Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
Revocation or not at all which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds c. the words whereof are Viz. That no Devise of Lands c. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing or other Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or in his presence and by his direction or consent But all devises of Lands c. shall be good until burnt cancell'd torn c. by the Testator c. or unless the same be altered by some other Will or Codicil in Writing or other Writing of the Devisor signed in the presence of three Witnesses declaring the same So that the Question will be whether a Will which revokes a former Will ought to be signed by the Testator in the presence of three Witnesses 'T is clear that a Will by which Lands are devised ought to be so signed and why should not a Will which revokes another Will have the same formality The Statute seems to be plain that it should for it saies that a Will shall not be revoked but by some Will or Codicil in writing or other writing of the Devisor signed by him in the presence of three or four Witnesses declaring the same which last Clause is an entire sentence in the disjunctive and appoints that the Writing which revokes a Will must be signed in the presence of three Witnesses c. Before the making of this Act it was sufficient that the Testator gave directions to make his Will tho' he did never see it when made which mischief is now remedied not in writing the Will but that the Party himself should sign it in the presence of three Witnesses and this not being so signed but only published by the Testator in their presence 't is therefore no good Revocation Iustice Street was of a contrary Opinion that this was a good Revocation That the words in the fifth Paragraph of this Statute which altered the Law were Viz. That all Devises of Lands c. shall be in Writing and signed by the Party so devising or by some other person in his presence and by his express Directions and shall be attested and subscribed in the presence of the Devisor by three or four credible Witnesses In which Paragraph there are two parts 1. The act of the Devisor which is to sign the Will but not a word that he shall subscribe his Name in the presence of three Witnesses 2. The act of the Witnesses viz. that they shall attest and subscribe the Will in the presence of the Devisor or else the Will to be void But the sixth Paragraph is penn'd after another manner as to the Revocation of a Will which must be by some Codicil in writing or other Writing declaring the same signed in the presence of three Witnesses Now here is a Writing declaring that it shall be revoked not expresly but by implication and though that Clause in the disjunctive which says that the revocation must be by some Writing of the Devisor signed in the presence of three Witnesses c. yet in the same Paragraph 't is said that it may be revoked by a Codicil or Will in Writing and therefore an exposition ought to be made upon the whole Paragraph that the intention of the Law may more fully appear Such a construction hath been made upon a whole Sentence Sid. 328. 1 Sand. 58. where part thereof was in the disjunctive as for instance viz. A Man was possessed of a Lease by disseisin who assigned it to another and covenanted that at the time of the assignment it was a good true and indefeasable Lease and that the Plaintiff should enjoy it without interruption of the Disseisor Or any claiming under him in this Case the Diffeisee re-entred and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor or any claiming under him yet he having undertaken for quiet enjoyment and that it was an indefeasable Lease it was adjudged that an exposition ought to be made upon the whole Sentence and so the Plaintiff had Iudgment The Chief Iustice Herbert was of the same Opinion with Iustice Street Rex versus Grimes and Thompson THE Defendants were indicted for being Common Pawn-Brokers Two are indicted for a Confederacy one is acquitted and that is the acquittal of the other and that Grimes had unlawfully obtained Goods of the Countess of c. and that he together with one Thompson per confoederationem astutiam did detain the said Goods until the Countess had paid him 12 Guineas Thompson was acquitted and Grimes was found Guilty which must be of the first part of the Indictment only for it could not be per confoederationem with Thompsom and therefore it was moved in arrest of Iudgment that to obtain Goods unlawfully was only a private injury for which the party ought not to be indicted To which it was answered that a plain Fraud was laid in this Indictment which was sufficient to maintain it and that tho one was acquitted yet the Iury had found the other guilty of the whole But the Court were of Opinion that the acquittal of one is the acquittal of both upon this Indictment and therefore it was quash'd King versus Dilliston Hill 2 3 Jacobi Rot. 494. A Writ of Error was brought to reverse a Iudgment in Ejectment given in the Common-Pleas Infant not bound by a Custom for one Messuage and twenty Acres of Land held of the Manor of Swafling There was a special Verdict found the substance of which was viz. That the Land in question was Copy-hold held of the said Manor of Swafling in the County of Suffolk and that Henry Warner and Elizabeth his Wife in right of the said Elizabeth were seized thereof for Life Remainder to John Ballat in Fee That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court that such Surrender shall be presented at the next Court of the said Manor and publick Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made to come and be admitted Tenant and if he refuseth then after three Proclamations made in each of the said Courts the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seise the Copyhold as forfeited They find that Henry Warner and his Wife and John Ballat made this Surrender out of Court to the use of Robert Freeman and his Heirs who died before the next Court and that John Freeman an Infant was his Son and Heir That after the said Surrender three Proclamations were made at three several Courts held for the said Manor but that the said John Freeman did not come to be admitted Tenant thereupon the Steward of the said Manor made a Precept to the Bayliff who seized the Lands in
