Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being
loco in quo c. pro eisdem quadraginta octo libr ' de reddit ' praed ' sic aretro existen ' juste c. ut in terris distriction ' praedict ' Nich. As in Lands charged with the Distress Marsh modo defend ' in forma praedict ' onerat ' obligat ' c. Demurrer Et praedictus Philippus Lade dic ' qd ' per aliqua per praed ' Thomam Baker Nicholaum Marsh superius in advocatione praed ' alleg ' iidem Thomas Baker Nicholaus Marsh captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscere non debent quia dicit qd ' placitum praed ' per eosdem Thomam Baker Nicholaum Marsh modo forma praed ' superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscend ' ad quod idem Philippus Lade necesse non habet nec per Legem Terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placit ' in hac parte idem Philippus Lade pet ' judic ' dampna sua praed ' occatione captionis injuste detentionis averiorum praedictorum sibi adjudicari c. Joynder Et praedict Thomas Nicholaus ex quo ipsi sufficien ' materiam in Lege ad ipsum Nicholaum captionem averiorum praedictorum in praedicto loco in quo c. justam advocand ' Et ad ipsum Thomam ut Ballivum ipsius Nicholai eandem captionem in eodem loco justam cognoscend ' in advocare cognitione suis praedictis superius allegaver ' quam ipsi parat ' sunt verificare quam quidem materiam praedictus Philippus non dedic ' nec ad eam aliqualit ' respond ' pet ' judicium retorn ' averiorum praedictorum unacum dampnis c. sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque à die Sancti Michaelis in tres septimanas de audiend ' inde Judicio suo eo qd ' iidem Justic ' hic inde nondum c. Lade versus Baker Marsh REplevin for taking his Cattle at Barrham in Kent in a place there called the Fourteen Acrees The Defendant Baker made Conusans and Bailiff of Nicholas Marsh and saith that diu ante praed ' tempus quo c. one Robert Lade was seised in fee of the said 14 Acres and by his Deed indented dated 1 Octob. 24 Car. 1. between him of the one part and Nicholas Marsh Grandfather of the said Nicholas Marsh of the other part and produceth the said Deed in Court in consideration of 100 l paid to him by the said Nicholas Marsh the Grandfather did grant to the said Nicholas Marsh and his Heirs an annual Rent of 8 l to be issuing out of all that Capital Messuage with the appurtenances in Barham aforesaid and out of all Lands and Hereditaments in Barham aforesaid to the said Messuage belonging and then in the occupation of the said Robert Lade unde praedict ' locus in quo est praed ' tempore quo c. fuit parcell ' to be paid at our Lady Day and Michaelmas by equal portions with power to distrain if the said Rent or any part thereof were behind And the Defendant further saith that by virtue of the said Grant the said Nicholas Marsh the Grandfather became seised in Fee of the said Rent and being so seised by his Will in Writing dated the 28th of November 1654 devised the said Rent to Richard Marsh and his Heirs and died by virtue whereof the said Richard Marsh became seised in Fee of the said Rent and being so seised diu ante praedict ' Tempus quo c. viz. 10 Aug. 32 Car. 2. nuper Regis by his Deed indented between him of the one part and the said Nicholas Marsh the Defendant Son of the said Richard of the other part cujus Scripti alteram partem Sigillo praedict ' Richard Marsh omitting sigillat ' idem Thomas Baker the Defendant hic in Cur ' profert for and in consideration of Natural Love and affection which he bore to the said Nicholas now Defendant his Son and the sum of 5 l yearly by him the said Nicholas to the said Richard Marsh during the Life of the said Richard secured to be paid and for divers other good causes and considerations concessit assignavit transposuit to the said Defendant Nich. Marsh and his Heirs the said Annuity or yearly Rent of 8 l to the use of the said Nicholas Marsh the Defendant and his Heirs prout per idem Scriptum Indentat plenius apparet Virtute cujus quidem concessionis assignationis ulterius mentionat vigore Statuti Anno Regni Hen. 8. nuper Regis Angliae vicesimo septimo de usibus in possessionem transferend praedict Nich. Defend ' fuit adhuc est seisit de praedict annual reddit c. and for 48 l for six years arrear at Michaelmas next-before the taking of the Cattle to the said Nicholas the Defendant bene cognoscit ut Ballivus ipsius Nicholai c. To this the Defendant demurs First It is not sufficiently shewn that the Place where c. was charged with the Rent for the Rent is granted out of a Messuage with the appurtenances in Barham and out of all the Lands in Barham aforesaid to the said Massuage belonging and then in the occupation of the said Robert Lade unde praedict locus in quo est tempore quo c. fuit parcell and tho' it were parcel at the time of the Distress taking it might not be belonging to the said House or in the tenure of Lade at the time of the Rent granted which should have been shewn and of that Opinion were the Court. Secondly In the Deed by which the Defendant Nicholas Marsh claims it is said sigillo praedict Rich. Marsh omitting sigillat Sed non allocatur for it is said before that per Scriptum indentat factum inter c. he granted and that is enough Thirdly Here is a grant of the Rent from Richard Marsh pleaded without any Attornment or Enrollment To which it was answered by the Counsel for the Defendant that it appeareth that the Grant was made in Consideration of Natural Affection as well as Mony and so it shall enure as a Covenant to stand seised and for this the Case of Crossing and Scudamore was cited Pas 23 Car. 2. Rot. 871. where in Ejectment it was found by Special Verdict that Nicholas Hele was seised of Lands in Fee and that he made a Deed to Jane Hele enrolled within six Months by which he did for and in consideration of Natural Love Augmentation of her Portion
Indicted of Perjury in a voluntary and Extra judicial Oath and cited a late Case where one had stole away a mans Daughter and went before a Justice of the Peace and Swore that he had the Fathers Consent and this in order to get a Licence to marry her and he was Indicted and Convicted thereupon And all the Court said that it was not the course to quash Indictments of Perjury Nusance or the like but to put the party to plead to them Termino Paschae Anno 36 Car. II. In Banco Regis Duncomb versus Walter IN an Indebitat ' Assumpsit by an Assignee of Commissioners upon the Statute of Bankrupts upon Non assumpsit a Special Verdict was found upon which the Case appeared to be thus One Staly was Arrested by an Executor of his Creditor 6 Sept which was before Probat of the Will and within two or three days after he paid 1000 l to the Defendant to whom he stood Indebted in such Sum and after the 18th of September he yielded himself to Prison upon the said Arrest The Question was Whether the Defendant should be obliged to Refund this Money which was paid unto him as aforesaid First Whether the Arrest before the Probat was a good Arrest It was said If an Executor hath a Reversion in a Term upon which a Rent is reserved and Distrains c. he may avow for the Rent before the Probat Vid. 1 Roll. 917. tit Executors where an Executor brings an Action before Probat yet if he shews the Probat upon the Declaration 't is well enough Secondly Whether when he yields himself to Prison it shall not relate to the first Arrest to make him a Bankrupt from that time This depends upon the Statute of 21 Jac. cap. 19. where it is said that in the Cases of Arrest and lying in Prison he shall be adjudged a Bankrupt from the time of his first Arrest Object This Relation doth not prejudice Strangers Answ Dame Hales's Case Pl. Com. 293. If one giveth another a mortal Wound and then sells his Land and the person dies there shall be such Relation as to make the Land forfeit from the first Stroke Note This Case came by Writ of Error out of the Common Pleas where Judgment was given for Walter and the said Judgment was affirmed in this Court principally upon the point of Relation For the Court said that it would be a great mischief if it should relate to the first Arrest as to the payment of Money to Strangers Termino Sancti Hillarij Anno 1 2 Jac. II. In Banco Regis Herring versus Brown Quod vid. ante Michaelmas 35 Car. 2. THe Case upon a Special Verdict was to this effect That J. S. being Seised in Fee had made a Conveyance of his Estate to the use of himself for Life with divers Remainders over to other persons with a power of Revocation by Writing under his Hand and Seal c. Afterwards the said J. S. having a purpose to Revoke the said Uses and make a new Settlement of his Estate he levied a Fine and after the Fine he made a Deed wherein he expressed that he Revoked the former Uses and so proceeded to a new Limitation by that Deed and declared that the Fine by him limited should be to the Vses of the said Deed. The sole Question was Whether the Fine had extinguished his Power and by consequence forfeited his Estate or Whether the Fine and Deed should be taken as one Conveyance and so be a good execution of his Power and new limitation of the Uses And after many solemn Arguments it was Resolved by the Chief Justice Herbert Holloway and Wright that the Fine was an extinguishment of his Power and that the Deed came too late contrary to the Opinion of Justice Withens Vido ante ADDENDA Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Pibus versus Mitford Intratur Trin. 20 Car. 2. Rot. 703. IN an Ejectment the Jury find a Special Verdict to this effect viz. That Michael Mitford was seiz'd of the Lands in question and of divers other Lands in Fee and having Issue Robert by one Venter and Ralph by Jane his second Wife did 23 Jan. 21 Jac. by Indenture Covenant to stand seized of some of the Lands to the use of himself for Life Remainder to Trustees for years for several purposes Remainder to Jane his second Wife for Life Remainder to Ralph and the Heirs Male of his Body And as to the Lands in question he Covenants to stand seiz'd To the use of his Heirs Male begotten or to be begotten on the Body of his second Wife and died And then the Jury made this Special Conclusion If any Use did arise by the Deed to Ralph then they find for the Defendant and if not they find for the Plaintiff This Case was Argued several times at the Bar and now the Judges delivered their Opinions seriatim Wild Justice for the Defendant We are to give our Opinions upon a Deed of Uses made for the Provision of younger Children not otherwise provided for But if the Case were not so It is a safe way when the Words are ambiguous to follow the Intention of the party appearing in the Deed. I shall not maintain that Ralph is a Purchaser and so make this an Executory Use I agree a man cannot either by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser I agree also Griswold's Case in Dyer 156. and if this Case had operated by Transmutation of Possession this Limitation to the Heirs of the Body of the Covenantor had been void and no Use should have risen But here in the Case of a Covenant to stand seiz'd nothing moves out of the Covenantor he retains the Land and directs the Use and keeps sufficient in him to maintain this Use There 's a great difference between a Conveyance at the Common Law and a Conveyance to Uses At the Common Law the Heir cannot take where the Ancestor could not but otherwise it is in case of Uses 2 Rolls 794. and so is Wood's Case 1 Co. 99. a. cited in Shelly's Case This I say to shew that the Intent of the Parties shall be the Guide and that there is a difference between Conveyances at the Common Law and Conveyances to Uses Horwood's Opinion in Hussey's Case 37 H. 8. comes to our Case There 's no great difference between a Covenant to stand seiz'd and a Feoffment to Uses I will not Argue to prove that this Deed shall enure as an Executory Use because 't is against a Rule in Law taken by my Lord Hobart and so Agreed before his time But here Ralph is Tenant in Tail Michael his Father being Tenant for Life Remainder to his Heirs Male begotten on the Body of Jane his second Wife For the Law to preserve this Limitation to the use of his Heirs Male c. will by Implication create an Estate for Life in Michael
Demurrer to the Replication Joynder in Demurrer 241 7. Debt upon a By-Law made by a Corporation by Prescription 243 The Declaration sets forth That the Town of G. is Antiqua Villa a Corporation time out of mind Power to implead and be impleaded A Custom to make By-Laws for good Government of the Corporation and to impose Penalties Custom to elect a Bayliff annually 243 The By Law sets forth Forfeiture for the Breach The Defendant elected Bayliff for the year then next following who refused to execute the Office per quod Actio accrevit The Defendant pleads the Act of 13 Car. 2. 244 The Act set forth 245 And alledges that he is and at the time aforesaid was a Protestant Dissenter and had not received the Sacrament according to the Rites of the Church of England with a year before his Election and that the said Election by virtue of the said Act was void The Plaintiff demurs The Defendant joyns 246 8. Debt for Rent upon two several Demises by Lease Parol 249 The first Demise Exception Habendum Reddendum Entry Rent arrear Actio accrevit 250 The second Demise Exception Habendum Reddendum Rent arrear Actio accrevit 251 The Defendant pleads That the Plaintiff Nihil habuit in tenementis tempore dimissionis it should have been temporibus demissionis ibid. The Plaintiff replies That before the several Demises one J. S. demised to him for 41 years the said J. S. having then full Power Right and Title to make such Demise by virtue of which he entred and was possest and demised to the Defendant 252 The Defendan demurs The Plaintiff joyns in demurrer 253 Distress and Avowry Vide Replevin E Error 1. ERror in the Exchequer Chamber The Style of the Court 286 The Writ of Error 287 The Return of the Writ The Memorandum and Declaration in a special Action of the Case for not grinding at an Ancient Mill. Seisin of the Mannor and Mill. The Plaintiff Farmer of the Mill habuit habere debuit the Toll 288 The Defendant Occupier of an Ancient Messuage which ought to grind at his Mill. That the Defendant erected a Hand-Mill and ground therewith ratione cujus the Plaintiff lost his Toll The Defendant imparles and pleads Not guilty 289 Postea Tales Verdict for the Plaintiff The Judgment The Placita in the Exchequer Chamber 190 The General Errors assigned A Scire facias ad audiendum Errores prayed and awarded The Defendant in the Writ of Error appears and pleads in nullo est Erratum 291 2. The Placita in the Exchequer Chamber The Writ of Error 296 The Return of the Writ The Placita 297 The Memorandum and Declaration upon an Inland Bill of Exchange The Custom set forth That any Merchant or other person vel Ordini suo super visum acceptavit sic per Indorsamentum appunctuaret pro valore recept ' c. Upon Refusal to pay the Merchant or other person to become chargable 298 Avers That the Defendant being a Merchant at N. drew a Bill upon one J. S. in London payable to one P. or Order for Value received The Bill presented to J. S. and accepted by him P. orders payment to the Plaintiff J. S. had Notice and the Money demanded of him but refused payment of which the Defendant had Notice 299 And became chargable and thereupon promised payment but tho' after requested non solvit 300 The Defendant Protestando that there is no such Custom for Plea says That one C. an Excise-man paid the Defendant the Money in question being the Kings Money to the intent that it should be paid to the King and the Defendant at C's request drew the Bill That C. was then indebted to the King prout per Record ' Scaccarij 301 That an Extent issued out thereupon ad inquirendum The Writ delivered to the Sheriffs of London An Inquisition taken by them 302 The Money and Bill of Exchange seised and returned into the Exchequer The King became Entituled An Extent issued out to the Sheriff of N. for the levying the Money and the Money paid thereupon Averment of una eadem persona 304 Et una eadem Billa Et una eadem Summa The Plaintiff demurs to the Plea especially Causes of demurrer The Defendant joyns in demurrer 304 Eleven Continuances 304 305 306 The Loquela and Proceedings revived by Act of Parliament 1 W. M. Judgment for the Plaintiff upon the demurrer A Writ of Enquiry awarded 306 The Inquisition return'd Damages found Judgment for the Plaintiff 307 Mill and Toll Vid. Error 1. Outlawry pleaded Vid. Action on the Case 8. Prerogative Process Vid. Action on the Case 3. Error 2. Trover 2. Quantum meruit Vid. Action on the Case 8. R Rent Vid. Debt 3. 8. Replevin 1. THe Plaintiff Declares for taking and detaining 8 Cows c. The Defendant acknowledges the taking as Bayliff to the Dean and Chapter of Canterbury 131 Sets forth that they are Lords of the Mannor of M. That J. S. was seized of the Locus in quo parcel of the said Mannor and held it of the Dean and Chapter by Fealty Rent and Suit of Court Sets forth a Custom for the Lord to have a year and an halfs Rent upon every Alienation and power to distrain for it Shews the Alienation and the Purchasers Entry and that there was so much due for a Fine by Custom and because the same was unpaid the Defendant distrained infra feodum c. 132 133 The Plaintiff demurs to the Conizance The Defendant joyns in demurrer 134 2. Against two Defendants One of which avows the other acknowledges the taking as Baily to the former 145 They set forth that long before the taking R.L. and L.L. were seized in Fee of the Locus in quo and by Deed granted an Annuity to the Ancestor of the Avowant and his Heirs issuing out of certain Lands of which the Locus in quo was parcel with power of Distress Conditionally to be void upon payment of 100 l on a certain day then to come which was not paid c. 146 147 And for six years Rent Arrear the Distress was made which the one Defendant bene advocat and the other bene cognoscit as in the Lands charged with the Distress The Plaintiff demurs to the Avowry and Conizance The Defendants joyn 148 3. The Plaintiff declares for taking his Colt c. 210 The Defendant avows for Damage fesant and sets forth that E. M. being seized in Fee demised the Locus in quo to the Avowant to hold at Will That he entred and was possest and took the Cold Damage fesant prays Judgment and a Return and Costs and Damages according to the Statute The Plaintiff pleads in Bar to the Avowry That E. M. demised the Locus in quo to him before the pretended Demise to the Defendant to hold for 6 years That he entred and was possest and that the Defendant took his Colt there absque hoc that E. M. demised to
redd ' unius anni mediet ' redd ' unius anni per quem talia terrae vel tenementa sic alienat ' tent ' fuer ' in Manerio praed ' nomine finis pro alienatione and lays a Custom to distrain for the said Alienation Fine and then sets forth an alienation of the said Messuage and Premisses by the said Sir John Sabin to one Walter Tyndall in fee and shews that the said Walter Tyndall made another alienation in fee to one Christopher Yates and so sets forth that there were two Fines due upon the said alienations after the rate aforesaid amounting to 18 l 7 s and 7 d ob and that he as Bayliff of the said Dean and Chapter captionem praed ' bene cognoscit in praed ' loco in quo ut in parcell ' tenement ' praed ' To this the Plaintiff demurred and it was spoken to at the Bar the last Term and likewise this Term The main thing was that the Custom as it was laid was not good for the Alienation Fine is set forth to be due upon the Alienation of any parcel of Lands or Tenements held of the said Mannor to have a year and halfs Rent by which the Lands or Tenements so aliened were held so that if the 20th part of an Acre be aliened a Fine is to be paid and that of the whole Rent for every parcel is held at the time of the alienation by the whole Rent and no apportioning thereof can be but subsequent to the Alienation and this the whole Court held an unreasonable Custom and it is set forth it could not be otherwise understood than that a Fine should be due viz. a year and halfs Rent upon the Alienation of any part of the Lands held by such Rent The Court doubted also whether the Custom was good as to the claiming an Alienation Fine upon an Alienation for Life because by that the tenure of the Lands aliened is not altered for the Reversion is still held as before by the same Tenant Judicium pro Quer ' Colley versus Helyar IN an Action of Debt for 34 l the Plaintiff declared against the Defendant an Attorney of this Court praesente hic in Cur. in propria persona sua upon a Bond of 34 l The Defendant pleads in Bar quoad quinque libras sex solid tres denar of the aforesaid 34 l that the Plaintiff post confectionem Scripti Obligat ' praedict ' scilicet vicesimo c. anno c. ê‘ quoddam Scriptum suum acquietantiae cognovisset se accepisse habuisse de praed Defendente 5 l 6 s and 3 d in part solutionis majoris summae and pleaded a frivolous Plea as to the rest of the Mony to which the Plaintiff demurred And it was argued that the Acquittance under the Plaintiffs Hand and Seal for 5 l 6 s and 3 d part of the Mony due might have been pleaded in bar of the whole and that if the Defendant here had relied upon it it would have barred the Plaintiff of the whole Vide for that matter Hollingwoth and Whetston Sty 212. Allen 65. Beaton and Forrest Note there the payment was since the Action brought and pleaded in abatement where it was said that it could not be so pleaded without an Acquittance Vide Kelw. 20. 162. 3 H. 7. 3 B. receipt of parcel pending the Writ 7 Ed. 4. 15. a. But it seems clear by the Book of Edw. 4. 207. Mo. 886. Speak versus Richards That if part be received and an Acquittance given before the Action it is a Bar only of so much but it seems the Action must be brought for the whole Dickman versus Allen. Cantabr ' ss Case brought against the Defendant for not folding his Sheep upon the Plaintiffs Land according to Custom The Colledge of St. Mary and St. Nicholas seized in Fee jâ—re Collegii ABRAHAMUS ALLEN nuê‘ de Grancester in Com' praedicto Yeom ' attach ' fuit ad respondend ' Roberto Dickman Gen ' de placito transgr ' suê‘ Casum c. Et unde idem Robertus per Robertum Drake Attorn ' suum queritur quare cum Praepositus Scholares Collegii Regalis Beatae Mariae Sancti Nicholai in Cantabr ' in Com' praed ' seisit ' fuissent de uno Capitali Messuagio cum pertinen ' in Grancester in Com' praedicto ac de centum sexaginta acris terrae arrabil ' jacen ' in Communibus Campis de Grancester praedicta cum pertinen ' in dominico suo ut de feodo in jure Collegii sui praedicti iidemque Praepositus Scholares omnes ill quorum statum ipsi habuer ' de in tenementis praed ' cum pertinen ' a tempore cujus contrarii memoria hominum non existit habuer ' habere consuever ' ê“ se Firmariis Tenentibus suis eorundem A Custom for all the Tenants to sold their Landlords Land Tenementorum cum pertinen ' libertatem Faldagii Anglicê Foldage omnium Ovium Ovibus suis ê“priis Ovibus tenen ' occupatorum ê“ tempore existen ' quorundam Messuagiorum Terrarum in Villa de Coton in Com' praed ' qui a tempore cujus contrarii memoria hominum non existit respective usi fuer ' Common of Vicinage intercÌ„oiare causa vicinagii in quibusdam Communibus Campis de Grancester praed ' cum Ovibus suis in super praed ' Messuagiis terris suis in Coton praed ' Levant and Couchant levan ' cuban ' except ' suor ' depascen ' infra Communes Campos territoria de Grancester praedicta a vicesimo quinto die Martii usque primum diem Novembris quolibet anno suê‘ praedictas centum sexaginta acras terras arabil percipiend ' From such a day to such a day faldand ' tanquam ad tenementa praedicta cum pertinenciis pertinen ' praedictisque Praeposito Scholaribus Collegii praed ' de Tenementis praedictis cum pertinen ' The Principal and Scholars demise to the Plaintiff by Indenture in forma praedicta seisit ' existen ' Praepositus Scholares postea scilicet decimo nono die Octobris Anno Domini millesimo sexcentesimo octogesimo primo apud Grancester praedictam quodam Johanne Coppleston Sacrae Theologiae Professor ' adtunc Praeposito Collegii praedicti existen ' ê‘ quandam Indenturam inter ipsos Praepositum Scholares ex una parte quendam Johannem Wittewronge Mil Barronet ' ex altera parte factam cujus alteram partem Sigillo cÌ„oi ipsorum Praepositi Scholarium signat ' idem Robertus Dickman hic in Cur ' profert cujus dat' est eisdem die anno dimiser ' ad firmam tradider ' eidem Johanni Wittewronge Tenementa praedicta cum pertinen ' Habendum habend ' occupand ' praefat ' Johanni Assign ' suis a tempore confectionis Indenturae illius usque plenum finem terminum viginti
