizabeth's time by those Commissioners Now if this Land had decayed in value the Tenant had still been obliged to pay a Fine according to the valuation of that time and if so it would be very unreasonable to make him pay for his Industry and Improvement of the Land now it is raised in value because that was done by his Labour and at his expence so that the doubt being what Fine shall be paid an Ejectione firmae will not lie because the Matter is doubtful and the Law gives the Tenant Liberty to contest it with the Lord and will never let him be under the peril of a Forfeiture because he will not comply with the Lord to give up his Right without Law But the Lord hath another and a more proper remedy for he may bring an Action of Debt for the Fine thus imposed which will try the Right and is not so penal to the Copyholder which Point was lately resolved And that if a Copyholder had a probable cause to induce him to believe that he ought not to pay the Fine demanded let the Right be as it would yet no Ejectment will lie for it must be only in a plain Case that the Lord can enter for a Forfeiture For no Man forfeits his Estate but by a wilful default in himself such a Forfeiture as is done and presumed to be committed upon his own knowledge but want of understanding cannot be made a wilful neglect 'T is true the Decree in Chancery made here cannot vary the Law but it may be Evidence of the Fact for prima facie it shall be intended that such values have been paid time out of mind because the Court have so decreed but then when the Fine was declared to be certain a doubt did arise how the years value shall be reckoned which has been setled also by another Decree and from that time all the respective Lords of this Mannour have taken Fines according to that value which is mentioned in the Survey and this Lord himself hath taken Fines in pursuance of the same so that 't is clear the Fine cannot be Arbitrary but be it so or not 't is not material to this purpose because the Tenant hath a good and colourable ground to insist upon the Decree and Survey and consequently there is no wilful Forfeiture The Lord Chief Baron agreed That if it be a doubt and the Tenant gives a probable Reason to make it appear that no more is due than what he is ready to pay 't is no Forfeiture but the Law in general presumes that the Fine is incertain if the contrary is not shewed now if the Tenants doubt did arise upon the equitableness of the Fine in such case if he refuse to pay 't is a Forfeiture but here it was whether it shall be paid
for Additio probat Minoritatem and therefore if Father and Son are both of one Name and mention is made of one without an addition of Junior the Law intends the Father so the Vill being more ancient than the Parish that shall be intended if the Parish is not named In 2 Anderson 124. Hartwel Rode and Ashen were several Vills in the Parish of Rode the King granted all his Tythes in Rode and Ashen in tenura Richardi Wake and at the time of the Grant the Tythes of Hartwel were in the Tenure of Wake it was adjudged in the King's Bench that the Tythes in Hartwel did pass but that Iudgment was reversed in the Exchequer Chamber because Rode could not be * In a Praecipe it must be intended a Vill if a Parish be not named because Vills are known at the Common Law but not Parishes those were constituted by the Council of Lyons but 't is otherwise in Grants Owen 61. intended a Parish and so to comprehend Hartwel but must be intended a Vill distinct from a Parish and so the Tythes of Hartwel being also a Vill could not pass by the Grant of them in Rode this also was the Opinion of Popham Owen 60. But Gawdy and Fenner were of another Opinion As to the finding of the Iury that doth not help if the Recovery be not full for they may expound but they cannot enlarge each other In a Formedon nient comprise in the Record and not what is comprised in the Deed is the Plea Things upon a Record are open to the View of all People but a Deed is a Pocket Record and the persons whom it concerneth cannot come at the sight of it so Fines are open and to be seen by all and are to be proclaimed but according to this Interpretation Déeds should be also proclaimed And there is a manifest difference between things conteined in a Fine and in a Déed for a Fine of a Tenement is not good but a Deed of a Tenement is well enough but will not help the Fine and therefore Men should not go out of the Rules of the Law to help a Mistake For which Reasons they prayed Iudgment for the Plaintiff But the whole Court were of Opinion that the Lands in the Parishes did well pass for as Fines and Recoveries did grow in use and are now become Common Assurances they are to be favoured in the Law And it hath been a Rule that even in doubtful things Constructions shall be made to support a Deed if possible Ut res magis valeat quam pereat Co. Lit. 183. By Rippon generally the Vill shall be intended but stabitur praesumptio donec probetur in contrarium and that is proved by the Deed which shews where the Lands lye Indenture by an Infant to declare Uses of a Fine or Recovery make but one Conveyance otherwise he might avoid it as he may a Deed by Infancy Hob. f. 6. 