my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living
on the 29th day of April seize the Goods of the said Toplady that after the seizure and before any Venditioni exponas viz. 4 Maij an Extent which is a Prerogative Writ issued out of the Exchequer against two persons who were indebted to the King and by inquisition this Toplady was found to be indebted to them whereupon parcel of the Goods in the Declaration was seized by the Sheriffs upon the said Extent and sold and the Mony paid to the Creditors but before the said Sale or any execution of the Exchequer Process a Commission of Bankrupcy was had against Toplady and that the Commissioners on the second of June assigned the Goods to the Plaintiff The Question was whether this Extent did not come too late And it was held it did or whether the Fi. Fa. was well executed so that the Assignees of the Bankrupts Estate could not have a Title to those Goods which were taken before in Execution and so in Custodia Legis And it was held that they had no Title Fitzgerald versus Villiers WRIE of Error upon a Iudgment in Dower Infant must appear by Guardian and the Error assigned was that the Tenant in Dower was an Infant and no Warrant was alledged of the admission of any Guardian 29 Assise pl. 67. Bridg. 74. Lib. Entr. 45. Hut 92. 4 Co. 53. Lit. 92. Hetl. 52. 3 Cro. 158. Moor 434. Hob. 5. that it might appear to be the act of the Court 't is true an Infant may sue by Prochein Amy but shall not appear by Attorny but by Guardian because 't is intended by Law that he hath not sufficient discretion to chuse an Attorny therefore 't is provided that he appear per Guardianum which is done by the Court who are always careful of Infancy and a special Entry is made upon the Roll. Viz. Per Guardianum ad hoc per Curiam admissum c. 2. The Appearance is by the Guardian in his own Name Viz. Et praedicta Katherina Fitzgerald per Richardum Power Guardianum suum venit dicit quod ipse c. it should have been in the name of the Party quod ipsa c. Adjurnatur Harrison versus Austin A Settlement was made as followeth Viz. What words amount to a Covenant to stand seised That if I have no Issue and in case I dye without Issue of my Body lawfully begotten then I give grant and confirm my Land c. to my Kinswoman Sarah Stokes to have and to hold the same to the use of my self for Life and after my decease to the use of the said Sarah and the Heirs of her Body to be begotten with Remainders over c. The Question was whether this did amount to a Covenant to stand seised so as to raise an use to Sarah without transmutation of the possession The Objection against it was Sid. 26. Moor 687. Dyer 96. 2 Roll. Abr. 786. Winch 59. Plowd 300. that Vses are created chiefly by the intention of the Parties and that by these words grant and confirm the Feoffor did intend the Land should pass at Common Law so it could not be a Covenant to stand seised 't is like the Case where a Letter of Attorny is in the Deed or a Covenant to make Livery there nothing shall pass by way of use but the possession according to the course of the Common Law and therefore there being neither Livery and Seisin or Attornment no use will pass to Sarah It cannot be a Bargain and Sale for that is only where a Recompence is on each side to make the Contract good besides 2 Inst 672. the Deed is not inrolled To this it was answered 1 Vent 137. that it shall be construed to be a Covenant to stand seised though the formal words are wanting to make it so and for that purpose it was compared to Fox 's Case 8 Co. 93. who being seised in Fee devised his Land to C. for Life remainder over for Life reserving a Rent and afterwards by Indenture in consideration of Mony did demise grant and set the same Lands to D. for 99 years reserving a Rent the Lessee for Life did not attorn in which Case there was not one word of any use or any attornment to make it pass by Grant and the Question was whether this Lease for years shall amount to a Bargain and Sale so that the Reversion together with the Rent shall pass to the Lessee without Attornment Hob. 277. and it was held that by construction of Law it did amount to a Bargain and Sale for the words import as much And in this Case it was adjudged that it was a Covenant to stand seised Hexham versus Coniers IN Ejectment the Plaintiff declared de uno Messuagio sive Tenemento An Ejectment will lye for a Tenement and had a Verdict but Iudgment was arrested because an Ejectment will not lye of a Tenement for 't is a word of an uncertain signification it may be an Advowson House or Land but it is good in Dower so is Messuagium sive Tenementum vocat ' the Black Swan for this addition makes it certain that the Tenement intended is a House Rex versus Bunny A Motion was made for a Melius