to that Issue but may take another This dis-affirms the former Case when the Information is by an Informer the King must maintain his Information Note the close of this Case Ut supra per Attornatum Regis alios legis peritos I shall give the Case here mentioned in this ut supra which will I think determine the Question and clearly establish the Law according to the Difference taken That Case is likewise in Br. and cited to be as in 34 H. 8. whereof there is no Year-book neither some four years before the last Case I mentioned It is thus Br. Prerogative p. 116. 34 H. 8. Nota by Whorhood Attornatum Regis alios When an Information is put into the Chequer upon a penal Statute and the Defendant makes a Barr and Traverseth that there the King cannot wave such Issue tender'd and Traverse the former matter of the Plea as he can upon Traverse of an Office and the like when the King is sole party and intitled by matter of Record for upon the Information there is no Office found before and also a Subject is party with the King for a moiety Quod nota bene Here it is most apparent That upon an Information when the King hath no Title by matter of Record as he hath upon Office found the King cannot waive the Issue tender'd upon the first Traverse though the Information be in his own name which disaffirms the second Case in that point And for the Supernumerary reason That the King is not the sole party in the Information it is but frivolous and without weight but the stress is where the King is sole party and intitled by matter of Record I shall add another Authority out of Stamford Praerogative If the King be once seis'd his Highness shall retain against all others who have not Title nothwithstanding it be found also that the King had no Title but that the other had possession before him 37 Ass pl. 11. as appeareth in 37. Ass p. 35. which is pl. 11. where it was found That neither the King nor the party had Title and yet adjudg'd that the King should retain for the Office that finds the King to have a Right or Title to enter Stamford Praerogative f. 62. b. makes ever the King a good Title though the Office be false c. and therefore no man shall Traverse the Office unless he make himself a Title and if he cannot prove his Title to be true although he be able to prove his Traverse to be true yet this Traverse will not serve him Stamford Prerogative f. 64. b. It is to be noted That the King hath a Prerogative which a Common Person hath not for his Highness may choose whether he will maintain the Office or Traverse the Title of the party and so take Traverse upon Traverse If the King take Issue upon a Traverse to an Office he cannot in another Term change his Issue by Traversing the Defendants Title for then he might do it infinitely But the King may take Issue and after Demurr 13 E. 4. expresly and several other Books 28 H. 6. f. 2. a. or first Demurr and after take Issue or he may vary his Declaration for in these Cases as to the Right all things remain and are as they were at first but this ought to be done in the same Term otherwise the King might change without limit and tye the Defendant to perpetual Attendance Judgment pro Defendente Hill 21 22. Car. II. C. B. Rot. 606. Thomas Rowe Plaintiff and Robert Huntington Defendant in a Plea of Trespass and Ejectment THE Plaintiff declares That Thomas Wise 1. April 21 Car. 2. at Hooknorton in the County of Oxford by his Indenture produc'd dated the said day and year demis'd to the said Thomas Rowe the Mannor of Hooknorton with the Appurtenances 4 Messuages 100 Acres of Land 50 Acres of Meadow 400 Acres of Pasture and 50 Acres of Wood with the Appurtenances in Hooknorton aforesaid As also the Rectory and Vicaridge of Hooknorton and the Tithes of Grain Hay and Wool renewing in Hooknorton aforesaid To have and to hold the Premisses from the Feast of the Annunciation of the Virgin then last past to the end and term of Seven years then next ensuing That by virtue thereof the said Thomas Rowe the Plaintiff into the said Mannor and Tenements enter'd and of the said Rectory Vicaridge and Tithes was possessed That the said Robert Huntington the Defendant the said First of April with Force and Arms into the said Mannor Rectory Vicaridge and Tithes entred and him Ejected against the Peace to his great damage and whereby he is endamaged 100 l. The Defendant Huntington pleads not Culpable And thereupon Issue is Ioyn'd The Jury give a Special Verdict That as to the Trespass and Ejectment in the said Mannor and Tenements and in the said Rectory Vicaridge and Tithes aforesaid excepting 200 Acres of Pasture parcel of the said Mannor of Hooknorton That the Defendant Huntington is not Culpable And as to the said 200 Acres they say that long before the said Trespass and Ejectment That is the 14th day of October 1. Mar. one Robert then Bishop of Oxford was seis'd in his Demesne as of Fee in Right of his Bishoprick of the said Mannor whereof the said 200 Acres are parcel and so seis'd the said 14th of October 1 Mariae at Hooknorton aforesaid by his Indenture of Demise seal'd with his Episcopal Seal Dated the said day and year and shew'd in Evidence to the Jury made between the said Bishop of the one part and John Croker of Hooknorton Esq of the other part for Considerations in the said Indenture of Demise mentioned had demis'd and to farm lett to the said Croker Among other things the said Mannor with the Appurtenances whereof the said 200 Acres are parcel To have and to hold to the said Croker and his Assigns from the end and expiration prioris Dimissionis in eadem Indentur Mentionat for and during the term of Ninety years then next following The tenor of which Indenture of Demise follows in haec verba This Indenture made the Fourteenth day of October 1 Mariae c. Between the said Bishop and the said John Croker c witnesseth That where the said Bishop by the name of the Reverend Father in God Robert King Abbot of Tame and Commendatory of the late Monastery of Oseney in the County of Oxford and the Covent of the same by their Deed Indented Dated 6. April 29 Hen. 8. with the Consent of their whole Chapter Have demis'd and to farm lett All that their Mansion or Farm of Hooknorton with the Appurtenances in the said County and all the Mansion and Farm Demesne Lands Meadows Leasowes and Pastures with all Commodities and Profits to the said Mannor belonging or appertaining and the customary works of all the Tenants not granted nor remitted before the Date of the Deed And the Parsonage of Hooknorton and
recited therein but in part for after as much as is recited of either Deeds respectively is said as more plainly appears among other Grants and Covenants in the said Deed. And if other Grants were in the Deed of 29 H. 8. besides those recited then the express Grant of the very Mannor of Hooknorton might be one of those Grants which is urg'd not to be granted because not recited in 29 H. 8. nominally and if so here being two former demises of the Mannor mentioned in the Indenture 1 Mar. and for different terms the one 29 H. 8. for Eighty years the other 1 E. 6. for Ninety years and so expiring at different terms it is uncertain from which Expiration the demise of the Mannor 1 Mar. shall Commence and consequently the demise having no certain Commencement will be void by the Rector of Chedington's Case 1. Rep. But admitting the Mannor not demis'd by 29 H. 8. yet the Jury finding the demise 1 Mar. Habendum à fine prioris dimissionis and not prioris dimissionis ejusdem Manerii it is uncertain still Whether the Habendum à fine prioris dimissionis as the Jury have found it shall referr to the end of the demise 29 H. 8. or to that of 1 E. 6. both of them being prior demises mentioned in the Indenture 1 Mar. for if only the demise 29 H. 8. had been mentioned in that of 1 Mar. the demise 1 Mar. for its Commencement must of necessity have referr'd to the Expiration of the demise by 29 H. 8. though the Mannor pass'd not by it and it will not then change the uncertainty because the demise 1 E. 6. is mention'd Nor shall you to this finding of the Jury suppose a different finding from their finding barely the Indenture of 1 Mar. call in aid any thing from the Recitals in 1 Mar. and so make up a Medley Verdict partly from what the Jury find expresly and partly from what is only recited and not otherwise found As for instance The Jury find the Mannor demis'd for Ninety years Habendum from the end of a former demise mention'd 1 Mar. This Verdict in it self finds no Commencement of the term by not finding from the Expiration of which term it begins nor find no Rent reserv'd But the demise of 1 Mar. as to them must be made out from the recitals of Deeds not found to be real which is a way of confounding all Verdicts When the Jury say The Mannor of Hooknorton was demis'd à fine prioris dimissionis in Indentura predict mentionat for Ninety years they do not say à fine prioris dimissionis ejusdem Manerii So as if nothing else were the former Indenture mention'd might be of the Vicaridge or any other thing and not at all of the Mannor and yet by the Indenture of 1 Mar. the demise of the Mannor was to Commence from the Expiration of such former demise whatever was demis'd by it But the Indenture of 1 Mar. demiseth all the Premisses contain'd in the first Indenture Habendum from the Expiration of the term Ergo If the Mannor be not compris'd in the first Indenture it cannot be demis'd by 1 Mar. from the Expiration of the first term in the first Indenture But admitting this Who can say the Mannor of Hooknorton is not compris'd in the first Indenture For first What if only part of the first Indenture is recited and not all in the Deed of 1 Mar. and so the Mannor omitted in the recital though it were compris'd in the Indenture of 29 H. 8. and perhaps the Jury might if that Indenture were produc'd to them see it was compris'd in the Indenture though not recited to be so 2. What if the Indenture of 29 H. 8. were mis-recited in 1 Mar. and instead of the Mannor the word Mansion recited 3. It is apparent That the Indenture of 29 H. 8. was not recited nor pretended to be recited verbatim in that of 1 Mar. Because after so much of the Indenture of 29 H. 8. as is recited in that of 1 Mar. it is said as by the said Indenture viz. 29 H. 8. among divers other Covenants and Grants more plainly appeareth So as there were other Grants in the said Indenture of 29 H. 8. than are recited in 1 Mar. and the Grant of the Mannor by name might be one of them 4. How can it appear to us but that the Jury did find the Mannor of Hooknorton to be expresly demis'd by the first Indenture if any thing were demis'd by it If then the Jury did conceive the Mannor of Hooknorton was demis'd by the first recited Indenture as most probably they did When they find That by the Indenture of 1 Mar. the said Mannor was convey'd à fine prioris dimissionis in Indentur praedict mentionat And there are mentioned in the Indenture of 1. Mar. two former demises of the Mannor viz. that of 29 H. 8. for a term of Eighty years and that of 1 E. 6. for a term of Ninety years there is no certain Commencement of the term of 1 Mar. because it is as uncertain from which of the two former demises it takes his Commencement as if ten former demises were mention'd and for different terms and then it could Commence from neither of them But admit it should be taken to Commence from the end of the term of 1 E. 6. and not from the other because in that term if any such were the Mannor is without scruple demis'd yet we must remember the present Question is not of the Mannor but of Two hundred Acres parcel of the Mannor And in the Lease of 1 E. 6. though the Mannor be demis'd yet there is an Exception of certain Lands and Tenements in the Town or Vill of Hooknorton which Croker then held for certain years enduring How doth it appear That the Two hundred Acres in question were not those Lands excepted out of the demise of 1 Mariae For though they were parcel of the Mannor they might be severally demis'd and excepted and though it be found Cok. Litt. 325. a. That at the time of the Demise and at the time of the Trespass the Two hundred Acres were parcel of the Mannor it is not found that they were not part of the Lands in the Vill of Hooknorton at the time of the demise made 1 Mar. then in Lease to Croker and excepted out of the said demise of 1 Mar. for if they were the Plaintiff makes no Title to them If the Issue be 15 Jac. B.R. between Ven◠and Howel whether by Custome of the Mannor a Copyhold is grantable to Three for the Life of Two and it be found that by the Custome it is grantable for Three Lives that is not well found for it is but an Argument Rolls 693. Title Tryal That because a greater Estate may be granted a less may and a new Venire Facias granted because the matter in Fact whereupon the Court was to judge and was the point of
ought to be traversed I shall for clearing this Learning shew in the next place when the Seisin in gross or appendency of the Advowson alledged by any Plaintiff in his Count is traversable by the Defendant and not the Presentation and the true reason of the difference 27 H. 8. f. 29. In a Quare Impedit the Plaintiff declared that I.S. was seised in Fee of a Mannor to which the Advowson was appendant and presented and after infeoffed the Plaintiff of the Mannor whereby he became seised until the Defendant disseised him and during the Disseisin the Church became void and the Defendant presented the Plaintiff entred into the Mannor and so recontinued the Advowson and the Church is again become void whereby the Plaintiff ought to present The Defendant pleads that a stranger was seised of 4 Acres of Land to which the Advowson is appendant and presented and of the four acres infeoffed the Defendant and the Church being void it belongs to the Defendant to present and takes a Traverse absque hoc that he disseised the Plaintiff of the Mannor This Traverse was adjudged not good for the disseisin or not disseisin of the Mannor was not material to intitle the Plaintiff to the Quare Impedit but all his Title was by the appendency of the Advowson to the Mannor and therefore the Traverse ought to have been and was so resolved to the appendency which destroyed the Plaintiffs intire Title to present and also inconsistent with the Defendants appendency of the Advowson to his four acres I shall only put one Case more to the same purpose out of the new Books reported by the Lord Hobart Sir Henry Gawdy Kt. brought a Quare Impedit against the Arch-Bishop of Canterbury Sir William Bird and Humfrey Rone Clerk Sir Hen. Gandies Case Hob. 301. and declared that Sir Rich. Southwell was seised of the Mannor of Popenho in Norfolk to which the Advowson was appendant and presented and his Clerk was instituted and inducted that Southwell bargained and sold the Mannor to one Barow who being seised the Church became void by the death of Southwels Incumbent and so continued for eighteen months whereby the Queen in default of the Patron Ordinary and Metropolitan presented by Lapse one Snell then by mean Conveyances derives the Mannor to which the Advowson is appendant to himself and that by the death of Snell it belongs to him to present and is disturbed by the Defendants The Archbishop claims nothing but as Ordinary Sede vacante of the Bishop of Norwich Sir William pleaded ne disturba pas And Rone the present Incumbent pleaded that he was Parson by the Kings Presentation and that long before Southwell had any thing in the Mannor Queen Eliz. was seised of the Advowson in gross in right of the Crown and presented Snell that the Advowson descended to King James by the death of the Queen and he being seised the Church becoming void by Snell's death presented the present Incumbent who was instituted and inducted And traversed absque hoc that the Advowson was appendant to the Mannor of Popenho and thereupon Issue was joined In this Case also the Traverse of the appendency by the Defendant was clearly good and so admitted for the Plaintiff Gaudy had no more nor other Title to present than by the appendency of the Advowson to the Mannor and the Incumbents death and the appendency to the Mannor was inconsistent with the Defendants Title by the Advowson's being in gross These two last Cases fully prove the Rule by me taken and which will conclude the Case in question that the Traverse is well taken to the Appendency of the Advowson when it is all the Plaintiffs Title to present and is inconsistent with the Defendants But in this Case of Gawdys the Iury found specially that Southwell was seised of the Mannor with the Advowson appendant and presented and that the Incumbent dying 2 Feb. 1588. the Queen the 15th of Feb. in the same year presented Snell to the Church then void per mortem naturalem ultimi Incumbentis ibidem vacantem Et ad nostram Praesentationem jure praerogativae Coronae nostrae Angliae spectantem and her Clerk instituted by Letters of Institution running per Dominam Reginam veram indubitatam ut dicitur patronam And after the death of Snell King James presented Rone in these words ad nostram praesentationem sive ex pleno jure sive per lapsum temporis sive alio quocunque modo spectantem and referr'd to the Court whether the Advowson were appendant to the Mannor or not It was adjudged 1. That the Advowson remained appendant notwithstanding the Queens Presentation 2. That her Presentation could not be by Lapse for her Presentation and Institution and Induction were in the same month of Febr. wherein the voidance was 3. If the Queen had presented by Lapse it had made no severance of the Advowson 4. That the Queens Presentation made no Vsurpation because she presented as supposing she had a Title in right of her Crown as appeared by the form of her Presentation which is very remarkable and therefore her Presentation was meerly void for it shall not be intended the Queen took away anothers right against her own will and declared intention 5. For the same reason King James his Presentation of Rone who by the form of his Presentation supposed he had a good Title when he had none was also void and this agrees with the Resolution in Greens C. the 6th Rep. that the Queens Presentation made as by Lapse when she had no such Title to present by lapse but another Title either in right of her Crown or by Simony or some other way was void because she was mistaken in her presentation So if she presents by reason of some supposed Title in her Letters of presentation when indeed she had no Title at all the Presentation is meerly void and though such Presentation make a plenarty so as to avoid Lapse yet the right Patron is not out of possession but may present 7 years after and if his Clark be inducted the former presentee is immediately outed Hence it is to be noted as a point very observable in this Learning that though the King may present by Usurpation yet he shall never present by Usurpation if in the Letters of Presentation he present by some Title which he hath not but if he present generally making no Title at all by his Presentation and his Clerk be received and dyes he hath gained a Title by Usurpation But if the King declare in a Quare Impedit that he was seised of the Advowson in gross or as appendant to a Mannor and presented if he had presented before by Usurpation the Defendant shall not traverse his Seisin of the Advowson or appendency at all So is it in the Case of a Common Person also as appears in the end of the Case 10 H. 7. where it is said It was agreed by the Court that if