2 Cro. 676 Both the Indenture and Recovery being one Conveyance must be expounded so that every part may stand besides 't is apparent by the intent of the Parties which the Iury have also found that the Lands in the Parishes should pass In the Case of Brock and Spencer a Trespass was laid in Hursly and it was not said whether Vill or Parish the Defendant pleaded that the Lands were held of the Mannor of Marden in the Parish of Hursley c. and the Venire Facias was de Vicineto only and not de Vicineto Parochiae Hursley and it was adjudged good for the Vill and the Parish shall be understood to be the same And as to this purpose they were all of Opinion that there was no difference between a Fine and Recovery 't is true the Law originally took notice of a Vill only because the division of a County into Parishes was of Ecclesiastical distribution but now by process of time that distinction is taken notice of in in Civil Affairs and the Law hath great regard to the Vsage and Practice of the People the Law it self being nothing else but common Vsage with which it complies and alters with the exigency of Affairs it was but lately that the Cursitors would put the Word Parish into a Writ for if a Note was delivered to them of Lands in the Parish of Dale they used always to make it of Lands in Dale till the Court ordered them to do otherwise so that though the Common Vsage was so formerly 't is now otherwise and the Reason of things changing the things themselves also change And if this Recovery should not be construed to pass the Lands the intention of the Parties would faile 't is true there is no Authority express in the point to guide this Iudgment nor is there any against it but if such should be the Opinion of the Court is not to be bound against apparent Right and 't is for the honour of the Law that Men should enjoy their Bargains according as they intended for which Reasons Iudgment was given for the Defendant Goffe versus Elkin THE Condition of a Bond was Affirmative Plea where it ought to be particular where not That if the Plaintiff shall seal to the Defendant a good and sufficient Conveyance in the Law of his Lands in Jamaica with usual Covenants in such manner as by the Defendants Council shall be advised then if the Defendant should thereupon pay unto the Plaintiff such a Sum of Mony c. the Condition should be void In Debt brought upon this Bond the Defendant after Dyer of the Condition pleads that Mr. Wade a Councellor at Law did advise a Deed of Bargain and Sale from the Plaintiff to the Defendant with the usual Covenants of all his Lands in Jamaica and tendred the Conveyance to the Plaintiff who refused to seal the same and so would discharge himself of the Condition the Mony being not to be paid unless the Assurance made To this Plea the Plaintiff demurred by Serjeant George Strode 1. Because the Defendant hath not shewed the Conveyance and an affirmative Plea ought to be particular and not so general as this for to plead generally quod exoneravit is not good but it must be shewed how and so it was adjudged in the Case of * 2 Cro. 165 359 363 503 634. Sid. 106. 2 Co. 4. a. Cro. Car. 383 384. 2 Leon. 214. Horseman and Obbius where the Condition was to indempnifie Lands from the yearly Rent of 20 l. during the Demise the Defendant pleaded quod à tempore confectionis scripti obligatorii hucusque exoneravit c. And upon Demurrer as here it was held no good Plea 2. The Matter of the Condition consists both of Law and Fact and both ought to be set out the preparing of the Deed is Matter of Fact and the Reasonableness and Validity thereof is Matter of Law and therefore they ought to be set forth that the Court may judge thereof * Hob. 107. In 22 E. 4.40 The Condition
