Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words
Governour of Barbadoes and the Council there have power of probate of Wills and granting of Administration that the Secretary belongs and is an Officer to the said Governour and Council as Register and is concerned about the registring the said Wills and so his Office concerns the Administration of Iustice and then sets forth that this Covenant upon which the Plaintiff brought his Action was entred into upon a corrupt Agréement and for that reason void The Plaintiff replies protestando that this Office concerned not the Administration of Iustice and protestando that here was no corrupt Agréement pro placito he saith that Barbadoes is extra quatuor Maria and was always out of the Allegeance and power of the Kings of England till King Charles the First reduced that Island to his Obedience which is now governed by Laws made by him and not by the Laws of England The Defendant rejoyns protestando that this Island was governed by the Laws of England long before the Reign of King Charles the First and confesses it to be extra quatuor Maria but pleads that before King Charles had that Island King James was seised thereof and died such a day so seised after whose death it descended to King Charles the First as his Son and Heir and that he being so seised 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent absque hoc that King Charles the First acquired this Island by Conquest Baldwyn Serjeant demurred for that the Traverse is ill Ex parte Quer. for the most material thing in the Pleadings was whether Barbadoes was governed by the Laws of England or by particular Laws of their own And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place He said that it was but lately acquired and was not governed by the Laws of England that it was first found out in King James his Reign which was long after the making of that Statute and therefore could not extend to it The Statute of 1 E. 6. cap. 7. Enacts That no Writ shall abate if the Defendant pending the Action be created a Duke or Earl c. And it has béen doubted whether this Act extended to a Baronet being a Dignity created after the making thereof Sir Simon Bennets Case Syd 40. Cro Car. 104. Statutes of England extend no more to Barbadoes than to Scotland or Virginia New England Isles of Jersey and Gernsey 't is true an Appeal lies from those Islands to the King in Council here but that is by Constitutions of their own No Statute did extend to Ireland till Poyning's Law nor now unless named In Barbadoes they have Laws different from ours as That a Deed shall bind a Feme Covert and many others Ex parte Def. Seys Serjeant contra He agreed that the Traverse was ill and therefore did not indeavour to maintain it but said there was a departure betwéen the Declaration and the Replication for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes viz. in Parochia Sancti Martini in Campis and in the Replication he sets forth that this Isle was not in England which is in the nature of a departure as Debt sur obligat ' 1 Maii the Defendant pleads a Release 3 Maii the Plaintiff replies primo deliberat ' 4 Maii 't is a departure for he should have set forth that the Bond was 4 Maii primo deliberat ' Quaere Bro. Departure 14. So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary The Plaintiff replies Quod tali die anno he presented his Clerk and the Bishop refused him the Bishop rejoyns that at the same day another presented his Clerk so that the Church became litigious and the Plaintiff surrejoyns that after that time the Church was litigious he again presented and his Clerk was refused this was a Departure Bro. Departure So likewise as to the place the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress and the Tenant saith that he gave it at L. after he was discharged and at large 40 E. 3. Bro. 32. 1 H. 6.3 The Plaintiff might have said that Nokes was admitted here in England without shewing it was at Barbadoes for the Grant of the Office of Secretary might be made to him here under the Great Seal of England as well as a Grant of Administration may be made by the Ordinary out of his Diocess 2. Except Viz. By the Demurrer to the Rejoynder the Plaintiff hath confessed his Replication to be false in another respect for by that he hath owned it The Defendant hath pleaded that King James was seised of this Island and that it descended to King Charles c. and so is a Province of England whereas before he had only alledged that it was reduced in the time of King Charles his Son and so he hath falsified his own Replication And besides this is within the Statute of 5 Ed. 6. for the Defendant saith that the Plaintiff hath admitted Barbadoes to be a Province of England and it doth not appear that ever there was a Prince there or any other person who had Dominion except the King and his Predecessors and then the Case will be no more than if the King of England take possession of an Island where before there was vacua possessio by what Laws shall it be governed certainly by the Laws of England This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer for which Process might issue and it descends to the Heirs of the Earl at the Common Law And if it be objected that they have a Book of Constitutions in Barbadoes that is easily answered for 't is no Record neither can the Iudges take any notice of it 'T is reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction and that it should be interpreted to extend as well to those Plantations as to England for if another Island should be now discovered it must be subject to the Laws of England Curia advisare vult Lever versus Hosier THIS was a special Verdict in Ejectment Recovery suffered of Lands in a Liberty passeth Lands in a Vill distinct within that Liberty Mod. Rep. 206. Postea The Case upon the Pleading was viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury and whether the Lands in Cotton which is a distinct Vill though within the Liberties shall pass was the Question And it was argued
year before the Sale After Verdict for the Plaintiff it was moved in arrest of Iudgment by Serjeant Barrell because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words 2 Anders 57. as descending from his Father which Title of the Son the Defendant bought whereas if in truth the Title was in J. S. then nothing descended from the Father to the Son and so the Defendant bought nothing Sed non allocatur for if such construction should be allowed there could be no buying of a pretended Title within the Statute unless it was a good Title but when 't is said as here that the Defendant entred and claimed colore of that Grant or Conveyance which was void yet 't is within the Statute so the Plaintiff had his Iudgment Wine versus Rider al. TRespass against five Quare clausum fregerunt Traverse immaterial and took Fish out of the Plaintiffs Several and Free-Fishery Four of them pleaded Not Guilty and the fifth justified for that one of the other Defendants is seised in Fee of a Close adjoyning to the Plaintiffs Close and that he and all those c. have had the sole and separate Fishing in the River which runs by the said Closes with liberty to enter into the Plaintiffs Close to beat the Water for the better carrying on of the Fishing and that he as Servant to the other Defendant and by his Command did enter and so justified the taking absque hoc that he is Guilty aliter vel alio modo The Plaintiff replies That he did enter de injuria sua propria absque hoc That the Defendants Master hath the Sole Fishing The Defendant demurs Ex parte Def. and Newdigate Serjeant argued for him That the Iustification is good for when he had made a local justification 2 Cro. 45 372. he must traverse both before and after as he has done in this Case 2. The Plaintiffs Replication is ill for he ought not to have waved the Defendants Traverse and force him to accept of another from him because the first is material to the Plaintiffs Title and he is bound up to it Hob. 104. 3. There was no occasion of a Traverse in the Replication for where a Servant is Defendant de injuria sua propria is good with a Traverse of the Command Ex parte Quer. But on the Plaintiffs side Serjeant Baldwin held the Defendants Traverse to be immaterial for having answered the Declaration fully in alledging a Right to the sole fishing and an Entry into the Plaintiffs Close 2 Cro. 372. 't is insignificant afterwards to traverse that he is guilty aliter vel alio modo Then the matter of the Plea is not good because the Defendant justifies by a Command from one of the other Defendants who have all pleaded Not-guilty and they must be guilty if they did command him for a Command will make a Man a Trespasser Curia The Court were all of Opinion that Iudgment should be given for the Plaintiff For as to the last thing mentioned which was the Matter of the Plea they held it to be well enough for the * Mires and Solebay Post Servant shall not be ousted of the advantage which the Law gives him by pleading his Masters Command Then as to the Replication 't is good and the Plea is naught with the Traverse for where the Iustification goes to a time and place not alledged by the Plaintiff there must be a Traverse of both In this Case the Defendant ought to have traversed the Plaintiffs free fishing as alledged by him in his Declaration which he having omitted the Plea for that reason also is ill and so Iudgment was given for the Plaintiff DE Termino Paschae Anno 28 Car. II. in Communi Banco Lee versus Brown IN a Special Verdict in Ejectment The Case was this Where reputed Lands shall pass under general words viz. There were Lands which re vera were not parcel of a Mannor and yet were reputed as parcel A Grant is made of the Mannor and of all Lands reputed parcel thereof and whether by this Grant and by these general Words those Lands would pass which were not parcel of the Mannor was the Question This Term the Lord Chief Iustice delivered the Opinion of the Court That those Lands would pass Postea Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330 384. The King versus Imber Wilkins If the Iury had found that the Lands in question had beén reputed parcel of the Mannor it would not have passed had they found no more because the Reputation so found might be intended a Reputation for a small time so reputed by a few or by such as were ignorant and unskilful But in this Case 't is found that not only the Lands were reputed parcel but the reason why they were reputed parcel for the Iury have found that they were formerly parcel of the Mannor and after the division they were again united in the possession of him who had the Mannor which being also Copyhold have since béen demised by Copy of Court Roll togethet with the Mannor and these were all great marks of Reputation and therefore Iudgment was given that the Lands did well pass 2 Roll. Abr. 186. Dyer 350. Wakeman versus Blackwel Common Recoveries how to be pleaded QUare Impedit The Case was The Plaintiff entituled himself to an Advowson by a Recovery suffered by Tenant in Tail in pleading of which Recovery he alledges two to be Tenants to the Praecipe but doth not shew how they came to be so or what Conveyance was made to them by which it may appear that they were Tenants to the Praecipe and after search of Presidents as to the form of pleading of Common Recoveries the Court inclined that it was not well pleaded but delivered no Iudgment Searl versus Bunion Justification where good IN Trespass for taking of his Cattel The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc adhuc ventur̄ and being so possessed the Plaintiffs Cattle were doing damage and he distrained them Damage fesant ibidem and so justifies the taking c. The Plaintiff demurrs and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years but only that he was possessed of an Acre for a Term of years to come and regularly where a Man makes a Title to a particular Estate in pleading he must shew the particular time of the Commencement of his Title that the Plaintiff may replie to it Curia The Chief Iustice and the whole Court held that the Plea was good upon this difference where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land he is supposed to be in possession