these Defendants were entitled to these Costs and he that did not appear might release them to the Plaintiff but they said that if there should appear to the Covin between the Lessor of the Plaintiff and the Defendant who did not appear to release the Costs the Court supposed that they might correct such Practice when it should be made appear Bright versus Addy AN Action of Trespass Quare clausum fregit was brought by Baron and Feme Pollexfen Chief Justice was of Opinion that the Feme could not be joyned tho' it was her Land Ventris contra For this Action will survive and they have election either to joyn or to bring it alone 1 Brown l. 21. 1 Ro. Abr. 348. Hob. 189. 1 Cro. 96. 3 Cro. Tregniel and Reeve Mo. 5. In an Action of Forcible Entry upon the Wives Land after the Coverture she was joyned with the Husband Adjornatur Anonymus IN an Assumpsit against the Administratrix the Defendant pleaded quod ipsa non assumpsit instead of the Intestate After Verdict a Repleader was awarded and no Costs to either party upon a Repleader Marks versus Nottingham THe Defendant pleaded in Abatement that the Plaintiff was dead at such a place before the Action brought The Court doubted whether such Plea could be received but upon view of Rastall's Entries 161. pl. 6. where the like Plea was Powell and Ventris conceived it to be a good Plea Pollexfen Ch. Justice and Rokeby said that that in Rastall differed because there were two Plaintiffs so that Issue might be joyned with the other Plaintiff Sed vide librum where the Replication to that Plea is that W.H. praedict ' R.B. Attornat ' praed ' J. which J. was pleaded to be dead nomine pro ipso J. Magistro suo dicit quod breve praed ' ratione praeallegat ' cassari non debet quia dicit quod praed ' J. superstes in plena vita existit viz. apud L. in Com. N. non mortuus prout praed ' W. superius allegavit hoc petit quod inquiratur per Patriam praed ' W. similiter c. Adjornatur Haselwood versus Mansfield IN Debt for 150 l the Plaintiff declared upon a Charter-party which contained divers mutual Agreements and in performatione conventionum praed ' ex parte dicti Magistri ipse obligasser se dicto Mercatori in penali summa 150 l ad performationem convention ' praed ' ex parte dicti Mercator ' obligasset se dicto Magistro c. in simili penali summa 150 l c. And this Action was brought by the Master of the Ship against the Merchant The Defendant pleaded an Insufficient Plea to which there was a Demurrer But it was moved that the Declaration was Insufficient for when it comes to the Penalty on the Merchants part it is only obligasset se omitting ipse or ipse praed ' Mercator obligasset se so 't is not expresly declared that the Defendant was bound And of that Opinion were Pollexfen Chief Justice Powell and Rokeby Ventris contra For it is obligasset se dicto Magistro so none but the Merchant can be understood to be bound and if it were ipse obligasset it had been good and that is understood But Judgment was given for the Defendant Snode versus Ward IN an Indebitat ' assumpsit for Goods sold The Defendant pleaded quod ipse infra sex annos proxime ante diem impetrationis Brevis Originalis ipsius Quer ' non assumpsit To which the Plaintiff demurred 1. Because the late Statute of 1 Willielmi Mariae for reviving of Process doth Enact That the Time from the 11th of December 1688 to the 13th of February then next following should not be accounted as any part of the Time upon the Statute of Limitations And therefore the Defendant should have pleaded that he did not assume within six years and so many days as were between the 11th of December and the 13th of February And it was said so had the Pleading been ever since the said Statute But the Court Resolved that the Pleading might be still in such manner as before the Statute For the Statute is that those Days shall be no part of the time and therefore pleading non assumpsit infra sex annos is to be understood of Six years exclusive of those Days between the 11th of December and the 13th of February 2. Another Exception was taken to the Plea for that it is ante impetrationem Brevis Original ' ipsius Quer ' and doth not say praed ' brevis and so it may be referred to some other Writ the Plaintiff might have Pollexfen Chief Justice inclined that it was naught for this Cause Adjornatur Vid. 8 Co. 57. The Earl of Rutland's Case He pleads that he was seised of the Park of Clipsham and granted officium Parci sui and not said praed ' Parci and held it good Vid. 2. Cro. 288. Burton and Eyre Humphreys versus Bethily IN an Action of Debt upon a Penal Bill where the Defendant was to pay 10 s upon the 11th of June and 10 s more upon the 10th of July next following and so 10 s every three Weeks after till a certain Sum were satisfied by such several payments And for the true payment thereof the Defendant obliged himself in the Penal Sum of 7 l The Plaintiff in facto dicit pleaded that the Defendant did not pay the said Sum or any part thereof upon the several days aforesaid unde actio accrevit for the 7 l The Defendant pleaded that he paid 10 s upon the 11th of June hoc paratus estve rificare c. The Plaintiff Replyed that he did not pay it hoc petit quod inquiratur per Patriam To which the Defendant demurred The Plea was held altogether Insufficient But then Pollexfen Chief Justice observed that the Declaration was naught for he should have declared that the Defendant failed in payment of one of the Sums which would have been enough to have entitled him to the Penalty but he says The said several Sums of Money or any of them and this is double and he inclined that it was not aided by Answering over or by the General Demurrer Adjornatur Vide Saunders and Crowley 1 Ro. 112. Thompson versus Leach IN an Ejectment by Thomas Thompson against Sir Simon Leach and divers other Defendants upon the Demise of Charles Leach of the Mannor of Bulkworthy and divers Messuages Lands and Tenements Vpon Not Guilty pleaded a Special Verdict was found to this effect Viz. That Nicholas Leach was seised in Fee of the said Mannors Lands and Tenements in the Declaration and by his last Will in Writing bearing date the 9th day of December in the 19th year of the Reign of the late King Charles the Second devised the Premisses to his Brother Simon Leach for Life remainder to the first Son of the Body of the said Simon and the Heirs Males of the
praedict ' that upon the 24th of November aforesaid a Writ of Extendi facias was awarded to the Sheriffs of London against the said Calvert for the said Debt of 5000 l commanding him to Enquire per Sacramentum proborum legalium hominum c. what Goods Chattels Debts Specialties Sums of Money c. the said Calvert then had and to extend and seise them into the Kings hands in whole hands soever they then were that the King might be thereout satisfied of the said Debt juxta formam Statuti pro hujusmodi deb ' dicti domini Regis recuperand ' Which Writ was Returnable the 26th of the said November and upon the 24th was delivered to the then Sheriffs of London who upon the 25th day of the said November by virtue of the said Writ took an Inquisition per Sacramentum c. by which it was found that the said Defendant Cramlington upon the 24th of the said November was indebted to the said Calvert in 500 l for Money received by him to the use of the said Calvert and that the Defendant made a Bill of Exchange dated the 10th of the said November directed to the said Ryder to pay to the said Price to the use of the said Calvert the Sum of 500 l and that the same was due to the said Calvert at the time of the Inquisition taken and that the said Sheriffs did thereupon seise the Debt and Bill of Exchange into the Kings hands secundum exigentiam brevis praedict ' and Returned the said Writ and Inquisition c. into the Exchequer prout per Recordum c. plenius apparet by virtue of which the King became lawfully entituled to the said 500 l and Bill of Exchange aforesaid And the Defendant further saith That afterwards scilicet the 9th of December Anno primo c. a Writ of Extendi facias was awarded out of the said Court of Exchequer against the said Defendant Cramlington for the said 500 l and thereupon be paid the said 500 l upon the 15th day of January Anno primo supradictio to the use of the King in plena exoneratione satisfactione praedict ' ult ' mentionat ' brevis de extendi fac ' praedict ' Billae excambij summae quingent ' librarum per Inquisitionem praed ' sic ut praefertur compertum c. and concludes with Averments viz. That he the Defendant Cramlington is the same so named with him in the Extent and that the 500 l the Bill of Exchange c. in the Inquisition found are the same with them mentioned in the Declaration c. and so demands Iudgment of the Action To this Plea the Plaintiffs Demurred And after divers Arguments Judgment was given in the Kings-Bench for the Plaintiffs in Easter Term in the first year of King William and Queen Mary And now it came to be Argued upon a Writ of Error in the Exchequer Chamber First It was alledged for Error that the Custom is laid so general viz. not only to extend to Merchants but all others so that it must be at the Common Law if to be allowed at all Sed non allocatur For in the Case of Sarsfield and Witherly lately Adjudged it was Resolved That a person not being a Merchant drawing a Bill of Exchange was bound according to the Vsage of it amongst Merchants and in Declarations upon Bills of Exchange the whole Matter is to be set forth specially Secondly There was as appears by the Bill of Exchange 25 Day given for the payment of it after the Date of the Bill whereas here the Request and Refusal is upon the 25th day after the Date Sed non allocatur For as the Bill is set forth it is to pay the Money ad viginti quinque dies post datum and this can't be if not paid at the Five and twentieth day Thirdly The Matter chiefly insisted upon for Error was That the 500 l was appointed to be paid to Price for the use of the Calvert so the right and interest of the Money was in Calvert by whomsoever it should be received and then it might well be seised for the Debt which Calvert did owe to the King But the Court held that the Seisure for the King ought not to have been in this case 1. For that tho' it were to be paid for Calvert's use yet this was but a Trust and the Right of the Money was in Price As if Goods be given to A. to the use of B. the property of the Goods is in A. Otherwise if Money be delivered to A. to pay to B. there the Right of the Money is in B. and he may bring an Action of Debt 2. Here the Bill is Endorsed over to be paid to the Plaintiffs before any Seisure or the Writ of Extent was issued forth and the Custom is expresly laid that an Endorsment might be as in the Case here which Custom is confessed and that determines the Right and Interest in the Money of him that makes the Endorsment and puts it in the Plaintiffs Wherefore the Judgment was affirmed Termino Sanctae Trinitatis Anno 2 W. M. In Scaccario Burchett versus Durdant IN a Writ of Error upon a Iudgment in an Ejectment in the Kings-Bench where the Plaintiff Mary Durdant declared upon the Demise of William Durdant of two Messuages 100 Acres of Land c. in Chobham in the County of Surrey Vpon Not guilty the Jury gave a Special Verdict That Henry Wicks was seised in Fee of the Premisses and by his Will in writing dated the 6th of June 1657. be Devised in the words following Viz. I give to my Cousin John Higden and his Heirs during the Life only of Robert Durdant my Kinsman all those my Messuages c. in Chobham in the County of Surrey upon this Trust and Confidence That he the said John Higden and his Heirs shall permit and suffer the said Robert Durdant during his Life to have and receive the Rents and Profits thereof which shall yearly grow due and payable he the said Robert committing no Waste And from and after the Decease of Robert Durdant then do I give the said Lands and Premisses in Chobham unto the Heirs Males of the Body of him the said Robert Durdant now living and to such other Heirs Male and Female as he shall hereafter happen to have of his Body and for want of such Heirs then to the use and behoof of my Cousin Gideon Durdant and the Heirs of his Body and for want of such Heirs the same to be and remain to the right Heirs of me the said Henry Wicks They find that Wicks died the 2d of December 14 Car. 2. seised as aforesaid and that John Higden entred and was seised prout lex postulat and by Deed bearing date the 1st of Jan. 14 Car. 2. reciting the said Will and that the said Robert Durdant and Gideon Durdant had Contracted with the said John Higden for the sale of the said
his Assent to the Marriage of his Daughter with J.S. and that he would give her 1500 l And afterwards by another Letter upon a further Treaty concerning the Marriage he went back from the Proposals of his Letter And at some time after declared That he would agrèe to what was propounded in his first Letter This Letter was held a sufficient Promise in Writing within the Statute of 29 Car. 2. called the Statute against Frauds and Perjuries and that the last Declaration had set the Terms in the first Letter up again Anonymus WHere a man buys Land in anothers name and pays Mony it will be in Trust for him that pays the Mony tho' no Deed declaring the Trust for the Statute of 29 Car. 2. called the Statute of Frauds doth not extend to Trusts raised by Operation of the Law Anonymus AN Administrator de bonis non of the Conusee of a Statute had agreed with the Conusor to assign it in Consideration of a Sum of Mony which upon the said Agreement the Conusors had Covenanted to pay to him his Executors or Administrators and then the Administrator died The Court Decreed the Mony to be paid to the Executor of the Administrator and not to the New Administrator de bonis non altho' before the Extent it could not be assigned at Law Sed nota That there were not Debts of the first Intestate appearing Termino Sancti Hillarij Anno 35 36 Car. II. In Cancellaria NOte Suits in Chancery admitted for Distribution of Intestates Estates upon the Act of 22 Car. 2. Sir Thomas Draper Mil ' versus Dr. Crowther THe Bill sets forth a Contract under Seal with the Defendant for making of a Lease of certain Lands in Middlesex and to have an Execution of the Agreement The Defendant pleaded That he has Head of a Colledge in Oxford and sets forth the Charters of 14 R. 2. and 14 H. 8. Impowering the University to enquire and proceed in all Pleas and Quarrels in Law and Equity except concerning Freehold where a Scholar their Servants and Ministers sunt una partium c. ita quod Justiciarij de Banco Regis sive de Communi Banco vel Justiciarij ad Assisas non se intromittant c. And the Confirmation by an Act of Parliament of the 13th of Elizabeth and Concluded his Plea to the Iurisdiction of the Court. And it came to be Argued before the Lord Keeper Guildford 22 Febr. 1683. and the Plea was Over-ruled because the Charter ought properly to be extended to Matters at Common Law only or to Proceedings in Equity that might arise in such Cases and not to meer Matters of Equity which are Originally such as to Execute Agreements in specie Again Conuzance of Pleas is never to be allowed unless the Inferior Jurisdiction can give Remedy Here they can only Excommunicate or Imprison but cannot proceed to Sequestration of Lands in Middlesex If the Matter lay only in Damages it might be allowed to them because the Jurisdiction is given over all England but this is not to be intended where the Suit is for the thing it self and when 't is out of their reach A President was cited in the year 1663. before my Lord Clarendon Chancellor assisted with Hale then Chief Baron and Justice Wyndam where the Plea was Over-ruled Vide in the 3 Cro. 63. Wilcocks and Bradell's Case and Hallie's Case 87. Sir Robert Reeve's Case SIr George Reeve upon his Marriage with his Second Wife setled a Ioynture of divers of his Lands in Suffolk which he had before charged with his Daughters Portion viz. 3000 l which Daughter he had by a former Wife and by his last Will he mentioned that the said Joynture Lands were so incumbred and therefore he Devised certain Lands he had in Bickerton in Yorkshire to his Wife in lieu of such part of the Suffolk Lands as were charged with the Portion in case she would accept thereof But after his Decease it appeared that the Lands in Bickerton were not equivalent in Value to the Suffolk Lands and therefore she held to the latter and was not prejudiced by the Charge of the Portion because it appeared to be a Voluntary Settlement Nota In this Case the Lord Keeper Decreed that the Portion should be charged upon the Bickerton Lands for so much as it was defeated by the Settlement in Ioynture of the Suffolk Lands Anonymus ONe Devised his Lands to J.S. in Fee in Trust for Katharine and the Heirs of her Body and if Katharine died without Issue to Jane for life And in another Clause in the Will he devised That if Katharine died without Issue and Jane be then deceased then and not otherwise he gave the Land to J. N. and his Heirs Katharine died without Issue and Jane survived her and died A Bill was brought by J. N. against J. S. and the Heir at Law of the Testator to have this Trust executed My Lord Keeper Decreed it for J. N. altho' Jane survived Katharine because the words if Jane be then deceased seemed to be put in to express his meaning that Jane should be sure to have it for her life and that J. N. should not have it till she were dead and also to shew when J.N. should have it in possession Termino Paschae Anno 36 Car. II. In Cancellaria Wiliam Ragget and his Wife versus William Clarke THe Case was thus Nicholas Wheeler was seised of a parcel of Land for his own life and the lives of two others and prevailed with the Defendant to be bound with him for a Sum of Mony And that the Defendant might raise Mony for the discharge of the said Debt he permitted the Defendant to enter into the said Lands and to take the Profits for two years the said Lands being about 12 l yearly value and the said Land being so in the possession of the Defendant the said Wheeler died and made Isabel Wife of the now Plaintiff his Executrix And this Bill was brought by the said Husband and Wife to have an account of the Profits and that the possession of the Land should be delivered up to them The Defendant by Plea sets forth his Title as Occupant and it was allowed And the Bill was dismissed Bonham versus Newcomb ONe being seised in Fee in Consideration of 1000 l paid to him by a Person that married his Kinswoman Conveys to him and his Heirs and takes a Re-demise for 99 years if he should live so long And a Covenant therein That if he should pay 1000 l with the Interest that should be due for the same at any time during his life that the Grantee should Re-convey to him and his Heirs and that if he did not pay the Mony then that his Heirs c. should have no power to Redeem He died the Mony not being paid and his Heir preferred a Bill to Redeem it And it was urged for him That in a Conveyance which was a Security for Mony whatever
to the same purpose and that a Fine doth not bar an Interest which is not divested He quoted also the 1 Inst 388. 9 Co. 106. and 5 Co. Saffin's Case where a Fine and Non claim shall bar the Interest of a Term yet it appears in 2 Cro. 60. that two Judges were against that Iudgment given by the other three 2 Cro. 659. Tenant at Will makes a Lease for years and it was held to be no Disseisin volens nolens to him that had the Inheritance And for Isham and Morris's Case 1 Cro. 74. it was the Judges Opinion upon Evidence and there a Fine was levied of the Inheritance which passed the Trust inclusively but this Fine was only to establish an Interest for 54 years Then he Argued that the Inconvenience would be very great to Purchasers who often keep such Leases and Interests on Foot tho' they buy the Inheritance if they should be all barred by Levying of the Fine The Solicitor è contra He agreed that a Fine could not bar any Interest which was not divested at the time of the Fine He Argued first That the Cestuy que Trust was not Tenant at Will for a man shall not be Tenant at Will against his own Conveyance unless by Construction of Law to avoid a Tort as in Littleton's Case where the Cestuy que Use enters upon his Feoffee But tho' the Lessor hath a right to the possession before the Entry of his Lessee for years yet when the Lessee Enters as 't is found in out Case he doth as much as declare that Cestuy que Trust shall not be Tenant at Will Indeed the Bargainee of an Estate for years is in actual possession by force of the Statute yet the Bargainor in case of a Mortgage may Enter to hold at Will because there was no Act done to express his dissent He agreed also that no Disseisin was wrought but there may be an Expulsion without a Disseisin as Hob. 322. where it is said If the Lessor puts out his Lessee for years there is no Disseisin committed and yet the Lessee hath lost his Estate and hath but a Right to it and that whether he will or no And if he were Tenant at Will he by making this and divers Leases before hath absolutely determined his Will if Tenant at Will be ousted by a Stranger and he in Reversion disseised he may enter again not where he is the Wrong-doer himself for that were to make him Tenant at Will against his Will If Tenant at Will makes a Lease for years and the Lessee enters the Tenant at Will is the Disseisor 2 Cro. 660. 3 Cro. 830 5. E. 42. and Tenant at Will is intrusted with and hath power over the possession And where it was said it should be in the Election of the Lessee for 100 years to take this for an Ejectment or no he Argued that it ought clearly to be in the Election of the Lessor For first it was his own act and therefore he could best explain quo animo hoc fecit and that his antecedent Acts had sufficiently done especially being Cestuy que Trust and having also the Inheritance in him and he insisted very much upon the Notice that the Law takes of such an Interest tho' relievable only in Equity 7 H. 5. 3. Cestuy que Use of a Mannor to which an Advowson was appendant was Outlawed the Church became void the King brought a Quare Impedit 2 Cro. 512. A Trust of a Chattel resolved to be forfeit by Attainder Hob. 214. in that case the King shall have the Land it self and Process shall issue out of the Exchequer to seize the Land it self which shews that it hath a legal influence upon the Land therefore he and not the Trustee ought to have the Election If Cestuy que Use had made a Lease for years this had been a Disseisin until 1 R. 3 5 H. 7. 56. 8 H. 7. 8. A Lease of two Acres habendum the one for Life that other in Fee to the use of another shall not the Cestuy que Use determine in which the Inheritance shall be Again It is agreed that this Fine conveys away the Trust shall the Law strain to save the Interest of the Trustee to occasion a Chancery Suit And the Judges ever Expounded the Statute of 4 H. 7. strictly to bind the Right of Strangers Leonard 99. It was the Chief Baron Manwood's Opinion That he that had a future Interest to Lands of which a Fine was Levied ought to have five years after his Interest came in esse neither is there any reason to favour long Leases By the Ancient Law a Lease for above 40 years was void Mirror 164 293. 1st Inst 46. they are never without suspicion of Fraud and 3 Co. Twyne's Case that which is called a Trust is in plain English a Fraud and as this is found it appears by the Circumstances to be almost Fraud apparent And as to the Inconvenience which was alledged would come to Purchasors who desire to keep Leases on foot he Answered That might be prevented by claiming within five years and it would be mischievous to Purchasors if it were otherwise to have such Leases set up against their Titles Postea Note One makes a Lease wherein the Lessee Covenants to Repair and then bargains and sells part of the Reversion He shall have an Action of Covenant per 32 H. 8. Bosvile versus Coates IN Debt upon a Bond with Condition That the Obligor should bring in the Son and Daughter of J.S. at their full Age to give such Releases as a Third person shall require The Defendant pleads That the Son is alive under Age at Doncaster To which the Plaintiff demurs and held he might for it must be taken at their respective Ages Vid. 5 Co. Justice Wyndham's Case Crispe and Jackson versus The Mayor and Commonalty of Berwick IN a Writ of Covenant the Plaintiffs declared upon an Indenture of Demise of an House from the Defendants wherein they Covenanted That the Plaintiffs should enjoy it without the Interruption of any Persons whatsoever and assigned for Breach That J. S. entred and dispossessed them at Berwick Vpon which the Defendant takes Issue Whereupon the Plaintiff suggests That such a place in Northumberland is the next to Berwick and the Venire is awarded to the Sherriff accordingly and a Verdict was found for the Plaintiff It was moved by Jones in Arrest of Judgment That here was a Mis-Trial not aided by any Statute for the last Act which is the largest remedies all Trials so as they be in the proper County but this is not so And he said It ought to have been tried where the Action was laid As when an Action is brought upon a Chartr-Party and a Breach is assigned in a Foreign Kingdom it shall be Tried where the Charter-Party is dated and here the Covenant bore Date at the Castle of York and there the Trial ought to have been 6 Co. Dowdale's Case and