all Lands Tenements Meadows Tithe Corn and Grain Hay and Wool and all Profits to the said Parsonage belonging And also the Vicaridge of Hooknorton aforesaid with the Appurtenances And all Lands Tithes Profits to the said Vicaridge belonging And also a Pasture called Prestfield with the Appurtenances in Hooknorton aforesaid And all Commons of Sheep call'd by the name of their Founders Flock And the Hay of a Meadow call'd Brown-mead with the customary works thereto pertaining And the Tithe and Duty of a Mead call'd Hay-mead in Hooknorton aforesaid Except and reserved to the said Abbot and Covent and their Successors All Tenants and Tenantries then or after to be set by Copy of Court-Roll All Fines Reliefs Escheats Herriots Amerciaments Pains Forfeits and all Perquisites of Courts Barons and Leets To have and to hold the said Farm or Mannor and all other the Premisses with the Appurtenances Except before excepted to the said Croker his Executors and Assigns from the Feast of the Annunciation of our Lady last past before the Date of the said Deed Indented for the term of Eighty years rendring to the said Abbot Covent and their Successors yearly during the said term For the said Mannor and Farm 9 l. For the said Parsonage 22 l. 2 s. For the Common of Sheep Hay and Custom-works of Brown-Mead 5 l. For the Wool 12 l. For Prest-field 6 l. 13 s. 4 d. For the Vicaridge 6 l. 13 s. 4 d. of lawful mony c. at the Feasts of St. Michael the Arch-angel the Annunciation of our Lady by equal portions As by the same Deed Indented amongst divers other Covenants and Grants more plainly appeareth And where also as the said Bishop by his other Deed Indented Dated 8. October 1 Edw. 6. hath demis'd and to farm lett unto the said John Croker all that his Mannor of Hooknorton aforesaid with all Messuages Tofts Cottages Orchards Curtilages Lands Tenements Meadows Leasowes Pastures Feedings Commons waste Grounds Woods Underwoods Waters Mills Courts-Leets Fines Herriots Amerciaments Franchises Liberties Rents Reversions Services and all other Hereditaments whatsoever they be set lying and being in Hooknorton aforesaid in the said County with the Appurtenances Except certain Lands and Tenements in the said Town in the Tenure of the said John Croker for certain years then enduring To have and to hold All the said Mannor of Hooknorton and all other the Premisses with the Appurtenances Except before excepted to the said John Croker and his Assigns from the Feast of St. Michael the Arch-angel last past before the Date of the said latter Deed Indented to the full end of the term of Ninety years from thence next ensuing Rendring to the said Bishop and his Successors yearly during the said term Eleven pounds four shillings and nine pence at the Feasts of the Annunciation and St. Michael the Arch-angel by equal portions as by the said latter Deed among other Covenants and Grants more plainly appears The Reversion of all which Premisses are in the said Bishop and to him and his Successors do belong as in Right of his Church Now witnesseth That the said Bishop hath demis'd Ind. 1 Mar. and to Farm lett and by these Presents doth demise c. to the said John Croker All the said Mannor and Farm of Hooknorton together with all Messuages c. And all and singular other the Premisses with the Appurtenances in the said several Indentures specified and contain'd To have and to hold the said Premisses contain'd in the said first Indenture to the said John Croker his Executors and Assigns from the end expiration and determination of the said term specified in the said first Indenture unto the end and term of Ninety years next ensuing yielding therefore yearly to the said Bishop and his Successors for the said Premisses specified in the said first Indenture such and like Rents as in the said first Indenture are reserv'd at the same daies and times and To have and to hold All the Premisses specified in the said latter Indenture from the end expiration and determination of the said term specified in the said latter Indenture until the end and term of Ninety years then next ensuing Rendring yearly for the Premisses in the said latter Indenture specified such and like Rent as is reserv'd by the said latter Indenture and at the same days and times Then follows a Clause of Distress if the Rent be behind for a Month. And if the said several yearly Rents reserved by these Indentures or any of them be unpaid in part or in all by the space of one quarter of a year after any the said Feasts at which the same ought to be paid and be lawfully demanded and no sufficient Distress upon the Premisses whereupon the same is reserved to be found Then to be lawful for the said Bishop and his Successors into such of the Premisses whereupon such Rents being behind is or are reserved to re-enter and to have as in their former estate And the said Jurors further say That the aforesaid Indenture of Demise afterwards the Tenth of May Anno 1 Mar. aforesaid by the then Dean and Chapter of Oxford under their Common Seal was confirm'd and find the tenor of the Confirmation in haec verba They further find That the said Two hundred Acres of Pasture at the time of making the said Indenture and at the time of the Trespass and Ejectment were and yet are parcel of the said Mannor of Hooknorton They further find That the Rent for all the said demis'd Premisses reserv'd by the said Indenture for one whole half year ended at the Feast of Saint Michael the Arch-angel 1643. was behind and unpaid and that Robert late Bishop of Oxford the Nine and twentieth and Thirtieth Day of December 1643. into the Parsonage House then and by the Space of Forty or Fifty years before reputed and call'd the Mannor-house And that he then at the said Parsonage-house by the space of One hour next before the Sun-setting of both the said two daies remain'd and continued until and by the space of One hour after Sun-setting of both daies demanding and then did demand the Rent for the half of the year aforesaid They further say That there was no sufficient Distress upon the Premisses at the time of the demand of the said Rent thereupon And that the said Bishop the said Thirtieth Day of December 1643. aforesaid into the said Premisses enter'd They further say That all the Right State and Title term of Years and Interest of and in the Mannor Tenements Rectory and other the said Premisses by virtue of the said Indenture of Demise by the said late Bishop as aforesaid granted to the said John Croker by mean Assignments came to the said Thomas Wise That by virtue of the said several Assignments the said Thomas Wise afterwards the Fourth of January 1667. into the Premisses enter'd and was possessed for the Residue of the term of years prout Lex postulat That he so possessed
afterwards the said First Day of April 21 Car. 2. at Hooknorton aforesaid demised to the said Thomas Rowe the said Mannor and Tenements Rectory and Vicaridge whereof the said Two hundred Acres are parcel To have and to hold to the said Rowe and his Assigns from the Feast of the Annunciation last past for the term of Seven years then next ensuing That by virtue thereof the said Rowe enter'd and was possessed until the said Robert Huntington the said First of April 21 of the King by Force and Arms by the command of the foresaid Robert late Bishop of Oxford into the said Two hundred Acres upon the Possession of the said Thomas Rowe to him demised by the said Wise as aforesaid for the said term not yet past enter'd and Ejected him But whether upon the whole matter the said Robert be Culpable of the said Trespass and Ejectment they refer to the Court. By this Verdict in the recited Indenture if any such were of 29 H. 8. the Farm of Hooknorton and the Mannor of Hooknorton were the same thing and the Mannor known and demis'd by the name of the Farm as well as the Farm by name of the Mannor The Mannor of Hooknorton being call'd the Farm of Hooknorton because it was lett to Farm and rented out and the Farm called the Mannor because it had the Requisits of a Mannor viz. Demesne Services Therefore where it is recited in the Deed 1 Mar. That the Abbot and Covent of Osney had by their Deed of 29 H. 8. demis'd to John Croker All that their Farm of Hooknorton it was the same as if it had been the Mannor of Hooknorton 1. For that the next words are And all that Mansion Demesne Lands Meadows Leasowes and Pastures to the said Mannor belonging and no Mannor is named before but the Farm which was known to be the Mannor 2. The Habendum of the Premisses demised is To have and to hold the said Farm or Mannor of Hooknorton which also shews they were the same 3. In the render of the Rent it is yielding and paying for the said Mannor and Farm Nine pounds 4. By the Demise of 1. Mar. subsequent the said Mannor or Farm is demis'd And the 200 Acres in question being found to be parcel of the said Mannor consequently they are recited to be demis'd by that Indenture suppos'd of 29 H. 8. But the Jury find not the Mannor and Farm to be the same The next thing to be noted is That by that recited Indenture of 29 H. 8. if any such were several Rents were reserved upon several particulars and not one intire Rent upon the whole namely 9 l. upon the Mannor or Farm Another Rent upon the Parsonage another on the Vicaridge and so upon several other particulars And by the Lease of 1 Mariae it is yielding and paying such and the like Rents in the Plural Number as are reserved by the said first Indenture So as the Rents were several in the first Indenture by the meaning of that of 1 Mar. And yielding and paying such and like Rent as is reserv'd by the latter Indenture for the Premisses therein contain'd Here it is such Rent in the singular number as is reserv'd not as are reserved as in the former Then in the Clause of Re-entry for Non-payment it is that the Re-entry should be into such of the Premisses whereupon such Rent being behind was reserv'd therefore not into all the Premisses Whence it follows That there being several Rents several Demands were respectively to be made before Re-entry as well for those reserv'd in the first Indenture as for that in the second Indenture recited And it being found That the Demand made by the Bishop at the Parsonage-house in Forty three was for the half years Rent reserved of all the Premisses demis'd by the Indenture of 1 Mar. it follows That more Rent was demanded than was payable in any one place consequently the Demand not good nor the Re-entry pursuing it and thus far the Case is clear against the Defendant For the Lease of 1 Mar. could not be avoided by that Re-entry in all nor in part if the Leases of 29 H. 8. and 1 E. 6. were well and sufficiently found by the Jury to have been made Note The Jury finding that the Rent reserved for all the Premisses was behind for half a year ending at Michaelmas 1643. not expressing the Sum of the Rent is no more than to find That no Rent was paid for the said half year And their finding That the Bishop did demand the said half years Rent finding no Sum by him demanded is no more than to find That he demanded such Rent as was due for the said half year So as notwithstanding the Juries finding That no Rent was paid for the said half year and their finding of the Bishop's demanding of what was due for the said half year It doth not therefore follow That they find any Rent to be reserv'd by the said Lease of 1. Mar. or that there was a Demand of any Rent admitted to be so reserv'd But if the Leases of 29 H. 8. and 1 E. 6. be not well and sufficiently found by the Jury to have been made The Consequent then is That in Law there are no such Leases for de non apparentibus non existentibus eadem est ratio ad omnem juris effectum And then it follows That the Lease of 1 Mar. of all the Premisses specified in the Indenture of 29 H. 8. and of all specified in the Indenture of 1 E. 6. for Ninety years Habendum from the respective Expirations of the terms specified and under the respective Rents reserv'd by those Indentures will be void as to the terms intended to be granted and the Rents reserv'd because the beginning of the terms and particulars of the Rents can be known but from the Demises 29 H. 8. and 1 E. 6. when no such Demises are because the Jury hath found no such For this the Case of 3 E. 6. reported by the Lord Brooks in his Title of Leases N. 62. is clear and in several Cases since adjudg'd is admitted for good Law The Case is Br. tit Leases N. 66. 3 E. 6. If a man Leases Land for certain years to J. S. Habendum post dimissionem inde factam to J. N. finitam and J. N. hath no Lease of the Land the Lease to J. S. shall commence immediately for the term of years granted him So in our Case the Lease of 1 Mar. of the Mannor and other the Premisses granted to Croker for Ninety years Habendum as to some particulars from the expiration of a former Lease granted 29 H. 8. And as to other particulars from the expiration of a Lease granted 1 E. 6. when no such Leases were granted because not found to be granted Therefore the Lease of 1 Mar. for Ninety years shall commence immediately from the Sealing and consequently ended about the 21 or 22 of King Charles the First
it is said The Rent was granted out of the Twenty Acres being the Locus in quo by the Name of all the Grantors Lands and Hereditaments in King's Norton and that a per nomen in that Case is not good The Case of Grey and Chapman was urg'd 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House and Twenty Acres of Land by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were The Court was of Opinion in Arrest of Judgment that the naming of the Vill in the per nomen was not material Another Case to the same purpose was urg'd of Gay against Cay where a Grant in possession was pleaded 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion And upon view of the Record the Grantor had granted Tenementa praedicta per nomen of a Mesuage which A. P. held for life where the per nomen was adjudg'd not to make good the Grant The Court is of Opinion notwithstanding these Cases That in the present Case the per nomen is well enough because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton whereof the locus in quo being Twenty Acres is parcel By reason whereof the Rent being granted out of every parcel of the Two hundred Acres it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton because the Twenty Acres are alledg'd to be parcel of all his Lands there being Two hundred Acres But in Chapman's Case It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen of which the Twenty Acres were to pass As for the second Case of Gay it was not possible that Lands granted as in possession should pass per nomen of Land that was in Reversion The second Exception is Because the Clause of Entry and Distress in the Deed upon Oyer of it differs from the Clause of Entry and Distress alledg'd in the Conizance For in the Conizance it is said It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due that is at any Feast that should first happen after the death of Anne or Thomas Greaves for the Rent did not commence before But by the Deed If the Rent were behind at any the Feasts the Entry and Distress is made to be lawful for it during the joynt Lives of Anne and Thomas Greaves the Uncle and during their joynt lives it could not be behind for it commenc'd not till one of them were dead Scarplus Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected So as the sense must run That if the Rent were behind it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves which was before it could be behind for it could not be behind till the death of one of them Therefore those words during their joynt natural lives being insensible ought to be rejected For words of known signification but so placed in the Context of a Deed that they make it repugnant and sensless are to be rejected equally with words of no known signification Judgment pro Defendent The Chief Justice delivered the Opinion of the Court. Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted That where any person hath or shall have any Child or Children under the Age of One and twenty years and not married at the time of his death It shall and may be lawful to and for the Father of such Child or Children whether born at the time of the decease of the Father or at that time in ventre sa mere or whether such Father be within the Age of One and twenty years or of full Age by his Deed executed in his life time or by his last Will and Testament in writing in the presence of two or more credible Witnesses to dispose of the custody and tuition of such Child or Children for and during such time as he or they shall respectively remain under the Age of One and twenty years or any lesser time to any person or persons in possession or remainder other than Popish Recusants And such disposition of the Custody of such Child or Children made since the Four and twentieth of February 1645. or hereafter to be made shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised as aforesaid shall and may maintain an Action of Ravishment of Ward or Trespass against any person or persons which shall wrongfully take away or detain such Child or Children for the Recovery of such Child or Children and shall and may recover Damages for the same in the said Action for the use and benefit of such Child or Children And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised shall and may take into his or their custody to the use of such Child or Children the profits of all Lands Tenements and Hereditaments of such Child or Children and also the custody tuition and management of the Goods Chattels and personal Estate of such Child or Children till their respective Age of One and twenty years or any lesser time according to such Disposition aforesaid and may bring such Action or Actions in relation thereto as by Law a Guardian in Common Soccage might do By the Will is devised in these words I do bequeath my son Thomas to my Brother Robert Towray of Rickhall to be his Tutor during his Minority Before this Act Tenant in Soccage of Age might have dispos'd his Land by Deed or last Will in trust for his Heir but not the Custody and Tuition of his Heir for the Law gave that to the next of Kinn to whom the Land could not descend But Tenant in Soccage under Age could not dispose the Custody of his Heir nor devise or demise his Land in trust for him in any manner Now by this Statute he may grant the Custody of his Heir but cannot devise or demise his Land in trust for him for any time directly for if he should the devise or demise were as before the Statute as I conceive which is most observable in this Case I say directly he cannot but by a mean and obliquely he may for nominating who shall have the Custody and for what time by a consequent the Land follows as an incident given by the Law to attend the custody not as an Interest devis'd or demis'd