Trusteés therein named are appointed to sell it for payment of Debts and raising this Portion by which Act all Conveyances made by old Sir Robert Carr since the year 1639. are made void except such as were made upon valuable considerations but all those made by him before the said year with power of revocation if not actually revoked are saved and in the year 1636. he had executed a Conveyance by which he had made a Settlement of his Estate in Tayl with a power of revocation but it did not appear that he did ever revoke the same The greatest part of the Lands appointed by this Act of Parliament to be sold by the Trustees are the Lands comprised in that Settlement and now after the death of Sir Robert Carr the Plaintiff exhibits his Bill against the Son not knowing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer and by this Bill he desires that the Trustees may execute their Trust c. and that he may have relief On the Defendants side it was urged Ex parte Def. that after the Marriage there was a Bond given for an additional Ioynture and it was upon that account that the Defendant was drawn in to execute these Articles And if the very reason and foundation of his entring into them failed then they shall not bind him in Equity and in this Case it did fail because the Plaintiff had disabled himself to make any other Ioynture by a Pre-conveyance made and executed by him of his whole Estate and if this agreement will not bind him then this Court cannot enlarge the Plaintiffs remedy or appoint more than what by the Articles is agreed to be done neither can the Defendants sealing incumber the Estate Tayl in Equity because the Lands were not then in him his Father being Tenant in Tayl and then living and the subsequent descent by which the Lands are cast upon him alters not the Case for the very right which descends is saved by the Act from being charged But on the other side it was argued that though the Marriage did proceed upon the Defendants sealing yet the Assurance which was to be made was a principal Motive thereunto and it being agreed before Marriage though not executed it was very just that he should Seal afterwards and though the additional Ioynture was not made yet there was no colour that the Defendant should break his Articles for that reason because if the Bond be not performed 't is forfeited and may be sued and nothing appeared in the case of any Conveyance made by Sir Francis whereby he had disabled himself to make an additional Ioynture and he hath expresly denied it upon his Oath And though it was was objected that the Money was raised by the old Lady Carr and by the direction of the Trustees lodged in the hands of one Cook who is become insolvent It was answered that there was no proof of the consent of the Trustees and therefore this payment cannot alter the case After the matter thus stated the Lord Chancellor delivered his Opinion That the 6000 l. is doe to the Plaintiff unpaid and unsatisfied for though the Marriage had not taken effect yet the Covenant binds the Defendant because a Deed is good for a Duty without any consideration 2. The Plaintiff has remedy against the person of the Defendant at Law for this 6000 l. 3. He has remedy against such of the Defendants Lands which are not comprised in the Settlement made 1636. for as to them the Trustees may be enjoyned to execute the Trust And he desired the Opinions of the two Iustices if any thing more could be done in this case Iustice Windham was of Opinion that nothing more could be done but to make a Decree to enforce the execution of the Trust And Iustice Wild said that the Plaintiff has his remedy at Law against the Defendant and upon the Act of Parliament against the Trustees but upon these Articles no Decree could be made to bind the Lands for that would be to give a much better security than the Parties had agreed on But if there had been a Covenant in the Articles that a Fine should be levied it might have been otherwise 't is only that a Fine is intended to be levied But as to that the Lord Chancellor was of Opinion that it was a good Covenant to levy a Fine for the words Articles of Agreement c. go quite through and make that Clause a Covenant but because Iustice Wild was of another Opinion he desired the Attorny General to argue these three Points 1. Whether this was a Covenant to levy a Fine or not 2. If it was a Covenant whether this Court can decree him to do it for though the Party has a good remedy at Law yet whether this Court might not give remedy upon the Land 3. If it was a Covenant to levie a Fine and the Court may decree the Defendant to do it yet whether such a Decree can be made upon the prayer of this Bill it not being particularly prayed for the Plaintiff concluded his Bill with praying relief in the execution of the Trust c. In Trinity-Term following these Points were argued by Serjeant Maynard Sir John Churchil and Sir John King for the Plaintiff Mr. Attorny and Mr. Solicitor and Mr. Keck for the Defendant all in one day and in the same order as named The Councel for the Defendant urged Ex parte Def. that this was no Covenant in Law to enforce the Defendant to levy a Fine 'T is agreéd that there is no need of the word Covenant to make a Covenant but any thing under the Hand and Seal of the Parties which imports an Agreement will amount to a Covenant so in 1 Roll. Abr. 518. these words in a Lease for years viz. That the Lessee shall repair make a Covenant so in the Case of Indentures of Apprentiship there are not the formal words of a Covenant but only an Agreement that the Master shall do this and the Apprentice shall do that and these are Covenants but in all these Cases there is something of an undertaking as in 1 Roll 519. Walker versus Walker If a Deed be made to another in these words viz. I have a Writing in my custody in which W. standeth bound to B. in 100 l. and I will be ready to produce it This is a Covenant for there is a present engaging to do it but there are no such words here 't is only a recital That whereas a Fine is intended to be levied to such Uses c. 'T is only Introductive to another Clause without positive or affirmative words and therefore can never be intended to make a Covenant but are recited to another purpose viz. To declare the Use of a Fine in case such should be levied If Articles of Agreement are executed in consideration of an intended Marriage and one side Covenants to do one
upon the pleading because the Defendant had justified the taking of a Distress by vertue of a Lease for a Term of years if three live so long and did not aver that any of the Lives were in being 2. He sets forth that one of them was seised and being so seised dyed but doth not say obiit inde seisit̄ and these were held incurable faults Anonymus Exceptions to the Count in a Formedon in Discender Mod. Rep. 219. 8 Co. 88. IN a Formedon in Discender The Tenants by Turner Serjeant of Council with them took three Exceptions to the Count. 1. The Demandant being Brother to the Tenant in Tail who died without Issue sets forth that the Land belonged to him post mortem of the Tenant in Tail without saying that he died without Issue In the ancient Register in a Formedon 't is pleaded that the Tenant in Tail died without Issue and so it is in Co. Entr. 254. b. Rast Entr. 341. b. quae post mortem of the Donee reverti debeant eo quod the Donee obiit sine haerede all the Presidents are so 9 E. 4. 36. 2. The Demandant makes as if there were two Heirs of one Man which cannot be pleaded for he counts that his eldest Brother was Heir to his Father and that after his death he is now Heir which cannot be for none is Heir to the Father but the eldest Son and therefore when they are both dead without Issue the next Brother is Heir to him who was last seised and not to the Father and then he ought to be named which is not done in this Case Hern's Pleader fol. 'T is true in a Formedon in Reverter the Tail being spent the Donor ought not to name in his Count every Issue inheritable to the Tail because he may not know the Pedigree and therefore 't is well enough for him to say quae post mortem of the Donee ad ipsum reverti debeant eo quod he died without Issue but in a Formedon in Discender 't is presumed that the Demandant knowns the descent and therefore he ought to name every one to whom any Right did discend Jenkins and Dawson's Case Hetley 78. Dyer 216. 3. The Demandant hath not set forth that he is Heir of J. begotten on the Body of his Wife 1 Inst 326. which he should have done because this being in the Discender he must make himself Issue to the Tail Ex parte Def. These Exceptions were answered by Serjeant Seys and as to first he said that in a Formedon in Descender he neéd not to set forth that the Tenant in Tail died without Issue which he agreed must be done in a Formedon in Remainder or Reverter 39 E. 3. 27. Old Entr. tit Formedon pl. 3. 7 H. 7. 7. b. a Case express in the Point To the second Exception he said that it was no Repugnancy in Pleading to say that two were Heirs to one Man for they may be so at several times and so it appears to be in this Case since 't is said post mortem of his Brother who was Heir To the third Exception 'T is well set forth that the Demandant was the Issue of Ingram begotten of the Body of Jane for he saith his Brother was so and after his death he was Brother and Heir of him which is impossible to be unless he was begotten as aforesaid and of this Opinion were all the Court viz. Judgment That 't is well enough set forth that the Tenant in Tail died without Issue for if he had any Children alive it could not discend to the Demandant as Brother and Heir which he hath alledged and they all agreed the difference between a Formedon in the Discender Remainder and Reverter And as to the second Exception there is no contradiction to say two are Heirs to one tempore diviso And the last Exception had no force in it But then it was observed that the Demandant in his Writ had set out his Title after the death of the Tenant in Tail and in the Count 't is only Quae post mortem c. But to that it was aswered it relates to the Writ and what is therein shall supply the Et caetera in the Count. Woodward versus Aston in Banco Regis INdebitatus Assumpsit for 10 l. in Mony received to the Plaintiffs use and upon a Trial at Barr this Term Joint Office for life and to the Survivor one consents that another shall be admitted 't is a Surrender 1 Ventris 296. The Case upon Evidence was viz. Sir Robert Henly Prothonotary of the Court of Kings Bench makes a Grant of the Office of Clark of the Papers which of right did belong to him unto Mr. Vidian and Mr. Woodward for their lives and the life of the longest liver of them Afterwards Mr. Vidian makes a parol Surrender of this Grant and then Sir Robert Henley makes a new Grant to Mr. Woodward and Mr. Aston the Defendant for their Lives and for the life of the Survivor Mr. Vidian dies and whether the Plaintiff Woodward should have all the profits of the Office by Survivorship was the Question It was agreed that this was one entire Office and as one of them cannot make a Deputy so he cannot appoint a Successor But the doubt was whether the Plaintiff had not consented that the Defendant should be taken into the Office and had agreed to the new Grant which was made afterwards for it was admitted that if he consented before Mr. Aston came in it must then be found for the Defendant for by his consent he had barred himself of his Right and Benefit of Survivorship and that by his consenting to the new Grant that in Law was a Surrender of the first Grant and then the Defendant is jointenant with the Plaintiff and if so his Action is not maintainable And upon these two Points only it was left to the Iury who found for the Defendant The Evidence to the first Point was that when Mr. Vidian proposed to the Court that the Defendant might succeed him after some opposition and unwillingness in the Plaintiff to agreé to it yet at length he declared that he did submit to it and accordingly the Defendant was admitted but there was no formal Entry of his Admittance as an Officer but only the Courts declaring their Consent that he should take his place Ex parte Quer. On the other side it was insisted on for the Plaintiff and proved that his Submission to the Court was with a salvo jure and what he did was reluctante animo thinking it was a hardship upon him as he often since declared so that it was quasi a compulsory Consent made in obedience to the Court with whom it was not good manners in him to contend Several Points were stirred at the Trial as 1. Whether a Surrender of the Grant of an Office by Parol was good 2. Whether if a Grant be made of an Office or of