Defendant pleaded that the place Where was the Freehold of Sir Thomas Hooke and that by his Command he entred The Plaintiff traverseth That it was the Freehold of Sir T.H. And thereupon this Special Verdict was found That Nicholas Heale was seised in Fee and that 16 Dec. 1640. he made a Deed to Jane Heale Enrolled within six Months by which the said Nicholas did for and in Consideration of Natural Love augmentation of her Portion and preferment of her in Marriage and other good and valuable Considerations give grant bargain sell alien enfeoff and confirm unto the said Jane Heale and her Heirs Then they found there was a Covenant that the said Jane Heale should after due Execution c. quietly enjoy c. and also a special Clause of Warranty And that the Deed was Enrolled within six Months and that there was no other Consideration of making the Indenture than what was expressed And if it were sufficient to convey the Premisses to the said Jane they found for the Plaintiff if not for the Defendant And it was Argued by Winnington for the Plaintiff He agreed that it could not take the effect as a Bargain and Sale because no Money was paid but Argued that the Deed should enure as a Covenant to stand seized It is a Ground in the Law that the intention of the parties ought to guide the raising of Uses and the Construction how they shall enure Co. Lit. 49. Rolls 2d part 789. and to give the effect the words shall be disposed to other Construction than what otherwise they would import As if a man demises grants and to Farm-lets certain Lands in Consideration of Money and the Deed is Enrolled this is a good Bargain and Sale So if a man Covenants in Consideration of Money to stand seised to the use of his Son 8 Co. 93. Foxes Case 2 Rolls 789. it is said Nota per Cur ' if it appears that it was the Intent of him that made the Deed to pass the Estate according to Rules of Law it shall pass though there be not formal Words Again the Consideration expressed in this Deed is purely applicable to a Covenant to stand seised and a Deed shall enure upon the Consideration expressed rather than upon one that is implied As in Bedell's Case 7 Co. 40. If the Father in Consideration of 100 l paid Covenants to stand seised to the use of his Son and the Deed is not Enrolled nothing shall pass But where there are two Considerations expressed there the Vse may arise upon either As if the Father in Consideration of Blood and 100 l paid by the Son Covenants to stand seised c. and the Deed is not Enrolled yet the Vse shall arise as upon a Covenant to stand seised Pl. Com. 305. And so it was Adjudged between Watson and Dicks in the Common Pleas 1656. The Father by Deed in Consideration of Love and 100 l paid by the Son conveyed Land to him with a Letter of Attorney in the Deed to make Livery in that case the Son hath his election to take by the Enrolment or Livery which shall be first Executed 2 Rolls 787. pl. 25. But it hath been Objected here that there is a Clause of Warranty in the Deed which shews that the parties intended a Conveyance at the Common Law for if it enure by way of Covenant to stand seised the Warranty can have no effect but to Rebut Also there is a Covenant for quiet Enjoyment after Sealing and Delivery of the Deed and due Execution of the same which shews the parties had a prospect of Executing it by Livery c. To which he Answered That such remote Implications as those shall never make a Deed void against an express Consideration upon the which an Use may arise 'T is true if there had been a Letter of Attorney in the Deed it might have been void unless Livery had followed As if the Father by Deed grants Land to the Son and a Letter of Attorney in it to make Livery if none be made nothing passes Co. Lit. 49. a. The Authorities which have been cited on the other side are first Pitfields and Pierce's Case 2 Roll. 789. where the Father by Deed Poll in Consideration of Blood did give grant c. as in our Case to his Son Habend ' after his decease and a Proviso in it That the Son should pay a Rent during the Father's Life It was Adjudged That the Lands should not pass in that Case by way of Covenant to stand seised But in that Case the Conveyance was repugnant to the Rules of Law for that it was Habend ' the Land after the death of the Grantor and also repugnant in it self For notwithstanding that it reserves the Land to the Father during his Life yet it provides for a payment of Rent to him wherefore the Law would not help out a Deed so contradictory and repugnant by way of raising an Vse The other Case relied upon is between Foster and Foster Hill 13. of this King in this Court in Ejectment The Case was The Mother for divers good Considerations and 20 l paid did by a Deed which was Entituled Articles of Agreement demise grant bargain sell assign and set over to the Son and his Heirs for ever certain Lands the said Margery the Mother quietly enjoying the Premisses during her Life The Court Resolved that it should not amount to a Covenant to stand seised for they were but intended as Articles of Agreement and preparatory for a further Conveyance So the Case differs very much from ours as also that it reserves the Land to the Mother during her Life The Case also of Osborn and Bradshaw in 2 Cro. 127. hath been cited Where the Father in Consideration of Love which he hears to his Son and for Natural affection to him bargained and sold gave granted and confirmed Land to him and his Heirs the Deed was Enrolled It was held the Land should not pass unless Money had been paid or the Estate executed This Case cannot be urged as any great Authority for it appears that the Son was in possession Therefore the Court Adjudged that the Deed should be a Confirmation and it being clear that way they had not much occasion to insist upon or debate the other Point And he relied upon Debb and Peplewell's Case as an Authority in the Point 2 Rolls 78. 6. where there was a Clause of Warranty in the Deed and an Enrolment within six Months as in the Case at Bar But they Resolved there If a Letter of Attorney had been in the Deed it should not have been construed a Covenant to stand seised and therefore he prayed Judgment for the Plaintiff Finch Attorney General contra The Lands here cannot pass by Bargain and Sale there being no Money paid which I find is admitted by the other side neither shall it amount to a Covenant to stand seised There are Five things necessary to raise an Use by way of Covenant
First A Sufficient Consideration Secondly A Deed as in Callard and Callard's Case in 3 Cro. and in Popham's Reports and hath been often Resoved since Thirdly A Seisin in the Covenantor of the Lands at the time of the Deed For a man cannot Covenant to stand seised to an Vse of Lands which he shall after purchase Fourthly A Clear and apparent Intent Fifthly Apt and proper Words And the two last things are wanting in our Case I agree the word Covenant is not necessary so there be other Words sufficient in Law and to declare the parties Intent for all Words will not serve A man Covenanted upon good Consideration that his Feoffees should stand seised It was Resolved that no Use should anise upon it 1 Cro. 856. So Sir Thomas Seymor's Case Where a Covenant was upon good Consideration to levy a Fine to certain Vses and no Fine was after levied It was Resolved that the Covenant did not raise any Vse Dyer 96. Therefore 't is usual to express in such Deeds of Covenant that if the Conveyances therein contained be not executed that then the party shall from henceforth stand seised And where it is said in Vivian's Case Dyer 302. One having given granted and released to his Brother and his Heirs certain Mannors and no Livery made that Plowden would have averred that the Deed was made pro Fraterno amore and so should raise an Use Vnder the Favour of the Court I deny that Opinion of Plowden to be Law And in Debb and Peplewell's Case it is said That the Land was enjoyed against the Release And in Moor pl. 267. One Covenanted in Consideration of Marriage to let his Land discend remain or come to his Daughter It was Resolved no Use did arise thereupon In this Conveyance there are not any Words that sound in Covenant the only word that looks towards an Use is the word Bargain and Sell. and in Ward and Lambert's Case in 3 Cro. 394. it is held That if one gives or bargains and sells Land to his Son it shall not amount to a Covenant to stand seised for want of apt words Now the other are all words of Common Law Give Crant Alien Enfeoff and Confirm There is also a clause of Special Warranty in the Deed and a Covenant to make further assurance by Fine Recovery c. as great a preparation at Common Law as could be And if the Parties intend the Land shall pass at the Common Law by Transmutation of Possession there shall no use arise Co. Lit. 49. Charter of Feoffment to the Son it shall raise no use if no Livery be made The word Dedi in this Deed imports a General Warranty which is not qualified by the Special Warranty after yet if the Land pass by way of use there can be only a Rebutter and so no use of the General Warranty The Authorities since have not béen concurrent with Debb and Poplewells Case but contrary to it And I rely upon the Cases of Pitfeild and Pierce and Forster and Forster in this Court which have been remembred on the other side but no answered And whereas it is said That the Habend is after the Death of them which conveyed the Land they are in that respect stronger than the Case at Bar for by that it appears they could not intend a Conveyance at the Common Law which doth not allow such kind of Limitations therefore it must be by way of use or no way Yet it was resolved they should not pass so It would introduce universal ignorance and carelesness in such as draw Conveyances if the Court should apply their Art to give them effect however they were penned and it is a Rule Politia legibus non leges Politiis adaptantur The Court after heaving the Case twice argued were all of Opinion That the Land should pass by way of Covenant to stand seized and Hale cited Hob. 277. who doth there commend the Judges who are curious and almost subtil to invent reasons and means to make Acts effectual according to the just intent of the parties They all held clearly That words proper for a Conveyance at Common Law would raise an Use as Demise and Grant have béen adjudged to amount to a Bargain and Sale without other words And they said Pitfields and Pierces Case was adjudged upon the absurd contrivance of the Conveyance and so Foster and Fosters Case in this Court and for that in that case the Deed was Articles of Agreement preparatory to what the party intended after and the case in Moor Pl. 267. where there was a Covenant in Consideration of Marriage to suffer the Land to remain descend or come to the Daughter no Use did arise there for the incertainty how it was intended the Daughter should take And they said That if they should not construe an Use to arise by such Conveyance as in the case at Bar it would overthrow all Conveyances by Lease and Release And for the Objection of the Warranty in the Deed it is well known there is so in most Conveyances to Uses Wherefore they gave Iudgment for the Plaintiff Note This Iudgment was afterwards affirmed upon Error brought in the Exchequer Chamber Anonymus AN Indictment was brought for using of a Trade to which he had not béen bound an Apprentice It was moved to quash it because it was not alledged that he did not use the Trade 5 Eliz. for if he did he is excepted out of the Statute But the Court did not much regard that exception Tho' they said it had béen often allowed but it cannot here be intended it being so long since the Statute was made Secondly It was for using the Trade Aromatarij without an Anglicè so it could not be known what Trade was meant and tho' that word is often used for a Grocer yet it must be so Englished or else it shall not be taken for that Trade more than another And for this Cause the Court quashed the Indictment Note If a Man be taken upon a Warrant de securitate pacis or any criminal cause he is not to be charged with Actions unless the Court gives leave which they will rarely do The Case of the Heirs of the Earl of Southampton KIng James by his Leters Petents Enrolled in this Court granted to the E. of Southampton all Deodands within the Mannor of Ditchfield An Inquisition was certified here that a Deodand was forfeited within the said Mannor and Process went out thereupon The Court were moved in behalf of the Daughters and Heirs of the Earl whether they should be driven to set forth their Title in pleading for if so the charges would far exceed the value of the Deodand and it would be very inconvenient that every new Heir should be forced to plead upon every Deodand that happens But the Court said in regard the Letters Patents are here Enrolled and that it appeared by the Inquisition that this Deodand was forfeited within the Mannor it should suffice without pleading
Car. nunc cap. 3. in pursuance of which he distrained the said Nails for the Duty due by those Acts out of a Smiths Forge c. The Plaintiff demurred So the sole question was whether a Smiths Forge were within the Acts it being once argued the last Term the Court now gave their Opinion Moreton I think a Smiths Forge ought to pay 't is a great part of the Kings Revenue almost in every Village there is one we should explain the Act liberally for the King Rainsford of the same Opinion 't is within the words scilicet an Hearth whereon Fire is used and within the meaning for there is an exception of things not so properly Fire hearths as this viz. Private Ovens Where the Act excepts Blowing Houses I take it is meant Glass houses and the Houses at Ironworks by Stamps I think is meant Presses Calenders for Cloaths by the very words Houses that are not Dwelling Houses are charged The objection that it is his Trade is answered by the instance of Cooks Chandlers Common Ovens Hearths of Tripewomen who boil Neats Feet Twisden of the same Opinion the words are general yet I would not extend it to every Hearth that has a Fire upon it as Stils and Alembicks for so we might extend it to a Chaffing dish of Coals but we must take it for a Rule to extend it to those things which are most general A Smiths Forge is of such use that 't is found almost in every Village therefore 't was reckoned a great piece of hardship and slavery upon the Children of Israel that they were not permitted a thing so useful amongst them The exceptions enumerate particulars therefore it excludes whatever is not expressed Hale I would fain know how the fact is Do Silver Smiths c. pay It were too narrow to extend it only to Common Chimneys and too great a latitude to extend it to every place where Fire is where a Man can but warm his Hands I suppose Boylers in Cooks Chimneys and the Fireplaces of Worstead Combers do not pay Common Ovens should have paid tho' there were no exception of Private Ovens for they never are or can be without a Chimney This is matter of fact I have not enquired into and I would be loath to deliver an Opinion without much inquiry but 't is very probable that they are Firehearths and not excepted but it appears plainly upon the Record that 't is a Firehearth and by the general Demurrer 't is admitted Note There was a Special Rule that no advantage should be taken of the Pleading by either side But Hale said he did not know how they were bound by that Rule Termino Paschae Anno 24 Car. II. In Banco Regis Monk versus Morris and Clayton THe Plaintiff after he had obtained Iudgment in Debt became Bankrupt and the Defendants brought a Writ of Error The Judgment was affirmed in the Exchequer Chamber and the Record sent back Then a Commission of Bankrupts is sued out and the Commissioners Assign this Judgment The Plaintiff Sues out Execution and the Money is levied by the Sheriff and brought into Court The Assignee moves that it may not be delivered to the Plaintiff surmising that the Judgment was assigned to him ut Ante. The Court said they might have brought a Special Sicre facias which they having delayed and that it would be hard to stay the Money in Court upon a bare surmise and for ought appeared it was the Plaintiff's due But however because it might be hazardous to deliver it to him they consented to detain it so that the Assignee forthwith took out a Scire facias against the Defendant in order to try the Bankrupcy or otherwise that it should be delivered to the Plaintiff Sir Ralph Bovyes Case IN an Ejectment upon a Tryal at Bar the Case appeared to be this Sir William Drake was seized in Fee of the Lands in question and 19 Car. 1. infeoffed Sir William Spring and five others to such uses as he should declare by his Will in Writing or by his Deed subscribed by three Witnesses In August 20 Car. 1. by his Deed ut supra he limits the use of the said Lands to his Brother Francis Drake for 90 years and declares That the Feoffees should be seized to their own use in Trust for the said Francis Drake and his Heirs with a power to Francis Drake to alter and limit the Trust as he should think fit In the same Month there is a Treaty of Marriage between F.D. and the Daughter of Sir William Spring and it was agreed by certain Articles between F.D. and Sir W. S. c. reciting that he should receive 2500 l with his intended Wife which Money was proved to be paid that F. D. should convey the Lands in question to himself and his Wife and the Heirs Males of their two Bodies c. for the Joynture of the Wife The Marriage afterwards in 20 Car. takes effect and soon after the same year F.D. by Indenture between him Sir W.S. and another reciting the Articles of Marriage Assigns his Term of 90 years to Sir W. S. and the other in Trust to himself for Life the remainder to his Wife for Life and after to the Heirs Males of their two Bodies and by the same Deed limits the Trust of the Inheritance of the Lands in the same manner Afterwards in 23 Car. 1. he in consideration of 6000 l proved to be paid Grants out of the said Lands a Rent of 400 l per annum to Sir Ralph Bovy and his Heirs with power to enter into the Land in case the Rent was not paid and to retain it until satisfaction Afterwards F. D. and his Wife dye the Rent was Arrear Sir R. Bovy enters Sir Will. Spring and the other Trustees Assign the term of 90 years to Sir Will. Drake Heir Male of F.D. and his Wife the Lessor of the Plaintiff In this case these Points were agreed by the Court. First That when Sir W. D. enfeoffed divers to such Uses as he should declare by his Will or Writing that if he had in pursuance of that Feoffment limited the Uses by his Will that the Will had been but Declaratory tho' if he had made a Feoffment to the Use of his Will it had been otherwise according to Sir Ed. Cleeres Case 6 Co. And Hale said my Lord Co. made a Feoffment provided that he might dispose by his Will to the use of the Feoffee and his Heirs and resolved in that case he might declare the Use by his Will which should arise out of the Feoffment Secondly That this Settlement being in pursuance of Articles made precedent to the Marriage had not the least colour of fraud whereby a Purchaser might avoid it and if there had been but a Verbal Agreement for such a Settlement it would have served the turn And the Court said if there had been no precedent Agreement so that it had been a voluntary Conveyance tho' every such