that he was seised of a Mesuage and several Lands in the Parish of Dale and that he and all those whose Estate he hath have used to have right of Common for all Commonable Cattle Levant and Couchant upon the Premisses in a certain Meadow there called Darpmore Meadow and in a certain place called Cannock Wood. That the Defendant praemissorum non ignarus had enclosed the said places in which the Plaintiff had right of Common and likewise put in his Cattle as Horses Cows Hoggs Geese c. so that he could not in tam amplo beneficiali modo enjoy the same The Defendant as to the Inclosure and putting in of his Hoggs and Geese pleaded Not Guilty And as to the residue That the Lord Paget was seised of a Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture and likewise of Darpmore Meadow and Cannock Wood and being so seised did by Deed of Bargain and Sale enrolled in consideration of 2000 l. convey the said Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture to the Defendant and his Heirs and by the same Deed did Grant unto him all Waies Commons and Emoluments whatsoever to the said Mesuage and Premisses belonging or therewithal used occupied or enjoyed or taken as part parcel or member thereof virtute cujus the Defendant became seised of the Premisses and that the same were leased and demised for years by the said Lord Paget and all those whose Estate he had a tempore cujus contrarii memoria hominum non existit and that the Tenants or Occupiers thereof a tempore cujus c. used to have Common in Darpmore Meadow and Cannock Wood for all commonable Cattle Levant and Couchant upon the Premisses and used to put in their Cattle into the said places in which c. virtute cujus the Defendant having Right did put in his said Cattle into the said Places to take Common there and averred That there was Common sufficient both for the Plaintiff and himself To this Plea the Plaintiff Demurred This Case was argued by Serjeant Pemberton for the Plaintiff and by Serjeant Weston for the Defendant Ex parte Quer. and for the Plaintiff it was said That it was no good Plea but rather a design to introduce a new way of Common The Reasons offered why the Plea was not good were 1. Cro. Car. 419. That the Defendant could not prescribe because of the Vnity of Possession for the Lord Paget had the Premisses in and to which c. and therefore he hath prescribed by a collateral matter Viz. by alledging that the Land was usually let to Tenants for years but doth not say whether they were Tenants by Copy of Court Roll or not neither doth he make out any Title in them In some Cases where a Man is not privy to the Title he may say generally that the Owners and Occupiers used to do such a thing c. and this way of Pleading may be good but here the Defendant claiming under them ought to set forth their Title or else he can have no Right to the Common 2. By this Plea he intended that the Lord Paget had made a New Grant of this Common for he sets forth That he granted the Premisses and all Commons used with the same and so would intitle himself to a Right of Common in those two places as if Common had been expressly granted to him there which if it should 't is but argumentative and no direct affirmance of a Grant upon which the Plaintiff might have replied non concessit for no Issue can be joyned upon it 3. He ought to have set forth That the Tenants lawfully enjoyed the Common there but he lays only an usage to have Common which may be tortious 4. He doth not say That there is sufficient Common for all the Commoners but only for the Plaintiff and himself 'T is true the Owner of the Soil may feed with his Tenant who hath a Right of Common but he cannot derogate from the first by streightning the Common by a second Grant and so leave not sufficint for the Tenant 5. This Plea amounts to the General Issue Cro. Car. 157. and the Plaintiff hath specially assigned that for a Cause of Demurrer for he saith That the Defendant without any Title put in his Cattle by which the Plaintiff had not sufficient Common and the Defendant pleads he put in his Cattle rightfully and the Plaintiff had Common enough which if it signifie any thing must amount to Not Guilty Ex parte Def. But on the other side the last Objection was endeavoured to be answered first because if that hold yet if the Plea be never so good in Substance the Plaintiff would have Iudgment It was agreed that this Plea doth amount to a General Issue and no more but that every Plea that doth so is not therefore bad for if it otherwise contain reasonable matter of Law which is put upon the Court for their Iudgment rather than referred to the Iury there is is no cause of Demurrer for it is the same thing to have the doubt or question in Law before the Iudges in Pleading as to have it before them upon a Special Verdict In 2 R. 2. 