inquirendum to be directed to a Coroner who had returned his Inquisition upon the death of Bunny that he was not compos mentis when in truth he was Felo de se But it was opposed by Serjeant Pemberton and Mr. Pollexfen who said that the Law gives great credit to the Inquest of a Coroner and that a Melius inquirendum is seldom or never granted tho' it appear to the Court upon Affidavits that the Party had his Senses Mod. Rep. 82. It hath been granted where any fault is in the Coroner or any incertainty in the Inquisition returned That there is such a Writ it cannot be denied Cro. Eliz. 371. but 't is generally granted upon Offices or Tenures and directed to the Sheriff 3 Keb. 800. but never to a Coroner in the case of a Felo de se who makes his Enquiry super visum Corporis DE Term. Sancti Mich. Anno 4 Jac. II. in Banco Regis 1688. In Trinity-Vacation last Mr. Justice Holloway and Mr. Justice Thomas Powell had their Quietus and Mr. Serjeant Baldock and Mr. Serjeant Stringer were made Justices of this Court And Mr. Justice Allibon who was a Roman Catholick died in the same Vacation and Sir John Powell one of the Barons of the Exchequer was made a Justice of this Court Sir Thomas Jennor another of the Barons of the Exchequer was made a Justice of the Common-Pleas and Mr. Serjeant Rotheram and Mr. Serjeant Ingoldby were made Barons of the Exchequer Wright Chief Justice Powel Justices Baldock Justices Stringer Justices Shuttleworth versus Garnet Intratur Trin. 1 Willielmi Mariae Rotulo 965. THE Defendant was Tenant of Customary Lands held of the Manor of A. of which Manor B. was Lord
Executors one of them of Age 2 Sand. 212. and the other not one may make an Attorney for the other There is no difference between Executors and Infants in this Case for Executors recover in the right of the Testator and the Bayliffs in the Right of him who hath the Inheritance Besides the Avowants are in the nature of Plaintiffs and whereever a Plaintiff recovers the Defendant shall not assign Infancy for Error Adjornatur Capel versus Saltonstal INdebitatus assumpsit in the Common Pleas Where there are several Plaintiffs in a personal thing and one dyeth before Judgment the Action is abated in which Action there were four Plaintiffs one of them died before Iudgment the others recover and now the Defendant brought a Writ of Error in this Court to reverse that Iudgment and the Question was whether the Action was abated by the death of this person Those who argued for the Plaintiffs in the Action held that the Debt will survive and so will the Action for 't is not altered by the death of the party for where Damages only are to be recovered in an Action well commenced by several Plaintiffs and part of that Action is determined by the Act of God or by the Law and the like Action remaineth for the residue the Writ shall not abate As in Ejectment if the Term should expire pending the Suit 1 Inst 285. the Plaintiff shall go on to recover Damages for though the Action is at end quoad the possession yet it continues for the Damages after the Term ended So if the Lessor bring Waste against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for Damages but the Survivor So where Trover was brought by two 2 Bulst 262. 1 Inst 198. and after the Verdict one of them died the Iudgment shall not be arrested because the Action survives to the other Mr. Pollexfen contra He admitted the Law to be that where two Iointenants are Defendants the death of one would not abate the Writ because the Action is joint and several against them But in all Cases where two or more are to recover a personal thing there the Death or Release of one shall abate the Action as to the rest though 't is otherwise when they are Defendants and are to discharge themselves of a personalty 6 Co. 25. b. Ruddock's Case 2 Cro. 19. And therefore in an Audita Querela by two the death of one shall not abate the Writ because 't is in discharge Now in this Case Iudgment must be entred for a dead Man which cannot be for 't is not consistent with reason The Case of Wedgewood and Bayly is express in it which was this Trover was brought by six and Iudgment for them one of them died the Iudgment could not be entred 'T is true where so many are Defendants and one dies the Action is not abated but then it must be suggested on the Roll. Curia Actions grounded upon Torts will survive but those upon Contracts will not The Iudgment was reversed Fisher versus Wren In the Common-Pleas THE Plaintiff brought an Action of Trespass on the Case Prescription and Custom alledged together and declared that he was seized of an ancient Mesuage and of a Meadow and an Acre of Land parcel of the Demesnes of the Mannor of Crosthwait and sets forth a Custom to grant the same by Copy of Court Roll and that there are several Freehold Tenements parcel of the said Mannor and likewise several Customary Tenements parcel also thereof grantable ad voluntatem Domini and that all the Freeholders c. time out of Mind c. together with the Copyholders according to the Custom of the said Mannor have enjoyed solam seperalem Pasturam of the Ground called Garths parcel of the said Mannor for their Cattle Levant and Couchant c. and had liberty to cut the Willows growing there for the mending of their Houses and the Defendant put some Cattle into the said Ground called Garths which did eat the Willows by reason whereof the Plaintiff could have no benefit of them c. Vpon Not Guilty pleaded there was a Verdict for the Plaintiff And now Serjeant Pemberton moved in arrest of Iudgment and took these Exceptions 1. As to the manner of the Prescription which the Plaintiff had laid to be in the Freeholders and then alledged a Custom for the Copyholders c. and so made a joint Title in both which cannot be done in the same Declaration because a Prescription is always alledged to be in a person and a Custom must be limited to a place and therefore an entire thing cannot be claimed both by a Prescription and Custom Vaughan 215. Carter 200. 