only shewn upon the Declaration to enable the Plaintiff to bring his Action Note This is aided by a late Act of Parliament Jay versus Bond. IN Trespass the Defendant pleads that Ante Quinden ' Sancti Martini usque ad hunc diem praed ' Jay Excommunicatus fuit adhuc existit protulit hic in Cur ' literas Testamentarias Episcopi Sarum quae notum faciunt universis quod scrutatis Registeriis invenitur contineri quod Excommunicat ' fuit c. pro contumacia in non comparendo to a Suit for Tythes c. in cujus rei Testimonium praed ' Episcopus Sigillum apposuit It was objected that such a kind of Certificate of Excommunication as this is was not allowable for it ought to be positive and under the Seal of the Ordinary whereas this is only a relation of what is found in their Register Sed non allocatur for tho' such a form of pleading would be altogether insufficient in our Law yet their course is sometimes to certifie Excommunication sub sigillo Ordinarij and sometimes per literas Testamentarias as here Hale said to plead Letters Patents without saying sub magno sigillo is naught and that because the King has divers Seals Note The entry was here quod Defendens venit dicit c. Hale doubted whether he ought not to have made some kind of defence tho' no full defence is to be made when Excommengment in the Plaintiff is pleaded Owen versus Lewyn THe Plaintiff declared in Action upon the Case upon the Custom of the Realm against a Common Carrier and also sur Trover and Conversion Hale said so he might for Not guilty answers both but if a Carrier loseth Goods committed to him a General Action of Trover doth not lye against him Termino Sancti Michaelis Anno 24 Car. II. In Banco Regis Davenant against the Bishop of Salisbury IN Covenant The Plaintiff declared that the Bishop of Salisbury the Defendants Predecessor being seized in Fee demised unto him certain Lands for 21 years reserving the antient Rent c. and Covenanted for him and his Successors to discharge all publick Taxes assessed upon the Land and that since the Defendant was made Bishop a certain Tax was assessed upon the Land by vertue of an Act of Parliament and that the Plaintiff was forced to pay it the Defendant refusing to discharge it unde Actio accrevit c. The Defendant demurred first to the form for that 't is said that the Predecessor Bishop was seized and doth not say in jure Episcopatus But Hale said the Old Books were that where it was pleaded that J. S. Episcopus was seized that it implies seizin in the right of the Bishoprick which is true if he were a Corporation capable only in his politick capacity or as an Abbot c. but in regard he might also be seized in his natural capacity the Declaration was for this Cause held to be ill The matter in Law was whether this were such a Covenant as should bind the Successor as incident to a Lease which the Bishop is empowred to make by the 32 H. 8. For 't is clear if a Bishop had made a Covenant or Warranty this had not bound the Successor at the Common Law without the consent of the Dean and Chapter and if it should be now taken that every Covenant would bind the Successor then the Statute of 1 Eliz. would be of no effect But Hale said admitting this were an antient Covenant and if so it should have been averred to have been used in former Leases to discharge ordinary payments as Pentions or Tenths granted by the Clergy then it might bind the Successor by the 32 H. 8. But it were hard to extend it to new charges And we all know how lately this way of Taxes came in But the Court said that the Declaration being insufficent for the other matter they would not determine this But they held that however this Covenant should prove it would not avoid the Lease Vid. Gee Bishop of Chicester and Freedlands Case 3 Cro. 47. Note Hale said that antiently when the Sheriff returned a Rescous upon a Man he was admitted to plead to it as to an Indictment But the course of the Court of latter times has been not to admit any Plea to it but to drive the party to his Action upon the Case as upon the return of a Devastavit c. Cole versus Levingston IN Ejectment upon a long and intricate Special Verdict the Chief Justice said never was the like in Westminster Hall these following Points were resolved by the Court and declared by Hale as the Opinion of himself and the rest of the Judges First That where one Covenants to stand seized to the use of A. and B. and the Heirs of their Bodies of part of his Land and if they die without Issue of their Bodies then that it shall remain c. and of another part of his Land to the use of C.D. and E. and the Heirs of their Bodies and if they die without Issue of their Bodies then to remain c. that here there are no cross Remainders created by Implication for there shall never be such Remainders upon construction of a Deed tho' sometimes there are in case of a Will 1 Rolls 837. Secondly As this Case is there would be no cross Remainders if it were in a Will for cross Remainders shall not rise between three unless the words do very plainly express the intent of the Devisor to be so as where black Acre is devised to A. white Acre to B. and green Acre to C. and if they die without Issue of their Bodies vel alterius eor ' then to remain there by reason of the words alterius eor ' cross Remainders shall be Dier 303. But otherwise there would not Gilbert v. Witty and others 2 Cro. 655. And in this case tho' some of the Limitations are between two there shall be no cross Remainders in them because there are others between three and the intent shall be taken to the same in all The Dean and Chapter of Durham against the Lord Archbishop of York IN a Prohibition the Archbishop pleaded a Prescription that he and his Predecessors have time out of mind been Guardians of the Spiritualties of the Bishoprick of Durham Sede vacante and Issue joyned thereupon and tried at the Bar this Term. Hale said De jure communi the Dean and Chapter were Guardians of the Spiritualties during the vacancy as to matters of Jurisdiction but for Ordination they are to call in the aid of a Neighbouring Bishop and so is Linwood But the Usage here in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess and therefore it was proper here to joyn the Issue upon the Usage There was much Evidence given that antiently during the vacancy of Durham the Archbishop had exercised Jurisdiction both Sententious and other as Guardian of the Spiritualties
a Hoyman Common Carrier or Inholder 'T is objected That the Master is but a Servant to the Owners Answer The Law takes notice of him as no more than a Servant 'T is known that he may impawn the Ship if occasion be and sell bona peritura 2 Cro. 330. Hob. 11. He is rather an Officer than a Servant In an Escape the Gaoler may be charged tho' the Sheriff is also liable for respondeat superior But the Turnkey cannot be sued for he is but a meer Servant By the Civil Law the Master or Owner is chargeable at the Election of the Merchant 'T is further objected That he receives Wages from the Owners Answer In effect the Merchant pays him for he pays the Owners fraight so that 't is but handed over by them to the Master if the Fraight be lost the Wages are lost too for the rule is Fraight is the mother of Wages Therefore tho' the Declaration is that the Master received Wages of the Merchant and the verdict is That the Owners pay it 't is no material variance Objection 'T is found that there were the usual number of Men to guard the Ship Answer True for the Ship but not with reference to the Goods for the number ought to be more or less as the Port is dangerous and the Goods of value 33 H. 6. 1. If Rebels break a Gaol so that the Prisoners escape the Gaoler is liable but it is otherwise of Enemies so the Master is not chargable where the Ship is spoiled by Pirates And if a Carrier be robbed by an Hundred men he is never the more excused Ante. Cox versus Mathews THe Case was moved again And Hale said that if a Man Builds a House upon his own ground he that hath the Contiguous ground may Build upon it also tho' he doth thereby stop the Lights of the other House for cujus est solum ejus est usque ad coelum Poph. 170. and this holds unless there be Custom to the contrary as in London But in an Action for stopping of his Light a Man need not declare of an antient House for if a Man should Build an House up-his own ground and then grant the House to A. and grants certain Lands adjoyning to B.B. could not Build to the stopping of A's Lights in that Case 1 Cro. Sands and Trefuses 415. But the Case at Bar is without question for he declares That the Defendant fixed Boards to the Windows of the Plaintiff's House Anonymus UPon a motion to set aside an Inquisition taken before the Coroner super visum corporis certified into this Court that J.S. killed himself and was Non compos mentis Hale said such an Inquisition that finds a Man Felo de se is Traversable but no Traverse can be taken to make a Man Felo de se but fugam fecit is never Traversable Clue versus Baily IN Replevin the Defendant made Conusans as Bailiff to J. S. who demised the place where under certain Rent c. The Plaintiff Traverses the Demise and concluded hoc paratus est verificare To which the Defendant demurred generally And the Court were in doubt whether this ill conclusion of the Plea were not helped upon a general Demurrer Hale It were well the Causes of Demurrer were always assigned Specially and not to say only incertum dubium caret forma c. The old way was when Pleadings were drawn at the Bar to make the exception immediately and the other Party might mend if he pleased or might Demurr if he durst venture it And tho' now they are put in Paper yet such a Course should be observed for Demurrers were not designed to catch Men This not concluding to the Country seems to be but matter of Form and the Demurrer should have been quia non bene concludit Here the Defendant pleads that J. S. demised the Land for Life and without expressing the place of the Demise because of necessity it must be upon the Land Blake versus .... ERror of a Judgment in Replevin in the Mannor Court of Hexam in Northumberland where the Defendant avowed for Damage fesant The Plaintiff replied that J. S. was seized of the Mannor of Tallowfield in D. and that time out of mind he had Common c. in the place where and shewed himself to be Tenant and justified the putting in of his Beasts for Common and the Prescription being traversed it was found for the Avowant The Errors assigned were First In the Venire which was quia nec the Plaintiff nec Defendant aliqua affinitate attingunt instead of qui nec Hale said it was aided by the Statute of 8 H. 6. that helps Error in Process But Twisden said that Statute did not extend to inferiour Courts Another Error insisted on was that the Avowant did not shew that the Mannor of Tallowfield was infra Jurisdictionem Curiae But the Venire was extra vill ' Manerium de Tallowfield infra Jurisdictionem Curiae But the Court held that that was not sufficient to intimate that it was within the Jurisdiction but must have been shewn in pleading And Hale said seeing the Plaintiff had omitted to do it the Avowant might in his Rejoynder have alledged Tallowfield to have béen within the Jurisdiction as where one pleads a Plea without a place the other is not bound to Demurr but for his expedition may shew the place in his Replication Then VVild said this seems to be aided by the Statute of 21 Jac. which Enacteth That if the Jury comes out of any one of the places it sufficeth and here the Jury came as well out of the Vill where the Beasts were taken shewn to be within the Jurisdiction as the Mannor of Tallowfield Hale That will not serve in this Case for the Court could not Award a Venire to a place out of the Jurisdiction nor Jurors could not be returned out of such a place to try a Cause there Another Error assigned was that the Award of the Venire was praeceptum est per seneschallum and not said in eadem Curia To which it was answered That being on the same day upon which the Court was said to be held it must be intended so VVild held the Judgment ought to be reversed for the last Cause Twisden Principally for the first for he held that the Statute of the 8 H. 6. Aided not Process in inferiour Courts therefore where in the Award of the Venire it has been per quos rei veritas melius Scire poterit instead of Sciri the Judgment has been reversed Hale said that it ought to be Sciri for so it is in the Register and in the Statute of Eliz. that sets the Estate of Jurors at 4 l per ann But for the second Error he held that the Judgment ought to be reversed Whaley versus Tancred TRin. 23 Car. 2. Rot. 1513. In an Ejectment the Case was this Lessee for years makes a Feoffment and levies a Fine
cannot tender an Oath to the party sued nisi in causis Matrimonialibus Testamentariis But the Court after hearing divers Arguments denied the Prohibition for they said It was no more than the Chancery did to make Defendants answer upon Oath in such like Cases Termino Sanctae Trinitatis Anno 31 Car. II. In Banco Regis How versus Whitfield ante in ult ' Term. IN Repl the Plaintiff declares of the taking of his Cattle in a Close containing five Acres The Defendant avows and sets forth a Fine to the use of A. in Tail which discended to him Virtute cujus he was seised in Dominico ut de feodo talliato c. The Plaintiff Replies that the Fine was first to the use of J. S. for Life the Remainder to his Executors Administrators and Assigns for 80 years with Power to him and his Assigns to lett the five Acres in Possession or Reversion for 21 years determinable upon three Lives reserving the ancient Rent and that J. S. Devised this Term to J. N. and died his Executors assented and after it came to the Executors of J. N. who assigned it and that the Assignee made a Lease of the said five Acres inter alia reserving proinde the Rent of 6 s per annum and avers that the ancient Rent was 6 s per annum The Avowant Rejoyns setting forth his former Title And the Plaintiff Demurrs It was Objected First That the Plaintiff ought to have traversed the Seisin in Tail alledged by the Avowant seeing in his Replication he sets forth and intitles himself under an Estate inconsistent with it To this it was Answered and the Court agreed that there ought to be no Traverse for the Avowant doth not say it was his Freehold or that he was Seised in Tail but only under a Virtute cujus c. And the Plaintiff in his Replication sets forth a Title consistent with all that the Avowant alledges and so confesses and avoids and all depends upon the execution of the Power And for that Secondly It was Objected That he which made this Lease was not Assignee of J. S. for Executors were not within the Power and consequently not their Assignee This is a Power collateral to the Estate and shall not run with the Land for then Assignees of Commissioners of Bankrupcy the Vendee of the Term by the Sheriff upon an Execution c. should execute this Power It is like Covenants annexed to Leases which the Assignee could not take advantage of till 32 H. 8. Again Here appears to be no good Reservation for the Lease is of the five Acres inter al' reserving proinde so that the Rent issues out of other Lands as well as the five Acres and therefore cannot be said to be the ancient Rent reserved upon that The Court were all of Opinion that the Assignee in this case might execute the Power and conceived that Assignees might include Assignees in Law Vid. Mo. 855. as well as Fact but however the Tenant for Life devising this Term the Devisee was an Assignee and the Power in the greatest strictness of acceptation was in him and consequently must go to his Executors and by the same Reason to their Assignee As to the Reserving the Rent proinde the Court said it might be intended that the inter al' might comprehend nothing but such things out of which a Rent could not be reserved and then the six Shillings was reserved only for the five Acres However the proinde might reasonably be referred only to the five Acres and not to the inter al and that a distinct Reservation of Six shillings might be for five Acres And so Judgment was given for the Plaintiff Ante. Steed versus Berrier ERror upon a Judgment given in the Court of Common Pleas upon a Special Verdict the Case was to this effect J.S. made his Will in Writing and devised Lands to his Son J.S. and his Heirs and in the same Will gave a Legacy of 100 l to his Grandson The Son died afterwards in his Life time after whose decease J. S. the Grandfather made a Codicil wherein he gave away part of the Lands devised as aforesaid to a Stranger and afterwards declared by Parol that his Intention was that his Grandson J. S. should have the Lands which his Son J. S. should have had The Question upon this Special Verdict was Whether this were sufficient to carry the Lands to the Grandson And Judgment was given in the Common Pleas by three Judges against one that it was Whereupon a Writ of Error was brought in this Court Finch Solicitor Argued that this Will was sufficient to carry it to the Grandson He agreed Brett and Ridgen's Case in Pl. Com. that a Devise to a man and his Heirs who dies in the Life of the Devisor a new Publication will not be enough to make the Heir take by the Will because named in the Will by way of Limitation of the Estate and not Designation of the Person that should take But in Fuller's Case in the 1 Cro. 423. and in Mo. 2. where the Devise was to his Son Richard and the Heirs of his Body which Richard afterwards died in his Life time and then the Devisor said My Will is That the Sons of Richard my Son deceased shall have the Land devised to their Father as they should have had if their Father had lived and died after me There Popham and Fenner held that this new Publication would carry the Land to Richard's Son Gawdy and Clench contra But our Case is much stronger for there Heirs of the Body were used only for Limitation but in the Will here where the words are I Devise to my Son J. with this new Publication the Grandson J. may take because a Grandson is a Son and when a Will is new Published it is all one as if it were wrote at the time of such Publication Beckford and Parncot's Case in the 1 Cro. 493. Mo. 404. Devise of all his Lands and after the Will the Devisor purchaseth other Lands and then publishes it again it will carry the new purchased Lands Dyer 149. Trevanian's Case Cestuy que use before the 27th of H. 8. Devised the Lands a new Publication will pass the Lands executed in him by the Statute The Opinion of the Court inclined to Reverse the Judgment they held it to be the same with Fuller's Case in the 1 Cro. that no Parol averment can carry Lands to one person when the words of the Will plainly intended them to another They agreed If a man having no Son but a Grandson deviseth his Lands to his Son the Grandson may take But here is an opposition contained in the new Publication viz. Those Lands which my Son J. should have had my meaning is my Grandson J. shall have And in the Will it self there is a Legacy devised to the Grandson by that Name so where they are so distinguished 't is impossible to take the Grandson to be
makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
of Jane the second Wife is void and it cannot be returning where the Use is not setled in any Person I agree my Lord Pagets Case because there the Estate was vested in William Paget and the other Use returned by operation of Law and the Estate setled could not be divested but here the Limitation to the Heirs Males being void the ancient Use remained yet in Michael for nothing was out of him he having limited a thing which cannot be And as to a returning Use tho' all be done in an instant yet there is a priority of time in the Eye of the Law for it ought to vest first in him in Remainder and then Return but here nothing vests in the Remainder Secondly It hath béen urged That it shall be made good by Implication of Law and so shall amount to a Covenant to stand seized to the Used of the Covenantor for Life c. and the rather as it has béen said by Wild because Uses are guided by Equity But I answer we are here in case of a Deed where an Estate shall not be raised by Implication as it shall by a Will Cro. Car. Seagood ad Hone 366. A Deed differs greatly from a Will for if a Man Surrenders Copyhold Land to two equally to be divided they are Joynt-tenants but such a Devise would have made them Tenants in Common Admit in some Case an Estate shall be raised by Implication in a Deed yet it shall not be so here for it would be to the disinheriting the Heir As to the case of 13 H. 7. I agree that a Devise to the Eldest Son after the Death of the Wife gives an Estate for Life to the Wife but otherwise it would be upon such a Devise to the Younger Son for there the Eldest Son and not the Wife should have the Estate in the mean time Cro. Jac. Horton and Horton 57. We are not herein Favorabili materiâ and therefore no construction shall be made which does not appear by the words It hath béen strongly urged that this being by way of Use which is a matter of Equity shall be favoured Admit it yet it shall be guided by the Common Law for aequitas sequitur legem There never shall be a Settlement by way of Use to make one capable who is not capable by the Common Law I do not see any difference between a Feoffment to Uses and a Covenant to stand seized for if a Feoffment be made to the use of one for Life the Use shall return which is not disposed of as well as upon a Covenant to stand seized Thirdly It has been urged if these severally cannot support this Limitation yet the intention operating with the Deed will both together make an Estate for Life in Michael But I do not see his intent here to have it for Life the intention even in a Will which is much stronger ought to be collected out of the words of the Will. Cro. Car. Spirt and Bence 368. agreed by the whole Court that words in a Will ought to have an apparent intent to disinherit an Heir and here there is not any apparent intent but rather to the contrary for of some Lands Michael Covenants to stand seised to the Use of himself for Life Remainder c. but of the Lands in question he makes a difference in the Limitation And the words of the Deed are to be considered He Covenants to stand seized to the Uses mentioned declared and limited in the Deed and if Michael shall have an Estate for Life he must have it by operation of Law There was a like case between Flavil and Ventroise in the Common Pleas in which the Court was divided but the same Point came afterwards in question in the Case of Mr. Tape of Norfolk and it was adjudged to be the ancient Use And no Case can be shewn that the Law will create an Estate in the Covenantor where the Use is not vested in any Person but the ancient Use remains in him As to the Cases cited on the other side I have answered my Lord Pagets's Case already And as to my Lord Cokes Case 1 Inst 22. b. I agree the Use returns and the Son is in by discent and so it was adjudged in Fenwick and Mitfords Case there cited But the Paraphrase he makes there I do not understand It is said there when the Limitation is made to his right Heirs and right Heirs he cannot have during his Life the Law doth create an Use in him during his Life Wherefore is this said to make the Heir in by discent No doubt without this he is in by discent and so was the Iudgment in that Case for what Reason then should there be an Estate for Life raised by the Law to be merg'd by the Fee as soon as raised And there 't is said Till the future use come in Esse I do not conceive then where it is so long as the Father lives and what he means by the Future Use I do not know for it always was in Esse and never was out of the Feoffor and this was so adjudg'd in that Case of Fenwick and Mitford and not the construction of my Lord Coke And t is strange that no other Reports should mention his construction Hale Chief Justice for the Defendant If Ralph takes either by Discent from Michael or by Purchase the one way or the other answers the Verdict and the Issue is for the Defendant I shall divide the Case into two Points 1. If he takes by Discent 2. Admitting he does not If he may take by Purchase as this Case is I shall Premise two or three things First It has been agreed if an Estate for Life be raised to Michael the Remainder being to his Heirs Male of the Body of Jane his second Wife the Estate Tail is executed in him be the Estate for Life raised by Implication or express Limitation Secondly It is plain quacunque via It be rais'd that the Estate was long'd in Michael till Ralph the Son be in a capacity to take it either by Discent or Purchase for be it part of the ancient Use or a new Use it ought to be in Michael during his Life for there is nothing to bring it out of him Thirdly In all Cases touching Uses there is a great difference between a Feoffment to Uses a Covenant to stand seized and a conveyance at the Common Law If a Man by Feoffment to uses conveys Land to the use of J.S. for Life he may remit the Use to himself and the Heirs Male of his Body by the same Deed and so alter that wich was before a Fee simple and turn it into another Estate but if A. gives Land to B. for Life Remainder to A. and the Heirs Male of his Body because a Man cannot give to himself the Remainder is void for a Man cannot convey to himself by a Conveyance at the Common Law These things being premised I conceive here is an