ratione be tryed in the County next adjoyning whereof there is no Vestigium for the one or the other nor sorts it any way with the rule of the Law 2. This Ordinance of Parliament extended not to all Wales but only to the Lordships Marchers there nor any way comprehended the ancient Shires of Wales or Body of the Principality to which the Ordinance of the Statute of Rutland only extended For Lordships Marchers were out of the Shires as appears by Statute 27 H. 8. 3. It appears by the Case that Gower was not within any County at that time Another Case to the same purpose is in Fitz herbert Fitz. Jurisdiction 13 E. 3. pl. 23. Title Jurisdiction and not in any other Reports 13 E. 3. in a Writ of Cosenage the Demand was of Castle of K. and Commot of J. the Defendant pleaded the Castle and Commot were in Wales where the King 's Writ runs not and it was said that the word was not intelligible in the Courts of England and Judgment was prayed if the Court would take Conizance To give the Court Jurisdiction it was urged pressingly 1. That they had given the Court Jurisdiction by alledging the Court knew not what was meant by Commot which the Court was to determine whether it did or not Therefore Jurisdiction was admitted therein 2. Parning pressed they had demanded the view which gave the Court Jurisdiction 3. For that the Original was directed to the Sheriff of Hereford who by his Retorn had testified the Summons and the Tenant had appeared and so affirmed the Summons 4. For that the view was had Notwithstanding all which to give the Court Jurisdiction it was said to Parning He must say more before the Court would have Jurisdiction Which evidently proves that the Court had no Jurisdiction generally of Land in Wales as I observed from the former Case And no act of the party gives Jurisdiction to the Court by elapsing his time to plead to the Jurisdiction if it appear by the Record the Court hath no Jurisdiction as in this Case it did Then Woodstock said Though the Castle and Commot were in Wales the Court ought not to be outed of Jurisdiction for by Commot a great Signiory was demanded consisting of Lands Rents and Services and that the Castle and Commot were held in Capite of the King as of his Crown and said those so held were to be impleaded here and not elsewhere 7 H. 6. f. 36. b. so is 7 H. 6. f. 36. b. And said the King by his Charter had granted the Castle and Commot to the Tenant in tayl and thereupon pray'd aid of the King and it was granted hereupon But before this was shew'd and that it was a great Signiory and held of the King in Capite by which it was no part of the Principality nor held under it the Court would own no Jurisdiction but when that appeared the Case was the same with the former in 18 E. 2. and the Defendant had no remedy but in the Kings Courts This Case was cited by Sir Edward Coke in the Case before cited 11 Jacobi concerning the Sheriff of Radnor but the difference not observ'd of its being a Lordship in Wales held immediately of the King in Capite nor that the Court owned no Jurisdictions generally concerning Lands in Wales by the Summons and view of the next adjoyning Sheriff William de Cosington and Elizabeth his Wife brought a Writ of Dower of the third part of the Land in Gower against the Earl of Warwick as Tenant and the Writ was Quod reddat ei rationabilem dotem de libero tenemento quod fuit Jo. Moubray quondam viri sui in terra de Gowre in Wallia It appears not in the Case to what Sheriff the Writ was directed though this Case be in the Book at large but it appears that those of the Chancery and the Judges of the Kings Bench had been consulted with concerning the Writ in bringing it for Dower in terra de Gower in Wallia therefore it must issue from the High Court of Chancery and must be directed consequently to the Sheriff of Glocester as the Assise was in 18 E. 2. Br. abridging this Case saith The Action was against the Earl of Warwick as being Lord of the intire Signiory of Gower and then he was to be impleaded by Writ out of the Chancery here equally and upon the same reason for a third part of the Signiory as for the whole according to the Case of 18 E. 2. first cited for the Lord could no more make a Precipe to summon himself to his own Minister or to make Execution against himself for a third part of the Royalty than for the whole And therefore the Ordinance of Parliament then mentioned equally extended to this Case as to that of 18 E. 2. This is not strange that Acts of Parliament are lost sometimes Note the Act of 3 E. 1. by which old Customes were granted not extant but clear proofs of it remain These three last Cases therefore wherein the Tenants were impleaded in the Courts here for Land in Wales and Summons and Execution made by the Sheriff of the next adjoyning County are well warranted by an Act of Parliament not extant being for either the Lordships Marchers themselves or some part of them and against the Lord himself as that Case of 18 E. 2. expresly resolves All these were real Actions The first an Assise of Novel Disseisin the second a Writ of Cosenage the third a Writ of Dower The like Case is cited 19 H. 6. 19 H. 6. f. 12. A. That when the Mannor of Abergavenny was demanded the Writ was directed to the Sheriff of Hereford as Newton urged for this was a Lordship Marcher and held of the King in Capite as appears by Moore 's Reports in Cornwals Case in that the Barony of Abergavenny was held by the Lord Hastings of the King in Capite to defend it at his charge ad utilitatem Domini Regis Exactly agreeing with this Doctrine is the Book of 21 H. 7. f. 33. b. if a Signiory in Wales be to be tryed 21 H. 7. f. 33. B. it shall be tryed here by the Course of the Common Law but if Lands be held of a Signiory in Wales it shall be tryed within the Mannor and not elsewhere As for that expression by the Course of the Common Law 19 H. 6. f. 12. A. it is also in the Book 19 H. 6. that Deeds and all other things alledged in Wales shall be tryed in the adjoyning Countries at the Common Law otherwise there would be a failer of Right And of this opinion seemed most of the Iustices arguendo obiter the Case before them not concerning Wales but the County Palatine of Lancaster Of Churches in Wales a Quare Impedit shall be brought in England yet the Land and other things in Wales 30 H. 6. f. 6. B. shall be determined before the Stewards of
presentation makes no Usurpation when the Kings Presentation gains a Title by Usurpation 14 2. If a man in time of Vacancy present his Clerk who is admitted instituted and inducted he gains a good Title to present by Usurpation when the Church becomes next void 10 11 12 15 57 Wager of Law 1. A Man can never wage his Law for a Demand which is uncertain because he cannot swear he paid that which consisted of Damages only 101 2. Debt lies against an Executor for Attorneys Fees because there the Testator could not wage his Law 99 Wales See Title Statute 7 9 15. 1. Wales after the Conquest of it by Edward the First was annexed to England Jure Proprietatis 300 2. It received Laws from England as Ireland did and differs nothing from it but only in Irelands having a Parliament 300 301 3. Wales before the Conquest of it by England was governed by its own Laws 399 4. When Wales came to be of the Dominion of the Crown of England and what Laws they were then obliged to 399 400 402 415 5. Process in Wales differs from Process in England 400 412 6. That the Summons of Inhabitants in Wales and the Tryal of an Issue arising there should be by the Sheriff of the next adjoyning County was first ordained by Parliament and not at the Common Law 404 408 412 7. This Ordinance extended not to all Wales but only to the Lordships Marchers there neither did it extend to the Body of the Principal ty of Wales to which the Statute of Rutland only extended 405 408 411 412 8. Where the Land is part of the Principality of Wales it was subject to the Laws of Wales but when it is held of the King then there was no remedy but in the Kings Courts 405 406 408 9. If a Signiory in Wales was to be tryed it should be tryed by the Common Law but if Lands were held of the Signiory it should be tryed within the Mannor 407 10. All Quare Impedits for disturbance to Churches in Wales within the Lordships Marchers only were tryable in England and not in Wales 409 410 11. The Bishops of Wales were originally of the Foundation of the Prince of Wales 411 12. By the 26 H. 8. Power is given to Indict Outlaw and Proceed against Traytors and Felons c. within the Lordships Marchers of Wales and to be indicted in the adjoyning County but not against Offenders within the Principality 413 13. What alterations have since been made by the 27 H. 8. and 1 E. 6. cap. 10. 414 415 416 c. 14. The uniting and incorporating of Wales to England doth not thereby make the Laws used in England extend to Wales without more express words 415 15. Since the Act of 27 Hen. 8. the Courts at Westminster have less Jurisdiction in Wales than they had for as they before had Jurisdiction in all the Lordships Marchers they now have only in these four Counties therein particularly mentioned but none over the rest 417 16. No Fieri Facias Capias ad satisfaciendum or other Judicial Process did run into Wales but only an Outlawry and an Extent had gone 397 412 414 17. A Judgment given in Wales shall not be executed in England 398 18. The Lordships Marchers did lye betwixt the Shires of England and the Shires of Wales 415 19. To what Counties and Places the Lordships Marchers in Wales are now annext by the 27 H. 8. 415 Warrantia Chartae 1. No man shall have a Warrantia Chartae who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 Warranty See Title Statutes 5 6. 1. Dedi Concessi is a warranty in Law 126 2. Where there is a warranty in Law and an express warranty it is at the election of the party to take advantage of either 126 127 3. At the Common Law the distinction of a lineal and collateral warranty was useless and unknown and as to any effect of Law there was no difference between a lineal and collateral warranty but the warranty of the Ancestor descending upon the Heir be it the one or the other did equally bind 366 4. The warranty of Tenant Tayl descending upon the Donor or his Heirs is no barr in a Formedon in Reverter brought by them although it be a collateral warranty 364 365 368 5. The warranty of Tenant by the Courtesie barrs not the Heir if the Father leave not Assets to descend in Recompence 365 6. The lineal warranty of Tenant in Tayl shall not bind the right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 366 7. The Statute de Donis restrains not the warranty of Tenant in Tayl from barring him in the Remainder in Tayl by his warranty descending upon him 367 As to him in Remainder in Tayl the warranty of the Donee is collateral and binds as at the Common Law 367 377 379 381 8. No Issue in Tayl is defended from the warranty of the Donee or Tenant in Tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such only as had been Fee-simples conditional 369 9. The Statute de Donis preserves the Estate Tayl for the Issue or the Reversion for the Donor against the alienations of the Donee or Tenant in Tayl with or without warranty but not absolutely against all warranties that might barr them for it hath not restrained the collateral warranty of any other Ancestor 369 370 377 379 381 10. An alienation with warranty which shall hinder the Land from reverting to the Donor or his Heirs is expresly forbidden by the Statute de Donis 374 11. No mans warranty doth bind directly à priori because it is lineal or collateral for no Statute restrains any warranty under those terms from binding nor no Law institutes any warranty in those terms but those are restraints by consequent only from the restraints of warranties made by Statute 375 12 The Statute de Donis makes no difference between a Donor stranger and a Donor privy in blood to the Donee but the warranties are the same in both Cases 378 13. The Tenant in possession may Rebutt the Demandant without shewing how he came to the possession which he then hath when impleaded be it by disseisin or any other tortious way but he must shew how the warranty extended to him 385 386 14. If a man will be warranted by a Rebutter he must make it appear how the warranty extends to him but he need not have the like estate in the Land upon a Rebutter as upon a Voucher 385 15. The Tenant in possession shall not rebut the Demandant by the warranty without he first make it appear that the warranty did extend to him as Heir or Assignee 385 386 387 388 16. Where a man is once entituled to the warranty whatsoever Estate he had when
is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
1 Car. 1. and that Sir Peter Temple entred and was seis'd for term of his life They find he had Issue of the Body of Anne his Wife Anne the now Defendant Daughter and Heir of the Bodies of the said Sir Peter and Anne his Wife and that Anne Wife of Sir Peter died 2. Sept. 3 Car. 1. 1. They find a Demise by Sir Peter Temple to Sir Thomas Gower and Hillyard of the Rectory of Thornbury 9. Maii 23 Car. 1. for 30 l. Rent 2. They find a Demise by him to them of a Messuage in Thornbury 9. March 23 Car. 1. of Woolheads Tenement for 16 l. 13 s. 4 d. Rent 3. They find a Demise to them 9. March 23 Car. 1. of Land in Thornbury held by Roger Rogers Rent 13 l. 6 s. 8 d. 4. They find a Demise 9. March 23 Car. 1. of Nelson's Tenement in Thornbury Rent 16 l. 13 s. 4 d. at Michaelmass and Lady-day 5. They find a Demise 13. March 23 Car. 1. of Lands in Shalston Eversham and Oldwick held formerly by William Hughes Rent 15 s. 4 d. These respective Leases were made for the term of 90 Years determinable upon the Lives of the Lady Baltinglass the Defendant Sir Richard Temple's and the Life of a younger Son of Sir Peter Temple as long as the Lessees should duly pay the Rents reserved and commit no waste according to the Limitation of the Proviso in 12 Jac. which is recited in the respective Leases 6. Then the Iury find quod predicti separales reditus super praedictis separalibus Indenturis Dimissionis reservat fuerint reservat reditus de super premissis praedictis 22. dii Junii Anno Jacobi Regis 12. supradict Et quod praedict separales reditus c. in forma praedict reservat ad Festum Sancti Michaelis Arch-angeli quod fuit 1653. debit non solut sive oblat suerint super idem Festum sed quod iidem reditus infra unum mensem prox post Festum praedictum praefat Annae Roper Defend solut fuerunt 7. They find a Demise to them of the Scite and Priory of Looffield 9. March 23 Car. 1. at the Rent of 100 l. payable equally on Lady-day and Michaelmass-day demised by Sir Arthur Throgmorton and Anne his Wife 20th of May 12 Eliz. 1570. to William Hewer for 21 years Rent 100 l. Lady-day and Michaelmass with some Exceptions for the like term of 90 years and upon like Limitations as in the former Leases The Iury find quod Tenementa praedicta cum pertinentiis in Looffield supranominat tempore dict Eliz. nuper Reginae Angl. fuerint dimissa ad redditum 100 l. pro termino 21. Annorum sed dimissio terminus 21 Annorum expirati fuerunt Et dicunt quod eisdem Juratoribus non constabat quod dicta Tenementa in Looffield praedict 22 die Junii 12 Jac. aut per spatium 20 Annorum tunc antea fuerint dimissa Et dicunt ulterius quod 50 l. pro dimidio unius Anni de praedictis Tenementis in Looffield ad Festum Sancti Michaelis Arch-angeli quod fuit Anno Dom. 1653. debit oblatae fuerint Et quod praedicta Anna Roper ante Festum Annunciationis prox sequent intravit They find that Gower and Hillyard claiming the said 5 Messuages 400 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture in Thornbury Shalston Evershaw Oldwick and Westbury As also the said Messuage and other the Premisses in Looffield and the Rectory of Thornbury before the supposed Trespass and Ejectment entred upon the Possession of the Lady Baltinglass and so possessed made a Lease to the Plaintiff by virtue of which he entred and was possessed until outed by the Defendant as by the Declaration But whither the Defendant be culpable they refer to the Court. Vpon this Verdict the Questions are two 1. The first Whither the Defendants entry into the six Tenements leased to Gower and Hillyard for not payment of the Rent reserv'd upon the day of payment were lawful or not And as to that the Court is of opinion that the Defendants Entry was lawful for that the Leases were not deriv'd out of the Estate of Sir Peter Temple who was but Tenant for life and had no Reversion in him but out of the Estate of Sir Arthur Throgmorton by Limitation of the Proviso in the Deed 12 Jac. so as the Leases were not Leases upon Condition to pay the Rent at the day to which any Demand or Re-entry was requisite for Non-payment but were Leases by Limitation and determined absolutely according to the Limitation Littl. f. 235. a. For this Littleton is express that the words quamdiu dum and dummodo are words of Limitation As if a Lease be made to a Woman dum sola fuerit or dum casta vixerit or dummodo solverit talem reditum or quamdiu solverit talem reditum so are many other words there mentioned And if there be not a performance according to the Limitation it determines the Lease But it is otherwise where a Rent is reserv'd upon Condition for there is a Contract between the Lessor and Lessee and the Law evens the Agreement between them as is most agreeable to Reason and the supposition of their Intention But in the present case Sir Peter Temple had no interest in him out of which such Leases could be deriv'd but had a power only to make them by virtue of the Proviso in Sir Arthur Throgmortons Deed and the Lessees must be subject to such Limitations as are thereby made It was agreed by the Council of the Plaintiff That it was not a Condition for payment of the Rent nor could it be but they would call it a Caution A Condition to determine a Lease or a Limitation is a Caution and a material one but such a Caution as hath no more effect than if it were not at all is a thing insignificant in Law and therefore must not supplant that which in proper terms is a Limitation and hath an effect 2. The next Question is upon the Lease of Looffield which arises upon the words of the Proviso That it should be lawful for Sir Peter Temple to demise all or any the Premisses which at any time heretofore have been usually letten or demised for the term of 21 years or under reserving the Rent thereupon now yielded or paid And the Iury finding the Lands in Looffield to have been demised 12th of the Queen for 21 years for 100 l. Rent and that that term was expired and not finding them demis'd by the space of twenty years before at the time of the Indenture 12 Jac. Whither the Lease by Sir Peter Temple of them be warranted by the Proviso there being reserv'd the Rent reserv'd by the Lease in 12. Eliz. viz. 100. l. The Court is of opinion that the Lease of Looffield is not warranted by that Proviso for these Reasons 1. It is clear Sir Arthur Throgmorton intended to exclude some Lands from being demisable by that