1 Sand. 351. because the Grant to the Freeholders and this Vsage amongst the Copiholders could not begin together 2. As to the Custom 't is not good as pleaded to exclude the Lord for it can never have a good Commencement because Copyholders have Common in the Lords Soil only by permission to improve their Estates which Common being spared by the Lord and used by the Tenant becomes a Custom but no Vsage amongst the Tenants or permission of the Lord can wholly divest him of his Soil and vest an Interest in them who in the beginning were only his Tenants at Will 2 Sand. 325. 3. The third Exception and which he chiefly relyed on was viz. That this is a Profit apprender in alieno Solo to which all the Tenants of the Mannor are entituled and that makes them Tenants in Common and therefore in this Action where Damages are to be recovered they ought all to join 'T is true in real Actions Tenants in Common always sever 1 Inst 197 198. Godb. 347. but in Trespasses quare Clasum fregit and in personal Actions they always join and the reason is plain because in those Actions though their Estates are several yet the Damages survive to all and it would be unreasonable to bring several Actions for one single Trespass E contra It was argued that it cannot be denied E contra but that there may be a Custom or Prescription to have solam seperalem pasturam but whether both Prescription and Custom can be joyned together is the doubt now before the Court and as to that he held it was well enough pleaded 1 Sand. 351. for where there is an unusual Right there must be the like remedy to recover that Right it was thus pleaded in North's Case But admitting it not to be well pleaded 't is then but a double Plea to which the Plaintiff ought to have demurred and this may serve for an Answer to the first Exceptions Then as to the last Objection that 't is a Profit apprender in alieno solo for which all the Tenants ought to join 't is true a Common is no more than a Profit apprender
Occupant and let the Land to the Plaintiff until c. Et hoc paratus est verificare The Defendant demurred to this Replication and had Iudgment The Matter now in Debate was upon Exceptions to the Barr. 1. For want of a Traverse that Sir Peter Werburton was seised in Fee at the time of the taking c. 2. For want of a sufficient Title alledged in the Plaintiff for that by the Statue of Frauds all Occupancy is now taken away It was argued that the Replication was good without a Traverse Co. Ent. 504. for where the Plaintiff hath confessed and avoided as he hath done here if he had traversed likewise that would have made his Replication double He confesseth that Sir P. W. was seised in Fee of the Mannor but afterwards the Seisin was expresly alledged to be in Sir George the Father and that the place where was parcel thereof which is a Confession and an Avoidance The Avowant should have traversed this Lease but the Traverse of the Plaintiff upon him had made it a worse Issue Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass Cro. Car. 384. the Defendant pleaded that the locus in quo was the sole Freehold of John c. and justified by his Command The Plaintiff replyed that the Land was parcel of the Mannor of Abbots Anne and that W. was seised in Fee and levied a Fine to the use of himself and Wife for their Lives the Remainder to E. for 100 years if he lived so long who after the death of the Cognizors entred and made a Lease to the Plaintiff And upon a Demurrer to this Replication the same Exception was then taken as now viz. that the Plaintiff did not confess and avoid the Freehold of John but the Plaintiff had Iudgment for the Barr being at large and the Title in the Replication being likewise so too the Plaintiff may claim by a Lease for years without answering the Freehold The not concluding with a Traverse is but a form and the Court will proceed according to the Right of the Cause without such form 27 Eliz. c. 5. 't is a defect which after a Ioinder in Demurrer is expresly helped by the Statute of Ieofails which enables the Court to amend defects and want of Forms other than such for which the party hath demurred The Case of Edwards and Woodden is in point Cro. Car. 323. 6 Co. Heyley 's Case Dyer 171. b. 1 Leon. 77 78. contra it was in Replevin the Defendant made Cognizance as Bailiff to Cotton for that the place where c. was so many Acres parcel of a Mannor c. that Bing was seised thereof in Fee who granted a Rent Charge out of it to Sir Robert Heath in Fee who sold it to Cotton c. The Plaintiff in Barr to the Conusance replied and confessed that the Land was parcel of the Mannor c. and that Bing was seised in Fee prout c. and granted the Rent to Sir R. H. but that long before the Seisin of Bing c. one Leigh was seised thereof in Fee who devised it to Blunt for a Term of years which Term by several Assignments came to Claxton who gave the Plaintiff leave to put in his Cattel c. And upon a Demurrer to this Replication an Exception was taken to it for that the Plaintiff did not shew how the Seisin and Grant of Bing to Sir R. H. was avoided for having confessed a