Estate Tail in Michael First Because in this Case the Use returns by operation of Law and executes an Estate in Michael for Life which being conjoined to the Estate limited to the Heirs Male of his Body makes an Estate Tail This Estate for Life rising by operation of Law is as strong as if it had been limitted to him for his Life and after his decease to the Heirs Male of his Body Secondly Because that a Limitation to the Heirs Male of his Body is in Construction of Law a Limitation to himself and the Heirs Male of his Body There is a great difference when he who has the Use limits it to A. for Life the Remainder to the Heirs of the Body of B. here no Estate can rise to B. because nothing moved from him but where he who has the Estate limits it to the Heirs Male of his own Body ut res valeat he shall have it for his Life Thirdly It is plainly according to the intent of the Parties the intent perfectly appears that the Issue by the second Wife should take and that Robert the eldest Son should not take till so much Money be paid therefore if we can by any means serve the intent of the parties we ought to do it as good Expositors For as my Lord Hobart says Judges in Construction of Deeds do no harm if they are astuti in serving the intent of the Parties without violating any Law Obj. Here the Use being never out of Michael he hath the ancient Use which is the Fee simple and consequently being the ancient Use and this being a new Limitation to the Heirs Male of his Body the ancient use and the new one cannot be piec'd to make an Estate Tail executed in Michael but it shall be a Contingent Use if any which ought to rise to the Heir Male of his Body and so remains the ancient Fee simple And it hath been compared to these Cases If a Man Covenants to stand seized to the Use of J.S. or of his Son after his Marriage or after the Death of J. D. these are Contingent Limitations and there is a Fee simple determinable in the Covenantor to serve the future Uses Resp 'T is true if a Man Covenants to stand seized to such Uses as that he leaves a discendible Estate in himself As if a Man Covenants to stand seized to the Use of his Son from and after his Marriage this is purely a Contingent Use because t is possible the Marriage may never take effect and nothing is fetch'd out of the Covenantor so if he Covenants to stand seized to the Use of J. S. after 40 years there is a Fee simple determinable in the Covenantor and therefore those Cases are not to be resembled to our Case where the Estate of Michael cannot continue longer than his Life And this without any wrong done to any Rule of Law may be turned to a Use for Life and therefore such construction shall be Object 2. Here is an Estate to rise by way of Use by a Deed and not by a Will which shall not be by Implication by a Deed. Resp It s a certain truth But we are not here upon raising an Estate by Implication but qualifying an Estate that is now in the Father which by this new Deed is to be qualified to be an Estate for Life to preserve the Estate Tail so that the Cases of Implication are not to the purpose Object 3. In this Case Michael shall be in of his ancient Estate in Fee simple which is in him and not of a new Estate created by Implication of Law and it hath been compared to the Devise of Land to a Mans Heir he shall not be in by the Devise but of his ancient Estate that would have descended to him Resp True But in this Case a Man may qualifie his Estate as in Gilpins Case Cro. Ca. 161. Devise to his Heir upon Condition that he shall pay his Debts in a year the Heir is a Purchasor so here is a qualification to turn the Estate of Michael into an Estate for Life ut res valeat Object 4. Michael had not an Intention to have an Estate for Life for in the Limitation of the other Lands he has limited them expressly to himself for Life and if he had intended to have had an Estate for Life in the Lands in question he would also have so expressed it Resp The intention will not controul the operation of Law his main intent was to settle the Lands upon his younger Children this the Law serves but not his secondary intentions If a Man Covenants to stand seized to the Use of himself for Life without impeachment of Wast and afterwards to the Use of the Heirs Male of his Body the Law supervenes his intention and makes him to be Tenant in Tail And in our Case there was a necessity to limit the other Lands to himself for Life because there was another Estate to intervene the Estate for Life and the Estate Tail The Reason given by my Lord Coke in Fenwick and Mitfords Case is plain enough and it appears that he was of that Opinion afterwards by the Report of Pannel and Lanes Case 13 Jac. in Rolls Rep. 1 part 238. The Case upon which I shall rely which has not been answered is my Lord Pagets Case adjudged by all the Judges of England Tho. Lord Paget Covenants in consideration of the discharge of his Funerals Payment of his Debts and Legacies out of the profits of his Land and for the advancement of his Son Brother and others of his Blood that he and his Heirs would stand seized of divers Mannors to the Use of T.F. one of the Covenantees for the Life of my Lord Paget and after his Death to the Use of C. Paget for the term of 24 years and then to the Use of W. Paget his Son in Tail with Remainders in over and afterwards the Lord Paget was aâ—â—â—nted of Treason And it was adjudged that the Lord Paget himself had an Estate for his Life for the Remainder being limited after his Death the Estate cannot pass out of him during his Life and there in Case of a Covenant to stand seized he himself hath an Estate for Life And this is not because the Estate returns as my Brother Twisden has said but because the Estate was never out of him and cannot return either from the Heir or the Covenantee otherwise where should it be during the Life of the Lord Paget who was attainted the Book is that it was never out of him but was turn'd into an Estate for Life So that now it is all one as if he had Covenanted to stand seized to the Use of his eldest Son after his Death And the question is What Estate he has during his Life It is adjudged that he has an Estate for Life for if there had been a Contingent Fee simple in the Lord Paget his Heir could never have had an Amoveas manus
much for every Pound breach is a good Prescription to bind the Tenants but naught as to Strangers because as to the Tenants it might have a good beginning by way of Reservation but as to a Stranger it could have no Lawful beginning by way of Grant or Reservation or any way that can be imagined Now if we examine the Prescription in the Case in Question by these Rules we shall find First That the Thing prescribed for does not agree in the nature and quality nor is applicable to the Thing to which it is annexed The Thing prescribed for is an entire determinate Interest and the Thing to which it is annexed is several Estates that have no relation one to another the Usage of one can have no relation to the Usage of another I would put this Case In an Action of Trespass the Defendant Iustifies for Estovers certain or Pasture certain in this Mannor and that he is seised of a Messuage c. in Fee and that J. S. is seised of another Messuage c. in Fee and that he and J. S. and all they whose Estates they have in the said two Messuages have had ten Load of Wood c. or Feeding for 500 Beasts Or if two Lords of several Mannors in Fee joyn in prescribing for a certain Rent under Favour it were absurd and never was known or allowed for the Things to which c. being several the Usage of necessity must be several and the Prescriptions also must be several As for Example For one of them to prescribe for a Moiety c. The Reason why a man cannot prescribe to have Estovers of Wood to Land is because there can be no Usage to annex it for it cannot be used with it and in all Cases Prescription follows the nature of the Usage and therefore in the Case at Bar the Usage being several and the Estates several the Prescription ought to be several also It is impossible to raise such an Interest by a Grant at this day for if such a Grant were now made either the Grantees would be Joyntenants of this Interest and then there would be a Survivorship or else they would be Tenants in Common of it and their several Interests might be annexed to their several Estates by Purparties or Apportionment And so it would be in the nature of several Grants and there must be to several Prescriptions several Men that have had Land time out of mind yet cannot joyn in making Title but must make it severally As for Example If there be Three one of them must say That his Father was seised of a Third part that discended to him and so make a Title against a Stranger tho' there be a joynt Possession And if he be to make a Title against his Companions he may say That he and all those whose Estates they have in the other Two parts they cannot say That their three Fathers were seised of the Lands and shew the several Discents nor That they Two and all whose Estates they have in Two parts in Three to be divided have held in Common For the Title of the one concerns not the other they are upon Lines and Discents and Prescription is making of a Title as was said before and the Law is as strict in it or rather more strict than in making of a Title to Land Therefore several Men that have several Estates and no Relation one to another cannot joyn in making a Prescription for the Prescription of one does not concern the other Rastal's Entries 622. d. en Trespass c. Two Commoners to avoid prolixity and repetition do as near as they can joyn in a Prescription but being considered it is a several Prescription as much as if they had Iustified severally My Lord Coke's Rule on Littleton 197. a. That Tenants in Common may joyn in an Assize for an entire thing as an Hawk or an Horse for the necessity of the case It may be objected that there is the same necessity here I Answer That tho' in that case they joyn in the Demand and the Action yet they must make their Titles severally as they are they must Sue as they may Recover which cannot be half an Hawk or half an Horse but when they come to make their Titles in Pleading they must set them forth distinct there the possession is joynt and cannot be severed but in our case the possessions are several and one hath nothing to do with the other and the thing claimed is in its nature severable either by Moieties Purparties or Apportionment It may be Objected against my Rule That a Prescription must be as a Grant may at this day be made that 11 H. 7. 13 14. a man may prescribe against a great many as Tenants or a Commonalty without naming a party certain and such a Prescription cannot spring out of one Grant no more than this For if a great many may joyn in one Grant yet it is so many several Grants as to their several Interests and so it may be said there ought to be so many several Prescriptions I Answer The Rules are not alike For if 100 Men being a Generality as all the Tenants of the Mannor of Dale make the same king of Grant to J.S. or there be the same kind of Reservation and the thing claimed be annexable to the Estate of J. S. these all unite in the Grantee and his Estate and the Estate continues entire Time knits and unites it and an entire Prescription will serve being it will serve the Case But when a Grant is made from one to many that have several Estates their Estates are carried and discended several ways and Time and Usage makes them distinct and several and cannot be served by the same Prescription But the Prescription at Bar is worse upon my Second Reason for Prescription and Custom are of contrary Natures and incompatible and cannot give being to the same thing Prescription is a Title presuming a Grant to the Freeholders and a Lawful beginning The Copyholders claim by Custom because they are but Tenants at Will and not capable of a Grant their this must be raised from the Lord by parcels ' which being an Entire thing it cannot be For which soever should be raised first the rest must be left in the Lord who cannot have a Right of sole Pasturage in his own Soyl distinct from the Soyl. It may be Objected here That Custom and Prescription are not of such contrary Natures as I make them for in Day and Savage's Case in Hob. 85. the Pleadings were as a Custom of the City and the Court Adjudged it to be a Prescription which shews that Custom and Prescription differ not so much in the nature of the Thing as in the manner of the Pleading For Answer I need but observe the Nature of that Case The Officers of the City of London Iustified for a Duty of Wharfage claimed by the City The Plaintiff sets forth in his Replication That within
Alien they might inherit their Mother and consequently they might inherit one the other It hath been endeavoured to be Answered that it is not possible the Mother could be an English Woman because the Sons are found to be Aliens But that will not be so altho' an English Man marry an Alien beyond the Seas and having there Issue the Issue will be Denizens as hath been often Resolved Yet it is without question that if an English Woman go beyond the Seas and marry an Alien and have Issue born beyond the Seas the Issue are Aliens for the Wife was sub potestate viri and yet the Issue born in England should inherit tho' the Husband be an Alien But the true Answer is That in this Case Robert the Husband being an Alien born out of the Allegiance of the Crown of England and marrying and having all his Issues born there She shall not be presumed an English Woman but shall be presumed a Native in Scotland where her Husband lived and had Issue unless the contrary had been expresly found Now touching the Point in question it is true that Sir Edw. Coke in his Littl. fo 8. is of another Opinion He says That if an Alien have two Sons born in England and one dye without Issue the other shall not inherit him But I take the Law to be the contrary First I will shew what Reasons do not move me Secondly What Reasons do convince and satisfie me It doth not move me thus to conclude because there is no defectus Parriae or Nationis or Ligeantiae of either of the Brothers for tho' there be no personal defect in either of the Extreams yet it may be possible that a consequential Impediment arising from another Ancestor may hinder the Discent and this is apparent in the Case in question for Patrick the Son of Nicholas the Elder Brother of John the Earl hath no Defectus Ligeantiae for he was naturalized yet the Land shall not Discend from John the Earl to Patrick by reason of the defect of Nicholas his Father neither doth it move me that George or John his Son do not claim the Land from Robert the Father but from John the Earl for if the Grandfather be seized the Father is an Alien The Son of Denizen born the Father dies in the Life of the Grandfather the Son shall not inherit by reason of the defect of the Father tho' he claim nothing from him but from the Grandfather But the Reasons that satisfie me are these three in order as they are propounded My first Reason is because the Discent from a Brother to a Brother tho' it be a Collateral Discent yet it is an Immediate Discent and consequently upon what hath been premised at first unless we can find a disability or impediment in them no impediment in another Ancestor will hinder the Discent between them Now to prove this Discent immediate I shall use these three ensuing Instances or Evidences First In point of Pleading one Brother shall derive himself as Heir to another without mentioning another Ancestor this hath been at large insisted on by others and therefore I shall pass it over Secondly According to the computation of Degrees according to the Laws of England Brother and Brother make one Degree and the Brother is distant from his Brother and Sister in the first degree of Consanguinity According to the Civil Law the Brother is in the second Degre from the Brother for they make one Degree from the Brother to the Father and from the Father a second Degree to the other Brother but yet they say in Collaterals Nullus est proximior Fratre ideoque in Collateralibus nullus est primus Gradus sed secundus Gradus obtinet vocem primi Inst lib. 3. Tit. B. de Gradibus Consaguinitatis According to the Cannon Law Frater Frater Soror Soror sunt in primo Gradu Decret ' gratian Laus 35. quest 5. ad sedem and therefore their Laws prohibiting Marriage in the fourth Degree take Brother and Sister to be the first Degree of the fourth The Laws of England in computation of the Degrees of Consanguinity agree with the Common Law and reckon the Brother and Brother to be the first Degree and this is apparent by Littl ' sect 20. and the Objection of Lord Coke thereupon and the Book of 31 E. 3. Hollands Case cited by Littleton And with this likewise agrees the Laws and Custome of Normandy which tho' in some things they differ from the Law of England as is before observed yet in this particular and divers other touching Discents they agree with it Vid. Glov Com. super Customeir de Normandy in Cap. de Escheat Et doir un ' Scavoir que tonque le Custome de paijs de Normandy pur compter les Degrees en Line Collateral solonque les Cannoists deux freres ont le primier Degree eont que en Degree My third Evidence that the Discent between Brothers is immediate this viz. the Discent between Brothers differs from all others Collateral Discents whatsoever for in other Discents Collateral the half Blood doth inherit but in a Discent between Brothers the half Blood doth impede the Discent which argues that the Discent is immediate The Vncle of the part of the Father hath no more of the Blood of the Mother than the Brother of the Second Venter The Brother by the second Venter hath the immediate Blood of the Father which the Vncle viz the Fathers Brother hath not but only as they meet in the Grandfather The Brother of the half Blood is nearer of Blood than the Vncle and therefore shall be preferred in the Administration And so it hath been resolved in 5 E. 6. in Browns Case and tho' the Book of 5 E. 6. B. Administration 47. mistakes the Law in preferring the Brother of the half Blood before the Mother yet it had been right in the case of a Competition between him and the Vncle. And yet the Vncle is preferred in the Discent before the Brother of the half Blood and the reason is because that is a mediate Discent mediante Patre but the Discent to the Brother must be immediate if at all and therefore the half Blood impedes it Again it is apparent that if in the Line between Brother and Brother the Law took notice of the Father as the Medium thereof the Brother by the second Venter should rather succeed the other Brother because he is Heir to his Father therefore in a Discent between Brothers the Law respects only the mediate relation of the Brothers as Brothers and not in respect of their Father tho' it is true the Bosom or Foundation of their Consanguinity is in the Father and Mother My second principal Reason is to prove that the disability of the Father doth not at all hinder the Discent between the Brothers immediate is this If the Father in case of a Discent between Brothers were such an Ancestor as the Law
are few that she goes to but lye desperately ill or dye under her hands Action good 21 Thou art a thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Words spoke in London where to be tryed 22 263 He is a Forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him so to his Face Action good 50 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 53 Of an Attorney That he could not Read a Declaration 98 He hath broke 2 or 3 of his Fathers Ribs of which he shortly after dyed and I will complain to a Justice of him he may be hangd for the Murder tho it were done 20 years since Action good 117 Of a Woollen Draper You are a Cheating Fellow and keep a false Book Action lies 117 He hath Forged his Vncle Row's Will 149 He had pickt his Pocket against his will and was a Pick pocket Not Actionable 213 Of a Justice of Peace He is not worth a groat and is gone to the Dogs Not Actionable 258 He is a false cheating Knave and keeps a false Debt Book with which he cheats the Country Actionable 263 For charging the Plaintiff with Felony generally Good 264 Of an under Carrier of Post Letters He hath broken up Letters and taken out Bills of Exchange Not lies 275 The Defendant said to the Plaintiff I know my self and I know you I never buggerd a Mare The words Actionable 276 He would have given D. Money to have Robbed G's House and he did Rob it 323 Administration By the Civil Law Administration ought to be committed to the Residuary Legatee whether Assets or not Assets 218 To which the Court of K. B. strongly inclined 219 316 Admiralty May punish one that resists the Process of their Court and may Fine and Imprison for a Contempt in the face of their Court but not give the Party Damages 1 Where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here thô the matter were not originally determinable in our Admiralty yet if the Contract were made on Land beyond Seas Prohibition lies 32 Its Jurisdiction in seizing Ships 173 It hath Jurisdiction of Ships taken by Pirates but not if taken by Enemies 308 Hath Jurisdiction for Mariners Wages 343 Age. Bond Conditioned that the Son and the Daughter of J. S. shall at their full Age give Releases this must be taken at their respective Ages 58 Alien Of his Capacity and Incapacity 417 Amendment The Court having Power over their own Entries and Judgments can amend defaults of Clerks after Judgment thô in an other Term 132 Mistake of the name in a Judgment in Ireland amendable here 217 No Amendment of a Return after the Filing 336 Apprentice See Statutes Whether the Quarter Sessions can discharge an Indenture of Apprenticeship 174 Appurtenant See Reputation A thing Appurtenant may be by Grant but a thing Appendant must be by Prescription 407 Connisance of Pleas may be created by the King 's Grant as he pleases either in Gross or as Appurtenant ibid. Arbitrament Award What Pleas good in Arbitrament and what not 50 71 87 184 Arrest Where the Bayliff may break a House upon an Arrest 306 Assault and Battery In an Action for both the Defendant may be found Guilty of the Assault but not of the Battery and here no more Costs than Damages 256 Assets Bonds and Specialties no Assets till the Mony be paid 96 Assignment Assignment where the Assignor keeps Possession Fraudulent and such Fraud may be avered 329 331 The word Assignees includes Assignees in Law as well as Fact 340 Assumpsit See Pleading Whether a Stranger to the Consideration may bring the Action 6 7 318 332 Good cause of Demurrer in Assumpsit where the Consideration carries nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant 9 A mistake in the time relating to a Promise good after a Verdict 14 see also 119 Whether multum gratissimum servitium and multa Beneficia be sufficient Considerations in an Assumpsit 27. So for opere labore Servitio 44 Infant may make a Consideration whereon to ground an Assumpsit 51 The Breach must be laid as the Promise is 64 Forbearance of Suit where a good Consideration whereon to ground an Assumpsit 120 152 154 159 Claim without proof where good to ground a Consideration in an Assumpsit 211 Of Reciprocal Promises 177 214 Assumpsits in Consideration of Marriage 262 268 One Excommunicated for not paying in a Church Rate a Promise to pay in Consideration of Absolution Good 297 In Consideration of delivering Goods to a third person Good 311 Attorney See Mandamus Attorneys at large have the same priviledge with Clerks of the Court 1 Whether an Attorney in the Courts at Westminster may practise in Inferiour Courts 11 Attorneys shall be discharged of the Service of the Common Wealth à fortiori of any private Service as Constable Collector of Rents c. 16 29 Committed for Suing out a Bill of Middlesex against a Countess 295 An Attorney or Clerk of Court shall not have Priviledge if Sued joyntly with others 299 Averment See Pleading Assignment Obligation Where necessary and where not 41 43 44 117 149 177 178 B. Bail THe Action shall not be said to be depending until the Bail is Filed and not from the first day of the Term 135 Condition of the Bail Bond ought to agree with the Writ or else be void 233 234 Whether the Principal and Bail may be both taken in Execution 315 Bankrupt A Tradesman given over Trading may be a Bankrupt in respect of Debts contracted before 5 What makes a Man a Trader so as to make him a Bankrupt 29 166 A Man has Judgment in Debt and then becomes Bankrupt who shall have Execution 193 Victuallers for the Fleet not Traders within the Statute of Bankrupts tho' they Victual Merchantmen with the Surplus 170 The Commissioners Authority as to Commitments 323 Where a Debt paid by a Bankrupt to his Creditors shall be refunded 370 371 Baron and Feme See Statutes In Trover that they ad usum proprium converterunt c. Not good 12 24 33 Indebitatus Assump lies against the Husband for Apparel sold to the Wife 42 How to be Bailed when Arrested 49 Baron and Feme taken in Execution the Husband Escapes the Escape of the Husband is the Escape of the Wife and she shall be discharged 51 Battery brought against both and found only against the Feme Good 93 In a Suit the Baron makes an Attorney for both except the Feme be under Age 185. For then she is to be admitted by Guardian ibid. Where the Husband cannot release without the Wife 209 Battery brought by B. and F. for beating them both how far good 328 Bishop See Pleadings Of Common Right the Dean and Chapter are Guardians of the Spiritualties during the Vacancy of a Bishoprick but the