Land cum pertinentiis in Sandridge aforesaid That long before the Caption Ralph Rowlett Knight was seis'd of the Mannor of Sandridge in the said County whereof the said place is and was parcel time out of mind Grant of the Rent June 26 8 Eliz. That the said Sir Ralph 26. June 8 Eliz. at Sandridge aforesaid by his Deed in writing under his Seal produc'd in Court thereby granted and confirmed to Henry Goodyeare then Esquire and after Knight and to the Heirs of his Body a yearly Rent of 30 l. out of all his said Mannor and other his Lands in Sandridge aforesaid payable at the Feasts of St. Michael the Arch-angel and the Annunciation The first payment at such of the said Feasts which should happen after the expiration surrender or forfeiture to be made after Sir Ralph Rowlett's death of certain terms of years of parcel of the Premisses made to one William Sherwood and Ralph Dean severally With Clause of Entry and Distress to Henry and the Heirs of his Body if the Rent were unpaid And that Sir Ralph gave the said Henry seisin of the said Rent by payment of a peny as appears by the Deed. Rowletts death 1 Sept. 33 Eliz. Sir Ralph Rowlett after the First day of September 33 Eliz at Sandridge aforesaid died That after the Second day of September Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired whereby the said Henry became seis'd of the said Rent in tail That Henry had Issue the said Elizabeth and Mary Hen. Good-year died 1. Octob. 33 Eliz. and one Anne his Daughters and Coheirs and died 1. Octob. 33 Eliz so seis'd That the said Coheirs being seis'd of the said Rent Mary married Samuel 1. May 1634. and Anne the same time married John Kingston to them and the Heirs of their Bodies the First of May 1634. Mary married the said Samuel Hildersham and Anne married one John Kingston whereby the said Elizabeth and Samuel and Mary in right of the said Mary and John and Anne in right of Anne were seis'd of the Rent December 25. 1635. Anne had Issue by John her Husband Anne had Issue Frances and Theodofia she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia and John her Husband and Anne died 1. Januarii 1635. That thereby Elizabeth Samuel and Mary in right of Mary Frances and Theodosia became seis'd of the Rent April the 10th 1647. Frances married the said Biddulph and Theodosia the said Humphrey Holden whereby Elizabeth Samuel and Mary in right of Mary Biddulph and Frances in right of Frances and Holden and Theodosia in right of Theodosia became seis'd of the Rent And for 120 l. for four years arrear after the death of John and Anne ending at the Feast of St. Michael 1655. being unpaid at the time and place c. the Defendant as their Bailiff entred and distrained the said Cows The Plaintiff demands Oyer of the Deed of Grant and hath it in these words c. And then the Plaintiff replies that before the time of the Caption that is A die Paschae in quindecim dies a Fine was levied in the Court of Common Pleas in the One and twentieth of the King before the Iustices there c. between Richard Harrison Esquire and the Avowants of the said Rent with Warranty to the said Richard and his Heirs And that this Fine was to the use of the Conizors and their Heirs and demands Iudgment The Defendant thereupon demurrs WHERE the Law is known and clear though it be unequitable and inconvenient the Iudges must determine as the Law is without regarding the unequitableness or inconveniency Those defects if they happen in the Law can only be remedied by Parliament therefore we find many Statutes repealed and Laws abrogated by Parliament as inconvenient which before such repeal or abrogation were in the Courts of Law to be strictly observed But where the Law is doubtful and not clear the Iudges ought to interpret the Law to be as is most consonant to equity and least inconvenient And for this reason Littleton in many of his Cases resolves the Law not to be that way which is inconvenient which Sir Edward-Cook in his Comment upon him often observes and cites the places Sect. 87. In the present Case there are several Coparceners whereof some have Husbands seis'd of a Rent Charge in tail the Rent is behind and they all levy a Fine of the Rent to the use of them and their Heirs If after the Fine levied they are barr'd from distraining for the Rent arrear before the Fine is the Question It being agreed they can have no other remedy because the Rent is in the reality and still continuing If they cannot distrain the Consequents are 1. That there is a manifest duty to them of a Rent for which the Law gives no remedy which makes in such case the having of right to a thing and having none not to differ for where there is no right no relief by Law can be expected and here where there is right the relief is as little which is as great an absurdity as is possible 2. It was neither the Intention of the Conizors to remit this Arrear of Rent to the Tenant nor the Tenants to expect it nor could the Conizors remit it but by their words or intentions or both nor did they do it by either 3. It is both equitable in it self and of publick convenience that the Law should assist men to recover their due when detain'd from them 4. Men in time of Contagion of Dearth of War may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives or others and consequently not seasonably distrain them and it would be a general inconvenience in such case to lose all their Rents in Arrear So as both in Equity and Conveniency the Law should be with the Avowants In the next place we must examine Whether the Avowants that is the Conizors of the Fine be clearly barr'd by Law to distrain for the Rent arreare before the Fine For it must be agreed they have no other remedy by the Common Law or otherwise to which purpose I shall open some Premises that my Conclusion may be better apprehended 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained that the Tenant may know to whom the Rent or other Duty ought to be paid and likewise know a lawful distress from a tortious taking of his Cattel 2. This privity is created by Attornment either in Fact or in Law by the Tenant to the Lord to the Reversioner to the Grantee of a Remainder or of a Rent by Deed or by Fine Litt. Sect. 579. For this Sir Edward Cooe upon the 579th Section of Littleton and in many other of his Sections The Conizee of a Fine before Attornment cannot distrain because an
Grantee of the Rent-charge is now dispenc'd with which was not before the Statute For if that were now requisite the Conizors could not only not distrain for the Rent due before the Fine but not for the Rent due since the Fine nor doth the Statute help the matter because the Cestuy que use is in possession of the Rent by the Statute and therefore needs no Attornment for that is true when the Conizee hath a perfect possession but without Attornment the Conizee had no perfect possession impowring him to distrain and therefore the Statute can bring no perfect possession to the uses to that end And so Sir Edward Coke agrees the Law Cok. Litt. f. 307. Sect. 55â— that since Littleton wrote If the Conizee of a Fine before Attornment by Deed indented and inroll'd bargains and sells a Seigniory to another the Bargainee shall not distrain because the Conizee that is the Bargainor could not for want of Attornment But on the other side a man perfectly seis'd of a Seigniory Rent Reversion or Remainder bargains and sells by Deed indented and inroll'd according to the Statute the Bargainee shall distrain without Attornment by vertue of the Statute And if a Fine be now levied to a man to the use of a third person the third person shall distrain without any Attornment made not only to himself by reason of the Statute but to the Conizee by the Resolution in Sir Moyle Finch his Case for otherwise the Fine were to little purpose Which Case though it make an Attornment not necessary where it is impossible to be had that the Conveyance might not be useless in effect and an intended right to be de novo introduc'd altogether hindred Shall it therefore destroy an old Attornment which cannot but be had and is still in being for no other use or end but to deprive the Conizors of a Rent and former Right justly due to introduce a general inconvenience upon all that have granted Leases for lives and are occasioned to settle their Estates And there is great difference between a Fine levied of a Reversion or of a Rent-charge to the use of a third person and to the use of the Conizors for a third person can never distrain unless either an Attornment were to the Conizee which is impossible because no possession continues in him so as to receive an Attornment or unless the construction of the Statute according to Sir Moyle Finch his Case to make the Conveyance of effect to Cestuy que use made the Attornment because it could not be had not necessary which is a great strain and violence upon the true reason of Law That a Conveyance which in reason could not be good without Attornment should be sufficient because it could not have an Attornment which was necessary to make it sufficient And this practice hath been frequent since the Statute of Uses Sir Will. Pelham's Case as in making a Recovery against his nature to be a forfeiture because taken as a Common Conveyance To make Vses declared by Indenture between the parties made a year after the Recovery to be the Vses of the Recovery Downan's Case 9. Rep. with such Limitations as are mentioned in Downan's Case the 9. Rep. L. Cromwell's Case 2. Rep. f. 72. b. To make a Rent arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Estate of the Recoveror and his possession which is a principal point in Cromwell's Case and resolv'd because by the intention of the parties the Cestuy que use was to pay the Rent 14 Eliz. Harwell versus Lucas Moore 's Rep. f. 99. a. n. 243. Bracebridge's Case is eminent to this purpose Tho. Bracebridge seis'd of the Mannor of Kingbury in Com. Warwick made a Lease for One and twenty years of Birchin Close parcel del Mannor to Moore and another Lease of the same Close for Six and twenty years to commence at the end of the first Lease to one Curteis rendring Rent and after made a Feoffment of the Mannor and all other his Lands to the use of the Feoffees and their Heirs and Assigns upon Condition that if they paid not 10000 l. within fifteen daies to the said Tho. Bracebridge or his Assigns they should stand seiz'd to the use of Bracebridge and Joyce his Wife the Remainder to Thomas their second Son in tail with divers Remainders over The Remainder to the Right Heirs of Thomas the Father Livery was made of the Land in possession and not of Birchin Close and no Attornment the Feoffees paid not 10000 l. whereby Bracebridge the Father became seis'd and the first Tenant for years attorn'd to him Adjudg'd 1. That by Livery of the Mannor Birchin Close did not pass to the Feoffees without Attornment 2. That the Attornment of the first Lessee was sufficient Moore f. 99. n. 243. 3. Though the use limited to the Feoffees and their Heirs was determined before the Attornment yet the Attornment was good to the contingent use upon not paying the mony In the Resolution of this Case Wild Archer and Tyrrell Justices were for the Plaintiff and Vaughan Chief Justice for the Defendant Trin. 21. Car. II. C. B. Rot. 1714. The King Plaintiff in a Quare Impedit per Galfridum Palmer Atturnatum suum Generalem Robert Bishop of Worcester Thomas Jervis Esquire and John Hunckley Clerk Defendants THE King counts That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield with the Chappel of Coston in gross in Fee in Jure Coronae and presented one James White her Clerk who was admitted instituted and inducted That from the said Queen the Advowson of the said Church with the said Chappel descended to King James and from him to King Charles the First and from him to his Majesty that now is who being seis'd thereof the said Church with the Chappel became void by the death of the said James White and therefore it belongs of right to him to present and the Defendants disturbe him to his damage of 200 l. which the said Attorney is ready to verifie for the King The Defendants plead severally and first the Bishop that he claims nothing in the said Church and the Advowson but as Ordinary The Defendant Jervis saith That long before the said Presentation suppos'd to be made by the late Queen one Richard Jervis Esquire was seis'd of the Mannor of Norfield with the Appurtenances in Com. praedicto to which the Advowson Ecclesiae praedictae tunc pertinuit adhuc pertinet in his Demesne as of Fee and so seis'd the said Church became void by the death of one Henry Squire then last Incumbent of the said Church and so continued for two years whereby the said late Queen praetextu lapsus temporis in default of the Patron Ordinary and Metropolitan Ecclesiae praedictae pro tempore existentis dictae nuper Reginae devolutae by her Prerogative afterward that is tertio die Decembris
in Indentura praedict mentionat shall be as is contended an absolute and positive finding of a former Demise made to whose expiration the Indenture 1 Mariae referrs it must be either the demise 29 H. 8. or that of 1 E. 6. for no other are mentioned in the Indenture 1 Mar. and it can be but a finding of one of them for the words à fine prioris dimissionis in Indentur praedict mentionat cannot possibly extend to both Be it then understood the Demise 1 E. 6. for in that the Mannor is clearly named the Consequence must be That the Deed of 1 Mar. which is an intire lease as well of the Mannor as of the Vicaridge Parsonage and of other things under several Rents for Ninety years commencing as to the Mannor from the Expiration of the suppos'd Demise 1 E. 6. shall be a good lease for Ninety years thence forwards because that recited Demise is also suppos'd to be positively found by the Jury by those words of their Verdict But as to the Vicaridge Parsonage and other things and the Rents thereupon reserv'd which are demis'd by the Indenture of 1 Mar. for Ninety years to commence from the Expiration of the other recited Demise suppos'd in 29 H. 8. the lease of 1 Mar. must commence immediately from the Date because the Jury have not found that recited Demise positively but only as recited and therefore not found it to be a real Demise and consequently the lease of 1 Mariae as to those particulars referring the term to commence from the Expiration of a term granted 29 H. 8. not in esse because not found must begin from 1. Mar. which doubtless the Jury never intended But now for Authority I will resume the Case formerly cited of 3 E. 6. in the Lord Brook If A. makes a Lease to B. Habendum for Forty years from the expiration of a former Lease made of the Premises to J. N. and this be found occasionally by special Verdict as our Case is but the Jury in no other manner find any Lease to be made to J. N. then as mentioned in the Lease to B. By the Resolution of that Book the Lease to B for Forty years shall begin presently And who will say in this Case That because the Jury find a Lease made to B. for Forty years Habendum from the Expiration of a former Lease made to J. N. that therefore they find a Lease made formerly to J. N. when in truth J. N. had no such Lease for they only find what the Habendum in the Lease to B. is which makes a false mention of a former Lease to J. N. but had no Evidence to find a Lease which was not Exactly parallel to this is our present Case the Jury find the Bishop of Oxford by a Lease dated the Fourteenth of October 1 Mariae demised to Groker the Mannor of Hooknorton Habendum to him and his Assigns for Ninety years from the Expiration of a former Demise mentioned in the said Indenture of Lease 1 Mariae But do not affirm or find explicitly or implicitly any former demise made when they only find summarily the Habendum of the Lease 1 Mariae which mentions such a former Demise Cr. 10 Car. 1. f. 397. Another Case I shall make use of is the Case of Miller and Jones versus Manwaring in an Ejectment brought in Chester upon the Demise of Sir Randolph Crew The Jury in a Special Verdict found That John Earl of Oxford and Elizabeth his Wife were seis'd in Fee in Right of Elizabeth of the Mannor of Blacon whereof the Land in question was parcel and had Issue John the said John Earl of Oxford by Indenture dated the Tenth of February 27 H. 8. demis'd the Mannor to Anne Seaton for Four and Thirty years Elizabeth died 29 H. 8. And the said Earl of Oxford died March 31. H. 8. Afterwards John the Son then Earl of Oxford the Thirtieth of July 35 H. 8. by Indenture reciting the Demise to Anne Seaton to be dated the Tenth of February 28 H. 8. demis'd the said Mannor to Robert Rochester Habendum after the End Surrender or Forfeiture of the said Lease to Anne Seaton for Thirty years It was adjudged first in Chester and after upon Error brought in the Kings Bench It was resolv'd by all the Iudges who affirmed unanimously the first Iudgment That the Lease to Rochester began presently at the time of the Sealing for several Reasons 1. Which is directly to our purpose because there was no such Lease made to Anne Seaton having such beginning and ending as was recited in Rochester's lease 2. Because the lease made by John first Earl of Oxford was determined by his death Three years before Rochester's lease and consequently no lease in esse when the lease was made to Rochester which Reasons are in effect the same viz. That a lease made to commence from the end of any lease suppos'd to be in esse which indeed is not the lease shall commence presently From this Case these Conclusions are with clearness deducible 1. That if a lease be found specially by a Jury in which one or more other leases are recited the finding of such lease is not a finding of any the recited leases Therefore the finding of the lease made to Rochester was not a finding of the lease therein recited to be made to Anne Seaton in any respect 2. The second thing clearly deducible out of this Case is That although the Jury by their Special Verdict did find that John the Son Earl of Oxford did by his Indenture demise to Rochester for Thirty years the Mannor of Blacon Habendum from the End Surrender or Forfeiture of a former lease thereof made to Anne Seaton dated the Tenth of February 28 H. 8. yet this was not a finding of any such lease made to Anne Seaton but only a finding of the Habendum as it was in the lease made to Rochester which mentioned such a lease to be made to Anne Seaton So in our present Case the Jury finding that the Bishop of Oxford 1 Mariae did demise the Mannor of Hooknorton to John Croker Habendum for Ninety years from the Expiration of a former Demise mentioned in the Indenture of 1 Mar. is not a finding of any such former Demise to be made but a finding that in the Indenture 1 Mariae it is suggested there was such a former Demise and no more And if any man shall object That in Rochester's Case the Reason why no such lease is found to be made to Anne Seaton in 28 H. 8. to be because it is found that the lease made to Anne Seaton was in 27 H. 8. that is not to the purpose because the Jury might find and truly that a lease was made to her Dated the Tenth of February 27 H. 8. but that was no hindrance but that another lease was made to her in 28 H. 8. as is mentioned in Rochester's lease which had been a Surrender in Law