Seisin in Fee prout c. that shall be intended a Fee in possession and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt c. and so to Claxton it may be intended that the Grantor was only seised in Fee of the Reversion and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo But three Iudges seemed to encline that the Replication was good and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alledged by the Defendant for he had shewed a Lease for years precedent to the Defendants Title and which was not chargeable with the Rent and his pleading that the Grantor Bing was seised in Fee must be only of a Reversion expectant upon that Lease But if his Confession that Being was seised in Fee prout c. shall be intended a Seisin in Fee in possession yet the Replication is good in substance because the Charge against the Plaintiff is avoided by a former Estate and in such Case 't is not necessary to take a Traverse But after all it was held that if it be a defect 't is but want of a Form which is aided by the Statute and that is this very Case now in question The want of a Traverse seldom makes a Plea ill in substance but a naughty Traverse often makes it so because the adversary is tied up to that which is material in it self so that he cannot answer what is proper and material and therefore in Ejectment upon a Lease made by E. I. Yelv. 151. Bedel versus Lull the Defendant pleaded that before E. I. had any thing to do c. M. I. was seised in Fee after whose death the Land descended to his Heir and that E. entred and was seized by Abatement The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entred absque hoc that E. I. was seized by Abatement and upon a Demurrer this was held to be an ill Traverse for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise and therefore ought not to have traversed the Abatement for having derived a good Title by the Devise to his Lessor 't is an Argument that he entred lawfully and it was that alone which was issuable and not the Abatement therefore it was ill to traverse that because it must never be taken but where the thing traversed is issuable Then it was said that the Conusance was informal because the Avowant should have said that the Locus in quo c. contains so many Acres of Ground c. he only saith that it was parcel of a Mannor besides he neither prays Damages nor Retorn ' Habend ' 2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy it only appoints who shall be a special Occupant Besides here is a Title within the Statute for a Lease for Lives is personal Assets so is a Term in the Hands of an Executor de son tort and in this Case the entring of one Brother after the death of the other made him an Executor de son tort More 126. Sid. 7. and it was never yet doubted but that there may be such an Executor of a Term. Whereupon it was concluded that the Barr was good both as to the Form
shall not alien or sell the Lands given to her from the Heirs Male of her Body lawfully to be begotten but to remain upon default of such Issue to W. and the Heirs Males of his Body to be begotten according to the true intent and meaning of this my Will Dorothy Hopkins had Issue Richard who had Issue Henry who had Issue a Daughter now the Defendant The Question was Whether the Son of Dorothy did take an Estate Tail by this Will to him and to the Heirs of his Body in general or an Estate in Tail Male This Case was argued in Michaelmas Term 36 Car. II. And in the same Term a year afterwards by Council on both sides Those who argued for the Plaintiff held that the Son had an Estate in Tail Male and this seems plain by the intention of the Testator that if Dorothy had Issue Daughters they should have no benefit for no provision is made for any such by the Will and therefore the Daughter of her Son can have no Estate who is more remote to the Testator This is like the Case of Conveyances Turnam vers Cooper 2 Cro. 476. Poph. 138. id 25 Ass pl. 14. wherein the Habendum explains the generality of the precedent words as if Lands be given to Husband and Wife and to their Heirs habendum to them and the Heirs of their Bodies Remainder to them and the Survivor to hold of the chief Lord with Waranty to them and their Heirs this is an Estate Tail with a Feé expectant So it is here tho' the first words in the Will extend to Heirs which is general yet in the Memorandum 't is particular to Heirs Males and the words Heirs and Issues are of the same signification in a Will The Memorandum is a confirmation of the Will Ex parte Def. and the construction which hath been made of it is not only inconsistent with the Rules of Law but contrary to the intent of the Testator and against the express words of his Will Cases upon Wills are different from those which arise upon Deeds because in Conveyances subsequent words may be explanatory of the former but in Wills the first words of the Testator do usually guide those which follow As if Land be devised for Life Dyer 171 a. 1 And. 8. id Golds 16. Moor 593. Remainder to F. and the Heirs Males of his Body and if it happen that he dye without Heirs not saying Males the Remainder over in Tail this was held not to be a general Tail but an Estate in Tail Male therefore the Daughter of F. could not inherit Now to construe this to be an Estate Tail Male doth not only alter the Estate of the Sons of Dorothy but of the Issue of W. and nothing is mentioned in this Memorandum of the Limitation over to Jones so that the whole Will is altered by it But this Memorandum cannot enlarge the Estate of Dorothy because 't is