of Lands Tenements and Hereditaments 't was adjudged entailed Lands did not pass do not concern this Case but now since they are made forfeitable by that Statute such general words are sufficient to serve the turn By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail because they were not then to be forfeited for Treason 2 Inst 334. 1 Inst 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty was Treason and if entailed Lands are forfeited for Treason then when the Act saith That he shall forfeit all his Lands by those general Words his entailed Lands shall be forfeited And though by the Common Law there can be no Attainder in this Case the Party being dead yet by Act of Parliament that may be done and the words in this Act amount to an Attainder The intent of it was to forfeit Estates Tail which may be collected from the general Words for if a Fee-simple is forfeited though not named why not an Estate Tail especially since the word Hereditaments is very comprehensive and may take in both those Estates Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named for the Words are Every Offender convict of Treason c. shall forfeit all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in use possession or by any Right Title or Means c. and yet a Construction hath been made thereupon in favour of the Crown so a Dignity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament 7 Co. 34. Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court Judgment That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor and that the Question now was whether by the Act of Pains c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus Preface to 3 Co. for by that Statute there was a settled perpetuity Tenant in Tail could neither forfeit or alien his Estate no not in Case of Treason and Forfeiture is a kind of Alienation but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue but all this while his Estate was not to be forfeited for Treason till the Statute of 33 H. 8. cap. 20. which gives Uses Rights Entries Conditions as well as Possessions Reversions Remainders and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King as if such Attainder had been by Act of Parliament Then by the Statute of 5 6 Ed. cap. 11. 't is Enacted That an Offender being guilty of High Treason and lawfully convict shall forfeit to the King all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession by which Statutes that de donis conditionalibus was taken off in Cases of Treason as it had been before by the resolution in 12 E. 4. and by the Statute of Fines as to the Alienation of an Estate Tail by Fine and Recovery If therefore this Act of Pains c. will admit of such a construction as to make Estates Tail forfeit here is a Crime great enough to deserve such a great punishment a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity this they esteemed as another kind of Original Sin which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis And that this Act will admit of such a Construction these Reasons were given 1. From the general comprehensive Words mentioning those things which are to be forfeited viz. Messuages Lands Tenements Reversions and Interests which last Word signifies the Estate in the Land as well as the Land it self or otherwise the Word must be construed to have no effect 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst 334. Non habet potestatem alienandi but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only yet 't is a good Rule for the Iudges to make a Construction of an Act of Parliament by especially in such a Case as this wherein 't is plain that the Law did look upon these Offenders if not attainted yet in pari gradu with such persons and therefore may be a good Warrant to make the like Construction as in Cases of Attainder 3. Because the Offenders are dead for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail because then something might be forfeited viz. an Estate for Life and therefore the Act would signifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law especially since 't is well known that when Men engage in such Crimes they give what Protection they can to their Estates and place them as far as they can out of danger 4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid and therein also a particular Exception of the Wife and Children and Heirs of the Offenders and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration it will never protect their Estate under a voluntary Conveyance made by the Ancestor especially in this Case because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime for Sir John Danvers was Tenant in Tail before and in the year 1647. levies a Fine to barr that Entail and then limits a new Estate Tail to himself in which there is a Provision to make Leases for any number of years upon what Lives soever in Possession or Reversion with Rent or without it and this was but the year before the Crime committed 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
Heir Male of the Body of the Devisor had by this Limitation an Estate Tayl as by Purchase and that the Inheritance in Fee simple did not vest in Francis 2. If Thomas the Covenantor had no Estate executed in him yet William his Son in this Case may take by way of future springing use because the Limitation of an Estate upon a Covenant to stand seised may be made to commence after the Ancestors Death for the old Seisin of the Covenantor is enough to support it There is a great difference between a Feoffment to Vses and a Covenant to stand seised for by the Feoffment the Estate is executed presently 1 Co. 154. Rector of Cheddington's Case So if there be a Feoffment to A. for Life Remainder to B. in Fee if A. refuse B. shall enter presently because the Feoffor parted with his whole Estate but if this had been in the Case of a Covenant to stand seised if A. had refused the Covenantor should have enjoyed it again till after the death of A. by way of springing use like the Case of Parsons and Willis 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry he will stand seised to the use of B. and his Heirs B. dies the Covenantor doth not marry this Vse arises as well to the Heir of B. as to B. himself if he had been living and he shall have the Land in the nature of a descent But if William cannot take it either by purchase or by descent he shall take it 3. Per formam doni as special Heir to Thomas This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man and the heirs Females of his Body if there be a Son the Daughter is not Heir but yet she shall take it for voluntas donatoris c. So if Lands are given to a Man and the Heirs Males of his Body the youngest Son shall have it after the death of the eldest leaving Issue only Daughters for these are descents secundum formam doni So in this Case the Estate Tail vested in Edward and when he died without Issue it comes to William per formam doni Object The Case of Greswold in 4 5 Ph. Mariae Dyer 156. seems to be express against this Opinion which was that Greswold was seised in Fee and made a Grant for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs he had Issue two Sons and dyed the eldest Son had Issue a Daughter and dyed and if the Daughter or her Vncle should have the Land was the question in that Case And it was adjudged that the Limitation of the Remainder was void because Greswold could not make his right Heir a Purchasor without departing with the whole Fee Postea Brittain and Charnock and therefore Iudgment was given against the special Heir in Tail for the Heir general which was the Daughter Answ Admit that Case to be Law yet the Iudges there differed in their Arguments 'T is not like this at Bar for that Case was not upon a Covenant to stand seised but upon a Deed indented and so a Conveyance at the Common Law But for an Authority in the point the Case of Pybus and Mitford was cited and relied on which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief Iustice Rainsford and Wild but Iustice Twisden was of a contrary Opinion Serjeant Stroud who argued on the other side made three Points 1. Whether this Limitation be good in its creation 2. If the Estate Tail be well executed in Thomas the Covenantor 3. If it be good and well executed whether when Edward died without Issue the whole Estate Tail was not spent 1. And as to the first Point he held that this Limitation to the Heirs Males of Thomas was void in the creation because a Man cannot make himself or his own right Heir a Purchasor unless he will part with the whole Estate in Fee Dyer 309 b. If A. being seised in Fee makes a Lease for Life to B. the Remainder to himself for years this Remainder is void so if it had been to himself for Life because he hath an Estate in Fee and he cannot reserve to himself a lesser Estate than he had before 42 Ass 2. If I give Lands to A. for Life the Remainder to my self for Life the Remainder in Fee to B after the death of A. in this Case B. shall enter for the Remainder to me was void 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'T is true these Cases are put at the Common Law but the Statute of Vses makes no alteration for according to the Rules laid down in Chudleigh's Case by my Lord Chief Iustice Popham 1 Co. 138. 1. Vses are odious and so the Law will not favour them 2. A Rule at Common Law shall not be broke to vest an Vse and the Vses here cannot vest without breaking of a Rule in Law 3. Vses are raised so privately that he who takes them may not know when they vest and for that reason they are not to be favoured 4. The Statute annexes both the Possession and the Vse together as they vest and divest both together Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point The Estate is not executed in Thomas and therefore William cannot take it by descent Heirs of his Body or Heirs Male are good Words of Limitation to take by Purchase from a Stranger but not from an Ancestor for there he shall take by descent and for this there is an Authority Co. Lit. 26. b. John had Issue by his Wife Roberga Robert and Mawd John dies Michael gave Lands to Roberga and to the Heirs of her Husband on her Body begotten Roberga in this Case had but an Estate for Life for the Fee Tail vested in Robert and when he died without Issue his Sister Maud was Tenant in Tail per formam Doni and in a Formedon she counted as Heir to Robert which she was not neither was she Heir to her Father at the time of the Gift yet it was held good for the Words Viz. Heirs of the Body of the Father were Words of Purchase in this Case If therefore no Vse for Life vested in Thomas then William cannot take by descent Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case cited in Hob. 151. 3. To the third Point Admitting both the former to be against him yet since Edward is dead without Issue the Estate Tail is spent But the whole Court were of Opinion Judgment That William should Inherit this Land in question for though at the Common Law a Man cannot be Donor and Donee without he part with the whole Estate yet 't is otherwise upon a Covenant to stand seised to Vses And if any other Construction should be made