14 Jac. B.R. Robson and Francis Case which avoids the Exception Now as to the Second Question Admitting the Iudgment in London as pleaded be no sufficient barr of the Plaintiffs Action or if it be that the Recognizance as pleaded is no sufficient barr For if those will barr there is no further Question If then Iudgment ought to be for the Plaintiff upon the Defendants Plea to the whole matter And I conceive it ought not I shall agree That if the Defendant plead several Judgments against the Intestate or himself as Administrator and Statutes entred into by the Intestate and concludes his Plea That he hath not nor at any time had assets in his hand of the Intestates Estate praeterquam bona cattalla sufficient to satisfie those Judgments and Statutes and averrs they are unsatisfied and which assets are chargeable with the said Judgments and Statutes that this is a good Plea in barr of the Plaintiffs Action and so it is admitted to be in Meriel Treshams Case Meriel Treshams Case 9. Rep. and the Plaintiff must reply That he hath assets ultra what will satisfie those Judgments and Statutes as is there agreed But if the Plaintiff reply That any one of those Judgments was satisfied by the Intestate in his life time saying nothing to any of the rest And the Defendant demurr upon this Replication the Plaintiff must have Iudgment for the Plea was false and the falshood detrimental to the Plaintiff and beneficial to the Defendant for having pleaded he had no more assets than would satisfie those Iudgments one of them being satisfied before he hath confessed there is more assets than will satisfie the other Iudgments by as much as the Iudgment already satisfied amounts unto which would turn to his gain and the Plaintiffs loss if his demurrer were good Turners Case 8. Rep. But to plead That he hath not bona cattalla praeterquam bona quae non attingunt to satisfie the said Judgments and Statutes is not good for the incertainty for if the Judgments and Statutes amount to 500 l. 20 l. are bona quae non attingunt to satisfie them so is 40 l. so is 100 l. so is 200 l. and every Sum less than will satisfie so as by such Plea there is no certain Issue for the Iury to enquire nor no certain Sum confess'd towards the payment of any Debt as is well resolv'd in Turners Case So if a man pleads he hath not assets ultra what will satisfie those Iudgments the Plea is bad for the same reason for 20 l. is not assets ultra that will satisfie them nor 40. nor 100. nor 200. nor doth that manner of pleading confess he hath assets enough to satisfie As to say I have not in my pocket above 40 l. is not to say I have in my pocket 40 l. But in this Case the Defendant hath pleaded payment of several Bonds Bills and Judgments and pleads one Recognizance of 2000 l. and one Judgment of 7000 l. wholly unsatisfied and concludes his Plea with plene administravit And that he had not die impetrationis brevis nec unquam postea aliqua bona seu cattalla of the Intestates in manibus suis administranda praeterquam bona catalla ad valentiam separalium denariorum summarum per ipsum sic ut praesertur solutarum in discharge of the said several Judgments Bonds and Bills Et praeterquam alia bona catalla ad valentiam decem solidorum quae executioni recognitionis praedict judicii praedict per praefat Car. Cornwallis recuperat onerabilia existunt Now upon this Plea if Allington's Iudgment of 2670 l. or the Statute of 2000 l. or both be avoided yet the Plaintiff hath no right to be paid until the Iudgment of 7000 l. be so satisfied and that some assets remain after the satisfaction of it in the Administrators hands for before the Plaintiff hath no wrong nor the Administrator doth none nor hath any benefit by not satisfying the Plaintiff That spungy Reason that the Defendants Plea is all intire and therefore if any part be false as either in that of Allington's Iudgment or the Recognizance the Plea is bad is not sense for if the falshood be neither hurtful to the Plaintiff nor beneficial to the Defendant why should the Plaintiff have what he ought not or the Defendant pay what he ought not Suppose the Defendant pleaded a Iudgment obtain'd against the Intestate or himself and that the Intestate or himself were married at the time of the Iudgment obtain'd which in truth was false for that the one or the other was unmarried at that time his Plea being otherwise good Should this falsness cause the Plaintiff to recover surely no for the falsness is not material nor any way hurtful to the Plaintiff Besides the usual pleading as appears both by Turners and Treshams Case is that the Plaintiff must avoid all payments pleaded in barr until some assets appear in the Administrators hands remaining and then he is to have Iudgment Much noise hath been about this Case and without Reason as I suppose though there were no precedent Iudgment in the point but there is a Judgment per Curiam An Action of Debt was brought against Executors 9 E. 4. f. 12. b. who pleaded a former Recovery against them of 200 l. and Execution issued and pleaded likewise another Recovery against them of 100 l. and travers'd that they had no assets but to satisfie that Execution of 200 l. the Plea was adjudged good by the Court and that the Plaintiff must reply They had assets in their hands ultra the said 200 l. and ultra the said 100 l. for before the 100 l. were also satisfied the Plaintiff was not intitled to his Debt as the Book is Hill 18 19 Car. II. C. B. Thomas Price is Plaintiff against Richard Braham Elizabeth White Elianor Wakeman and Richard Hill Defendants In an Action of Trespass and Ejectment THE Plaintiff declares That one Henry Alderidge the First of November 18 Car. 2. at the Parish of St. Margarets Westminster demis'd to the Plaintiff and his Assigns an Acre of Land with the Appurtenances in the Parish of St. Margarets aforesaid Habendum from the Thirtieth of October then last past for the term of Five years next ensuing by virtue whereof he entred and was possessed untill the Defendants afterwards the same day entred upon him and did Eject him to his damage of 20 l. To this the Defendants pleaded That they are not Culpable Special Verdict is found By which it is found That the Defendants are not Culpable of Entry and Ejectment in the said Acre excepting a piece thereof containing One hundred and Eighty Foot thereof in length and Eight and twenty Foot in breadth And as to that piece they find that the same time out of mind was a Pool until within Twenty years last past during which Twenty years it became fill'd with Mudd They find That before
That Hugh Ivy Clerk the Tenth of May 22 Car. 2. at Wringlington demis'd to the said William One Messuage Twenty Acres of Land Twenty Acres of Meadow Twenty Acres of Pasture with the Appurtenances in Wringlington And also the Rectory and Parish Church of Wringlington Habendum to the said William and his Assigns from the Fifth day of May aforesaid for the term of Five years next ensuing By virtue whereof he entred into the said Tenements and Rectory and was possess'd until the Defendant the said Tenth day of May in the said year entred upon him and Ejected him to his Damage of Forty pounds The Defendant by words of course pleads he is not Culpable and Issue is joyn'd and the Verdict was taken by Default of the Defendant and the Jury find specially Upon the Special Verdict the Case appears to be this John Higden the Defendant was lawfully presented admitted instituted and inducted into the Rectory of Wringlington in the County of Somerset and Dioces of Bath and Wells in February 1664. being a Benefice with Cure of Souls and of clear yearly value of Fifty pounds per Annum and in the King's Books of no more than Five pounds yearly and that the Premisses demis'd were time out of mind and yet are parcel of the said Rectory That the said John Higden being lawful Incumbent of the said Church and Rectory of Wringlington the One and thirtieth of March 1669. was lawfully presented admitted instituted and inducted into the Rectory of Elme in the said County and Dioces being a Benefice with Cure of Souls also of clear yearly value ultra reprisas of Forty pounds per Annum and of the value of Ten pounds per Annum in the King's Books and subscribed the Articles of Religion according to the Act of the Thirteenth of the Queen 13 El. cap. 12. and was lawful Incumbent of the said Rectory of Elme but after did not read the Articles of Religion within two Months after his Induction in the Church of Elme according to the Act of 13 Eliz. Primo Maii 1669. Hugh Ivy Lessor of the Plaintiff was lawfully presented admitted instituted and inducted into the Rectory of Wringlington as suppos'd void and performed all things requisite for a lawful Incumbent of the said Rectory to perform both by subscribing and reading the Articles of Religion according to the Statute of 13 Eliz. And that he entred into the said Rectory and Premisses and made the Lease to the Plaintiff as in the Declaration That the said Higden the Defendant did enter upon the Plaintiff the said Tenth of May 1669. as by Declaration The Questions spoken to at the Barr in this Case have been two 1. Whether the Rectory of Wringlington being a Benefice with Cure and of clear yearly value of Fifty pounds and but of Five pounds in the King's Books shall be estimated according to Fifty pounds per Annum to make an Avoidance within the Statute of 21 H. 8. by the Incumbents accepting another Benefice with Cure But that is no Question within this Case for be it of value or under value the Case will be the same 2. Whether not reading the Articles according to the Statute of 13 Eliz. within two Months after induction into the Church of Elme shall exclude Higden not only from the Rectory of Elme but from the Rectory of Wringlington which is no point of this Case For whether he read or not read the Articles in the Church of Elme he is excluded from any right to the Church of Wringlington For this Case depends not at all upon any Interpretation of the Statute of 21 H. 8. of Pluralities but the Case is singly this Higden being actual and lawful Incumbent of Wringlington a Benefice with Cure be it under the value of Eight pounds yearly or of the value or more accepts another Benefice with Cure the Rectory of Elme and is admitted instituted and inducted lawfully to it be it of the value of Eight pounds or more or under The Patron of Wringlington within one month after admission institution and induction of Higden the Incumbent of Wringlington to the Rectory of Elme presents Hugh Ivy the Plaintiffs Lessor to Wringlington who is admitted instituted and inducted thereto the same day and after as by the Declaration enters and makes a Lease to the Plaintiff who is Ejected by the Defendant Higden The Doubt made by the Iury is if Higdens Entry be lawful It hath been resolv'd in Holland's Case and likewise in Digby's Case in the Fourth Report and often before since the Council of Lateran Anno Dom. 1215. Under Pope Innocent 3. Digby's Case Vid. Bon. C. pur Pluralities Anderson 1. part f. 200. b.p. 236 Vid. Moore 's Rep. a large Case to the same effect viz. Holland Digby's Case That if a man have a Benefice with Cure whatever the value be and is admitted and instituted into another Benefice with Cure of what value soever having no qualification or dispensation the first Benefice is ipso facto so void that the Patron may present another to it if he will But if the Patron will not present then if under the value no lapse shall incurr until deprivation of the first Benefice and notice but if of the value of Eight pounds or above the Patron at his peril must present within Six months by 21 H. 8. As to the Second Question Whether the Defendants not reading the Articles in the Church of Elme within two months after his induction there have excluded him not only from being Incumbent of Elme but also from Wringlington The Answer is First His not reading the Articles in the Church of Elme according to the Statute of 13. is neither any cause of nor doth contribute to his not being still Incumbent of Wringlington though as his Case is he hath no right to the Rectory of Wringlington since the admission institution and induction of Hugh Ivy the Plaintiffs Lessor into it as hath already appear'd Secondly As for the Rectory of Elme although it doth not appear that the Patron of Elme hath presented as he might have done or perhaps hath any other Clerk or that any other is admitted and instituted into that Church yet Mr. Higden can be no Incumbent there nor can sue for Tithes nor any other Duty because by not reading the Articles he stands depriv'd ipso facto For clearing this certain Clauses of the Act of 13 Eliz. are to be open'd The first is Every person after the end of this Session of Parliament to be admitted to a Benefice with Cure except that within two Months after his induction he publickly read the said Articles in the same Church whereof he shall have Cure in the time of Common-prayer there with Declaration of his unfeigned assent thereto c. shall be upon every such Default ipso facto immediately depriv'd There follows relative to this Clause Provided always That no Title to conferr or present by lapse shall accrue upon any deprivation
Proprietor of Goods chargeable with the Kings Duty is to pay or agree for the Duty with the Customers before the unshipping or landing of the Goods else they are forfeited Et sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wâ—eccum Maris grossus piscis c. Bract. l. 3. de Coron f. 120. c. 3. n. 4. Constables C. 5. Rep. f. 108. b. But wreck'd Goods are cast on Land and consequently landed having no Owner or Proprietor and therefore the Duty impossible to be paid or agreed for before their landing and when so landed and not before the Law makes the King or Lord of the Mannor their Proprietor but not fully neither until after a year and a day allowed to the first Owners to claim them if any such be by Stat. Westminster the First c. 4. Whence it follows That wrecks should be rather forfeited to the King which is not pretended as Goods landed the Kings Duty not paid or agreed for then seised until payment were according to the Act. 3. By this Clause Imported Goods intended to be charg'd by the Act are Goods to be brought from the parts beyond the Seas And therefore also wreck'd Goods are not to pay the Duty for the Native Commodities of the Kingdome Shipwrackt in their passage by Sea for Exportation may be Imported into the Realm as wreck yet never brought from the parts beyond the Sea as the Clause intends Goods charg'd should be 4. Goods cast into the Sea to unburthen a Ship in a storm and never intended for Merchandise are wreck when cast on shoar without any Shipwrack Bract. l. 2. f. 41. b. 5. Goods derelicted that is deserted by the Owners and cast into the Sea which happens upon various occasions as coming from infected Towns or Places and for many other respects will be wreck if cast on shoar afterwards though never purpos'd for Merchandise Bract. l. 2. f. 41. b. n. 3. Constables C. 5. Rep. Bract. l. 3. de Coron c. 3. n. 5 f. 120. a. more fully But Goods cast overboard to lighten a Ship are not by Bracton nor from him in Sir H. Constables Case esteemed Goods derelicted which is a Question not throughly examined Si autem ea mente ut nolit esse Dominus aliud erit per Bract. But by all the Clauses of the Act Goods Imported into the Realm as Merchandise only are to pay the Kings Subsidy therefore not wreck Imported and not as Merchandise 6. If a Law were made That Horses and Oxen brought to Market to be sold should pay the King a Poundage of their value and a Horse or Ox coming to Market happen to stray and be seis'd in a Mannor that had Strayes and there us'd according to the Law for Strayes until a year and a day were past without claim of the Owner whereby the property of the Horse or Ox was alter'd and the Lord of the Mannor had gain'd it will any man say Poundage should be paid for this Horse or Ox to the King for being brought to Market to be sold and the Case is the same or harder to pay Poundage for wreck It remains that some Objections be clear'd First It is said That by fraud of the Merchant or his Agents and the Lord of the Mannor Goods not shipwrackt at all may be cast overboard so as to be cast on shoar on the Mannor by the Tide and so the Kings Duty avoided by confederacy 1. This Supposal is remote and cannot be of some wrecks possible as of wrecks of derelicted Goods or of Goods cast into the Sea to unburthen a Ship 2. If the fraud appear there is no wreck and the King will be righted But to charge a legal property which the Lord of the Mannor hath in a wreck with payments because a fraud may be possible but appears not will destroy all property for what appears not to be must be taken in Law as if it were not The Second Objection is That the Kings Officers by usage have had in several Kings times the Duties of Tunnage and Poundage from wrecks 1. We desired to see ancient Presidents of that usage but could see but one in the time of King James and some in the time of the last King which are so new that they are not considerable 2. Where the penning of a Statute is dubious long usage is a just medium to expound it by For Jus Norma loquendi is govern'd by usage And the meaning of things spoken or written must be as it hath constantly been receiv'd to be by common Acceptation But if usage hath been against the obvious meaning of an Act of Parliament by the Vulgar and Common Acceptation of the Words then it is rather an Oppression of those concern'd than an Exposition of the Act especially as the usage may be circumstanc'd As for instance The Customers seize a mans Goods under pretence of a Duty against Law and thereby deprive him of the use of his Goods until he regains them by Law which must be by engaging in a Suit with the King rather than do so he is content to pay what is demanded for the King By this usage all the Goods in the Land may be charg'd with the Duties of Tonnage and Poundage for when the Concern is not great most men if put to it will rather pay a little wrongfully than free themselves from it over-chargeably And in the present Case The genuine meaning of the words and purpose of the Act is not according to the pretended usage but against it as hath been shew'd Therefore usage in this Case weighs not The Third Objection is from the words Imported and brought into the Realm or Dominions thereof and that wrecks are Goods and Merchandises imported into the Realm and therefore chargeable with the Duty There are no Goods as hath been said but may in a sense be termed Merchandise because all Goods may possibly be sold and when sold or intended to be they are Merchandise and in that sense wreck'd Goods are Merchandise and so are all Goods else It is also true That the Goods in question are by the Verdict found to be shipped in Forraign parts as Merchandise but not intended to be brought into England but to be carried to some other Forraign parts so are the words But by the words or some other Forraign parts they might be intended to be carried as Merchandise into some Forraign parts which are of the Kings Dominions or of the Dominions of the Kingdom of England for the Act mentions both And the Act limits the Duty not upon Goods in the former sense but upon Goods brought by way of Merchandise by Natives or Aliens into any the Kings Dominions which must be intended his Dominions as of the Crown of England for nothing could be enacted here concerning his Dominions not of the Crown of England But the Verdict is uncertain Whether they were to be carried to Forraign parts of the Dominions of
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