inconsistent with the intention of the Testator who gave her only an Estate for Life by the Will but if she should have an Estate Tail she might by Fine and Recovery bar it and so alien it contrary to his express words Besides there is no Estate limited to Dorothy by this Memorandum and she having an express Estate for Life devised to her by the Will it shall never be enlarged by such doubtful words which follow As where a Man had 100 Acres of Land 2 Leon. 226. Moor 593. called by a particular Name and usually occupied with a House which House he lett to S. with 40 Acres parcel of that Land and then devised the House and all the Lands called by that particular Name c. to his Wife Adjudged she should only have the House and the 40 Acres and that the Devise shall not be extended by implication to the other sixty Acres So that to make the design of this Will and Memorandum to be consistent the latter words must be construed only to illustrate the meaning of the Testator in the former Paragraph of the Will and must be taken as a farther declaration of his intention Viz. that the Heirs Males mentioned in the Memorandum is only a description of the Persons named in the Will The Law doth usually regard the intention of the Testator and will not imply any contradictions in his Bequests The Court was of Opinion that it was a plain Case Judicium for in the Limitation 't is clear that 't is a general Tail and it doth not follow that the Testator did not design any thing for his Grandaughters because no provision was made for Daughters For where an Estate is entailed upon the Heirs of a Man's Body if he hath a Son and a Daughter and the Son hath Issue a Daughter the Estate will go to her and not to the Aunt Now this Memorandum doth not come to make any alteration in the Limitation because it directs that the Estate shall go according to the true intent and meaning of the Will and is rather like a Proviso than an Habendum in a Deed. And therefore Iudgment was given accordingly for the Defendant DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. Hicks versus Gore ON Tuesday the 17th day of November there was a Trial at the Barr by a Somerset-Shire Iury in Ejectment The Case was thus The Plaintiff claimed the Lands by virtue of the Statute of 4 5 Ph. Mar. cap. 8. by which 't is enacted That it shall not be lawful for any person to take away any Maid or Woman Child unmarried and within the Age of sixteen years from the Parents or Guardian in Soccage and that if any Woman Child or Maiden being above the Age of twelve years and under the Age of sixteen do at any time assent or agree to such person that shall make any Contract of Matrimony contrary to the Form of the Act that then the next of Kin of such Woman Child or Maid to whom the Inheritance should descend return or come after the decease of the same Woman Child or Maid shall from the time of such Assent and Agreement have hold and enjoy all such Lands Tenements and Hereditaments as the said Woman Child or Maid had in Possession Reversion or Remainder at the time of such Assent and Agreement during the Life of such person that shall so contract Matrimony and after the decease of such person so contracting Matrimony that then the said Land c. shall descend revert remain and come to such person or persons as they should have done in case this Act had never been made other than him only that so shall contract Matrimony Benjamin Tibboth being seised in Fee of the Lands in question to the value of 700 l. per annum had Issue a Son and four Daughters the Son had Issue Ruth his only Daughter who was married to the Defendant Gore her Father died in the time of her Grandfather and her Mother
c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
place as the Parish of St. James Westminster only And upon a Demurrer it was argued that this Plea was not good for it being in Abatement the Appellee ought to have pleaded over to the Murder Cro. Eliz. 694. so it was adjudged in the Case of Watts and Brain the Pleadings of which Case are at large in my Lord Coke's Entries 2. He ought to have pleaded in person and not by Attorney the Statute of Gloucester is plain in this Point Curia If the Plea is in Abatement and the Party doth not answer over to the Murder yet that doth not oust him of his Plea but the Appellant ought to have prayed Iudgment 'T is a Question whether he ought to plead over to the Felony or not for the Presidents are both ways there is no Iudgment entred Proud versus Piper THere was a Libel brought in the Spiritual Court for a Mortuary Mortuary due only by Custom 21 H. 8. c. 6. The Defendant suggests that by the Statute of H. 8. no Mortuary ought to be paid but in such places where it had been usually paid before the making of that Statute and that there was no Custom in this place to pay a Mortuary and it was thereupon moved for a Prohibition Cro. Eliz. 151. for Mortuaries are not due by Law but by particular Custom of places 'T is true 2 Inst 491. 