18. A Retainer was pleaded specially by an Administrator which is no more than Plene Administravit yet no Demurrer but the Book saith that the Court ought to be moved 2. The Plea is good as to the matter of it for the Defendant claims the same Common by his Grant which had been used time immemorial and alledges it to be of all Common used with the Premisses and this was a Common so used In Trespass the Defendant justified that Godfrey was seised in Fee of a House and of 20 Acres of Land and that he and all those c. had Common in the place where c. to the said Messuage belonging and that he made a Feoffment to Bradshaw of the same who made a Lease thereof to the Defendant with all Profits and Commodities thereunto belonging vel occupat vel usitat cum praedicto Mesuagio It was adjudged that though the Common was gone and extinct in the Hands of the Feoffor by the unity of the Possession yet those Words were a good Grant of a New Common for the time granted in the Lease and that it was quasi a Common in the Hands of Godfrey the Feoffor Cro. Eliz. 570. Godfrey versus Eyre And though it hath been objected That this Plea is not formally pleaded because it ought to have been direct in alledging a Grant whereas it was only argumentative and brought in by a side Wind he said That as bad as it was 't was drawn by that Serjeant who argued against him and who did very well know that the Averment of sufficiency of Common was needless Curia The Court were all of Opinion That though the Plea did amount to the general Issue yet for that
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
Heirs and Assigns that he and they from time to time during the said Lease should have liberty and full power to Fell the said Trees and root them up repairing the Hedges where they did grow That the said Martin granted some of the Trees to the Defendant by virtue whereof he and the rest of his Servants did cut them down which is the same breaking of the Close of which the Plaintiff complains To which Plea Mr. Pollexfen did demurr for the Insufficiency because the Defendant did not shew that upon cutting down the Trees he did repair the Hedges as by the Agreement ought to have been done for this being a limited and qualified power ought to be set forth at large and that it was a power only annexed to the Reversion and not assignable to any one else and so the Defendant hath wholly failed in his Plea he might have justified under Martin but not in any of their own Rights But the Court were of Opinion That an Action doth lie in this Case both against the Lessor and his Assignee acting under his Power and they agreed that a bare power was not assignable but where 't is coupled with an Interest it may be assigned and here was an Interest annexed to the power for the Lessor might sever the Trees from the Reversion Whereupon Iudgment was given for the Defendant Scoble versus Skelton Presciption must be alledged with a Seisin in Fee THE Plaintiff declared That he was seised of a Tenement called East and the Defendant of another Tenement called West Travallock and that he and all those whose Estate he had did use to fetch Pot Water from the Defendants Close c. Issue was taken upon this Prescription and a Verdict for the Plaintiff and Mr. Pollexfen moved in Arrest of Iudgment That the Declaration did set forth generally that he was seised and it did not appear it was in Fee for if it be for Life only then the Action doth not lie because a Prescription cannot be annexed to an Estate for Life Tremain insisted that the Declaration was sufficient and certain enough for when the Plaintiff doth alledge that he was seised generally it shall be intended a seisin in Fee especially after Verdict But the Court held the Declaration to be defective in Substance because a Prescription cannot be annexed to any thing but an Estate in Fee and therefore 't is not helped after Verdict The Iudgment was reversed Putt versus Roster A Recovery in Trespass good Plea in bar to an Action of Trover TRespass for taking of his Cattle The Defendant justifies for a Herriot and upon a Demurrer had Iudgment The Plaintiff did afterwards bring an Action of Trover and Conversion for the same Cattle and the Defendant pleaded the former Iudgment in Trespass in barr to this Action of Trover and the Plaintiff demurred Serjeant Maynard argued That the Plea was not good because Trespass and Trover are distinct Actions and one may be where the other is not as if an Infant give Goods to one an Action of Trover doth lie to recover them but Trespass will not So if Goods be delivered to another and he refuse to deliver them upon demand Trover but not Trespass will lie and therefore these being different Actions a Recovery in one shall be no barr to the other A Formedon brought in the Descender and Iudgment thereon is not pleadable in barr to a Formedon in Remainder There is a great difference between a barr to the Action 5 Co. 33.6 Co. 37. a. Cro. El. 667. Eo Entr. 38. b. 2 Cro. 15. pl. 20. Antea and to the Right as where