as much as to say wherein no man had right for that which is equally every mans right is no mans right Whence it follows for I shall not speak of the usage or extent of such a possession by natural Occupancy it being a subject too large and not necessary for my present purpose 1. That there can be no Occupancy natural of any thing wherein another than the Occupant hath right For by the definition made natural Occupancy is the first right 2. A Claim without actual possession cannot make a man a natural Occupant For 1. When a Claim is cannot be possibly known to all concern'd in the Occupancy of a natural thing and what cannot be known is as to all effect of right as if it had not been nor is there any Character of a natural Claim but the possession and use of the thing but civilly there may either by word or other sign agreed on 2. The end of a natural Right to any natural thing is the separate use of the thing to a part of Mankind which cannot be used by all Mankind but if Claim only would give a Right to the things of nature they might still remain as much without use after the Claim as before which agrees not with the end of Nature in giving a Right to natural things 3. If Claim could give a Natural Right one might claim all things in the Universe not already appropriated and might have done so in the beginning of time when nothing almost was appropriated 4. A natural Occupant hath no Estate of Fee Freehold or the like which are Estates formed and raised by municipal Laws but hath only a bare possession to keep or forsake 5. That Land possessed by a natural Occupant must be without any sort of Vassallage of Service Rent Condition or other Charge whatsoever for those servitudes upon the Land cannot be conceiv'd without a former right in him that laid them but natural Occupancy of things wherein none had any former right or having any have deserted it for naturally a man can have nothing against his own will 6. Two or more cannot at the same time have severally plenary possession that is Occupancy of the same thing therefore none can have right to that by reason of possession whereof another is already possess'd for then there would be two plenary Possessors severally of the same thing at the same time which is impossible And although every Nation hath by Consent and Agreement among the people of it its proper Laws to guide and determine mens Properties to all things capable of property and ownership yet the ancientest Nations of the World have no other right against each other to their own Countries and Territories than this original and natural occupancy and that Nation that will not admit a right by occupancy to another Nation in the Land so possess'd by it must at the same time confess they have no right to their own which they hold but in like manner They who would be further satisfied concerning this kind of occupancy may resort for exactness above other Books upon this Subject to Mr. Selden's Mare Clausum Seldeni Mare Clausum l. 1. Grotius de Jure Belli l. 1. c. 3 4. lib. 1. and to Hugo Grotius his first Book de Jure Belli Pacis c. 3. de acquisitione originaria rerum c. 4. de derelictione praesumpta eam secuta occupatione c. 1. By Civil Occupancy I mean such an occupancy either of things immoveable as Lands or of things moveable as is according to institution and the law of the place and particularly according to the Law of England as to the decision of the Question before us 2. By the Law of England there is no occupancy by any person of any thing which another hath a present right to possess wherein the Law of the Land agrees with that of natural occupancy Occupancy by the Law must be of things which have natural existence as of Land or of other natural things not of things which have their being and creation from Laws and Agreements of men for there is no direct and immediate occupancy of a Rent a Common an Advowson a Fair a Market a Remainder a Dignity and the like Cok. Litt. f. 41. b. Cr. 41 El. f. 721. Crauleys C. p. 50. no Occupancy of a Rent There can be no Occupant of any thing that lieth in grant and cannot pass without Deed because every Occupant must claim by a que estate and averr the life of Cestuy que vie And in this the Civil Occupancy with us of Land agrees with Natural Occupancy which must be of a thing that hath natural existence and not only legal But although the Occupancy be always of a natural thing yet the Occupant doth thereby by the Law enjoy several things many times that have their being by Law only as an Occupant of Land may thereby enjoy a Common Occupant of a House Estovers of the demesne Lands of a Mannor the Services and Advowsons appendant which are not themselves natural things but things created by Law nor are they immediately and by themselves capable of Occupancy but with reference to and as adjuncts of the Land and herein the civil Occupany differs from the natural And the reason is clear because the occupancy of the Land which ought not to lye void doth not sever or separate any thing from the Land which the Law hath joyned with it and if it doth not separate from it that which is joyn'd with it by Law though that be not capable of Occupancy in it self as an Advowson or Common it must follow that such things continue joyn'd or belonging to the Land as before notwithstanding the occupancy of the Land Cok. Litt. f. 41. b. In civil occupancy the Land in occupancy is charg'd with all the servitude impos'd by the first Lessor or by the Law As 1. to the payment of Rent 2. to be subject to waste 3. to forfeiture 4. to other Conditions wherein it differs from Land whereof a man is a natural occupant As to the civil occupancy of moveable things which are commonly termed personal things or goods there are few of those in our Law that have not a Proprietor and consequently no Occupant can be of them those which fall under occupancy of that kind are for the most part found in things ferae naturae whose acquisition is either per piscationem Bract. l. 2. c. 1. as in Fish or per aucupium as in Fowl or per venationem by hunting These do cedere occupanti communi Jure 1. Hence it follows by way of Inference and Corollary That there can be no primary and immediate Occupancy of a Tithe for it is not in its own nature capable of Occupancy more than a Rent or Common is and is in truth in its nature but a Rent it cannot pass by it self but by Deed and as other things which lye in grant A second thing that follows
Interest for the Lessee Taverner had a Lease of the House Glebe and Barn and the Tithe continued in Astly 2. This severance was equally the same as if the Tithe had been demis'd to Taverner and the House and Land had remained still in Astly's possession 3. Though the Freehold of both remained still in Astly at his death notwithstanding the divided Interest in the Land and Tithe yet the Freehold being a thing quatenus Freehold not capable in it self of Occupancy nor no natural but a legal thing which the Law casts upon him that is Occupant that will not concern the Questions either who was Occupant or of what he was Occupant Cok. Litt. f. 41. b. 4. I take it for clear That a naked Tithe granted by it self pur auter vie and the Grantee dying without assignment living Cestuy que vie is not capable of Occupancy more than a Rent a Common in gross and Advowson in gross a Fair or the like are it being a thing lying in Grant equally as those others do Coke's Littleton There can be no Occupant of any thing which lyeth in Grant and cannot pass without Deed. I cited the place at full before with other Authorities against Occupancy of a Rent 5. If a man dye seis'd of Land which he holds pur auter vie and also dies seis'd of Rent held pur auter vie or of an Advowson or Common in gross held by distinct Grants pur auter vie and the same Cestuy que vie or the several Cestuy vies for that will not differ the Case living Though the Grantee died seis'd of a Freehold in these several things I conceive that he which enters into the Land first after his death will be Occupant of the Land which was capable of Occupancy but neither of the Tithe Advowson nor Common which are not capable of Occupancy and have no more coherence with dependence upon nor relation to the Land than if they had been granted pur auter vie to another who had happen'd to dye in like manner as the Grantee of the Land did And that which hath intricated men in this matter hath been a Conception taken up as if the Occupant had for his object in being Occupant the Freehold which the Tenant died seis'd of which is a mistake for the subject and object of the Occupant are only such things which are capable of Occupancy not things which are not and not the Freehold at all into which he neither doth nor can enter but the Law casts it immediately upon him that hath made himself Occupant of the Land or other real thing whereof he is Occupant that there may be a Tenant to the Precipe But as was well observed by my Brother Wilmott No Precipe lies for setting out Tithe at Common Law and I doubt not by the Statute of 32 H. 8. c. 7. though Sir Edward Coke in his Litt. f. 159. a. seems to be of opinion Coke Litt. 159. a. that a man may at his Election have remedy for witholding Tithe after that Statute by Action or in the Ecclesiastical Court by that Statute doubtless he hath for the title of Tithe as for title of Land or for the taking of them away but not perhaps for not setting them out 6. When a Severance therefore is once made of the Land and Tithe it is as much severance of them though the Tithe remain in Astly's possession as if he had leas'd the Land to Taverner and the Tithe to another if then Taverner becoming Occupant of the Land should have had nothing in the Tithe leas'd to another as the Land was to him no more shall he have the Tithe remaining in Astly himself at his death Still we must remember the ground insisted on That no Occupancy begins with the Freehold but begins by possessing the Land or other real thing which was void and ownerless and that by Act of Law the Freehold is cast upon the Possessor either entring where the possession was void or being in possession when Tenant pur auter vie died either as Lessee for years or at will to Tenant pur auter vie for the Law equally casts the Freehold upon him as was resolved in Chamberleyne and Eures Case reported by Serjeant Rolls and others Second Part. f. 151. Letter E. and in Castle and Dods Case 5 Jac. Cr. f. 200. Therefore after such Severance made by the Tenant pur auter vie the Land and Tithe are as distinct and sunder'd from each other as if Tenant pur auter vie had held them by distinct Grants or leas'd them to distinct persons In the next place I shall agree That the Occupant of a House shall have the Estovers or way pertaining to such House the Occupant of the Demesne of a Mannor or of other Land shall have the Advowson appendant or Villain regardant to the Mannor or Common belonging to the Land and the Services of the Mannor not sever'd from the Demesne before the occupancy For a Possessor of a House Land Demesne of a Mannor as Occupant doth not by such his possession sever any thing belonging to the Land House or Demesne more than the Possessor by any other title than occupancy doth and if they be not sever'd it follows they must remain as before to the Possessor of that to which they pertain So if a Mannor being an intire thing consisting of Demesnes and Services which are parts constituent of the Mannor the possessing and occupancy of the Demesns which is one part can make no severance of the Services from the intire and therefore the Occupant hath all And these things though primarily there can be no occupancy of them being things that lye in Grant and pass not without Deed yet when they are adjuncts or pertaining to Land they do pass by Livery only without Deed. Coke Litt. f. 121. 8. Sect. 183. Whatsoever passeth by Livery of Seisin either in Deed or in Law may pass without Deed and not only the Rent and Services parcel of the Mannor shall with the Demesns as the more principal and worthy pass by Livery without Deed but all things regardant appendant or appurtenant to the Mannor as Incidents or Adjuncts to the same shall together with the Mannor pass without Deed without saying cum pertinentiis And if they pass by Livery which must be of the Land they must likewise pass by any lawful Entry made into the Land and such the Entry of the Occupant is But as by occupancy of the demesn Lands of a Mannor the Services are not sever'd so if they be sever'd at the time when the occupancy happens that shall never of it self unite them again Now in the Case before us The Tithe is neither appendant or appurtenant or any sort of Adjunct to the Glebe or House nor are they to the Tithe nor will a lease and livery of the Glebe simply with the appurtenances pass the Tithe at all nor a Grant of the Tithe pass the Glebe nor are either
not the Land devis'd to him when the son and the two daughters dye without Issue of their respective bodies by way of Remainder which cannot be but by way of Executory devise which well may be 5. That by such Executory devise no perpetuity is consequent to it or if it were such a perpetuity is no way repugnant or contrary to Law To manifest the difference taken between an implication in a Will that is necessary and implication that is only possible the first Case I shall cite is that known Case 13 H. 7. which I shall exactly put as it is in the Book at large 13 H. 7. f. 17. Br. Devise pl. 52. A man devis'd his Goods to his wife and that after the decease of his wife his son and heir shall have the House where his Goods are The son shall not have the House during the wives life for though it be not expresly devis'd to the wife yet his intent appears the son shall not have it during her life and therefore it is a good devise to the wife for life by implication and the Devisors intent Quod omnes Justitiarii concesserunt Here I observe 1. That this was a devise of the House to the wife by necessary implication for it appears by the Will that the Testators son and heir was not to have it until after the death of the wife and then it must either be devis'd to the wife for life by necessary implication or none was to have it during the wives life which could not be 2. I observe upon this Case That though the Goods were by particular devise given to the wife and expresly that was no hindrance to the wives having the House devis'd to her also by her husband by implication necessary which I the rather note because men of great name have conceiv'd That where the devisee takes any thing by express devise of the Testator such devisee shall not have any other thing by that Will devis'd only by implication Which difference if it were according to Law it makes clearly against the Plaintiff because his Lessor being one of the Daughters of the Testator had devis'd to her expresly for a Portion and therefore she should not have any Estate in the Land by the same Will by a Devise by Implication as is pretended But the truth is that is a vain difference that hath been taken by many as I shall anon evince and therefore I shall not insist upon any Aid from it to my conclusion 3. I note that this Devise being before the Statute of 32 H. 8. of Wills the House devis'd must be conceiv'd devisable by Custome at the Common Law Before I proceed further I must take notice that Brook in abridging the Case of 13 H. 7. in the same numero saith Devise Br. n. 52. It was agreed tempore H. 8. per omnes That if a man will that J. S. shall have his Land in Dale after the death of his wife the wife shall have the House for her life by his apparent intent I note first That this Case is imperfectly put in Brook for it mentions a devise of the Land in Dale to J. S. after the death of his wife and then concludes that the wife shall have the House for her life by his apparent intent whereas no mention is made of a House but of the Land in Dale in the devise And this Case seems to be only a memory of another Case Br. Devise 29 H. 8. n. 48. not abridg'd by Brook out of any other Year-book but reported in his Abridgment in the Title Devise as a Case happened in 29 H. 8. which is That if a man will that J. S. shall have his Land after the death of his wife and dies the wife of the Devisor shall have those Lands for term of her life by those words ratione intentionis voluntatis Which Cases being in truth but one and the same Case seem to go further than the Case of 13 H. 7. for there as I observ'd before the wife was to take by necessary implication because the Heir was excluded expresly by the Will during the life of the wife But by this Case in Br. Title Devise n. 48. 52. there is no excluding of the Heir and yet it is said the wife shall have the Land during her life by implication which is no necessary implication as in the Case of 13 H. 7. but only a possible implication and seems to cross that difference I have taken before But this Case of Br. hath many times been denied to be Law and several Iudgments have been given against it I shall give you some of them to justifie the difference I have taken exactly as I shall press the Cases Trinity 3 E. 6. A man seis'd of a Mannor part in Demesne 3 E. 6. Moore Rep. f. 7. n. 24. and part in Services devis'd all the demesne Lands expresly to his wife during her life and devis'd to her also all the Services and chief Rents for Fifteen years and then devis'd the whole Mannor to a stranger after the death of his wife It was resolved by all the Justices That the last devise should not take effect for any part of the Mannor but after the wives death but yet the wife should not have the whole Mannor by implication during her life but should have only the demesnes for her life and the Rent and Services for Fifteen years and that after the Fifteen years ended the Heir should have the Rents and Services as long as the wife liv'd Here being no necessary Implication that the wife should have all the Mannor during her life with an exclusion of the Heir she had no more than was explicity given her by the Will viz. the Demesnes for life and the Rents and Services for Fifteen years but after the Fifteen years the Heir had the Rents and Services for it could be no more at most but a possible Implication that the wife should have the whole Mannor during her life But with a small variance of this Case if the demesnes had been devis'd to the wife for life and the Services and Rents for Fifteen years and the whole Mannor after the wives life to J. S. and that after the wives life and the life of J. S. his Heir should have had the Demesnes and Services and Rents in that Case it had been exactly the same with the Case of 13 H. 7. because the Devisors intent had been then apparent that the Son was not to have the Mannor or any part until the wife and stranger were both dead and as it was adjudg'd the stranger had nothing in the Mannor until the wifes death therefore in that case by necessary implication the wife must have had both Demesnes and Services during her life notwithstanding the explicit devise to her of the Rents and Services for Fifteen years otherwise none should have had the Rents and Services after the Fifteen years