and takes notice that this Writ is not returnable into that Court from Wales and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief Iustice there and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ all which had beén in vain if the Capias might go into Wales before the making this Act. Answ But that is an original Writ and so comes not up to this Case Wyndham Iustice agreed in omnibus and said that the Statute of 1 Ed. 6. was very needful for if a Man should be outlawed if the Process should be sent to the Sheriff of the next adjoining County in England he could not have any notice that he was outlawed and so could not tell when oulawed or at whose Suit Vaughan late Lord Chief Iustice held strongly Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him and of the same Opinion was Iustice Twisden Williamson versus Hancock Collateral Warranty Mod. Rep. 192. A Special Verdict was found in an Ejectment where the Case was Richard Lock the Father was Tenant for Life with Remainder in Tail to Richard his Son Remainder to the right Heirs of the Father who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé they by Bargain and Sale convey their Estate to the Defendant The Son in his Fathers life time before the Warranty attached comes of full age the Father dies The Question was whether the Sons Entry was barred by this collateral Warranty thus discended And the thrée Iustices absente North Chief Iustice were clear of Opinion that the collateral Waranty was a barr to the Son and so Iudgment was given for the Defendant Ellis Iustice held that his Entry is taken away for in every Warranty two things are implied a Voucher and Rebutter he that comes in by Voucher calleth the person into Court who is bound in the Warranty to defend his Right or yield him other Land in recompence and must come in by Privity but if a Man have the Estate though he comes in the Post he may rebut that is he may repel the Action of the Heir by the Warranty of his Ancestor without shewing how the Estate came to him Fitzh Nat. Br. 135. In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without shewing how J. S. came by his Estate is good Object It was objected by Serjeant Maynard that no person can take advantage of a Warranty who comes in by way of use as in this Case Answ But 't is expresly resolved otherwise in Lincoln Colledge Case 3 Co. 62. b. and the Prinns in this Case came in by Limitation and Act of the Party and the Defendant who hath the Reversion likewise by Limitation of Vse though he be in the Post shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court that he who comes in by way of use may rebut and Iustice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln Colledge Case to be Law It was formerly objected by the Lord Chief Iustice Vaughan that this Warranty goes only to the Heirs not to the Assigns and here the Estate was conveyed by the two Prinns before the Warranty attached Answ But when the Estate passeth the Warranty and Covenant followeth and the Assignée shall have the benefit thereof though not named and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs the Assigneé though not named shall Rebutt but he cannot Vouch. So if A. enfeoff B. with Warranty and B. enfeoff C. without Déed C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned In this Case though the Warranty did not attach before the Estate in the Land was transferred yet if it attach afterwards 't is well enough and he who hath the Possession shall Rebutt the Demandant without shewing how he came by the Possession If a Warranty be to one and his Heirs without the word Assigns the Assignée indeéd cannot Vouch but he may * 1 Inst 265. a 384. Rebutt for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law But 't is otherwise of a Condition not to Vouch for in such case you may Rebutt 'T is true it hath béen an Opinion that he who claimeth above the Warranty if it be not attached cannot take benefit of it by way of Voucher or Rebbutter as if Tenant in Dower maketh a Feoffment to a Villain with Warranty and the Lord entreth upon him before the descent of the Warranty the Villain can never take advantage of this Warranty by way of Rebutter because the Lords Title is paramount the Warranty and he cometh not under his Estate to whom the Warranty was made If Land be given to two Brothers in Feé with Warranty to the eldest and his Heirs the eldest dies without Issue the Survivor shall not take benefit by this Warranty for the reason aforesaid But in the Case at Barr the Warranty being collateral and annexed to the Land goeth with the Estate and whilst that continues the Party may Vouch or Rebutt so here the Defendant though he be only Tenant at Will for the Estate is in the Bargainors and their Heirs there being no Execucution of it either by Livery or Enrolment yet he may Rebutt Iustice Atkins was of the same Opinion that by this collateral Warranty the Entry of the Lessor of the Plaintiff was taken away for 't is the nature of a collateral Warranty to be a Barr a * Jones Rep. 199 200. 1 Inst 366 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it it extinguishes a Right 't is annexed to the Land and runs with it If then a collateral Warranty be of this nature 't is against all reason that he who is thus bound should make any Title to the Land but 't is very reasonable that he who comes in quasi by that Estate should defend his Title The Opinions of Iustice Jones and Iustice Crook in the Case of * Cro. Car. 368. Spirt and Bence has occasioned this doubt The Case was shortly thus Cann being seised in Fée had thrée Sons Thomas Francis and Henry and devised Lands to the two eldest in Tail and to Henry the Meadow called Warhay which was the Land in question but doth not limit what Estate he should have in it then he adds these Words viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs and for want of Heirs of his * Notwithstanding the word Body he had but an Estate for Life in Warhay for that
by Serjeant Jones that they should not pass for though Lands would pass so by a Fine because it was the Agreement of the Parties yet in a Recovery 't is otherwise because more certainty is required therein But in Fines no such Certainty is required and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill Parish or Hamlet is mentioned Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway Postea But there being a Vill called Walton in the Parish of Street and a Fine being levyed of Land in Street the Lands in Walton did not pass unless Walton had béen an Hamlet of Street and the Fine had beén levied of Lands in the Parish of Street And the reason of this difference is because in Fines there are Covenants which though they are real in respect of the Land yet 't is but a personal Action in which the Land is not demanded ex directo but in a Recovery greater preciseness is required that being a Praecipe quod reddat where the Land it self is demanded and the Defendant must make Answer to it Cro. Jac. 574 5 Co. 40. Dormer's Case The Word * Antea 41. Liberty properly signifies a Right Priviledge or Franchise but improperly the extent of a place Hill 22 23 Car. 2. Rot. 225. B. R. Waldron's Case Hutton 106. Baker and Johnson's Case Liberties in Iudgment of Law are incorporeal and therefore 't is absurd to say that Lands which are corporeal shall be therein contained They are not permanent having their existence by the Kings Letters Patents and may be destroyed by Act of Parliament they may also be extinguish'd abridged or increased and a Vinire fac of a * Rast Ent. 267. Liberty or Franchise is not good 't is an equivocal Word and of no signification that is plain and therefore is not to be used in real Writs Rast Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty neither is there any authority in all the Law Books for such a Recovery and therefore if such a thing should be allowed many inconveniences would follow for a good Tenant to the Praecipe would be wanting and the intent of the Parties could not supply that But Barton Serjeant said that this Recovery would pass the Lands in Cotton for as to that purpose there was no difference betweén a Fine and a Recovery Postea 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances and are to be guided by the agreément of the Parties Cro. Car. 270 276. 'T is true a Fine may be good of Lands in an Hamlet Lieu conus or Parish 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler Yet in a * Godb. 440. contra Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned Bro. Brief 142. The demand must be of Lands in a Vill Hamlet or at farthest in a Parish Cro. Jac. 574. And of that Opinion was the whole Court absente Ellis who was also of the same Opinion at the Argument and accordingly in Michaelmas Term following Iudgment was given that by this Recovery the Lands in Cotton did well pass And North Chief Iustice denied the Case in Hutton 106. Postea to be Law where 't is said A Common Recovery of Lands in a Lieu conus is not good and said that it had béen long disputed whether a Fine of Lands in a Lieu conus was good and in King James his time the Law was settled in that Point that it was good and by the same reason a Recovery shall be good for they are both amicable Suits and Common Assurances and as they grew more in practice the Iudges have extended them farther A Common Recovery is held good of an Advowson and no Reasons are to be drawn from the Visne or the Execution of the Writ of Seisin because 't is not in the Case of adversary Procéedings but by Agréement of the Parties where 't is to be presumed each knows the others meaning Indeed the Cursitors are to blame to make the Writ of Entry thus and ought not to be suffered in such practice Where a Fine is levied to two the Fée is always fixed in the Heirs of one of them but if it be to them and their Heirs yet 't is good though incertain but a Liberty is in the nature of a Lieu conus and may be made certain by Averment The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury and so 't is not incorporeal Alford versus Tatnel JVdgment against two who are both in Execution Mod. Rep. 170. and the Sheriff suffers one to escape the Plaintiff recovers against the Sheriff and hath satisfaction the other shall be discharged by an Audita Querela Osbaston versus Stanhope General Replication good DEBT upon Bond against an Heir who