an Administrator sues not knowing that he was made Executor and Iudgment against him and he afterwards proved the Will and brought an Action as Executor the former Iudgment had against him as Administrator shall not be a barr to this new Action because 't is not a barr to the Right for by misconceiving his Action the former abated But Mr. Holt argued That these were Actions of the same nature and therfore a Iudgment in one was a good Plea in barr to the other Trespass or Trover lies for taking or carrying away the Goods of another and when he hath made his Election which to bring a Recovery there shall be a perpetual barr to the other In an Appeal of Mayhem 4 Co. 39. the Defendant pleaded a former Recovery in an Action of Assault and Battery and held good though one is of a higher nature than the other But the Court were of Opinion Curia Rose and Standen Antea That an Action of Trover doth lie where a Trespass doth not and if the Plaintiff hath mistaken his Action that shall be no barr to him As to the Case put of the Mayhem Rozal and Lampen Antea that doth not agree with this because there can be no Mayhem without an Assault but there may by a Trover without a Trespass and though the Appeal of Mayhem be of a higher nature than the Assault because it doth suppose quod felonice Mayhemiavit yet the Plaintiff can only recover damages in both If a Man bring Trespass for the taking of a Horse and is barred in that Action yet if he can get the Horse in his possession the Defendant in the Trespass can have no Remedy because notwithstanding such Recovery the Property is still in the Plaintiff The Defendant in this Case hath justified the taking of the Cattle for a Herriot and by the Demurrer the justification is confessed to be true in fact now by the taking for a Herriot the property of the Goods was altered and wherever the Property is determined in Trespass an Action of Trover will never lie for the same but 't is a good Plea in barr and so it was adjudged here James versus Trollop Prescription for a Modus good ERror of a Iudgment in the Common-Pleas on an Action upon a Prohibition where the Plaintiff did suggest That William late Prior of Norbury in Staffordshire was seised of the said Mannor and of the Tythes thereof simul semel as of a portion of Tythes c. That the said Prior 25 H. 1. granted the said Mannor and Tythes to William Fitzherbert and his Heirs rendring Rent That the said Fitzherbert did Enter and was seised and held it discharged of Tythes that his Heirs afterwards granted two Hides of Land part of the said Mannor to S. with the Tythes at 5 s. Rent and so draws down a Title by Descent for 300 years to F. who being seised devised the same to Dorothy James under whom the Plaintiff in the Prohibition claimed and then concludes That Fitzherbert and all those whose Estate c. did pay the said Rent to the said Prior which since the Dissolution was paid to the King and his Assigns in discharge of all Tythes c. The Defendant having craved Oyer of the Deed demurred to the Suggestion and Iudgment was given for the Plaintiff
in the Common-Pleas And it was now said for the Plaintiff in the Errors That it doth not appear by the Pleadings whether the Plaintiff in the Prohibition would discharge himself by a Praescription in non decimando or in modo decimandi for the Grant from the Prior being the foundation of his Title he could not thereby be discharged because a Deed before Memory cannot be pleaded unless it hath been allowed in a Court of Eyre or some Court of Record since Memory and this Deed being dated in the Reign of King Henry the I. which was 65 years before the time of Memory by the Common Law that beginning in the Reign of Richard the I. whatever is before that time cannot be tried by Law if it had been allowed in Eyre or in some of the Courts of Record it may be pleaded but no usage in pais can confirm it But supposing the Deed to be good the Plaintiff hath alledged a Grant of a portion of Tythes which he cannot have for at the Common Law a Lay-man was not capable of Tythes in prender for no one had capacity to take or receive them Jones 369. 2 Co. 49. save only spiritual persons for which Reasons a Lay-man could not prescribe in non decimando but in modo decimandi he might because there is still an annual recompence in satisfaction thereof 2. 