1 Cro. 237. Seld. of Tithes 287. a Prohibition was denied in the Case of * Sid. 263. Mark and Gilbert but it was because 't was admitted that there a Mortuary was due by Custom but they differed in the person to whom it ought to be paid Curia Prohibitions have been granted and denied upon such Suggestions therefore the Defendant was ordered to take a Declaration in a Prohibition as to the Mortuary and to try the Custom at Law Lutwich versus Piggot IN Ejectment for Lands in Northumberland Lease whether made pursuant to the power in the Reservation tried at the Bar the Case was thus viz. Peter Venables was seised in Fee of the Manor of Long Witton in the said County and being so seised made a Settlement thereof by Lease and Release to the use of himself for Life without impeachment of Waste then to the Trustees for seven years to raise Portions for Daughters then to William Venables and the Heirs Male of his Body and if he dye without Issue then to Ann his Daughter for Life with Remainders over In which Settlement there was this Proviso viz. Provided that it shall be lawful for William Venables by Will or Deed to dispose of any part of the said Manor to his Wife for Life And another Proviso to this purpose viz. Provided that it shall and may be lawful to and for the said William Venables by any Deed in Writing under his Hand and Seal to Demise for 3 Lives or 21 years or under or for any time or term of years upon one two or three Lives or as Tenant in Tail in Possession may do all or any part of the said Manor Lands c. which were in Lease for the space of forty years last past The Defendants Title was a Lease for 99 years made by the said William Venables to one Mary Venables if three Lives should so long live And the Question was whether that Lease was pursuant to the power in the last Proviso It was objected that it was not for it ought to be a Lease for 21 and not 99 years determinable for three Lives But the Plaintiff was Non-Suit Rex versus Fairfax al. AN Order made at the Quarter-Sessions of Gloucester Who shall be bound to take an Apprentice in Husbandry was removed hither confirming another made by the Iustices there for placing of a poor Boy to be an Apprentice in Husbandry and it was moved that it might be quashed Mr. Pollexfen argued that the Iustices had no power given them by the Law to compel a Man to take such an Apprentice and this will depend upon the construction of such Statutes which relate to this matter The first is that of Queen Elizabeth which enacts 5 Eliz. cap. 4. Paragraph 25. that for the better advancing of Husbandry and Tillage and to the intent such who are fit to be made Apprentices to Husbandry may be bound thereunto that every person being an Housholder and having or using half a Plough Land at the least in Till age may take any to be an Apprentice above ten and under eighteen years to serve in Husbandry until the Party be of the Age of twenty one or twenty four years the said Reteiner and taking of an Apprentice to be by Indenture Now before the making of this Statute the practice of putting out poor Children was only in Cities and great Towns to particular Trades and Employments The next Statute is 43 Eliz. by which power is given to the Church-Wardens or Overseers of the Poor 48 Eliz. cap. 2. to raise weekly or otherwise by Taxation of every Inhabitant such competent Sum or Sums of Mony as they shall think fit for relief of the Poor and putting out of Children to Apprentice And then in the fifth Paragraph power is given to them by the Assent of two Iustices of Peace to bind poor Children where they shall see convenient c. which words were the foundation for the making of this Order But the construction thereof can be no otherwise than viz. Whereas before the making of this Act poor Children were bound Apprentices to Tillage now the Church-wardens may raise Mony to bind them out to Trades for if they could compel Men to take them what need was there of raising Mony to place them out This must be the natural construction of that Law 1 Jac. cap. 25. Paragraph 23. which appears yet more plain by the words of a subsequent Statute which continues that of the 43th of Eliz. with this addition that all persons to whom the Overseers of the Poor shall according to that Act bind any Children to Apprentice may take receive and keep them as Apprentices 'T is true the general practice of putting out poor Children seems to warrant this Order but this hath been occasioned upon a Mistake in Mr. Dalton 's Book Dalt 114. who Reported the Resolution of the Iudges in 1633. to be That every Man who by his calling profession or manner of living and who entertaineth and must use Servants of the like quality such must also take Apprentices By this Resolution the Iustices of Peace have been governed ever since But Iustice Twisden would often say that those were not the Resolutions of the Iudges as Reported by Mr. Dalton and therefore the Book was mistaken 2. The Order it self doth not mention that the party to whom this poor Boy was bound Apprentice did occupy any Land in Tillage for so it ought to be otherwise the Overseers of the Poor may bind him to a Merchant or to an Attorny which he called a Free
the six Months by this means the Conusee of the Statute is defeated for after the inrollment the Land passeth ab initio and the Bargainee in Iudgment of Law was seised thereof from the delivery of the Deed but not by way of Relation but by immediate Conveyance of the Estate by vertue of the Statute of Vses But the Law will not suffer contingent Remainders to waver about and to be so incertain that no Man knows where to find them which they must be if this Doctrine of Relation should prevail Now suppose the Surrendree had made a Grant of his Estate to another person before he had accepted of the Surrender and the Grantee had entred would this subsequent assent have divested this Estate and made the Grant of no effect if it would then here is a plain way found out for any Man to avoid his own acts and to defeat Purchasors Therefore 't is with great reason that the Law provides that no person shall take a Surrender but