pleaded that his Ancestor was seised of such Lands in Fee and made a Settlement thereof to Trusteés by which he limited the Vses to himself for Life Remainder to the Heirs Males of his Body Remainder in Feé to his own right Heirs with power given to the Trusteés to make Leases for threé Lives or 99 years The Trustées made a Lease of these Lands for 99 years and that he had not Assets praeter the Reversion expectant upon the said Lease The Plaintiff replies protestando that the Settlement is fraudulent pro placito saith that he hath Assets by discent sufficient to pay him and the Defendant demurrs Ex parte Def. Newdigate Serjeant The Barr is good for the Plaintiff should not have replied generally that the Defendant hath Assets by discent but should have replyed to the praeter Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee who made a Lease to Saunders under whom he derived a Title and so justifies The Plaintiff replies and sets forth a long Title in another person and that Henry entred and intruded The Defendant rejoyns that Henry was seised in Fée and made a Lease ut prius absque hoc that intravit se sic intrusit and the Plaintiff having demurred because the Traverse ought to have been direct viz. absque hoc quod intrusit and not absque hoc that Henry intravit c. it was said the Replication was ill for the Defendant having alledged a Seisin in Fée in Henry which the Plaintiff in his Rejoynder had not avoided but only by supposing an intrusion which cannot be of an Estate in Fée but is properly after the death of Tenant for Life for that reason it was held ill Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Replication to be good The Defendants Plea is no more than Riens per descent for though he pleads a Reversion 't is not chargeable because 't is a Reversion after
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
of Record the Proceedings may be denied and tryed by Iury. But the Court inclined that it was pleaded well enough and that it was the safest way to prevent mistakes but if the Plaintiff had replied de injuria sua propria absque tali causa that had traversed all the Proceedings Quaere whether such a Replication had been good because the Plaintiff must answer particularly that Authority which the Defendant pretended to have from the Court but no Iudgment was given Sherrard versus Smith TRespass Quare clausum fregit and for taking away his Goods the Defendant justifies the taking by the command of the Lord of the Mannor of which the Plaintiff held by Fealty and Rent and for non-payment thereof the Goods were taken nomine Districtionis The Plaintiff replies that the locus in quo est extra Hors de son Fee when to be pleaded absque hoc quod est infra feodum The Defendant demurrs specially because the Plaintiff pleading hors de son fee should have taken the Tenancy upon him 9 Co. Bucknal's Case 22 H. 6. 2 3. Keilway 73. 14 Ass pl. 13. 1 Inst 1. b. where this is given as a Rule by my Lord Cook Serjeant Pemberton on the other side agreed Ex parte Quer. 13 Assize 28. 28 Assise 41. that in all cases of Assize hors de son fee is no Plea without taking the Tenancy upon him 2 Ass placito 1. And in 5 E. 4. 2. 't is said that in Replevin the Party cannot plead this Plea because he may disclaim but Brook placito 15. tit hors de son fee saith this is not Law and so is 2 H. 6. 1. and many Cases afterwards were against that Book of Ed. 4. and that a Man might plead hors de son fee as if there be a Lord and Tenant holding by Fealty and Rent and he makes a Lease for years and the Lord distrains the Cattel of the Lessee though the Tenant hath paid the Rent and done Fealty there if the Lessee alledge that his Lessor was seised of the Tenancy in his demesn as of fee and held it of the Lord by Services c. of which Services the Lord was seised by the hands of his Lessor as by his true Tenant who hath leased the Lands to the Plaintiff and the Lord to charge him hath unjustly avowed upon him who hath nothing in the Tenancy 't is well enough 9 Co. Case of Avowries and the reason given in 5 Edw. 4. about disclaimer will not hold now for that course is quite altered and is taken away by the Statute of the 21 H. 8. cap. 19. which Enacts That Avowries shall be made by the Lord upon the Land without naming his Tenant But in case of Trespass there was never any such thing objected as here for what Tenancy can the Plaintiff take upon him in this case He cannot say tenen ' liberi tenementi for this is a bare Action of Trespass in which though the pleading is not so formal yet it will do no hourt for if it had been only extra feodum without the Traverse it had been good enough and of that Opinion was the Court in Hillary-Term following when Iudgment was given for the Plaintiff absente Scroggs And the Chief Iustice said That the Rule laid down by my Lord Coke in 1 Inst 1. b. that there is no pleading hors de son fee without taking the tenancy upon him is to be intended in cases of Assize and so are all the Cases he there cites for proof of that Opinion and therefore so he is to be understood but this is an Action of Trespas brought upon the Possession and not upon the Title In the Case of Avowry a Stranger may plead generally hors de son fee and so may Tenant for years and this being in the Case of a Trespass is much stronger and if the Plaintiff destroys the Defendants justification 't is well enough Sir William Hickman versus Thorne alios Prescription against another Prescription not good without a Traverse IN a Replevin The Defendant justifies the taking for that the locus in quo was his Freehold and that he took the Cattel there damage fesant The Plaintiff in bar to the Avowry replies that the locus in quo c. is parcel of such a Common Field and prescribes to have right of Common there as appendant to two Acres which he hath in another place The Defendant rejoyns that there is a Custom that every Free-holder who hath Lands lying together in the said Common Field may enclose against him who hath right of Common there and that he had Lands there and did enclose The Plaintiff demurs and Serjeant Newdigate took Exceptions to the Rejoynder Ex parte Quer. 1. For that he did not averr that the Lands which he enclosed did lye together and therefore had not brought his case within the Custom alledged Sed non allocatur because he could not enclose if the Lands had not laid together 2. He gives no answer to the Plaintiffs right of Common but by argument which he should have confessed with a bene verum est and then should have avoided it by alledging the Custom of Enclosure like the Case of * 2 Leon. 209. Russel and Broker where in Trespass for cutting Oaks the Defendant pleads that he was seised of a Messuage in Fee and prescribes to have rationabile estoverium ad libitum capiend ' in boscis the Plaintiff replies that the locus in quo was within the Forest and that the Defendant and all those c. habere consueverunt rationabile estoverium c. per liberationem Forestarii and upon a Demurrer the Replication was held naught because the Plaintiff ought to have pleaded the Law of the Forest viz. Lex Forestae talis est or to have traversed the Defendants Prescription and not to have set forth another Prescription in his Replication without a Traverse 3. The Defendant should have pleaded the Custom and then have traversed the Prescription of the Right of Common for he cannot plead a Custom against a Custom 9 Co. 58. Aldred's Case where one prescribes to have a Light the other cannot prescribe to stop it up Serjeant Pemberton contra Ex parte Def. He said that which he took to be the only Question in the Case was admitted viz. That such a Custom as this to enclose was good and so it has béen adjudged in Sir Miles Corbet's Case 7 Co. But as to the Objections which have been made the Defendant admits the Prescription for Right of Common but saith he may enclose against the Commoners by reason of a Custom which is a Barr to his very Right of Common and therefore need not confess it with a bene verum est neither could he traverse the Prescription because he hath admitted it 'T is true where one prescribes to have Lights in his House and another prescribes to stop them up this is not good because
Trotter versus Blake In Scaccario THIS was the Case of my Lord Hollis upon a Tryal at the Barr in the Exchequer in an Ejectione firmae Ejectment will not lie for a Forfeiture where the Tenant refused to pay a Fine being doubtful wherein the Case was this viz. The Lord Hollis was seised of the Mannor of Aldenham in the County of Hartford in Fee and the Lands in question were held of the said Lord by Copy of Court Roll and are parcel of the aforesaid Mannor That the Defendant was admitted Tenant and a Fine of 8 l. imposed upon him for such admittance payable at three distinct payments that the 8 l. was personally demanded of him by the Lord's Steward and he refused payment whereupon the Lord enters and seises the Estate for a Forfeiture which he would not have insisted on but that the obstinacy of the Defendant made it necessary for him to assert his Title and Right Mr. Walker the Lord Hollis his Steward being sworn gave Evidence that a Fine of 8 l. was set upon the Defendant when he was admitted and that the Lands to which he was admitted were usually lett for 7 l. per annum so that the Fine was but a little more than a years value That he himself demanded the 8 l. of the Defendant being a Seafaring-man who refused to pay it That he knew the Defendant to be the same person who was admitted to this Copyhold That the Demand was made at the Stewards Chamber in Staple Inn and because it was payable at three several days he then demanded of him only 2 l. 13 s. 4 d. as a third part of the 8 l. and that he did enter upon the 25th day of November last for Non-payment of the said 2 l. 13 s. 4 d. The Council for the Defendant insisted that the Steward ought to produce an Authority in Writing given to him by the Lord to make this Demand and Entry upon refusal Ex parte Def. for the Lords owning it afterwards will not make a Forfeiture But the Court held clearly that there was no need of an express Authority in Writing Curia and that it was not necessary for the Steward to make a Precept for the seizure but that it was necessary that the Demand should be personal The Reason why the Defendant refused to pay this Fine was because he said that by a Decree and Survey made of this Mannor in the Reign of Queen Elizabeth the Fine to be paid for this Copyhold was setled and it was but 3 l. and no more And Sir Francis Winnington Solicitor General said for the Defendant that the Case was very penal on his side but that he would make it clear that there was no colour for the bringing of this Action either as to the Matter or the Form He said that the Mannor of Aldenham had not been long in this noble Lord he came in as Purchaser or a Mortgagee under the Family of the Harvies whose Inheritance it was anciently and there has been some doubt whilst it was in their possession what Fines were customary to be paid upon Descents and Alienations but that is now settled and the Defendant was in the Case of a descent for which the Fine is not to be arbitrary at the Will of the Lord but is reduced to a certainty in Queen Elizabeth's Reign by Consent and Agreement between the Lord and Tenants and that a Survey was then made by vertue of a Commission directed to some Men of Credit and Worth in those days who were impowred to set forth the quantity of Land and the value thereof which was done accordingly and it was then agreed that a year and an halfs value in case of a Descent and two years value