'T is not alledged that the place where c. was parcel of the Demesus of the Mannor therefore for what appears it might have been always in Tenancy and though a Prescription to a modus by the Lord for himself and all his Tenants is good Cro. Eliz. 599. because it might have a lawful beginning for the Lands at first might be all in his Hands before it was a Mannor and so much paid for the Tythes thereof yet such a Prescription by a Tenant is not good 3. He hath alledged payment to the Prior and afterwards to the King and so would infer a Modus to which he hath not positively prescribed but by an old Deed upon payment of 5 s. to all those whose Estates c. And this will not do for unless the Modus doth go to the person who by Law ought to have Tythes or unless it be for his benefit 't is not good as where it was alledged that he ought to be discharged because time out of memory he employed all the profits of the Land for the Repairs of the Body of the Church and to find necessaries c. this was not a good Modus 1 Roll. Abr. 649 placito 8. because 't is no recompence for the Parson But it was said by Saunders for the Plaintiff in the Prohibition That by the Suggestion there was a good Title alledged to be discharged of Tythes for 't is set forth that the Prior had a portion of Tythes and the Lands simul semel and being a Corporation they might prescribe for Tythes in prender and the Tythes being well in them they may well grant it to Fitzherbert paying 5 s. and constant payment being alledged ever since 't is a good Title As to the Deed t is true 't is dated before the time of Memory but yet 't is pleadable because 't is a private Deed and so need not be allowed in Eyre or in Courts of Record for such as are not to be pleaded unless allowed there are only Grants of Franchises and Liberties from the King but the confession of the Deed to be beyond Memory and the constant payment of 5 s. is a sufficient title to the Plaintiff if the Deed is not pleadable and if it is then 't is a good discharge that way And as to the Objection that the Modus is payable to a wrong person there are many such which are not paid to the Parson of the Parish but to Lay-men But in this Case it doth appear that there was a Modus in the Prior which being received till it came to the Crown 't is good although now paid to others so that for that reason the Spiritual Court ought to be prohibited and of that Opinion was all the Court for if a Modus be payable to him who hath the Right of the Tythes though it be not to the Parson of the Parish 't is well enough especially where the Plaintiff as here alledgeth it to be Portio Decimarum belonging to the Prior so that it cannot be said that the Parson hath not quid pro quo for he had nothing at first This Composition was made with the Prior and the Plaintiff is only to shew payment to him and to those who have his Right And as to the date of the Deed 't is pleadable though time out of memory because 't is a private Deed but Grants of Franchises and Liberties must be allowed in Eyre and so is my Lord Rolls to be understood in his Abridgment Whereupon Iudgment was affirmed FINIS A TABLE of the Principal Matters contained in these REPORTS A. Abatement WHERE it shall be taken in Barr 64 65 Action on the Case Where two matters are laid in two Counties the Action may be brought in either by Pleading 23 Process is directed to six Coroners one of them commits a Tort the Action lies against all of them 23 24 It lies for an Acquittal upon an Indictment for a Trespass 52 306 It lies for these Words viz. I dealt not so unkindly with you when you stole my Corn 58 It doth not lye against the Sheriff for returning a Cepi Corpus paratum habeo though the Party doth not appear 85 86 Action Misconceived by the Plaintiff and a Verdict against him no barr to a new Action 294 Accord Where 't is pleaded it must be averred to be executed in all points 44 Accompt After 't is stated an Insimul computasset and not Indebitatus Assumpsit doth lye 44 Acquittal After an Acquittal for a Trespass an Action on the Case will lie 306 Act. Who is to do the first Act 76 203 Act of God of the Party and of a Stranger where it excuses the Obligee 204 Act of Parliament Affirmative words therein where they shall have the force of a negative 40 Where it restores the Common Law 't is to be taken favourably 73 Private Acts must be taken strictly 57 71 Administration Of a Chose en Action of a Feme Covert whether grantable to the Husband or to be distributed amongst the Kindred 20 Pleaded without saying loci istius Ordinarius and held good 65 Where an Executrix dies before Probate it shall be committed to the next of Kin of the Testator 101 It cannot be granted where there is an Executor 149 Where 't is committed to the Debtee in Execution how she shall be discharged 315 Administrator sells the Term an Executor appears who refuses yet the Vendee of the Term hath no Title 148 149 Amerciament Must be made upon the Sheriff if Defendant doth not appear at the Return of the Writ 84 Amendment Not allowed after