he who hath the immediate Reversion and that the Estate shall still remain in the Surrenderor until all acts are done which are to compleat the Conveyance Those who argued against the Iudgment E contra held that the Estate passed immediately without the assent of the Surrenderor and that even in Conveyances at the Common-Law 't is divested out of the person and put in him to whom such Conveyance is made without his actual assent 'T is true in Exchanges the Freehold doth not pass without Entry nor a Grant of a Reversion without an Attornment but that stands upon different Reasons from this Case at the Bar for in Exchanges the Law requires the mutual acts of the Parties exchanging and in the other there must be the consent of a third person But in Surrenders the assent of the Surrendree is not required for the Estate must be in him immediately upon the execution of the Deed if he doth not shew some dissent to it If a Man should plead a Release without saying ad quam quidem relaxationem the Defendant agreavit yet this Plea is good because the Estate passeth to him upon the execution of the Deed. It may be a Question whether the actual assent must be at the very time that the Surrender was made for if it should be afterwards t is well enough and the Estate remaineth in the Surrendree till dis-agreement Presumption stands on this side for it shall never be intended that he did not give his Assent but on the contrary because t is for his benefit not to refuse an Estate Therefore where a Feme Sole had a Lease and married Hob. 203. the Husband and Wife surrendred it to another in consideration of a new Lease to be granted to the Wife and her Sons c. this Estate vests immediately in her tho' a Feme Covert and that without the assent of her Husband for the Law intends it to be her Estate till he dissent 't is true in that Case his assent was held necessary because the first Lease could not be divested out of him without his own consent So a Feoffment to three 2 Leon. 224. and Livery made to one the Freehold is in all 'till disagreement So if a Bond be given to a Stranger for my use and I should die before I had agreed to it my Executors are entituled to an Action of Debt and will recover A Feme Covert and another were Ioint-tenants for Life 1 Rol. Rep. 401 441. she and her Husband made a Lease for years of her moiety reserving a Rent during her Life and the Life of her partner then the Wife died this was held to be a good Lease against the surviving Ioint-tenant till disagreement which shews that the agreement of the Parties is not so much requisite to perfect a Conveyance of this nature as a disagreement is to make it void And this may serve as an answer to the second point which was not much insisted on that Mens Titles would be incertain and precarious if after the assent of the Surrendree the Estate should pass by Relation at the very time that the Deed was executed and that it was not known where the Free-hold was in the mean time for if he had agreed to it immediately it had been altogether as private Then as to the Pleadings 't is true that generally when a Surrender is pleaded 't is said ad quam quidem sursum redditionem the Party adtunc ibidem agreavit which implies that the Surrendree was then present and in such Case he ought to agree or refuse Besides those Actions to which an Agreement is thus pleaded were generally brought in disaffirmance of Surrenders and to support the Leases upon which the Plaintiffs declared and then the proper and most effectual Bar was to shew a Surrender and express Agreement before the Action brought It might have been insufficient pleading not to shew an Acceptance of the Surrendree but 't is not substance for if Issue should be taken whether a Surrender or not Cro. Eliz. 249. and a Verdict for the Plaintiff that defect of setting forth an Acceptance is aided by the Statute of Ieofails In this Case there is not only the Word Surrender but * Grant and Release which may be pleaded without any consent to it and a Grant by operation of Law turns to a Surrender because a Man cannot have two Estates of equal dignity in the Law at the same time Neither can it be said that there remained any Estate in Simon Leach after this Surrender executed for 't is an absurd thing to imagine that when he had done what was in his power to compleat a Conveyance and to divest himself of an Estate yet it should continue in him Therefore the Remainder in Contingency to the Lessor of the Plaintiff was destroyed by this Surrender of the Estate to him in reversion for by that means when it did afterwards happen there was no particular Estate to support it But notwithstanding the Iudgment was affirmed and afterwards Anno quarto Gulielmi Mariae upon a Writ of Error brought in the House of Lords it was reversed Idem versus Eundem THIS Point having received a legal determination the same Plaintiff brought another Action of Trespass and Ejectment against the same Defendant Surrender by a person Non compos is void and at a Trial at the Barr in Easter Term nono Gulielmi Regis another special Verdict was found upon which the Case more at large was viz. That Nicholas Leach being seised in Fee of the Lands in question made his Will in these Words viz. In the Name of God Amen c. I devise my Mannors of Bulkworth Whitebear and Vadacot in Devonshire and Cresby Goat and Cresby Grange in Northallerton in Yorkshire unto the Heirs Males of my Body begotten and for want of such Issue Male I devise the same unto my Brother Simon Leach for Life and after his decease to the