The first is Haynsworths and Prettyes Case Where a man seis'd of Land in Soccage having Issue two Sons and a Daughter devis'd to his youngest Son and Daughter Twenty pounds apiece to be paid by his eldest Son and devis'd his Lands to his eldest Son and his Heirs upon Condition if he paid not those Legacies that his Land should be to his second Son and Daughter and their Heirs The eldest Son fail'd of payment After Argument upon a Special Verdict It was resolv'd by the Court clearly That the second Son and Daughter should have the Land 1. For that the devise to his Son and his Heir in Fee Hill 41. El. Cr. 833. a. being no other then what the Law gave him was void 2. That it was a future devise to the second Son and Daughter upon the contingent of the eldest Sons default of payment 3. That it was no more in effect than if he had devis'd That if his eldest Son did not pay all Legacies that his land should be to the Legatories and there was no doubt in that Case but the land in default of payment should vest in them Which Case in the reason of law differs not from the present Case where the land is devis'd by devise future and executory to the Nephew upon a contingent to happen by the Testators Son and Daughters having no issue 18 Jac. Pell Browns C. Cro. f. 590. The second Case is that of Pell and Brown the Father being seis'd of certain land having Issue William his eldest Son Thomas and Richard Brown devis'd the land to Thomas and his Heirs for ever and if Thomas died without Issue living William then William should have the lands to him his Heirs and Assigns 1. This was adjudg'd an Estate in Fee-simple in Thomas 2. That William by way of Executory devise had an Estate in Fee-simple in possibility if Thomas died without Issue before him And it being once clear That the Estate of Thomas was a Fee-simple determinable upon a contingent and not an Estate tayl and so in the present case it being clear'd that George the Testators Son had the land descended to him in Fee from the Testator and took no Estate tayl expresly or by implication from the Will it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee or from another or partly from him and partly from another as in Haynsworth's Case the Son determined his Fee-simple by not paying the Legacies in Pell and Brown's Case Thomas his Fee-simple determined by his dying without Issue living William the Fee-simple vested in George the Son by descent determines when he and his two Sisters dye without Issue and upon such determination in every of these Cases the future and executory devise must take effect But the great Objection is That if this should be an executory devise to the Nephew upon the contingent of George the Son and both his Sisters dying without Issue It will be dangerous to introduce a new way of perpetuity for if a man have several Children and shall permit his Estate to descend or by his Will devise it to his Heir so as he may therein have an unquestionable Fee-simple which is the same with permitting it to descend he may then devise it futurely when all his Children shall dye without Issue of their bodies to J. S. and his Heirs as long as A. B. and C. strangers shall have any Heirs of their bodies living and then to a third person by like future devise For if he should devise it futurely to J. S. and his Heirs as long as J. S. had any Heirs of his body it were a clear Estate tayl in J. S. upon which no future devise could be but it would be a Remainder to be docked This Objection was in some measure made by Doderidge in Pell and Browns Case and the Iudges said there was no danger Vid. Stiles Rep. Gay Gaps Case 258 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally but by dying without Issue living William for if the land had been given to Thomas and his Heirs for ever and if he died without Heirs of his body then to William and his Heirs Thomas his Estate had been judg'd an Estate tayl with the Remainder to William and not a Fee upon which no future or executory devise can be So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. 6. and anciently 37 Ass p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities But in Pell and Browns Case the Iudges said it was more dangerous to destroy future devises than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples which is true for a Fee simple determinable upon a contingent is a Fee-simple to all intents but not so durable as absolute Fee-simples And all Fee-simples are unequally durable for one will escheat sooner than another by the failer of Heirs An Estate of Fee-simple will determine in a Bastard with his life if he want Issue An Estate to a man and his Heirs as long as John Stiles hath any Heir which is no absolute Fee-simple is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs which is an absolute Fee-simple Nor do I know any Law simply against a Perpetuity but against Intails of Perpetuity for every Fee-simple is a perpetuity but in the accident of Alienation and Alienation is an incident to a Fee-simple determinable upon a contingent as to any more absolute or more perdurable Fee-simple The Chief Justice Justice Archer and Justice Wylde for the Defendant Justice Tyrrell for the Plaintiff Judgment for the Defendant Hill 21 22 Car. II. C. B. Craw versus Ramsey Philip Craw is Plaintiff and John Ramsey Defendant In an Action of Trespass and Ejectment THE Plaintiff declares That Lionel Tolmach Baronet and Humphrey Weld Esquire January the Twentieth the Sixteenth of the King demis'd to the Plaintiff the Mannor of Kingston with the appurtenances in the County of Surrey one Messuage two Barns one Dove-house two Gardens eighty Acres of Land and ten Acres of Meadow with the appurtenances in Kingston aforesaid and other places and also the Rectory of Kingston aforesaid To have and to hold to the said Philip and his Assignes from the Feast of the Nativity last past for five years next ensuing By virtue whereof he entred into the Premisses and was possessed until the Defendant the said Twentieth of January in the Sixteenth year of the King entred upon him and Ejected him with force to his Damage of Forty pounds To this the Defendant pleads he is not Culpable Vpon a Special Verdict it appear'd That Robert Ramsey Alien Antenatus had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos
Robert the son had Issue Margaret Isabel Jane Antenatas living the First of Octob. 14 Car. 1. and now have Issue at Kingston John naturalized 9. Maii 1 Jac. John the third son by the name of Sir John Ramsey was naturalized by Act of Parliament holden at Westminster May the Ninth 1. Jac. and after made Earl of Holdernes George Ramsey the fourth Son George naturalized 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster begun by Prorogation 19 Febr. 17 Jac. and after had Issue John primogenitum filium Quodque idem Johannes had Issue John the now Defendant primogenitum suum filium but finds not where either of these were born nor the death of George Nicholas the second Son had Issue Patrick his only Son Nicholas had Issue Patrick a Native 15 Jac. born at Kingston after the Union 1 Maii 1618. about 15 Jac. John the third Son Earl of Holdernes seiz'd of the Mannors Rectory and Premisses in the Declaration mentioned with other the Mannors of Zouch and Taylboys John covenanted to levy a Fine de Premissis 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee by Indenture Tripartite between him on the first part Sir William Cockayne and Martha his Daughter of the second part c. Dated the First of July 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands To the use of himself for life then to the use of Martha his intended Wife for life with Remainder to the Heirs Males of his body begotten on her Remainder to such his Heirs Females Remainder to his right Heirs The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael 22 Jac. John died 1 Car. 1. Jan. 24. The Fine accordingly levied in the Common Pleas Octabis Michaelis 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned The Earl so seiz'd as aforesaid with the Remainder over at Kingston aforesaid died the Four and twentieth of January 1 Car. 1. His Countess entred into the Premisses in the Declaration mentioned and receiv'd the Profits during her life After the Earls death a Commission issued Inquisition after his death capt 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February 7 Car. 1. By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys and divers Land thereto belonging in Com. Lincoln and of the Mannor of Westdeerham and other Lands in Com. Norfolk and of the Rectory of Kingston and of the Advowson of the Vicaridge of Kingston in Com. Surrey but no other the Lands in the Declaration are found in that Office And then the Tenures of those Mannors are found and that the Earl died without Heir But it finds that the Earl so seiz'd levied a Fine of the Premisses to Sir William Cockayne per nomina Maneriorum de Zouches Taylboys Rectoriae de Kingston cum omnibus Decimis dictae Rectoriae pertinentibus and finds the uses ut supra and so finds his dying without Heir c. It finds the Fine levied in terminis Michaelis 22 Jac. but not in Octabis Michaelis as the Special Verdict finds but between the same persons The Irish Act to naturalize all Scots 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland was made in the Parliament there begun at the Castle of Dublin the Fourth of July 10 Car. 1. Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September 10 Car. 1. Leaving Issue Patrick Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First by his Letters Patents dated the Five and twentieth of October the Tenth of his Reign under the Great Seal granted to William Murrey his Heirs and Assigns in Fee-farm All the said Mannors Lands and Rectory mentioned in the Declaration with the Reversion depending upon any life lives or years Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds and bargained and sold the Premisses in the Declaration to them and their Heirs and covenanted at the Earls charge to levy a Fine with proclamation Patrick Uxor levy a Fine à die Paschae in fifteen days to the use of the Earl and his Heirs of the Premisses before the end of Easter Term next and accordingly did levy it with warranty against them and the Heirs of Patrick by force whereof and of the Statute of Uses the said Earl and Sydenham were seiz'd c. The Earl and Sydenham convey to the Countess Dowager 10 Mar. 1652. The Earl of Elkin and Sydenham by Indenture of Lease dated the Tenth of March 1652. and by Deed of Release and Confirmation conveys the Premisses to Amabel Dowager of Kent and the Lady Jane Hart viz. the Eleventh of March 1652. by way of Bargain and Sale to them and their Heirs who entred by the Lease and were in quiet possession at the time of the Release The Dowager conveys to Pullayne and Neale The Dowager and Lady Hart by like Conveyance of Lease and Release bargained and sold to Pullayne and Simon Neale dated the First and Second of November 1655. who entred and were in possession as aforesaid John Ramsey the now Defendant entred in 15 Car. 2. and kept possession Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale 20 Jan. 16 Car. 2. John Pullayne and Symon Neale by Deed of Bargain and Sale duly inrolled convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred and being in possession by Indenture dated the Twentieth of January 16 Car. 2. John then in possession and John re-entred upon the Plaintiff and Ejected him The Questions upon this Record will be three 1. Whether a Naturalization in Ireland will naturalize the person in England If it will not all other Questions are out of the Case 2. If it will then whether by that Act for naturalizing the Antenati of Scotland any his brothers had title to inherit the Earl of Holdernes in the lands in question By reason of the Clause in the Act of Naturalization That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments which have already been found and accrewed to his Majesty or to King James for want of naturalization of any such person and which shall and doth appear by Office already found and return'd and remaining of Record or by any other matter of Record An Office was found as appears
to dispense with a Corporation as it seems K. James had in this Case when the Patent was granted but by Law cannot his Power and consequently his Prerogative is less than if he could 1. Malum prohibitum is that which is prohibited per le Statute Per le Statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case For it is said The King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with cure which were mala prohibita by the Canon Law and by the Council of Lateran not by Act of Parliament 2. Many things are said to be prohibited by the Common Law and indeed most things so prohibited were primarily prohibited by Parliament or by a Power equivalent to it in making Laws which is the same but are said to be prohibited by the Common Law because the Original of the Constitution or prohibiting Law is not to be found of Record but is beyond memory and the Law known only from practical proceeding and usage in Courts of Justice as may appear by many Laws made in the time of the Saxon Kings of William the First and Henry the First yet extant in History which are now received as Common Law So if by accident the Records of all Acts of Parliament now extant none of which is elder than 9 H. 3. but new Laws were as frequent before as since should be destroyed by fire or other casualty the memorials of proceeding upon them found by the Records in Iudicial proceeding would upon like reason be accounted Common Law by Posterity 3. Publique Nusances are not mala in se but mala politica introducta though in some passages of Coke's Posthuma's they are termed mala in se because prohibited at Common Law which holds not for the reasons before given For liberty of High-ways strangers have not in Forreign Territories but by permission therefore not essential to Dominion because it may be lawfully prohibited 2. Liberty of the High-ways is prohibited with us in the night by the Statute of Winchester in some seasons of the year and in times of warr and for apprehension of Thieves in time of Peace c. The Assise of Bread and Ale is constituted by Statute and may be taken away Forestalling the Market and ingrossing hath like institution the first was prohibited by Athelstans Laws and William the First 's and may be permitted by a Law the second is allowed by the late Laws when Corn is at a certain low price quaere the Law tempore Car. 2. the pulling down of Bridges wholly or placing them in other places may be done by a Law and what may be or not be by a Law is no malum in se more than any other prohibitum by a Law is Judgment was given by the Advice of the Judges in the Kings Bench Quod Quaerens nil Capiat In a formedon in the Reverter Mich. 25 Car. II. C. B. Rot. 253. John Bole Esquire and Elizabeth his wife and John Ely Gent. and Sarah his wife Demandants against Anne Horton Widow Tenant of _____ The Writ ONe Messuage Thirty Acres of Land Fifteen Acres of Meadow Twenty Acres of Pasture and of the third part of One Messuage One hundred and forty Acres of Land Four and forty Acres of Meadow Eighty three Acres of Pasture with the Appurtenances in Tickhill and Wellingly which William Vescy Gent. Grand father of the said Elizabeth and Sarah whose Coheirs they are gave to John Vescy during the life of the said John and after the decease of the said John to the heirs males of the body of the said John begotten and for default of such issue to Robert Vescy and the heirs males of his body begotten and for default of such issue to William Vescy son of the said William the Grandfather and to the heirs males of his body begotten and for default of such issue to Matthew Vescy and the heirs males of his body begotten And which after the death of the said John Robert William the Son and Matthew to the said Elizabeth and Sarah Cosins and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather ought to revert by form of the said gift for that the said John Robert William the Son and Matthew are dead without heirs males of their bodies lawfully begotten Then counts that The Count. William the Grandfather was seis'd of the Premisses in demand in his Demesne as of Fee and held the same in Soccage of the late King Charles as of his honour of Tickhill in the said County in free Soccage by fealty only and so seis'd the Eight and twentieth day of November 1628. at Tickhill aforesaid made his last Will in writing and thereby devised the said Lands to the said John Vescy for life and after to the heirs males of his body begotten And for default of such issue to Robert Vescy and the heirs males of his body and for default of such issue to William Vescy the Son and the heirs males of his body and for default of such issue to Matthew Vescy and the heirs males of his body and after the Six and twentieth of December 1628. at Tickhill aforesaid died so seis'd And the said John after his death entred and was seis'd by force of the said gift and died so seis'd without heir male of his body After the death of John Robert entred by vertue of his said Remainder and was seis'd accordingly and so seis'd died without heir male of his body after whose death William entred by vertue of his said Remainder and was seis'd accordingly and he being so seis'd Matthew died without heir male of his body and after the said William died seis'd of the premisses without heir male of his body After the death of which William the Son for that he died without heir male of his body begotten the right of the Premisses reverts to the said Elizabeth and Sarah who together with their said Husbands demand as Cosens and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather and which after the death of the said John Robert William and Matthew for that they died without any heir male of their bodies ought to revert to them The Tenant Anne for Plea saith That the said William The Barr. whose Cosens and Coheirs the said Elizabeth and Sarah are by his Deed dated the Seventh of November 1655. in consideration of a marriage to be solemnized between him and Anne the now Tenant then by the name of Anne Hewett and of 1200 l. marriage Portion and for a Ioynture for the said Anne and in satisfaction of all Dower she might claim out of his Lands And for setling the said Lands upon the issue and heirs of