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
there that no Writ of Error should lie into England the Chief Iustice said it would be void for their Power is merely precarious as to the Parliament of England though not to the King in regard of his Charter Wherefore he said it might be questioned whether they could Naturalize at all for the King cannot alone and their Power is wholly derived from this Charter neither hath it been attempted by them until 10 Car. 1. when the Earl of Strafford was Lieutenant there Whereas it was said on the other side that to be Naturalized in Ireland was the same thing as to be born in Ireland he denied it unless they added by the Laws of Ireland i. e. the Law gives him there all the Priviledges a Native hath but this was not ligeantia nata sed data and therefore can extend no further than the Power of them that gave it and tho' it be said an Act of Parliament can do any thing that must be understood as to civil things which are but the Creatures of Men therefore may be altered and disposed at the will of the Supream Authority but natural things are not within its Power For an Act of Parliament cannot make a Man a Woman or a Man to be born in any other place than where he was really born tho' it may give him such priviledges as one hath that is born there viz. such as are within their Power and none else and 7 Co. 18. B. The time of the Birth is of the essence of a Subject born and after in Calvins Case 27. it is said natural Ligeance respecteth the time of the Birth and he cannot be a Natural Subject who was born under the Allegiance of another King for a Natural Subject is the correlative to a Natural Prince and one naturalized there might in all respects be compared to an antenatus who differed from a postnatus in these two things First He was another Princes Subject before a Subject to the King of England Secondly Such an one might have been an Enemy whereas a born Subject may be Traitor but can never be an Enemy Now the Subjects of a Prince that conquers another Kingdom become immediately Denizens of that Kingdom But not è converso as was held in Calvins Case of the antenati in Scotland But the Subjects of a King who is Homager to that King shall not be Aliens in any of his Dominions as in Wales before the Conquest of it in Edw. the 1st Time the like in Scotland as appears Dier 304. Pl. 57. A Scot was indicted of a Rape who pleaded not guilty and prayed a Tryal per medietat ' Linguae and it was denied for that a Scot was never accounted an Alien sed potius Subject ' tho' the Chief Iustice was of Opinion they ought not to have judged so there because the Homage of Scotland had been lost so long before The Statute of 5 Eliz. is that none shall set up a Trade unless he hath been an Apprentice to it by the space of seven years Suppose an Act were made in Ireland that it should be lawful for J. S. to set up a Trade tho' he had never been an Apprentice this would enable him there but no man would say that thereby he should have liberty to set up here No tho' the words of the Act were as if he had served seven years So the Law is that no man can be naturalized here but by Act of Parliament here Naturalization is a great point of State-interest therefore the King cannot do it by his Charter And the inconvenience would be very great if naturalization in Ireland should extend hither for tho' it was objected we might obviate it if found to be so by disallowing their Acts which before they pass there are sent hither and remitted under the Great Seal and so we may repeal their Acts yet it was said the like Power by consequence must be yielded to Scotland and we cannot disannul their Acts so they shall introduce what Aliens they please amongst us without controll And tho' it was said a naturalization there would do us no harm for it could never be made appear because no Certiorari could be awarded from hence thither yet it is manifest there are ways of making it appear In 42 Ed. 3 2. Lord Beaumonts Case Vide 2 Cro. 484. a Certiorari to remove a Record taken at Callis it is said that part of Scotland was within the Kings Ligeance and part without and that the King kept a Roll of such Places as he had under his Subjection and the Party was directed to petition the King to certifie whether Rosse were so or no so the King must be Party to their Acts there and therefore may certifie them or they may be given in Evidence as Foreign Laws or the Sentences in the Ecclesiastical or Civil Law Courts Now we must not always conclude a thing not to be Law because it is inconvenient but that for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may be well judged to be so Wyld and Archer in their Arguments did much insist upon the particular penning of this Act where the Makers did seem to intend that the effect of this Naturalization should be confined to Ireland for the Preamble recites this Your Majesties Realm of Ireland will be much impaired for want of Scottish Planters and that 100000 were planted in the Province of Vlster there it enacts That they and all Scottish shall be deemed Your Majesty's liege Subjects of this Your Realm of Ireland and this your Realm repeated almost in every Clause which would lose its force if the naturalization should be construed to have a larger extent They also took notice of the Proviso of the Act That it should not extend unto any Lands whereof any Office was found for the King and seised into his hands And here was an Office found 17 Jacobi they also mentioned the Statute of 7 Jacobi c. 2. which Enacts That the Bill of Naturalization shall be twiced read unless the Person hath received the Sacrament within a Month before and also taken the Oaths of Allegience and Supremacy To the first Tyril answered First That Naturalization could not be restrained at least not by affirmative words for it doth not say Your Realm of England and not elsewhere the Act hath also these words as born of Irish Parents as natural born Subjects and other words as full as may be also the Act of Naturalization of John and George in England hath the same words mutatis mutandis viz. of this Your Realm and in others they are more restrictive viz. from henceforth shall be deemed c. the Irish Act is that they shall be deemed Natural Subjects that they shall inherit such Lands as have descended after the first day of King Jame's coming to the Crown of England this hath no such restraint As to the Second he answered it was the Rectory only which
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
illam modo forma praed ' fact ' necesse non habet nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' Narration ' ipsius Francisci in hac parte ijdem Edwardus Walterus pet ' Judicium qd ' praed ' Franciscus ab actione sua praedicta versus eos habend ' praecludatur c. Et praedictus Franciscus dic ' qd ' Joynder in Demurrer narratio praedicta materiaque in eadem content ' bon ' sufficien ' in lege existunt ad ipsum Franciscum actionem suam praedictam inde versus praed ' Edwardum Walterum habend ' manutenend ' Quam quidem materiam idem Franciscus parat ' est verficare Unde ex quo praedict ' Edwardus Walterus ad narrationem praed ' non responder ' nec materiam in ead ' content ' aliqualit ' dedixer ' idem Franciscus pet ' judicium dampna sua occasione fractionis conventionis praed ' sibi adjudicari c. Et quia Justic ' c. Morly versus Polhill IN an Action of Covenant the Plaintiff declared as Executor to George Morly late Bishop of Winchester and sets forth that Brian the Predecessor of the said Bishop had demised a Rectory and certain Lands to J. S. for 21 years who had assigned it to the Testator of the Defendant and that the Lessee covenanted with Brian and his Successors to repair the Chappel of the Church and the Barns c. and assigned a breach in the not xepairing by the Testator of the Defendant in the life of George Morly and that the Lease afterwarns expired To this the Defendant demurred for that it was pretended that the Executor of the Bishop could not bring this Action for the Covenant was with the Predecessor Bishop and his Successors and cited the Cases of Real Covenants 1 Inst 384 385. A Parcener after partition Covenants to acquit the other Parcener of a Suit and the Covenantee assigns the Assignee shall not bring Covenant But the whole Court gave Iudgment for the Plaintiff and that the Executor is here well entituled to the Action for the Breach in the Testators time Wright versus Wyvell IN an Ejectment the Plaintiff declared upon a Demise of Dorothy Hewly and upon a Special Verdict the Case appeared to be thus That Christopher Hewly was seised of the Premisses in Fee and made his Will in this manner I make my last Will in manner following As concerning my Personal Estate First I give and bequeath unto Ann Hewly my Wife the sum of Six Hundred Pounds to be paid unto William Weddall of Eastwick Esq and it 's for the full payment of the Lands lately purchased of the said Mr. Weddall by the said Christopher Hewly and is already estated in part of a Joynture to Ann my said Wife during her natural Life being of the value of Sixty Seven Pounds per annum That of Wiskow York and Malton the Lands and Tenements there amounting to the yearly value of Sixty Three Pounds in all One Hundred and Thirty Pounds which being also estated upon my said Wife it is in full of her Joynture And after this he gives several Legacies and the rest of his Personal Estate he gave to his Wife and made her Executrix Then they find that he had made no settlement of the Premisses or of any part of them upon his Wife and that the Lessor of the Plaintiff was Heir at Law to Christopher Hewly and that Ann the Wife is still living So that the sole Question was whether the Lands should pass to the Wife upon these words in the Will and divers Cases were put upon implicit Devises as that his Feoffees should stand seised to the use of J. S. has been held a good Devise to J. S. tho' there were no Feoffees 3 Leon. 167 162. Devise to his eldest Son after the death of his Wife there the Wife takes tho' nothing expresly devised to her After Arguments heard on both sides by the Opinion of Pollexfen Chief Justice Rokeby and Ventris Iudgment was given for the Plaintiff against the Opinion of Powell Here it appears indeed that the Testator took it that she had the Land but it appears he did not intend to devise any thing by the Will for he mentions that she was estated in it before and in the Cases of Implicit Devises there is no reference to any Act that should have conveyed the Land to the Devisee before but the Will there passes the Land by Construction and Implication Again This Devise is introduced with this Clause as to the disposing of my Personal Estate and throughout the Will he giveth only Personal Things Again This recital comes in as part of another Clause of an express Devise of the Six-Hundred Pounds But Powell relied upon the Case in Mo. 31. A man made a Will in this manner I have made a Lease to J. S. paying but 10 s Rent this was held a good Lease by the Will To which it was answered That the Case there was of little authority for it did not appear how that matter came in question or in what Court or in what Action and said only fuit tenus 3 Eliz. And Iudgment here was given for the Plaintiff Bowyer versus Milner IN a Formedon against several Tenants one appeared and was Essoigned and then another appeared and it was moved whether he could be Essoigned by reason of the Statute of W. 1. c. 43. which seems to be that Parceners or Ioyntenants should have but one Essoign and that they should not fourch Cut ' Contra. The Statute is to be understood of Essoigns after appearance and so is the Book of 28 Ed. 3. 18. it is said to have been the Law of the Times for Tenants to fourch before appearance and so is Co. 2. Inst 250. Hob. 8 46. The Case of Essoigns if the Tenant voucheth two one Essoign may be cast for each of them singly Vid. Stat. of Glouc. c. 6. Anonymus IN an Action of Trespass de Uxore abducta cum bonis viri to his damage of 10000 l Upon Not Guilty pleaded and a Trial at the Bar the Return of the Jury was Octab ' Trin. and the Appearance Day was die Mercurij at which day the Jury appeared but it being appointed for the keeping of a solemn Fast by the King's Proclamation the Jury was adjourned to the Day following and then the Jury and Parties being at the Bar a Plea was offered by the Defendants Counsel puis darrein continuance that the Plaintiff was Excommunicated and produced it under the Seal of the Court and begun their Plea thus Ad hunc diem viz. die Jovis prox ' post Octab ' Trin ' c. So that the Plea came too late for it should have been pleaded die Mercurij for tho' the Jury was adjourned to Thursday yet all Matters were entred as upon Wednesday So this Plea did appear upon the
nuper Vic' quoddam debitum quadragint ' librar ' fieri levari facerent quod capt ' seisit ' fuit in manus dicti nuper Regis per Thomam Rawlinson Mil ' Thomam Fowle Mil ' nuper Vic' Midd ' vicesimo secundo die Januarii anno regni dicti nuper Regis secundo Quodque per Judicium Baron ' dicti Scaccarii dict' nuper Regis apud Westm ' postea reddit ' recuperat ' fuit per dict' nuper Regem versus praefat ' Radulph ' Davis Ita quod denar ' ill ' cum sic levassent iidem nuper Vic' scilicet Johannes Parsons Basil ' Firebrace haberent coram tunc Baron ' de Scaccario apud Westm ' praedict ' à die Sancti Michaelis in tres Septiman ' anno regni dicti nuper Regis Quarto dict' Cur ' ejusdem nuper Regis tunc ibidem ad usum ipsius nuper Regis solvend ' Virtute cujus quidem brevis Praerogativi praed ' The Sheriffs thereupon seized the Goods iidem Vic' scilicet Johannes Parsons Basil ' Birebrace seisire fecerunt omnia bona catalla praedict ' Radulphi Davis in balliva ejusdem nuper Vic' prout breve Praerogativ ' in se exigebat requirebat Quae quidem bona catalla per appretiator ' per eosdem nuper Vic' scilicet Johannem Parsons Basil ' Firebrace nominat ' And Appraised them apprecr ' fue ' ad viginti septem libras quinque solidos novem denar ' quos quidem viginti septem libras quinque solidos novem denar ' iidem nuper Vic' scilicet Johannes Parsons Basil ' Firebrace habuer ' coram Baron ' de Scaccario dicti nupar Regis apud Westm ' praedict ' ad diem locum in brevi Praerogativo praedict ' content ' dict' Cur ' ejusdem nuper Regis tunc ibidem ad usum ipsius nuper Regis solvend ' prout per breve Praerogativ ' praedict ' eis praecept ' fuit Et praedict ' nuper Vic' scilicet Johannes Parsons Basil ' Nulla alia bona Firebrace ulterius dicunt quod praedict ' Radulphus null ' aliqua alia sive plura bona catalla terr' aut tenementa die Utlagar ' praedict ' seu unquam postea habuisset in balliva sua quae extendi appretiar ' seu in manus dicti nuper Regis cap ' potuer ' praeterquam bona catalla praedict ' ut praefertur seisit ' virtute brevis Praerogativi praed ' Et hoc parat ' sunt verificare Et pet ' Judicium si praed ' Johannes Dawson action ' suam praedictam inde versus eos habere debeat c. Demurrer Et praedict ' Johannes Dawson ' dicit quod praed ' placitum praedict ' Johannis Parsons Mil ' Basil ' Firebrace Mil ' superius in barram placitat ' ac mteria in eodem content ' minus sufficien ' in lege existunt ad ipsum Johannem Dawson ab actione sua praedict ' versus praefat ' Johannem Parsons Mil ' Basil ' Firebrace Mil ' habend ' praecludend ' quodque ipse ad placitum illud modo forma praedict ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defect ' sufficien ' Respons ' praedicti Johannis Parsons Basil ' Firebrace Mil ' in hac parte placitat ' Idem Johannes Dawson pet ' Judicium dampna sua occasione Transgr ' illius sibi adjudicari c. Joynder Et praedict ' Johannes Parsons Basil ' Firebrace ex quo ipsi sufficien ' materiam in placito suo praedicto ad praedict ' Johannem Dawson ab actione sua praedict ' versus eos habend ' praecludend ' superius allegaver ' quam ipsi parat ' sunt verificare quam quidem materiam praedict ' Johannes Dawson non dedicit nec ad eam aliqualiter respond ' sed verificationem illam admittere omnino recusat iidem Johannes Parsons Basil ' Firebrace pet ' Judic ' quod praed ' Johannes Dawson ab actione sua praedict ' versus eos habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedict ' hicusque à die Sancti Michaelis in tres Septimanas de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Dawson versus The Sheriffs of London IN an Action upon the Case against Sir John Parsons and Sir Basil Firebrace Sheriffs of London The Plaintiff Declared That whereas one Ralph Davis was Indebted to him in 25 l and to recover it he brought an Original Writ Returnable in the Common Pleas and for that the said Davis did not appear he prosecuted him to an Outlawry in London And the said Davis was Outlawed and thereupon the Plaintiff took out a Capias Utlagatum in Trinity Term 4 Jacobi nuper Regis directed to the Defendants then Sheriffs of London by which Writ they were commanded to enquire what Goods and Chattels Lands and Tenements the said Davis had at the time of the Outlawry or at any time since and to Extend and Apprize the same and to Return such Extent in tres Septimanas sci ' Michael ' and that they should take the said Davis c. Which Writ was delivered to the Defendants then Sheriffs of London And altho' the said Davis had at the time of the Outlawry and after divers Goods and Chattels to the value of 40 l and more within the Bailywick of the said Sheriffs which they might have taken apprized and extended yet not regarding the Duty of their Office non solum ipsum Regem de eo quod ad ipsum pertinet occasione Utlagariae praedict ' defraudare verum etiam ipsum Johannem Dawson ab assecutione recuperatione debit ' praedict ' retardare they did not take seize or extend the said Goods but neglected and refused to do it and at the Day of the Return of the Writ falsly deceitfully and fraudulently Returned that the said Davis had no Goods and Chattels Lands or Tenements at the time of the Outlawry or ever after within their Bailywick in Dom Regis contemptum Curiae hic illusionem in Sectae ipsius Quer ' dilationem retardationem ad damnum Quadraginta◠Librarum To this the Defendant pleaded That before they made any Enquiry of the Goods c. of the said Davis viz. the 23d of July Anno regni nuper Regis Jacobi Secundi quarto a Prerogative Writ was issued out of the Exchequer to them the said Sheriffs directed whereby they were commanded to levy a certain Debt of 40 l of the Goods and Chattels Lands and Tenements of the said Davis which was taken and seised into the hands of the said late King by Rawlinson and
Fowle late Sheriffs of Middlesex and which was recovered by the said late King in the Court of Exchequer against the said Davis c. by virtue of which Writ they seized all the Goods of the said Davis in their Bailywick which were apprized at 27 l which they Returned into the Exchequer as the Writ required and the said Davis had no other Goods or Chattels Lands or Tenements within their Bailywick at the time of the Outlawry or ever after c. To this the Plaintiff Demurred and the Court held the Plea insufficient for they set forth that the Predecessor Sheriffs had seised and taken the Debt into the Kings hands so that Execution seemeth to be had before the Defendants were Sheriffs But Judgment was given against the Plaintiff for the Court held that the Action would not lye for the party who has an Outlawry that because the Sheriff upon the Cap ' utlagatum neglects to extend or seize the Goods and Lands of the Outlawed person for that is the Kings loss And tho' it was pretended that the Sheriff extending an seizing would be a means to enforce the Defendant to appear to the Plaintiffs Action the Court said that it was so remote as not to be considered as a ground to support an Action but if it had been shewn that the Sheriffs might have taken his Body and had neglected to do it there might have been more reason to support this Action So Judgment was given quod Querens nil capiat per breve Sir Thomas Gower's Case HE had upon a Commission made an Attorney in order to suffer a Recovery this Term which was done the last Assizes at York And the Court was now moved in behalf of the Heir in Tail to stop the passing of the Common Recovery and several Affidavits were produced to satisfie the Court that Sir Thomas Gower since the said Assizes died in Ireland and the Court being satisfied of the truth thereof did stay the passing of the Recovery and they said if it should pass it would be Erroneous Bealy versus Sampson Lincoln ' ss Trespass for Impounding of his Cattel quousque finem fecit of 10 l JOHANNES Sampson ' nuper de Mawvis Enderby in Com' praedict ' Yeoman attach ' fuit ad respondend ' Willielmo Bealy de placito quare ipse simulcum Georgio Francis nuper de Stamton ' in Com' praedict ' Labourer Vi armis averia ipsius Willielmi pretii quadraginta librarum apud Halton cum Beckeringe nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librarum pro deliberatione eorundem inde habend ' cum praedict ' Johanne Georgio fecisset detinuit alia Enormia ei intulit ad grave dampnum ipsius Willielmi Et contra pacem domini Regis nunc c. Et unde idem Willielmus per Johannem Fancourt Attorn ' suum queritur quod praedict ' Johannes simulcum c. primo die Februar ' anno regni domini Regis nunc c. tertio vi armis c. averia viz. quatuor boves quatuor vaccas ipsius Willielmi pretii c. apud Halton cum Beckeringe praedict ' nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librar ' pro deliberatione eorundem inde habend ' cum praed ' Johanne Georgio fecisset detinuit Et alia Enormia c. ad grave dampnum c. Et contra pacem c. Unde dic ' quod deteriorat ' est dampnum habet ad valenc ' quadraginta librar ' inde produc ' sectam c. Et praedict ' Johannes Sampson per Stephan ' Malton Attorn ' suum ven ' defend ' vim injur ' quando The Defendant pleads a seizure by the Sheriff by virtue of a Fieri facias Non culp ' to part c. Et quoad Venire vi armis seu quicquid quod est contra pacem dicti dn̄i Regis nunc dic ' quod ipse non est inde culpabilis prout praedict ' Willielmus superius versus eum queritur Et de hoc pon ' se super patriam Et praedict ' Williel ' similit ' Et quoad resid ' Transgr ' praedict ' superius fieri supposit ' idem Johannes dic ' quod praedict ' Willielmus actionem suam praedict ' inde versus eum habere non debet quia dic ' quod ante praedict ' tempus quo Transgr ' praed ' Fieri facias issued out of the Court of Common Pleas. superius fieri supponitur scilicet quintodecimo die Junii anno regni dicti domini Regis nunc tertio emanavit extra Cur ' dicti domini Regis de Banco hic scilicet apud Westm ' quoddam breve dicti domini Regis nunc de Fieri fac ' versus praedict ' Willielm ' ad sectam ipsius Johannis tunc Vic' Com' Lincoln ' direct ' per quod quidem breve dictus dom ' Rex nunc praefat ' tunc Vic' Com' Lincoln ' praecepit quod de terris catallis praedict ' Willielmi in balliva ejusdem Vic' Fieri fac ' tam quoddam debitum decem librar ' quod praedict ' Johannes Sampson in Cur ' dicti domini Regis coram Justic ' ejusdem domini Regis apud Westm ' recuperasset versus eum quam quadragint ' solid ' qui eidem Johanni Sampson in eadem Cur ' dicti domini Regis adjudicat ' fuer ' pro dampnis suis quae habuisset occasione detent ' debiti illius qd ' denar ' ill ' haberet coram Justic ' dicti domini Regis apud Westm ' a die Sancti Martini in quindecim dies ad reddend ' praefat ' Johanni de debito dampnis praedict ' unde convict ' fuit quod quidem breve postea ante rētorn ' ejusdem brevis necnon ante praedict ' tempus quo Delivered to the Sheriff c. scilicet secundo die Augusti anno tertio supradicto apud Halton in Com' praedict ' cuidam Antonio Eyre Ar ' tunc Vic' Com' Lincoln ' existen ' deliberat ' fuit in forma juris exequend ' Virtute cujus quidem brevis praedict ' Vic' praedict ' Com' Lincoln ' postea ante retorn ' ejusdem brevis necnon ante praedict ' tempus quo The Sheriff made his Warrant c. scilicet eodem secundo die Augusti Anno tertio supradicto apud Halton praedict ' pro executione brevis praedict ' habend ' fecit quoddam Warrant ' suum in scriptis sigillo Officii sui Vic' sigillat ' ballivo Wapentag ' de Wraggoe necnon praedict ' Georgio Francis Balliv ' ejusdem Vic' ea vice tantum direct ' per quod quidem Warrant ' praedict ' Vic' praedict ' Com' Lincoln ' eis cuilibet eorum conjunctim divisim mandavit quod de terris catallis praedicti Willielmi