in case of an Alienation should be paid as a Fine to the Lord and the proportion of the value was then computed by the Commissioners and decreed by the Court of Chancery to be binding to the Lords and Tenants for ever The Question now is how this years value shall be computed the Lord would have it according to the improved value the Tenant will pay according as it was rated in Queen Elizabeth's time by those Commissioners Now if this Land had decayed in value the Tenant had still been obliged to pay a Fine according to the valuation of that time and if so it would be very unreasonable to make him pay for his Industry and Improvement of the Land now it is raised in value because that was done by his Labour and at his expence so that the doubt being what Fine shall be paid an Ejectione firmae will not lie because the Matter is doubtful and the Law gives the Tenant Liberty to contest it with the Lord and will never let him be under the peril of a Forfeiture because he will not comply with the Lord to give up his Right without Law But the Lord hath another and a more proper remedy for he may bring an Action of Debt for the Fine thus imposed which will try the Right and is not so penal to the Copyholder which Point was lately resolved And that if a Copyholder had a probable cause to induce him to believe that he ought not to pay the Fine demanded let the Right be as it would yet no Ejectment will lie for it must be only in a plain Case that the Lord can enter for a Forfeiture For no Man forfeits his Estate but by a wilful default in himself such a Forfeiture as is done and presumed to be committed upon his own knowledge but want of understanding cannot be made a wilful neglect 'T is true the Decree in Chancery made here cannot vary the Law but it may be Evidence of the Fact for prima facie it shall be intended that such values have been paid time out of mind because the Court have so decreed but then when the Fine was declared to be certain a doubt did arise how the years value shall be reckoned which has been setled also by another Decree and from that time all the respective Lords of this Mannour have taken Fines according to that value which is mentioned in the Survey and this Lord himself hath taken Fines in pursuance of the same so that 't is clear the Fine cannot be Arbitrary but be it so or not 't is not material to this purpose because the Tenant hath a good and colourable ground to insist upon the Decree and Survey and consequently there is no wilful Forfeiture The Lord Chief Baron agreed That if it be a doubt and the Tenant gives a probable Reason to make it appear that no more is due than what he is ready to pay 't is no Forfeiture but the Law in general presumes that the Fine is incertain if the contrary is not shewed now if the Tenants doubt did arise upon the equitableness of the Fine in such case if he refuse to pay 't is a Forfeiture but here it was whether it shall be paid
according to the computed or improved value and therefore he inclined that the Action would not lie The Exemplification of the Decree was offered to be read which being opposed Serjeant Maynard informed the Court that nothing was more usual than to read a Sentence in the Ecclesiastical Court or a Decree in Chancery as Evidence of the Fact It being allowed to be read the Council for the Defendant took notice that the Commission was therein mentioned which was returned into Chancery and burned when the Six Clerks Office was on fire in the year 1618. but a Duplicate thereof was produced which the Defendant had from the Heir of the Harveys and so the Survey was praied to be read which was opopsed by Sir William Jones for he said that it was no Duplicate the Commissioners Names being all written with one Hand and no proof being made that it was a true Copy of that which was returned he likewise observed upon the reading of the Decree that it was an Evidence for the Plaintiff because if there had been a setled Rule for payment of the Fines there had been no occasion to seek relief in Equity and that there was no reason that the Defendant should come into a Court of Law to prove such Settlement by a Decree in Chancery for if there be such a Decree his Remedy is proper there besides the Decree it self only mentions the years value which was to be setled by the Commissioners and which he said was never done so that the Decree which appointed the Commission was not compleated and therefore being but executory is of no force even in Equity The Court were doubtful in the matter and Baron Thurland said That no Action of Debt would lie for this Fine because it was neither upon the Contract nor as ex quasi contractu But as to that Serjeant Maynard answered That many Resolutions had been made in his time of Cases wherein the Old Books were silent Vpon the whole the Court thought this to be a proper Case for Equity and so directed a Iurour to be withdrawn which was accordingly done DE Term. Sanctae Trin. Anno 29 Car. II. in Communi Banco Addison versus Sir John Otway IN a special Verdict in Ejectione firmae A Parish and a Vill within the Parish of the same Name a Recovery is suffered of Lands in the Vill and in the Deed to lead the Uses the Parish is named they make but one Conveyance and the Lands in the Parish do pass Mod. Rep. 250. the Case was thus Viz. There was the Vill of Rippon and the Parish of the same Name and likewise the Vill of Kirkby and the Parish of the same Name in the County of York And Thomas Brathwaite being Tenant in Tail of the Lands in question lying in the said Parishes of Rippon and Kirkby did by Bargain and Sale convey the same lying as in truth they did in the Parishes of Rippon and Kirkby to the intent to make a Tenant to the Praecipe in order to suffer a Common Recovery and thereby he did Covenant to suffer the same which Recovery was afterwards suffered of Lands in Rippon and Kirkby but doth not say as he ought in the Parishes of Rippon and Kirkby and the Verdict in effect found That he had no Lands in the Vills but farther that it was the intent of the Parties that the Lands in the Parishes should pass and whether they should or not was the Question It was said for the Defendant That by this Indenture and Common Recovery the Lands which lie in the said Parishes shall pass 1. Supposing this to be in the Case of a Grant there if the Vill is only named yet the Lands in the Parish of the same Name shall pass because the Grant of every Man shall be taken strongest against himself Owen Rep. 61. So where part of the Lands lie in B. and the Grant is of all the Lands in D. all the Lands in the Parish of D. shall pass because in that Case the Parish shall be intended and if the Law be thus in a Grant a fortiori in the Case of a Common Recovery Postea Barker and Keat which is the Common Assurance of the Land 2. The Verdict hath found that the Defendant had no Lands in the Vills of Rippon and Kirkby and the Court will not intend that he had any there if not found so that nothing passes by the Recovery if the Lands in the Parishes do not pass which is contrary to the intention of the Parties and to the Rules of Law in the like Cases for if a Man deviseth all his Lands in Dale and hath both Free-hold and Lease-hold there by this Devise the Freehold only passes but if no Free-hold the Leases shall pass Cro. Car. 293. So adjudged in the Case of Rose and Bartlet for otherwise the Will would be void 3. The Parish and Vill shall be both intended to support a Trial already had as where a Venire facias ought to issue from the Parish of Dale and it was awarded from Dale generally 't is well enough * 1 Roll. Rep. 21 27 293. Hob. 6. 2 Cro. 263. 1 Roll. Rep. 27. A fortiori to support a Common Recovery which has always been favourably interpreted and yet a new Tryal will help in the one case but a Man cannot command a new Recovery when he will and therefore the Iudges usually give Iudgments to support and maintain Common Recoveries that the Inheritances of the Subject might be preserved for if there be Tenant in Tail the Reversion in Fee or if Baron and Feme suffer a Recovery this is a bar of the Reversion and the Dower and yet the intended Recompence could not go to either Pl. Com. 515. 2 Roll. Rep. 67. 5 Co. Dormer's Case Antea 4. The Iury have found that the intention of the Parties was to pass the Lands in the Parishes which Intention shall be equivalent to the Words Omitted And for that there is a notable Case in 2 Roll. Rep. f. 245. where the intent of the Parties saved an Extinguishment of a Rent The Case was A. makes a Lease for years rendring Rent and then grants the Reversion for 40 years to B. and C. which he afterwards conveyed to them and their Heirs by Bargain and Sale and covenanted to levy a Fine accordingly to make them Tenants to the Praecipe to suffer a Common Recovery to another Vse the Bargain Fine and Recovery were all executed and it was adjudged that they made all but one Conveyance and that the Reversion was not destroyed and by consequence the Rent not extinguished for though the Bargainor might intend to destroy the Reversion by making this Grant to them and their Heirs yet the Bargainees could never have such Intention and though they were now seised to another Vse yet by the Statute of Wills their former Right is saved which they had to their proper Vse and their intention being only to make a
Tenant to the Praecipe the Statute shall be so construed that the intent of the Parties shall stand 5. The Lands in the Parishes pass 1 Anders 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law and therefore as a Construction is not to be made upon part but upon the whole Deed so not upon the Deed or Recovery alone but upon both together 2 Co. 75. Lord Cromwel's Case 6. Antea 'T is the Agreement of the Parties which governs Fines and Recoveries and Lands shall pass by such Names as are agreed between them though such Names are not proper and therefore a Fine of a lieu conus is good though neither Vill or Parish is named therein Poph. 22. 1 Cro. 270 276 693. 