than a local Subject ibid. 286 5. He must be otherwise a Subject than any Grant or Letters Patents can make him ibid. 6. The Natives of Jersey Garnsey Ireland and the English Plantations c. are not Aliens 268 in loco 278 279 7. Those which are born in the Kings Forreign Plantations are born his Natural Subjects and shall inherit in England 279 8. A Natural Subject is correlative to a Natural Prince and a man cannot have two natural Soveraigns no more than two Fathers or two Mothers 280 273 in loco 283 9. The several ways by which men born out of England may inherit in England 281 10. An Antenatus in Scotland shall not inherit without an Act of Parliament because he is an Alien 274 in loco 284 287 11. Who are the Antenati Postnati and the difference between them 273 in loco 283 12. An Act of Parliament in Ireland shall never Naturalize an Alien to England to make him inheritable there 274 in loco 284 13. No Tenure by Homage c. in any of the Kings Dominions acquired by Conquest or by Grant or Letters Patents can make a man inheritable in England 279 14. No Laws made in any Dominion acquired by Conquest or new Plantation by the Kings Governor or people there by virtue of the Kings Letters Patents can make an Alien inheritable in England 279 15. One Naturalized in Scotland since the Union cannot inherit in England 268 in loco 278 279 280 285 16. A man born a Subject to one that is King of another Country and who afterwards comes to be King of England is an Alien and shall not inherit in England ibid. 285 286 17. An act of Law making a man as if he had been born a Subject shall not work the same effect as his being born a Subject which is an effect of Law 280 18. An Alien hath issue a Son and afterwards is Denizen'd and he afterwards hath another Son here the youngest Son shall inherit 285 Allegiance 1. All Allegiance and Subjection are acts and obligations of Law the subjection begins with the birth of the Subject at which time the Kings protection of him likewise begins 279 Appendant 1. Whatsoever is appendant to the Land goes to the Occupier thereof naturally 190 2. An Advowson may be appendant to a Mannor 12 Apprentice 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred from the exercise of their Trades in any Town or part of the Kingdom 356 Arch-bishop See Ordinary Dispensation 1. The Arch-bishop may dispense for a Plurality 20 Assets 1. The manner of pleading Assets ultra 104 Assignee and Assignment 1. Offices or acts of personal Trust cannot be assigned for that Trust which any man may have is not personal 180 181 2. An Occupant becomes an Assignee in Law to the first Lessee 204 3. If a man Covenants against himself his Executors Administrators and Assigns yet if his Assigns do a tortious act it is no breach of the Covenant because he may have remedy by Action for the tort 118 to 128 Assise 1. An Assise will not lye for a Rent issuing out of Tythes barely 204 Attaint See Title Statutes 3 11. 1. An Attaint lies only in Civil not Criminal Causes 145 146 2. Jurors are not finable for a false Verdict an Attaint only lies against them 145 Attorney 1. An Attorney cannot bring Debt for Soliciting but Case only 99 2. The Defendant cannot wage his Law for Attorneys Fees ibid. Attornment 1. By the Common Law an Attornment was requisite to entitle the Lord the Reversioner the Grantee of a Remainder or of a Rent by Deed or Fine to distrain for Rent in arrear 39 2. By a Grant and Attornment the Grantee becomes actually seised of the Rent 40 3. Attornment and power to distrain follows the possession and not the use 43 4. An Attornment cannot be for a time 27 5. An Attornment of the Tenant doth not disclaim but affirm his possession For it is the act of the Tenant by reason of his being in possession 193 6. A mans Estate in a Rent-charge may be enlarged diminished or altered and no new attornment or privity requisite to such alteration 44 7. Attornment is requisite to the Grant of an Estate for life but to a Confirmation to enlarge an Estate it is not 44 45 46 8. A Rent-charge is granted to Commence Seven years after the death of the Grantor Remainder in Fee Attornment must be made in the life time of the Grantor 46 9. If a Fine is levied of the Reversion of Land or of a Rent to uses the Cestuy que use may distrain without Attornment 50 51 10. Where a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain without Attornment 51 11. Where a man is seised of a Rent-charge and grants it over to which the Tenant attorns and he afterwards retakes that Estate here must be a new Attornment for the former privity is wholly destroyed 44 12. Where an Attornment shall be good to a contingent use 52 Bargain and Sale See Intollment 1. WHere a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain for the Rent without Attornment 51 Baron and Feme 1. The man after the marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him 306 2. The Interdicts of carnal knowledg in the Levitical Law were directed to the men not to the women who are interdicted but by a consequent for the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 Bishop See Ordinary Archbishop 1. What Bishops were originally 22 2. A Parson is chosen Bishop his Benefices are all void and the King shall present 19 20 3. It is not at all inconsistent for a Bishop to be an Incumbent 22 4. A Bishop may be an Incumbent after Consecration 24 5. How many Benefices a Bishop may retain by a Dispensation 25 6. No Canon Ecclesiastical can be made and executed without the Kings Royal assent 329 7. Bishops in Wales were originally of the foundation of the Prince of Wales 411 Canons Ecclesiastical See Title Ecclesiastical Court 1. WHat Canons are good and binding and what not 327 328 Capias ad Satisfaciendum See Execution Certiorari 1. A Certior lies out of the Chancery to Ireland to certifie an Act of Parliament but it doth not lye to Scotland 287 2. A Certiorari doth not lye to Wales to certifie a Record to the Courts at Westminster to the intent that Execution may issue out here upon it 398 Certificate 1. There are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari 288 Chancery 1. The Chancery may grant a Habeas Corpus and discharge a Prisoner thereupon as well
108 Stagnum ibid. Appertaining 108 109 Reputation 109 Without any lett 121 Quiete pacifice ibid. Lawfully enjoy 124 Dedi Concessi 126 Wreck 168 Derelict ibid. Imported or brought 171 172 Per Nomen 174 175 Claim 188 193 Una cum 197 Nature what it is 221 224 Unnatural 221 222 224 Uncle 241 Communia 255 Remainder 269 in loco 279 Naturalization 280 Antenati Postnati 273 Neer of kin 306 307 308 309 310 Malum prohibitum malum in se 332 333 334 c. 358 359 Dispensation 333 336 349 Exemption 349 Commot 405 Exposition of Sentences 1. Words which are insensible ought to be rejected so also words of known signification so placed in the Deed that they make it repugnant and sensless are to be rejected equally with words of no signification 176 2. In things necessary there are no degrees of more or less necessary 344 3. What appears not to be must be taken in Law to be as if it were not 169 4. Lands usually letten shall be intended Lands twice letten 33 5. Lands which have at any time before been usually letten how expounded 34 6. How long time will gain a Reputation to pass a thing as appertaining 109 Extinguishment 1. Extinguishment of a Rent is when it is absolutely conveyed to him who hath the Land out of which it issues or the Land is conveyed to him to whom the Rent is granted 199 2. A perpetual union of the Tenancy to the Rent or Rent to the Tenancy is an extinguishment of the Rent 39 3. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereunto here the Grantor hath absolutely lost his arrears and cannot after distrain 40 Extent 1. An Extent is sueable into Wales but a Ca. Sa. or Fi. Fa. is not 397 Fee-simple 1. A Fee-simple determinable upon a Contingent is a Fee to all intents but not so durable as an absolute Fee-simple 273 2. A. had issue W. T. and R. and devised to T. and his heirs for ever and if T. died without issue living W. then W. should have the Land this is a good Fee in T. And W. hath a Fee in possibility by Executory Devise if T. dyed without issue before him 272 Fieri Facias See Execution  Fine Fines 1. A Fine levied without consideration or use expressed is to the use of the Conizor 43 2. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 42 3. The wife in that case shall not be endowed neither shall it descend to his Heir 41 Formedon 1. The Statute de Donis formed a Writ of Formedon in the Descender for the new Estate Tayl created by that Statute but makes no mention of a Formedon in the Reverter as already known in the Chancery 367 Franchise 1. Franchises Inferiour and Counties Palatine are derived out of the Counties by the Kings Grants where the Kings Writ did run 418 Fraud 1. Wheresoever an Action of Debt upon Bond or Contract is brought against an Executor he may confess the Action if there be no fraud in the case although he have notice of a former Suit depending 95 Gardian in Soccage See Title Statutes 26. 1. WHO is Gardian in Soccage at the Common Law 178 244 2. What a Gardian may do in his own name 182 3. Who were Legitimi tutores or Gardians by the Civil Law 244 4. The Exposition of the Statute made 12 Car. 2. 183 184 5. The Gardian by the Statute of 12 Car. 2. doth not derive his authority from the Father but from the Law 186 6. The Lands follow the Gardianship and not the Gardianship the Lands 178 7. The Gardianship now by the Statute may be till One and twenty years 179 8. Such a special Gardian cannot transfer the custody of the Ward by Deed or Will to any other 179 181 9. The trust is only personal and not assignable neither shall it go to the Executors or Administrators 180 181 10. If the father appoint the custody until One and twenty and the Gardian dies it determines with the death of the Gardian and is a Condition in Law if he live so long 185 Grants Grantor Grantee 1. The Law doth not in the Conveyances of Estates admit Estates regularly to pass by implication But in Devises they are allowed with due restrictions 261 262 c. 2. A thing so granted as none can take by the Grant is a void Grant 199 3. In Grants words which are insensible ought to be rejected so likewise words of known signification when they are so placed in the Deed that they are Repugnant are to be rejected equally with words of no known signification 176 4. The meaning of the word appertaining in a Grant and how far it will extend and what it will pass 108 109 5. Land in possession cannot pass by the Grant of a Reversion but by the grant of Land a Reversion will pass 83 6. By the Grant of Stagnum Gurgitem aquarum the Soyl of the Pond passes 107 108 109 7. Where by the Deuise of the Farm of H. the Mannor of H. will well pass 71 8. To a Grant of a Rent by the Common Law an Attornment is requisite 39 9. A Lease is made habendum for 40 years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for 40 years shall commence presently 73 74 80 81 83 84 10. To give or grant that to a man which he had before is no gift at all 42 Grants by the King See Non Obstante Pardon Prerogative 1. Where the Kings Grant is void although there be a saving in an Act of Parliament of all the Right of such Grantee yet that shall not aid it 332 2. If a Patent is not void in its creation it remains good after the death of the King that granted it 332 Habendum 1. A Lease is made habendum for Forty years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for Forty years shall commence presently 73 74 80 81 2. A Rent is granted habendum for Seven years after the death of the Grantor Remainder in Fee 46 Habeas Corpus 1. The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his liberty if against Law he hath been deprived of it 136 2. The Cause of the imprisonment ought as specifically and certainly appear to the Judges upon the Return as it did appear to the Court or person authorized to commit 137 138 139 140 3. A prisoner committed per mandatum of the Lord Chancellor by vertue of a Contempt in Chancery was presently bailed because the Return was generally for Contempts to the Court but no particular Contempt exprest 139 140 4. The Court of Common Pleas or Exchequer upon Habeas Corpus may discharge Prisoners imprisoned by other
recover any thing from me it is not sufficient for you to destroy my Title but you must prove your own to be better than mine 58 60 2. In a Quare Impedit if the Defendant will leave the general Issue and controvert the Plaintiffs Title he must do it by his own Title 58 3. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 4. Priority of possession is a good Title against him who hath no Title at all 299 5. No man can Traverse an Office except he can make himself a good Title 64 Trade 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades in any Town or part of the Kingdom 356 Traverse 1. No person shall Traverse an Office unless he can make himself a good Title 64 2. When in a Quare Impedit the Defendant Traverseth any part of the Plaintiffs Count it ought to be such part as is inconsistent with his Title and being found against the Plaintiff destroys his Title 8 9 10 3. Where the presentation and not the seisin of the Advowson is to be traversed 9 10 11 12 4. Where the Presentation and not the Appendancy is traversable 10 11 15 5. Where the Seisin in Gross or Appendancy is Traversable 12 13 6. The Appendancy is well Traversed when it is all the Plaintiffs Title to present and inconsistent with the Defendants 13 15 7. Where either the Appendancy or Presentation may be Traversed 15 8. Where neither the Seisin in Gross nor Appendancy shall be Traversed but only the Vacancy 16 9. Where the King may take a Traverse upon a Traverse which regularly a common person cannot do but where the first Traverse tendred by the Defendant is not material to the Action brought 62 10. Where the King may refuse to maintain his own Title which is Traversed by the Defendant and take a Traverse to the Title made by the Defendant 62 64 Trespass 1. By the ancient Law it was adjudged in Parliament no man ought to be condemned in a Trespass de praecepto or auxilio if no man were convicted of the Fact done 115 116 2. Action of Trespass against Officers within the Statute as Constables c. and their Assistants must be laid in the proper County 111 112 113 114 115 116 117 Tryal 1. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be brought 413 2. How Dominions Leagues and Truces are to be tryed 288 3. An Issue arising out of the Jurisdiction of the Courts of England although it arise within the Dominions of England out of the Realm shall not be tryed in England 404 4. If a Signiory in Wales that is not part of the Principality be to be tryed it must be tryed by the Common Law but if Land within the Signiory is to be tryed it must be tryed within the Mannor there 407 5. A person naturalized in Ireland commits Treason beyond the Seas where no local Allegiance is due to the King how and where he shall be tryed 291 292 Tythes 1. Though Tythes pass by Deed only yet where a Rectory and the Tythes de D. are granted if there is not Livery neither the Rectory nor Tythes will pass because they were intended to be granted together 197 2. There can be no primary and immediate Occupancy of Tythes 191 194 3. A Rent cannot be reserved out of a bare Tythe only to make the Lease good within the 13 Eliz. cap. 10. because neither a Distress nor Assise can be brought thereof 204 Verdict See Evidence Issue 1. THE Jury may find a Deed or a Will the Contents thereof being proved by witnesses 77 2. But if they will collect the Contents of the Deed and by the same Verdict find the Deed in haec Verba the Court is not to adjudge upon their Collection but the Deed it self ibid. 3. A Deed or Will must not be found in part because the Court cannot but adjudge upon the whole matter and not upon part only 84 4. The legal Verdict of the Jury is finding for the Plaintiff or the Defendant and what they answer if asked concerning some particular Fact is no part of their Verdict 150 5. In a general Verdict finding the point in Issue by way of Argument although never so concluding is not good 75 187 6. In a Special Verdict the Case in Fact must be found clear to a common intent without Equivocation 75 78 87 7. The Issue was Whether a Copyhold was grantable to three for the lives of two The Jury find that it is grantable for Three Lives this was argumentative only and therefore a void Verdict 87 8. Where a man by Lease reciting a former Lease to have been made doth Demise for Forty years after the Expiration of that Lease paying the same Rent as is mentioned in the recited Lease and only the Lease for Forty years and not the recited Lease is found in the Verdict This Verdict is a void Verdict and findeth neither the one or other Lease 74 75 76 81 82 Vintners See Title Statute 21. 1. The King could not better answer the end of the Act of 7 E. 6. than to restrain the Sellers of Wine to Freemen of London 2. To the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it 355 3. And that such should be licensed without restraint is most agreeable to the Law of the Kingdom which permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades 356 Voucher Vouchee 1. No man shall Vouch who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 2. When a man will be warranted by Voucher he must make it appear how the warranty extends to him 385 Vse See Title Statutes 19. 1. The Statute brings the new Uses raised out of a feigned possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their Intents to change their Estates but not possessions 42 2. By the Statue of 27 H. 8. the Use and Possession come instantly together 50 3. The principal use of the Statute of Uses is to introduce a general form of Conveyance by which the Conizors of the Fine may execute their purposes at pleasure 50 4. An old Use may be revoked and a new Use raised at the same time 42 5. Uses declared by Indenture made a year after the Recovery 51 6. If a Fine be levied of the Reversion of Land or of a Rent to Uses the Cestuy que use may Distrain without Attornment 50 51 7. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Recoverers Estate 52 Vsurpation 1. A void
impleaded he might rebut though he could not vouch 386 17. Tenant in possession setting forth how the warranty extends to him needs not set forth by what Estate or Title he is in possession 387 18. A warranty may be extinguished several ways by Release by Defeazance by Attainder by Re-feoffment of the Warrantor or his Heirs 387 And where the Estate to which it is annexed is determined 389 19. If the warranty be destroyed the Rebutter which is the incident to it is likewise destroyed 387 392 20. Feoffees are seised to the use of A. for his life afterwards to the use of his wife for her life and after to the use of the right heirs of A and when by the Statute of Uses the possession is brought to these Uses the warranty by A. to the Feoffees and their heirs is wholly destroy'd 389 21. But if it had been made to them and their Assignees it were more colourable than to them and their Heirs only 390 22. Where the warranty cannot attach the Ancestor it shall never attach the Heir ibid. 23. Where a warranty is made to a man and his heirs his Assignee can take no advantage of it ibid. 24. The Warranty being an incident to the Estate warranted shall accompany it where the Law disposeth the Estate and Lands warranted to all intents 392 25. Such persons who come to the Estate dispositione legis are not properly in the post ibid. 26. There are some persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees but have the Estate warranted dispositione legis as Tenant pur le Curtesie Tenant in Dower c. 390 391 392 Wife See Baron Feme Will See Devise  Witnesses 1. A Witness swears but to what he hath seen or heard generally or more largely to what hath fallen under his Senses 142 Writ See Abatement of Writs 1. Brevia Mandatoria Non Remedialia are Writs that concern not the Rights or Properties of the Subject but the Government and Superintendency of the King 401 2. No person shall have a Writ to the Bishop except his Title appears plainly 60 3. In a Quare Impedit the Plaintiff and Defendant are both Actors and may each of them have a Writ to the Bishop 6 7 4. In a Quare Impedit if all the Defendants plead Ne disturba pas the Plaintiff may pray a Writ to the Bishop or maintain the disturbance for damages 58 5. A Writ to the Bishop Non obstante Reclamatione 6 6. Judges ought not ex Officio to abate Writs 95 Wreck See Title Statutes 25. 1. By the Common Law all wreckt Goods were the Kings and therefore are not chargeable with any Custome 164 2. Wrecks are such Goods as are cast on Land and have no other owner or proprietor but who the Law makes viz. the King or Lord of the Mannor but they have not an absolute property until after a year and a day 168 3. Goods which are wreck are not liable to pay any Custome by 12 Car. 2. nor any other Law 165 166 171 172 4. A man may have wreck by prescription 164 5. Goods derelicted may be wreck 168 FINIS ERRATA Page 10. in marg r. 269. p. 45. l. 21. r. Case p. 107. l. 3. r. March p. 157. in marg r. Magna Chart. p. 161. l. 35. r. resolved ibid. l. 35. r. searches p. 183. in marg r. 89. p. 208. l. 23. r. knowledge l. 36. r. 23. p. 210. l. 22. r. fourth p. 337. l. 11. r. poyar p. 359. l. penult r. by the. p. 383. l. 12. r. Croke p. 390. l. 38. r. Institutione p. 410. l. 26. r. unque p. 420. l. 3. r. of A TABLE of the Names of the Principal CASES contained in this BOOK B. BEdle vers Constable 177 Bole alii vers Horton 360 Bushels Case 135 C. CRawe vers Ramsey 274 Crawley vers Swindley alios 173 D. DIxon vers Harrison 36 E. EDes vers the Bishop of Exon 18 Edgcombe vers Dee 89 G. GArdner vers Sheldon 259 H. HAyes vers Bickerstaff 118 Harrison vers Dr. Burrell 206 Hill vers Good 302 Holden vers Smallbrook 187 K. THe King vers Bishop of Worcester 53 N. SIr Henry North vers Coe 251 P. PRice vers Braham alios 106 R. ROwe vers Huntington 66 S. SHephard vers Gosnold alios 159 Shute vers Higden 129 Stiles vers Coxe alios 111 T. SIr John Tufton vers Sir Richard Temple 1 Tristram vers Viscountess Baltinglasse 28 Thomas vers Sorrell 330 W. COncerning Process out of the Courts of Westminster into Wales 395