late Case and if this sicut debuit is not sufficient 't is laid further in the Declaration that he did not permit the Plaintiff to have the benefit of this Foldage But the Court held the Declaration insufficient for that there is no Authority in any Book of Law to shew that the word Faldagium did imply so much as was pretended on the Plaintiffs part Faldagium is to have Sheep folded in his ground as Falde cursus is a Sheep-walk or feed for his Sheep and if it be the usage in case of Foldage for the Owner of the Sheep to bring his Sheep to the Fold it ought to have been so set forth for the Court cannot take notice of the private usages of Countries and if the Faldagium did imply what the Plaintiff would have it then it should have been set forth that the Plaintiff had set up a Fold in the Land where the Sheep were to have been folded for he was to do the first act which must have been shewn if all the particulars had been set forth and sicut debuit is not enough here for the obscurity of the word Faldavit so that it doth not appear to the Court what ought to have been done on the Defendants part and to say non permisit Querentem habere beneficium Faldagii was not good without shewing how he disturbed him as 8 Co. in Francis Case Sed nota That was upon Demurrer but here 't is not said non permisit the Plaintiff habere Faldagium or non permisit eum faldare but non habere beneficium faldagii so that it was not certain what was meant for the Sheep might be folded and yet he might be deprived of the benefit of the foldage And the Chief Justice said here the Prescription is laid to have the Sheep going infra Communes Campos Territoria de Grancester to be folded and Territoria is a word unknown in the Law so no certainty in the Prescription Note Here a Prescription is laid in a Body Aggregate in a que Estate but that was held to be well enough because for a thing appurtenant to the Mannor Vide 2 Cro. 673. Kelw. 140. B. 1 Inst 121. a. But for the Reasons above mentioned the Iudgment was stayed by the Opinion of the whole Court George versus Butcher DEbt upon a Bond. The Defendant demands Oyer of the Condition which was to perform certain Articles of Agreement and the Defendant set forth the Articles made between the Defendant of the first part the Plaintiff of the second part and Rebecca Morse Widow Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse Sons of the said Rebecca of the third part by which it was recited that a Marriage was intended between the Defendant Butcher and the said Rebecca by means whereof the Defendant would become possessed of her Personal Estate and in consideration thereof the Defendant covenanted by the said Articles inter al' having also recited that Robert Morse deceased Father of the said Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse had by his Will bequeathed cuilibet ipsorum praed ' Josepho Samuel ' Johan ' Daniel ' Robert ' Tho' omitting Nathaniel the sum of 50 l with the Plaintiff that the said Defendant would pay praed ' Josepho Samuel ' Johan ' Nathaniel ' Robert ' Tho' praedict ' seperal ' legationes vel summas quinquaginta librat ' And the Defendant pleads further that he paid to the said Joseph Samuel John Daniel Robert and Thomas the said several sums of 50 l and shewed performance of all the other Articles And to this the Plaintiff demurred because that he did not shew that he paid 50 l to Nathaniel Morse and expresly covenanteth to pay to the said Nathaniel and the rest the said several Legacies or sums of 50 l Sed non allocatur for in the recital of the said Bequest by the Will there is nothing mentioned to have been bequeathed to Nathaniel and tho' he covenants to pay to Nathaniel as well as the rest yet it is legationes vel summas praed ' and there being no Legacy to Nathaniel and that appearing by the recital of the Will his Covenant shall not oblige the Defendant to pay him any thing Et sic Judicium ê“ Defendente Trethewy versus Ellesdon IN Replevin The Plaintiff declared of taking his Cattle in a place called the Barnclose in Branwell in the County of Cornwall The Defendant made Conusance as Bayliff of Elizabeth Cossen and shews that Nicholas Cossen was seised in Fee of a Messuage and Lands of which the place where was and is parcel and being so seised the 9th of September in the fourteenth year of the late King Charles the Second by his Deed indented produced in Court did grant to the said Elizabeth Cossen an annual Rent of 10 l to be issuing out of the Premisses to have to the said Elizabeth and her Assigns for term of her Life payable at the usual Feasts and in case it were arrear that it should be lawful for her to distrain by virtue whereof the said Elizabeth Cossen who is still living became seised of the Rent for her Life and avers that the usual Feasts are our Lady Midsummer Michaelmass and Christmass and for 40 l for four years Rent ending at Michaelmass 1688. the Defendant took the said Cattle as a Distress for the arreat of Rent c. The Plaintiff demanded Oyer of the Indenture which was read containing as followeth viz. This Indenture made the 29th day of September c. between Nicholas Cossen c. of the one part and Elizabeth Cossen c. and Nicholas Cossen the younger Son of the said Elizabeth of the other part of witnesseth That whereas the said Elizabeth Cossen hath given and surrendred into the hands of the said Nicholas Cossen one Indenture of Lease of an Annuity dated the 15th of March 1657. of ten pounds yearly going out of all that his Barton and Demesn called Melder for a term yet to come as in and by the said Indenture of Lease more fully and at large appeareth hath Given Granted and Confirmed and in and by these Presents doth Give Grant and Confirm unto the said Elizabeth Cossen her Heirs and Assigns by these Presents one Annuity or Yearly Rent of ten pounds to be issuing and going out of all that his Barton c. to Have Receive and take yearly the said Annuity to the said Elizabeth Cossen and Nicholas Cossen the younger and the Survivor and Survivors of them at the usual Feasts in the Year by equal Portions and if it shall happen the said Yearly Rent to be behind after any of the said Feasts that then it shall and may be lawful to and for the said Elizabeth during her Natural Life and so the said Nicholas Cossen the younger after her Death to enter into the Premisses and distrain c. In Witness whereof
c. Quibus lectis auditis idem Querens dicit quod cognitio praed ' in forma praed ' fact ' materia in eadem content ' ac factum indentat ' praed ' in forma praed ' fact ' minus sufficien ' in lege existunt c. and the Defendant joyned in Demurrer It was argued for the Plaintiff that there is no sufficient Grant by this Indenture for it is said to be made between Nicholas of the one part and Elizabeth and Nicholas Cossen junior of the other part and then recited the Surrender of a former Grant after which came the words hath Given and Granted and by these Presents doth Give and Grant c. and no Grantor names but if it should be taken for a Grant from Nicholas Cossen 't is a Grant to Elizabeth an her Heirs and the habend ' cannot alter the Premisses in the limitation of the Estate in the Grant of a Rent and the Defendants in their Plea set forth that the said Elizabeth was seised of the said Rent for her Life ut de libero Tenemento so there is a material variance between the Indenture and the Plea The Court were of Opinion as to the first matter that it was a good Grant the Indenture being between Nicholas Cossen of the one part and Elizabeth of the other part and then after a recital saith hath Given and Granted to Elizabeth c. That must be taken that Nicholas Cossen hath Given and Granted and that the Conisans setting her forth to be seised for Life whereas there passed an Estate in Fee was a material variance The Cheif Justice Pollexfen seemed to incline that it was a Rent-charge for Life for the power of Distress was given to her only for Life and a Rent-seck in Fee and that it was as a Grant of two several Rents and then the Pleading was good But the other Justices held it was one entire Rent and that she had it with a Priviledge of Distress during her Life only but leave was given to amend the Conisans upon payment of Costs Dod versus Dawson SCire Facias upon a Recognizance of Bail in this Court upon condition That if Iudgement should be had against the Principal in an Action of Debt for 2000 l in this Court that he should pay the Debt and Damages recovered or render his Body in Execution to the Prison of the Fleet and sets forth that he recovered the said Debt of 2000 l and 12 l pro damnis Termino Pschae 4 Jacobi Secundi nuper Regis and that the Defendant did not pay the said Mony nor render himself in Execution c. The Defendants plead to this Scire fac ' that the Mony praetextu cognitionis praed ' in praed ' brevi de Scire fac ' mentionat ' de Terris Catallis c. praed ' Defendentis fieri ad usum praed ' Timothei Dod levari non debet quia dicunt quod Narratio super qua Judicium praed ' in praed ' Brevi de Scire fac ' mentionat ' obtent ' fuit versus ipsum Willielmum Dawson seu aliqua alia narratio in placito debiti non fuit exhibit ' in Curia hic in Termino Paschae Anno Regni dicti nuper Regis primo quo Termino recognitio praed ' facta fuit nec ad aliquod tempus infra duos terminos post praed ' Terminum Paschae proxime sequen ' unde pro defectu Narr ' per praefatum Timotheum Dod versus praefat ' Willielmum Dawson in eadem Cur ' ante finem praed ' duorum terminorum praed ' summa duarum mille librarum per cursum legis de Terris Catallis praed ' Defend ' vel eorum alicujus fieri levari non debent hoc parat ' sunt verificare unde pet ' Judicium c. To this the Plaintiff demurs and Iudgment was given for the Plaintiff for altho' by course of the Court if the Defendant lie in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Iudgment thereupon 't is a good Iudgment and the Bail will be liable in such case Rogers versus Bradly IN a Replevin for taking of a Cow apud Liscard in Cornwall in a certain place there called the Underway The Defendant made Conusans as Bayliff to William Trewman and Thomas Coll and sets forth that Joseph Mark diu ante c. was seised in Fee of a Close called Underway parcel of the Mannor of Liscard of which the place where was and is parcel according to the Custom of the said Mannor and being so seised the 9th day of January Anno Domini 1663. demised to Sampson Rogers the Premisses for 99 years from the Date of the Indenture if A. B. c. should so long live tendring 10 l yearly Rent by virtue whereof the said Rogers entred and the said Joseph Mark being seised of the Revertion in Fee secundum consuetudinem Manerii praed ' upon the first day of February Anno 1663. supradict ' at a Court of the said Mannor then held did surrender in Manus Domini Caroli Secundi nuper Regis Angliae c. adtunc Domini Manerii praed ' secundum consuetudinem Manerii praedict ' the aforesaid Revertion and Rent to the use of the said Trewman and Coll and their Heirs to which said T. and C. at the Court praed ' Dominus Rex per quendam Thomam Moulton adtunc Seneschal ' suum Manerii praed ' did grant the said Revertion and Rent to hold to them and their Heirs according to the Custom of the said Mannor and by virtue thereof the said T. and C. became seised of the said Revertion and Rent in their Demesn as of Fee according to the Custom of the said Mannor and for five years Rent ending at Michaelmass c. bene cognoscunt captionem c. To this the Plaintiff replied and the matter in the Replication was frivolous and Demurrer thereupon But the Court gave Iudgment for the Plaintiff because the Conusans was insufficient for the Lands whereupon the Distress was taken being Freehold for so they must be taken to be tho' it is shewn that Mark was seised according to the Mannor because it is not said at the Will of the Lord could not be conveyed by Surrender in Court and an admittance without an Especial Custom to pass them in that Form and 't is not enough to say that he surrendred them secundum consuetudinem Manerii but the Custom should have been fully set forth viz. quod infra Manerium praed ' de tempore c. talis habebatur consuetudo c. but here the Custom is by Implication 1 Cro. 185 Vaughan 253. 2 Leon. 29. Lade versus Baker and Marsh Kanc ' ss THOMAS BAKER Nicholaus Marsh sum̄ fuer ' ad respondend ' Philippo Lade Gen ' de placito quare ceper ' averia
and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
void if Livery had been made It was Resolved not to enure as a Covenant to stand seised because the Deed was void in the frame of it The Lords affirmed the last Judgment given by the Lords Commissioners c. and held that no Vse would arise With the concurrent Opinion of Baron Nevil Justice Eyre and Justice Ventris THE ARGUMENT OF Mr. Iustice Ventris IN THE EXCHEQUER-CHAMBER UPON A Writ of ERROR out of the Kings-Bench Christopher Dighton Gent Plaintiff versus Bernard Greenvil Esq Defendant THE Plaintiff brought a Writ of Error upon a Judgment in an Action of Trespass and Ejectment in the Kings-Bench given for the Defendant where the Plaintiff declared upon the Demise of Theophilus Earl of Huntington of a Moeity of the Mannor of Marre and of divers Messuages Lands and Tenements lying in Marre Bentley in Baln in the County of York and also of the Demise of Robert Earl of Scarsdale of the other Moiety of the said Mannor and of the Demise of Elizabeth Lewis of the entire Mannor of Marre and that by Vertue of these several Demises he entred and was possessed until ejected by the Defendant Vpon Not Guilty pleaded the Jury found the Defendant Not Guilty of the Trespass and Ejectment upon the Demise of Elizabeth Lewis and as to the Demises of the several Moieties by the said Earls they found a Special Verdict to this effect Viz. That Thomas Lewis the 9 of April 20 Jac. 1. before the Mayor of Lincoln acknowledged a Statute Merchant to William Knight for 1200 l to be paid at the Feast of St. Philip and Jacob then next following and that the said Money was not paid at the day and that William Knight the 16 of November 1629. made his last Will and one Isaack Knight his Executor and died that Isack proved the said Will and in Trinity Term 20 Car. 1. sued a Cap. si laicus out of the Common Pleas against the said Thomas Lewis directed to the Sheriff of Lincoln returnable in Tres Trin. who returned quod laicus fuit sed not fuit inventus in balliva sua upon which issued a Writ hearing Teste the 7 of July 23 Car. 1. Vic Eborum to estate the Goods and Chattels and all the Lands and Tenements of the said Thomas Lewis tempore Recognitionis debiti praed ' returnable Mense Michael upon which the said Sheriff returns an Inquisition taken the 11 of October then next following whereby Thomas Lewis was found seised of divers Lands and Tenements parcel of the Lands in the Declaration mentioned to be demised by the said Earls which he the same day caused to be delivered to the said Isack to hold by Extent as his Free-hold until he should be satisfied of his said Debt with his Damages and Costs They further find That the said Thomas Lewis and one John Levet and Thomas Lever the 20 of Novemb. 13 Car. 1. acknowledged a Recognizance in nature of a Statute Staple before the Lord chief Justice Brampston to Richard Gerrard for 1000 l payable at Christmass then next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in the Chancery by John Gerrard surviving Executor of Richard Gerrard the 22 of June 24 Car. 1. there issued a Cap. si laicus and an Extent against the said Thomas Lewis to the Sheriff of the County of York retainable in Craft animar ' prox ' at which day the Sheriff returned all Inquisition by him taken whereby it appeared that the said VVilliam Lewis tempore Recogn ' debiti praed ' was sessed in Fee of the Mannor of Marre and of divers Messuages Lands and Tenements being the same Lands in the Declaration mentioned to be devised by the said Earls and the 29 of Novemb. 24. Car. 1. a Liberate was sued out returnable in quinden ' Hillar ' to the said Sheriff who returned that the 29 of Novemb. 24. Car. 1. he had caused to be delivered the said Mannor Messuages Lands and Tenements to the said John Gerrard to hold as his Free hold until he should be satisfied his said Debt will his Damages and Costs They further find That Thomas Lewis and Thomas Lever the 27 of May 15 Car. 1. acknowleged a Recognizance in nature the of a Statute Staple before the Lord Chief Justice Brampston to Sir Gervase Elwaies and William Burroughs for 5000 l payable at the Feast of St. John the Baptist next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in Chancery by the said Sir Gervase Elwaies and William Burroughs the 10 of Decemb. 15 Car. 1. there issued out a Cap. si laicus and an Extent against the said Thomas Lewis directed to the Sheriff of the County of York returnable in Quinden ' Hill prox at which day the Sheriff returned on Inquisition by him taken whereby it appeared that the said William Lewis tempore Recogn ' debiti praed ' was seised in Fee of a Capital Messuage in Marre and of divers Messuages Lands and Tenements being the same Lands mentioned in the Declaration to be demised by the said Earls and that the 10 of Febr. 15 Car. 1. a Liberate ' was sued out returnable in Quidden ' Pasch to the said Sheriff who returned that he had caused to be delivered the said Lands and Tenements to the said Sir Gervase Elwaies and William Burroughs to hold as their Free hold until they should be satisfied the said Debt with their Damages and Costs They find that Thomas Lewis was seised of all the Lands mentioned in the said several Inquisitions at the respective times of his acknowledgment of the said Statute and Recognizance They find that the 15 of July 1651. Isaack Knight and John Gerrard by their respective Deeds granted their said several extended interests to one Edward Lewis by vertue whereof the said Edward Lewis became possessed of the Mannor and the Tenements praed Edwardo sic possessionat existente praedictoque Thoma Lewis de Manerio omnib ' premissis seisit ' existen ' in actual reali possessione inde the said Thomas Lewis by his Indenture of Lease and Release dated the 25 and 26 of May 1657. for 4000 l conveyed the said Mannor and Premisses to John Lewis and his Heirs in which there is a Covenant to Levy a Fine before the end of Trinity Term then next ensuing and that accordingly in Trinity Term 1657. The said Thomas Lewis did Levy a Fine come ceo with Proclamations of the said Mannor and Premises to the said John Lewis to the uses in the said Indenture mentioned by vertue whereof the said John Lewis was seised in Fee of the said Mannor and Premises And that John Lewis being thereof so seised the 21 day of July 1670 made his last Will and Testament in Writing and thereby devised the said Mannor and Tenements to Edward Lewis and the Heirs Males of his Body and for want of such Issue to his