2 Cro. 574. So if a Fine be levied of a Common of Pasture in Dale Cro. Car. 308. Winch 122. Sid. 190 191. Antea 't is good though Dale be neither Vill or Hamlet or lieu conus out of a Vill 2 Roll. Abr. f. 19. So in Sir George Symonds his Case Lands as parcel of a Mannor were adjudged to pass though in truth they were used with the Manor but two years and the reason of all these Cases is because it was the Agreement of the Parties that they should pass Object If it be objected That all these Authorities are in Cases of Fines but the Case at Bar is in a Common Recovery which makes a great difference Answ The proceedings in both are amicable and not adversary and therefore as to this purpose there is no difference between them and for an Authority in the point the Case of Lever and Hosier was cited which was adjudged in this Court Trin. 27 Car. 2 Where the Question was Antea whether upon a Common Recovery suffered of Lands in the Town of Sale or the Liberty thereof Lands lying in Dale being a distinct Vill in the Parish of Sale should pass or not and after divers Arguments it was allowed to be well enough being in the Case of a Common Recovery And so was the Case Pasch 16 Car. 2. in B. R. In a special Verdict the Case was That Sir Thomas Thinn being seised of the Mannor of Buckland in Tail and of twenty Acres of Land called and known by a particular name which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Mannor and always used with it Sid. 190. sold the said Mannor and all the Lands reputed parcel thereof with the Appurtenances of which he did suffer a Common Recovery and it was adjudged upon great consideration that though the Recovery did not mention the twenty Acres particularly yet it did dock the Entail thereof because the Indenture which leads the Vses of the Recovery was of the Lands reputed parcel thereof or enjoyed with it and that the shortness in the Recovery was well supplied by the Deed in which Case the Court were guided by the resolution in Sir George Symond's Case Vide 6 Co. Sir Moyle Finch's Case The Authorities against this Opinion are two Antea Lever and Hosieâ— 1. That of Stock versus Fox Cro. Jac. 120. There were two Vills Walton and Street in the Parish of Street and a Fine was levied of Lands in Street it was adjudged that the Lands in Walton did not pass by this Fine But there is another Report of this very Case by my Lord Chief Iustice Roll in his Abr. tit Grants 54. where 't is said if there be in the County of Somerset the Vill of Street and the Vill of Waltham within the Parish of Street and a Man being seised of Lands in the Vill of Street and of other Lands in the Vill of Waltham all within the Parish of Street and he Bargains and Sells all his Lands in Street and having Covenanted to levie a Fine doth accordingly levie it of Lands in Street and doth not mention either in the Indenture or in the Fine any Lands in Waltham the Lands lying there shall not pass from which Report there may be a fair Inference made That it was the Lord Rolls his Opinion that if Waltham had been named in the Indenture though not in the Fine the Lands would have passed and in this Case the Parishes are named in the Indenture of Bargain and Sale but besides in that Case the Party had Lands both in Street and Waltham and so the Conveyances were not in vain as they must be here if the Lands in the Parishes do not pass Antea 2. The other Case is that of Baker and Johnson in Hutton 106. But this Case is quite different from that because there was neither Vill or Parish named in the Indenture but here the Indenture was right for the Lands are mentioned therein to lie in the Parishes c. And for these Reasons Iudgment was prayed for the Defendant This Case was afterwards argued in Michaelmas-Term following by Serjeant Pemberton and Maynard for the Plaintiff who said Ex parte Quer. That the Government of this Nation was Ecclesiastical and Civil the Ecclesiastical runs by Parishes and the Civil by Vills That a Parish is constituted by the Ecclesiastical Power and may be altered by the King and Ordinary of the place that the Parson was superintendent of the Parish and the Constable of the Vill which was also constituted by the Civil Magistrate and from hence it is that in real Actions which are adversary Lands ought not to be demanded as lying in a Parish but within a Vill that being the place known to the Civil Iurisdiction and if a Trespass which is local be laid at Dale generally there being both the Parish and Vill of Dale the proof of the Trespass done in the Parish is not good for it must be at the Vil. They agreed that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded if the Vill be only named without the Parish nothing doth pass but what is in the Vill because where a place is alledged in Pleading it must be of a Vill Moor 710. 1 Inst 125. b. 2 Cro. 121. And this was the ancient way of demanding Lands in a Praecipe quod reddat because of the Notoriety of Vills from whence Visnes do arise and because the Vill is more particular and of more certainty than a Parish and therefore 't is requisite that the Demandant should be very particular in his Demand that the Tenant may know how to make his defence and the Sheriff of what to deliver possession Besides a Vill is more ancient than a Parish and Lands have been demanded within them time out of mind so that the Demand when 't is doubtful of what 't is made shall be supposed of that which is most ancient and such Construction is most conformable to the like Cases
Profits of a Parsonage as in the Case of a Sequestration upon a Iudgment obtained against a Spiritual Person where a Fi. Fa. is directed to the Sheriff upon that Iudgment and he returns Clericus beneficiatus non habens Laicum feodum for which reason he cannot meddle with the Profits of the Glebe but the Bishop doth it by a Sequestration to him directed He may likewise retain for the supply of the Cure and pay only the residue which hath been omitted on the other side As the Ordinary might dissolve a Vicaridge endowed where the Parsonage was in the Hands of a Dean so he may sequester an Appropriation in any Spiritual Person and there is no Statute which exempts an Impropriation from such a Sequestration because 't is onus reale at the Common Law and as the Lay Impropriator may sue for Tythes and receive them as before the making this Statute 't is as reasonable since he hath the same advantage that he should have the same Charge and the rather because the saving in the Statute of 31 H. 8. cap. 13. doth still continue the same Authority the Bishop had before though the possession was thereby given to the King The Words of which are viz. Saving to all and every person c. such Right which they might have had as if the Act had not been made which must be the Right of the Ordinary and of no other person An Impropriator pays Synodals and Procurations as well as an Appropriation in the Hands of Ecclesiastical Persons and it would be very inconvenient if a Sequestration should not lie which would quicken them more than an Excommunication and it was said that in England there were above 1000 Appropriations belonging to Corporations aggregate as Deans and Chapters which could not be excommunicated and if the Bishop could not sequester then there was no remedy to repair the Chancel For which Reasons Iudgment was prayed for the Defendant But the whole Court besides Iustice Atkins held that the Lay Impropriation was not to be sequestred for the Repairs of the Chancel And the Chief Iustice said that the Repair of the Chancel was an Ecclesiastical Cause but that the Rectory and Impropriator were Lay and not to be sequestred as the possessions in the Hands of Ecclesiastical Corporations may which he did agree could not be excommunicated but the persons who made up such Corporation might And as to the Sequestration upon a Iudgment it made nothing for the Matter to entitle the Ordinary to a Sequestration in this Case because what he doth in that is in the nature of a temporal Officer for the Sequestration is like the Fieri Facias and being directed to the Bishop he is in that Case if he may be so called an Ecclesiastical Sheriff and by virtue thereof may do as the Sheriff doth in other Cases that is he may seise Ecclesiastical things and sell them as the Sheriff doth Temporal things upon a Fieri Facias but 't is to be observed that he must return Fieri feci and not Sequestrari feci upon this Writ And as to the Saving in the Statute that doth not alter the Case for if any Right be thereby saved 't is that of the Parson for the Parishioners have no right to sit there indeed the Vicar may because he comes in under the Parson So that this Case is not to be put as at the Common Law but upon the Statute of Dissolutions by vertue whereof the Rectory being in the Hands of a Lay Person is become a Lay Fee and so cannot be subject to a Sequestration if it should the next step would be that the Bishop would increase Vicaridges as well in the Case of an Impropriation as Appropriation which would lessen the possessions of such as have purchased under the Act. But Iustice Atkins was of a contrary Opinion he said that it was agreed by all that an Impropriator is chargeable with the Repairs of the Chancel but the Charge was not personal but in regard of the profits of the Impropriation which are originally the Debtor according to the first Donation That the primary Rights of Rectories are the performance of Divine Service and the Repairs of the Chancel and that the Profits which are over and above must then go to the Imprpriator and are to be esteemed then a Lay Fée but that those Duties are the first Rights and therefore must be first discharged That this Right this duty of Repairing was certain and therefore shall not be taken away by Implication but by express Words in the Act which if wanting shall remain still and the Parties shall be compelled to repair under the same Penalties as before But admitting it should be taken away yet the saving in the Act extends to the Right of the Parishioners which is not to sit in the Chancel but to go thither when the Sacraments are administred of which they are deprived when 't is out of Repair nor can they have the use of the Church which properly belongs to them because when the Chancel is out of Repair it not only defaces the Church but makes it in a short time become ruinous He denied that a Sequestration in Chancery cannot be pleaded to barr a Trespass at the Common Law for if it be said that the Chancery have issued such Sequestrations it will be as binding as any other Process issuing according to the Rules of the Common Law And he also denied the Case put by the Chief Iustice that the Lands of the Parishioners might as well be sequestred for the repair of the Church as those of the Impropriator for repair of the Chancel because the Profits of the Rectory might originally be sequestred but the Lands of the Parishioner could not and so the Cases are quite different Judgment But in Easter Term following Iudgment was given against the Defendant upon the point of Pleading which the Court all agreed to be ill 1. The Defendants should have averred that the Chancel was out of repair 2. That no more was taken than what was sufficient for the repair thereof 3. For that the Plaintiff had declared for the taking of several sorts of Grain and the Defendant justifies the taking but of part and saith nothing of the residue and so 't is a Discontinuance and the general Words quoad residuum transgressionis will not help because he goes to particulars afterwards and doth not ennumerate all and thereupon Iudgment was given accordingly Edwards versus Weeks ASsumpsit Parol discharge good before breach of Promise but not afterwards Mod. Rep. 262. The Plaintiff declared that the Defendant in consideration that the Plaintiff at his Request had exchanged Horses with him promised to pay him 5 l. and he alledged a breach in the Non-performance The Defendant pleads that the Plaintiff before any Action brought discharged him of his Promise And upon a Demurrer the Question was whether after a breach of a Promise a parol discharge could be good The
that he was seised of a Mesuage and several Lands in the Parish of Dale and that he and all those whose Estate he hath have used to have right of Common for all Commonable Cattle Levant and Couchant upon the Premisses in a certain Meadow there called Darpmore Meadow and in a certain place called Cannock Wood. That the Defendant praemissorum non ignarus had enclosed the said places in which the Plaintiff had right of Common and likewise put in his Cattle as Horses Cows Hoggs Geese c. so that he could not in tam amplo beneficiali modo enjoy the same The Defendant as to the Inclosure and putting in of his Hoggs and Geese pleaded Not Guilty And as to the residue That the Lord Paget was seised of a Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture and likewise of Darpmore Meadow and Cannock Wood and being so seised did by Deed of Bargain and Sale enrolled in consideration of 2000 l. convey the said Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture to the Defendant and his Heirs and by the same Deed did Grant unto him all Waies Commons and Emoluments whatsoever to the said Mesuage and Premisses belonging or therewithal used occupied or enjoyed or taken as part parcel or member thereof virtute cujus the Defendant became seised of the Premisses and that the same were leased and demised for years by the said Lord Paget and all those whose Estate he had a tempore cujus contrarii memoria hominum non existit and that the Tenants or Occupiers thereof a tempore cujus c. used to have Common in Darpmore Meadow and Cannock Wood for all commonable Cattle Levant and Couchant upon the Premisses and used to put in their Cattle into the said places in which c. virtute cujus the Defendant having Right did put in his said Cattle into the said Places to take Common there and averred That there was Common sufficient both for the Plaintiff and himself To this Plea the Plaintiff Demurred This Case was argued by Serjeant Pemberton for the Plaintiff and by Serjeant Weston for the Defendant Ex parte Quer. and for the Plaintiff it was said That it was no good Plea but rather a design to introduce a new way of Common The Reasons offered why the Plea was not good were 1. Cro. Car. 419. That the Defendant could not prescribe because of the Vnity of Possession for the Lord Paget had the Premisses in and to which c. and therefore he hath prescribed by a collateral matter Viz. by alledging that the Land was usually let to Tenants for years but doth not say whether they were Tenants by Copy of Court Roll or not neither doth he make out any Title in them In some Cases where a Man is not privy to the Title he may say generally that the Owners and Occupiers used to do such a thing c. and this way of Pleading may be good but here the Defendant claiming under them ought to set forth their Title or else he can have no Right to the Common 2. By this Plea he intended that the Lord Paget had made a New Grant of this Common for he sets forth That he granted the Premisses and all Commons used with the same and so would intitle himself to a Right of Common in those two places as if Common had been expressly granted to him there which if it should 't is but argumentative and no direct affirmance of a Grant upon which the Plaintiff might have replied non concessit for no Issue can be joyned upon it 3. He ought to have set forth That the Tenants lawfully enjoyed the Common there but he lays only an usage to have Common which may be tortious 4. He doth not say That there is sufficient Common for all the Commoners but only for the Plaintiff and himself 'T is true the Owner of the Soil may feed with his Tenant who hath a Right of Common but he cannot derogate from the first by streightning the Common by a second Grant and so leave not sufficint for the Tenant 5. This Plea amounts to the General Issue Cro. Car. 157. and the Plaintiff hath specially assigned that for a Cause of Demurrer for he saith That the Defendant without any Title put in his Cattle by which the Plaintiff had not sufficient Common and the Defendant pleads he put in his Cattle rightfully and the Plaintiff had Common enough which if it signifie any thing must amount to Not Guilty Ex parte Def. But on the other side the last Objection was endeavoured to be answered first because if that hold yet if the Plea be never so good in Substance the Plaintiff would have Iudgment It was agreed that this Plea doth amount to a General Issue and no more but that every Plea that doth so is not therefore bad for if it otherwise contain reasonable matter of Law which is put upon the Court for their Iudgment rather than referred to the Iury there is is no cause of Demurrer for it is the same thing to have the doubt or question in Law before the Iudges in Pleading as to have it before them upon a Special Verdict In 2 R. 2. 18. A Retainer was pleaded specially by an Administrator which is no more than Plene Administravit yet no Demurrer but the Book saith that the Court ought to be moved 2. The Plea is good as to the matter of it for the Defendant claims the same Common by his Grant which had been used time immemorial and alledges it to be of all Common used with the Premisses and this was a Common so used In Trespass the Defendant justified that Godfrey was seised in Fee of a House and of 20 Acres of Land and that he and all those c. had Common in the place where c. to the said Messuage belonging and that he made a Feoffment to Bradshaw of the same who made a Lease thereof to the Defendant with all Profits and Commodities thereunto belonging vel occupat vel usitat cum praedicto Mesuagio It was adjudged that though the Common was gone and extinct in the Hands of the Feoffor by the unity of the Possession yet those Words were a good Grant of a New Common for the time granted in the Lease and that it was quasi a Common in the Hands of Godfrey the Feoffor Cro. Eliz. 570. Godfrey versus Eyre And though it hath been objected That this Plea is not formally pleaded because it ought to have been direct in alledging a Grant whereas it was only argumentative and brought in by a side Wind he said That as bad as it was 't was drawn by that Serjeant who argued against him and who did very well know that the Averment of sufficiency of Common was needless Curia The Court were all of Opinion That though the Plea did amount to the general Issue yet for that
in the Common-Pleas And it was now said for the Plaintiff in the Errors That it doth not appear by the Pleadings whether the Plaintiff in the Prohibition would discharge himself by a Praescription in non decimando or in modo decimandi for the Grant from the Prior being the foundation of his Title he could not thereby be discharged because a Deed before Memory cannot be pleaded unless it hath been allowed in a Court of Eyre or some Court of Record since Memory and this Deed being dated in the Reign of King Henry the I. which was 65 years before the time of Memory by the Common Law that beginning in the Reign of Richard the I. whatever is before that time cannot be tried by Law if it had been allowed in Eyre or in some of the Courts of Record it may be pleaded but no usage in pais can confirm it But supposing the Deed to be good the Plaintiff hath alledged a Grant of a portion of Tythes which he cannot have for at the Common Law a Lay-man was not capable of Tythes in prender for no one had capacity to take or receive them Jones 369. 2 Co. 49. save only spiritual persons for which Reasons a Lay-man could not prescribe in non decimando but in modo decimandi he might because there is still an annual recompence in satisfaction thereof 2. 'T is not alledged that the place where c. was parcel of the Demesus of the Mannor therefore for what appears it might have been always in Tenancy and though a Prescription to a modus by the Lord for himself and all his Tenants is good Cro. Eliz. 599. because it might have a lawful beginning for the Lands at first might be all in his Hands before it was a Mannor and so much paid for the Tythes thereof yet such a Prescription by a Tenant is not good 3. He hath alledged payment to the Prior and afterwards to the King and so would infer a Modus to which he hath not positively prescribed but by an old Deed upon payment of 5 s. to all those whose Estates c. And this will not do for unless the Modus doth go to the person who by Law ought to have Tythes or unless it be for his benefit 't is not good as where it was alledged that he ought to be discharged because time out of memory he employed all the profits of the Land for the Repairs of the Body of the Church and to find necessaries c. this was not a good Modus 1 Roll. Abr. 649 placito 8. because 't is no recompence for the Parson But it was said by Saunders for the Plaintiff in the Prohibition That by the Suggestion there was a good Title alledged to be discharged of Tythes for 't is set forth that the Prior had a portion of Tythes and the Lands simul semel and being a Corporation they might prescribe for Tythes in prender and the Tythes being well in them they may well grant it to Fitzherbert paying 5 s. and constant payment being alledged ever since 't is a good Title As to the Deed t is true 't is dated before the time of Memory but yet 't is pleadable because 't is a private Deed and so need not be allowed in Eyre or in Courts of Record for such as are not to be pleaded unless allowed there are only Grants of Franchises and Liberties from the King but the confession of the Deed to be beyond Memory and the constant payment of 5 s. is a sufficient title to the Plaintiff if the Deed is not pleadable and if it is then 't is a good discharge that way And as to the Objection that the Modus is payable to a wrong person there are many such which are not paid to the Parson of the Parish but to Lay-men But in this Case it doth appear that there was a Modus in the Prior which being received till it came to the Crown 't is good although now paid to others so that for that reason the Spiritual Court ought to be prohibited and of that Opinion was all the Court for if a Modus be payable to him who hath the Right of the Tythes though it be not to the Parson of the Parish 't is well enough especially where the Plaintiff as here alledgeth it to be Portio Decimarum belonging to the Prior so that it cannot be said that the Parson hath not quid pro quo for he had nothing at first This Composition was made with the Prior and the Plaintiff is only to shew payment to him and to those who have his Right And as to the date of the Deed 't is pleadable though time out of memory because 't is a private Deed but Grants of Franchises and Liberties must be allowed in Eyre and so is my Lord Rolls to be understood in his Abridgment Whereupon Iudgment was affirmed FINIS A TABLE of the Principal Matters contained in these REPORTS A. Abatement WHERE it shall be taken in Barr 64 65 Action on the Case Where two matters are laid in two Counties the Action may be brought in either by Pleading 23 Process is directed to six Coroners one of them commits a Tort the Action lies against all of them 23 24 It lies for an Acquittal upon an Indictment for a Trespass 52 306 It lies for these Words viz. I dealt not so unkindly with you when you stole my Corn 58 It doth not lye against the Sheriff for returning a Cepi Corpus paratum habeo though the Party doth not appear 85 86 Action Misconceived by the Plaintiff and a Verdict against him no barr to a new Action 294 Accord Where 't is pleaded it must be averred to be executed in all points 44 Accompt After 't is stated an Insimul computasset and not Indebitatus Assumpsit doth lye 44 Acquittal After an Acquittal for a Trespass an Action on the Case will lie 306 Act. Who is to do the first Act 76 203 Act of God of the Party and of a Stranger where it excuses the Obligee 204 Act of Parliament Affirmative words therein where they shall have the force of a negative 40 Where it restores the Common Law 't is to be taken favourably 73 Private Acts must be taken strictly 57 71 Administration Of a Chose en Action of a Feme Covert whether grantable to the Husband or to be distributed amongst the Kindred 20 Pleaded without saying loci istius Ordinarius and held good 65 Where an Executrix dies before Probate it shall be committed to the next of Kin of the Testator 101 It cannot be granted where there is an Executor 149 Where 't is committed to the Debtee in Execution how she shall be discharged 315 Administrator sells the Term an Executor appears who refuses yet the Vendee of the Term hath no Title 148 149 Amerciament Must be made upon the Sheriff if Defendant doth not appear at the Return of the Writ 84 Amendment Not allowed after