may be sold Noell versus Robinson THe Plaintiffs Father being seised in Fee of a Foreign Plantation devised it to the Plaintiff and made the Defendant Executor The Executor let it for years reserving Rent in Trust for the Plaintiff who now Exhibited his Bill to have his Rent The Defendant Confessed the Devise of the Testator and the Lease made by himself but said That great Losses had fallen upon the Testator's Estate and that he paid and secured which is payment in Law for the Debts of the Testator to â— great value and that he hoped he should be permitted to reimburse himself by the receipt of this Rent notwithstanding the mentioning of the Trust as aforesaid The Cause came to Hearing and the Court Decreed for the Plaintiff For altho' a Legatee shall refund against Creditors if there be not Assets and against Legatees all which are to have these proportion where the Assets fall short yet the Executor himself after his Assent shall never bring the Legacy back But if he had been sued and paid it by the Decree of this Court the Legatee must have refunded as if a Debtor to a Bankrupt pays him voluntarily he must pay him over again Otherwise of payment by Compulsion of Law Note My Lord Chancellor said That if they give Sentence for a Legacy in the Ecclesiastical Court a Prohibition lies unless they take Security to Refund Note also in this Case that tho' it be an Inheritance yet being in a Foreign Country 't is looked upon as a Chattel to pay Debts and a Testamentary thing It was Objected That this could not be taken for an Assent for if so how could the Executor let it But the Court said that it did tantamount to an Assent and being a lawful Act a little matter will be taken for an Assent Anonymus A Bill was Exhibited by the Assignees of Commissioners of Bankrupts to have an Account against the Defendant of the Bankrupts Estate The Defendant pleaded that he was but Servant to the Bankrupt and had given an account of all to his Master and likewise had been Examined before the Commissioners upon the whole Matter Vpon Hearing his Plea my Lord Chancellor Over-ruled it and Ordered that he should Answer Anonymus IF a man makes a Lease or devise an Estate for Years he being seised of an Estate of an Inheritance for payment of Debts if the Profits of the Lands surmount the Debt all that remains shall go to the Heir tho' not so exprest and albeit it be in the case of an Executor Barney versus Tyson THe Case was thus The Plaintiff in the Life of his Father being about 26 years of Age and having occasion for Money prevails with the Defendant to let him have in Wares to the value of 400 l and gives him Bond for 800 l to be paid if he survived his Father at which time an Estate would befall him of 5000 l per Annum and he having survived his Father he preferred his Bill against the Defendant to compel him to take his Principal Money and Interest And it was proved in the Case that the Defendant was Informed at the time of this bargain that the Father was ill and not like to live and he did live but a year and half after and that one Stisted a man very Infamous was employed in the transaction of this Bargain And the Plaintiff obtained a Decree in the time of the Lord Chancellor Fynch And now upon a Petition to the Lord Keeper North the Defendant obtained a Re-hearing And in maintenance of the Decree it was alledged that the hazard which was run was very little and such Bargains with Heirs were much to be discountenanced The Lord Keeper affirmed the Decree but said that he would not have it used as a President for this Court to set aside mens Bargains But this Case having received a Determination and the Defendant having accepted his Principal Money and Interest thereupon and there being only a slight Omission in the Enrolment of the Decree which if it had been done had prevented a Re-hearing and the Defendant having delayed his Application to him by Petition he would not now set the Decree aside Termino Paschae Anno 35 Car. II. In Cancellaria Hodges versus Waddington THe Case was thus An Executor wasted the Testator's Estate and made his Will wherein he devised divers of his own Goods and made his Son Executor Afterwards a Suit was commenced against the Son to bring him to an Account for the Estate of the first Testator which was wasted and pending that Suit the Son after the Bill brought against him by the Legatee of his own Goods delivered them to the Legatee and assented to the Legacy After which upon the Account against the Son it appeared that the first Executor had wasted the Goods of the first Testator to such a value And then the party at whose Suit the said Account was and who was to have the benefit thereof together with the Son and Executor of the first Executor preferred a Bill against the Legatee of the Goods to make him Refund and obtained no Relief especially for that he had made the Executor Plaintiff who should not be admitted to undo his own Assent But liberty being given to bring a New Bill against the Legatee and the said Executor the Cause came to Hearing and it was Decreed That the Legatee should Refund So that one Legatee that is paid shall not only Refund against another but a Legatee shall Refund against a Creditor of the Testator that can charge an Executor only in Equity viz. Upon a wasting by the first Executor But if an Executor pays a Debt upon a Simple Contract there shall be no Refunding to a Creditor of an higher Nature Note also The Principal Case went upon the Insolvency of the Executor Anonymus A Bill was brought setting forth a Deed of Settlement of Lands in Trust and to compel the Defendant who was a Trustee therein nominated to Execute an Estate The Defendant by Answer says That he believed that there was such a Deed as in the said Bill is set forth c. And upon the Hearing they would have read a Deed for the Plaintiff tho' not proved but upon a Commission taken out only against another Defendant to the Bill supposing it to be Confessed by the Answer But the Court would not permit the Reading of it for the Confessing goes no further than what is set forth in the Bill and will not warrant the Reading of a Deed produced altho' it hath such Clauses in it Anonymus A Bill was preferred against one to discover his Title that A.B. might be let in to have Execution of a Judgment The Defendant pleaded That he was a purchaser for a valuable Consideration but did not set forth That he had no Notice of the Judgment And it was Over-ruled for 't is a fatal Fault in the Plea Bird versus Blosse THe Case was thus One wrote a Letter signifying
See Rent IF part of a Debt upon Bond be received and an Acquittance given before the Action it is a Bar only of so much as was received but if after the Action brought it seems it may be pleaded in bar to the Whole 135 Whether an Action of Debt may be brought upon a Judgment pending a Writ of Error and whether the Defendant in such Action ought to Demur or plead Specially 261 A Consideration creates a Debt tho' that Debt be not reduced to a certain Sum as in the case of a Quantum meruit 282 Debt secured is Payment in Law 358 Devise See Tail Vse Of implicit Devises and where Lands shall pass by Implication in a Will and where not 56 57 A Reversion shall pass in a Will by the Words All my Hereditaments 286 Whether Money in the Court of Orphans be devisable 340 If Money be devised to one to be paid at his Age of 21 years if the Party dies before it shall go to his Executors but if Money be bequeathed to one at his Age of 21 years and he dies before the Money is lost 242 366 Where a Sum of Money is devised to a Child at such an Age it shall have the Interest in the mean time rather than the Executor shall swallow it especially when no Maintenance is otherwise provided 346 Devise to J.S. at the Age of 21 and if J.S. dies before 21 then to A A. dies after J. S. dies under 21 the Administrator of A. shall have it 347 If Lands be devised for payment of Debts and Legacies the Personal Estate shall notwithstanding as far as it will go by apply'd to the payment of Debts c. and the Land only make up the Residue 349 Where an Administrator shall have an Estate devised to an Infant and where not 355 356 A Sum of Money devised to be raised out of the Profits of his Lands the Profits will not amount to the Sum the Land may be sold 357 Diversity where a Child's Portion is devised out of Personal Estate and where to be raised out of Land 366 367 Distress Whether a Drover's Cattel put into a Ground belonging to a Common-Inn upon the Road to London may be distrained for Rent due from the Innkeeper 50 Leave given to mend the Conisans upon a Distress after a Demurrer paying Costs 142 A Distress may not be sever'd as Horses out of a Cart and therefore in some Cases a Distress of great Value may be taken for a small matter because not severable 183 Where one holds a Third part of certain Land and another two Third parts of the same Land undivided he who hath the One part cannot distrain the Cartel which were put in by Licence of him who hath the two Parts 228 283 E Ecclesiastical Court See Marriage WHether the Ecclesiastical Court may proceed against Conventicles or whether they be punishable only at the Common Law 41. They may 44 The legal Method of Proceedings in the Ecclesiastical Courts 42 43 The Proceeding ex Officio 43 A Suit may be tryed in the Ecclesiastical Court upon a Prescription to Repair the Chancel so also for a Modus Decimandi 239 Ecclesiastical Persons A Curate incapable of taking an Estate devised in Succession for want of being Incorporate but the Heir of the Devisee shall hold the Estate in Trust for the Curate for the time being 349 Ejectment In Ejectment the Declaration of Michaelmass Term and the Demise laid 30 of October after the Term began 174 Elegit See Execution Enrolment A Deed where the Grant is exprest to be in Consideration of Natural Affection as well as Money need not be Enrolled but the Land will pass by way of Covenant to stand seised 150 Error See Debt Essoine Where several Tenants in a Real Action may be Essoigned severally 57 Regularly Proceedings in an Essoine in Dower 117 Estate What Words shall create a Tenancy in Common 265 266 Evidence See Action on the Case Chancery Exchange Bills of Exchange have the same Effect between others as between Merchants and a Gentleman shall not avoid the Effect by pleading He is no Merchant 295 310 The Custom of Bills of Exchange 307 310 Execution How the Sheriff ought to behave himself in Executing a Fieri facias 94 95 Whether Money paid for Goods taken upon a Fieri facias is properly paid to the use of the Sheriff or Plaintiff ibid. A Fieri facias was executed after the Party was dead upon the Goods in the hands of the Executor but Teste before tho' not delivered to the Sheriff till after This was a good Execution at the Common Law but quaere since the Statute of 29 Car. 2. cap. 3. 218 An Extent upon an Elegit being satisfied by perception of Profits he in Reversion may enter 336 Executor See Award Rent Waver And Executor may detain for a Debt due upon a simple Contract against a Debt grounded upon a Devastavit 40 Whether the Executor of a Bishop may bring an Action of Covenant for breach of a Real Covenant relating to Lands of the Bishoprick 56 Where a Woman disposes of Goods as Executrix in her own wrong if she takes Administration afterwards tho' before the Writ brought this will not hinder the Plaintiff from charging her as Executrix in her own wrong 180 An Executor in his own wrong cannot retain ibid. The Mother Executrix shall not discount for Maintenance and Education out of the Money left by the Father for the Mother ought to maintain the Child But Money paid for binding him Apprentice may be discounted 353 After an Executor assents to a Legacy he shall never bring it back again to pay Debts Secus where he is sued and pays by Decree in Chancery there the Legatee shall refund 358 Where an Executor pays a Debt upon a Simple Contract there shall be no refunding to a Creditor of a higher nature Vid. Legacy 360 Money decreed in Chancery to the Executor of an Administrator do bonis non and not the second Administrator de bonis non where no Debts appeared of the first Intestate 362 Minority as to Executorship determines at the Age of 17 and then a Personal Estate devised to such Executor vests in him 368 Exposition of Words Faldagium 139 The force of these Words in forma praedicta 215 F Fieri facias See Execution Fine WHere and how a Fine levied by a Feme-Covert shall be set aside and where the Commissioner who took it may be fined by the Court 30 A Fine acknowledged before the Revolution and Writ of Covenant sued out after allowed good 47 48 A Right to an Estate by Extent barr'd by a Fine and Non-claim 329. So also the Right to a Term for years ibid. Secus where a Statute is assigned in Trust to wait upon the Inheritance 330 Fine Customary What Customary Fine between Lord and Tenant shall be allow'd good upon Alienation 134 135 Forfeiture See Office Generally where a Statute gives a Forfeiture and not said to
whom the King shall have it unless there be a particular person grieved 188 189 267 268 A Forfeiture shall not bind in Equity where a thing may be done afterwards or Composition made for it 352 G Gaming See Assumpsit DIce Play not unlawful in it self tho' prohibited by several Statutes to certain persons and in certain places 175 Grant A Deed having no Execution to make it work as a Grant shall operate as a Covenant to stand seized 261. and by the Statute of Vses 266 Where Land is granted by Deed-Pool in Consideration of Natural Affection without Enrolment or Attornment whether it shall operate as a Covenant to stand seized or be void 318 H Habeas Corpus NO Habeas Corpus to be moved for in the Common Pleas unless it concerns a Civil Cause yet the contrary permitted in the case of an Attorney of that Court 24 Half-Blood The Half-Blood shall have equal Share with the Whole-Blood in Distribution upon the Statute of 22 23 Car. 2. c. 10. 317 Heir See Mortgage Heirs is Nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number 313 Heir and not Executor shall have the Surplusage of Lands leased for payment of Debts 359 I Infant INfants not foreclosed in Chancery till they come of Age 351 Intent No Exception to Vnum Vasum Vini Hispanici that is not said what the Vessel was made of for it is intended to be made of Wood 67 The Name of a Grantor omitted in an Indenrure supplied by Intendment 142 Racks in a Stable shall be intended to be fixt and need not to be shewn to be so in Pleading 214 Every Agreement must have some reasonable Construction that may may be consistent with the Intent of the Parties and therefore if a man agrees with another that he shall make a Drain through his Ground he shall not make it through the parties Stables or Buildings in case there are other places proper 278 In a Special Verdict nothing shall be intended that is not found 330 Imprisonment See Pleading Impropriation Whether a Rectory Impropriate being made a Lay-Fee can be sequestred by the Court Christian for not Repairing the Chancel 35 Ireland See Naturalization Of its Conquest and the Introducing the Laws of England there 4 The Power of an Act of Parliament in Ireland 5 K King See Forfeiture ALlegiance due to the Natural and not the Politick Person of the King 3 In case of things which are Nullius in Bonis where no visible Right appears the Law gives them to the King as Derelict Lands Treasure Trove Extra-parochial Tythes c. So where the Right is equal between the King and the Subject the Kings Title hath the Preference 268 The King is the Fountain of Justice and that as well Ecclesiastical as Civil and may by the Ancient Law of the Realm visit reform and correct Abuses in the Jurisdiction Spiritual 268 In what Cases Forfeitures are vested in the King before Office found and where not 270 L Law A Thing for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may well be judged to be against Law 7 The clearest way how to understand any Law is to consider what was the Judgment of those People among whom and the Times in which it was practical 17 To excite the People to the disobedience of a Law of a Publick Nature is the highest Offence under High Treason 23 Lease What Lease capable of a Release to work a Bargain and Sale 35 For 99 years if two Persons shall so long live determines upon the death of either 74 Legacy See Executor Legatees are to have their Proportion where the Assets fall short 358 Legatees shall refund against Creditors and if the Ecclesiastical Court give Sentence for a Legacy a Prohibition lies unless they take Security to refund 358 360 Licence See Distress Limitation See Original Mortgage Suit to recover a Depositum in Trust for a Feme Covert not barr'd by the Statute of Limitations 345 London Of the Custom of London relating to Orphans Money 340 341 M Market WHere a Market is granted to the Damage of another the Patent may be repeal'd in a Scire facias notwithstanding a Writ of Ad quod Damnum had been executed for the Return of that Writ was not conclusive 344 Marriage Whether a Man may marry his Great Uncle's Widow 9. He may 18 20 The four Statutes relating to Marriage expounded 11 infr Tho' the Stat. 32 H. 8. c. 38. allows all persons to Marry that are without the Levitical Degrees yet persons Pre-contracted or under a perpetual Impotence are prohibited to Marry 15 To Marry his Brother's Wife prohibited by the Statute tho' not by the Levitical Law 17. So of his Wives Sister ibid. Marriages in the ascending and descending Line prohibited without limit not so between Collaterals and the Reasons 18 The Ecclesiastical Courts have Conizance to punish persons Marrying within the Levitical Degrees but not to determine what is within the Levitical Degrees and what not 22 Agreements to settle in Consideration of Marriage favoured in Chancery 353 354 357 Marriage restrictions how to be observed 365 Mine If a Man opens a Mine in his own Land he may dig and follow the Vein under another Man's Ground 342 But if the Owner did there also he may stop his further progress ibid. Mortgage Where Lands are Mortgaged thrice over the third Mortgagee may buy in the first Incumbrance to protect his own Mortgage and he hath both Law and Equity for him 338 He shall hold the Land against the second Mortgagee until be be satisfied both the Money he paid the first Mortgagee and also his own which he lent upon the last Mortgage ibid. But where only Part of the Lands are mortgaged to the first and the whole to the second and after to the third here if the third buys in the first Title it shall protect only that part that is in the first Mortgage 339 A Purchaser or Mortgagee coming in upon a Valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate tho' he purchased in the Incumbrance after Notice of a second Mortgage ibid. Mortgages not relievable in Chancery after 20 years for the Stat. 21 Jac. 1. c. 16. limits the time of Entry to that number of years and 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be 340 Upon a Mortgage in Fee the Redemption Money shall be paid to the Executor and not to the Heir 348 351 Where by a Devise of all his Lands Lands in Mortgage pass 351 Where a man 's own Covenant shall restrain him from his Equity of Redemption and where it shall not 365 Murder Husband kills a Man in the act of Adultery with his Wife Manslaughter and not Murder the Provocation being exceeding great Vide the First Part of these Reports 158 N Naturalization WHether
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
his Bill to have the Land Conveyed according to the Agreement above But for the Defendants it was much insisted upon that this being to settle the Lands in case Thomas should dye without Issue it should not be regarded in this Court for the Execution of a Trust of a Remainder or Reversion in Fee upon an Estate Tail shall not be compelled because it is subject to be destroyed by the Tenant in Tail as here Thomas might have done in case he had made a Settlement according to the import of that Writing who therefore could not have been compelled himself to have executed this Agreement But the Lord Chancellor Fynch Decreed the Land for the Plaintiff because it was proved that the Marriage with the Plaintiffs Wife was in expectation of the performance of this Agreement and he was obliged to have left the Land to the Plaintiff if he had had no Issue Termino Sanctae Trinitatis Anno 34 Car. II. In Cancellaria Collet versus Collet WIlliam Fox having three Daughters Mary Elizabeth and Martha the two latter being Married and the first a Widow by his Will devised in these Words Viz. I give unto Martha my Daughter the Sum of 400 l to be paid unto her by my Executors within one year next after my decease But I will and my desire is that Cornelius Collet the Husband of Martha upon the payment of the said 400 l shall give such Security as my Executors shall approve of that the said 400 l shall be laid out within 18 Months next after my decease and purchase an Estate of that value to be setled and assured upon her the said Martha and the Heirs of her Body lawfully begotten And in the Close of his Will were these words following Viz. I Will That after my Debts which I shall owe at the time of my Decease and my Funeral Expences and the Probat of this my Will be discharged then I do give all the rest of my Personal Estate Unbequeathed to purchase an Estate near of as good value as the same Personal Estate shall amount unto within one year next after my my decease Which said Estate so to be purchased I Will shall be setled and assured unto and upon my said three Daughters Mary Elizabeth and Martha and the Heirs of their respective Bodies lawfully begotten for ever or otherwise my said Daughter Mary and the Husbands of my said two other Daughters Elizabeth and Martha shall for such Moneys as they shall receive of my said Executors for the Overplus of my Personal Estate enter into one or more Bonds in the double Sum of Money as each part shall amount unto the same being to be divided into three parts unto my said Executors within 18 Months next after my decease to settle and assure such part or Sum of Money as each of them shall receive and have by this my Will for the Overplus of my Personal Estate unto and upon the Child and Children of my said Daughters Mary Elizabeth and Martha part and part alike Martha the Wife of Cornelius Collet died within six Months after the Testator leaving Issue only a Daughter who died within four Months after the Mother the other two Sisters surviving Cornelius Collet took out Letters of Administration both to Martha his Wife and likewise to his Daughter the Four hundred Pounds and likewise the Overplus of the Personal Estate being unpaid or disposed of Cornelius Collet preferred his Bill against the Executors and the surviving Sisters and thereby demanded the 400 l and likewise a third part of the Overplus which amounted unto 700 l And the Cause came to be heard before the Lord Chancellor upon Bill and Answer who Decreed the 400 l to the Plaintiff but as to the Surplus of the Estate the Bill was dismissed altho ' it was much insisted upon for the Plaintiff that he might have given Bond to secure the Surplus for his Child and so from the Child it would have come to him as Administrator But seeing that no Interest could vest in the Child till the Election were determined it not being material as to this Point whether the Executors or the Husband aâ— the Election the Father could not claim it as Administrator to the Child And then if the Money had been laid out in Land and the Settlement according to the direction of the Will the Husband would have had no benefit for there would have been a Ioynt Estate for Life in the Daughters with several Inheritances and no severance of the Ioynture by the Marriage and having Issue Co. Inst and so no Tenant by the Courtesie Therefore as to the Surplusage the Bill was Decreed to be dismissed Note As to the 400 l the Order of my Lord Chancellor was That Interest should be paid for it from the time of bringing the Bill Termino Sancti Michaelis Anno 34 Car. II. In Cancellaria West versus The Lord Delaware WEST Heir apparent of the Lord Delaware Exhibited his Bill against the said Lord setting forth That upon a Marriage agreed to be had between him and the Daughter of one Mr. Huddleston with whom he was to have 10000 l Portion The Lord his Father Articled to settle Lands of such yearly value for the Wives Ioynture for their maintenance and the Heirs of their Bodies c. That the Wife being now dead and without Issue and no Settlement made the Bill prayed an Execution of the Articles and a discovery of what Incumbrances there were upon the Lands to be setled To this the Lord Delaware Answered That he never intended to settle Lands but for the Wives Ioynture only and that the Plaintiff her Husband was not named in the Articles and so was Advised He need make no Settlement and upon that Reason the Plaintiff could not require him to discover Incumbrances An Exception being taken to the Answer for that it did not discover any thing touching Incumbrances it was Argued before my Lord and for the Defendant it was alledged That by the Course of the Court the time of the Discovery should be when the other Point was determined for if that be for the Defendant then no Discovery can be required but if otherwise that then the Defendant shall be put to answer Interrogatories as is usual in Cases of like nature And it cannot be Objected That the Estate may be charged with Incumbrances since the Bill because they will be of no avail On the other side it was said That this would create great delay for upon the discovery of Incumbrances other parties must be made to the Bill and therefore this Case differed from the Case of Account which concerns the Defendant himself only but the Question now is only for the making proper Parties The Court Ordered That a further Answer should be made Nota If a man deviseth that such a Sum of Money shall be paid out of the Profits of his Lands and the Profits will not amount to the Sum in such case the Land