go to the Executors of A. and the Remainder there was to begin upon his dying without Issue at any time The case of Saunders and Cornish will not come to ours for there were many limitations for life successively to persons not in being c. In the case cited 1st Report 135. of an Estate for life limited to one and to every heir successively an Estate for life the limitation was naught because it would make a perpetual Free-hold and no body would know where the absolute Estate should vest So he prayed Iudgment for the Plaintiff Coleman for the Defendant I conceive this to be a void limitation Mr. Jones would make this a middle case I shall discharge him of the first point though he has taken pains to argue it and I shall rest upon this That the limitation of a term after the death of a man without Issue of his body is void The case is put as a middle case to these two viz. If a man possessed of a Lease for years Devise it to I. S. for life the Remainder to J. N. for life the Remainder to J. G. for life these Remainders are good But if he do Devise to J. S. and the Heirs of his body the Remainder over this Remainder he admits to be void because it depends upon so remote a possibility as may never happen Now I conceive it is the same thing to limit it to one for life and if he dye without Issue then to another for life as to limit it to one and the Heirs of his body with a Remainder over He would tye it up from the ordinary and Legal Construction to issue at the time of his death If it be to be understood of dying without Issue at any time then Child Baylie's case and Cornishe's case are full Authorities in the point Vide 2 Cro. 459. Rolls 612 614. There Lessée for years deviseth to one for life and after to Wms. and his Assigns and if he dye without Issue then living the Remainder to I. G. This they say is good in case of a Fée-simple but they will not allow it in case of a term for years Now Mr. Jones would by Construction bring the words then living into our case The Legal Construction of the words dying without Issue is if there be a failer of Issue at any time to come In Pell Brown's case if the words then living had not been in the Will the case had not béen so adjudged Keeling You go up Hill a little Can Barnaby take so long as there is any Issue in being of Nicholas Jones He cannot Keeling Then Barnaby's Interest depends upon a Contingency that may never happen Jones I grant if Nicholas hath Issue at the time of his death that Barnaby shall never take but if he hath none he shall Keeling If I Devise Lands to A. for life and if he dye without Issue of his body to B. A. shall have an Estate Tail So in our case the words and limitation is the same though the Devisor having but a Lease for years there cannot be an Estate Tail of it yet he intended not that Barnaby should have any Estate as long as there were any Issue in being of Nicholas his body Twisden It appears to me upon the reason of the cases that have been cited that the Remainder to Barnaby must be void because of the remote possibility But then there will be a question to whom the Remainder of the term will go if Nicholas dye without Issue whether to the Executors of Nicholas or to the Executors of Doctor Love If A. Tenant for life of a term Devise it to B. for life the Remainder to C. for life the Remainder to D. for life I have heard it questioned whether these Remainders are good or not But it hath been held that if all the Remainder-men are living at the time of the Devise it is good if all the Candles be light at once good But if you limit a Remainder to a person not in being as to the first begotten Son c. and the like there would be no end if such limitations were admitted and therefore they are void And some Iudges are of the same Opinion to this hour If I Devise a term to A. for life after the death of A. his Executors shall not have it but it shall go to the Executors of the Devisor But if it be devised to A. generally without saying for life it shall go to his Executors after his death But a Devise for life vests in him only during his life and you may make a limitation over Keeling I take it that A. carries the whole term when devised to him for life because an Estate for life is larger then the longest term Twisden As a term for years doth admit of Remainders so it doth of Reversions if you will have it so and when he deviseth to A. during his life A. shall have it for his life but the Reversion shall be to the Devisors Executors But if he Devise it to A. for life and if he dye without Issue of his body the Remainder to B. what shall become of the Reversion then Keeling You start a new point Court You shall have our Iudgments this Term. Knowles versus Richardson ERror of a Iudgment in the Common Pleas in an Action upon the Case for obstructing a Prospect Sympson The stopping of a Prospect is no Nusance and consequently no Action on the Case will lie for it Aldred's Case 9th Report is express that for obstructing a Prospect being matter of delight only and not of necessity an Action will not lye Twisden Why may not I build up a Wall that another man may not look into my Yard Prospects may be stopt so you do not darken the light Iudgment nisi c. Twisden A man may be Indicted for Perjury in a Court-Baron Jones moved to have a Trial at Bar for Lands in Northumberland of 50 l. per annum Keeling It s a great way of off and never any Iury came from thence in your time Twisden But I have been of Councel in Causes wherein Trials have been granted at Bar for Lands there We have lost Cornwall no Iuries from thence come to the Bar and we shall lose Northumberland too The other side to shew cause Keeling upon a motion of Mr. Holt's said I have known many Attachments for Arresting a man upon a Sunday but still the Affidavit contained that he might have been taken on another day Twisd So for arresting a man as he was going to Church to disgrace him Term. Trin. 22 Car. II. 1670. in B. R. Parker VVelby AN Action upon the Case against a Sheriff for making a false Return The Plaintiff sets forth that one Wright was endebted to him in 60 l. and did promise to pay him and that thereupon a Writ was sued out against him directed to the Defendant being Sheriff of Lincolnshire who took him into his custody and after
pleaded A special Verdict that the Lands are Copyhold Lands and surrendred to the use of one for eleven years the Remainder for five years to the Daughter the Remainder to the right heirs of the Tenant for eleven years The eleven years expire the Daughter is admitted the five years expire And there being a Son and Daughter by one Venter and a Son by another Venter the Son of the first Venter dies before admittance and the Daughter of the first Venter and her Husband bring Trover for cutting down of Trees And the question was if the admittance of Tenant for years was the admittance of the Son in Remainder Levings I conceive it is and then the Son is seized and the Daughter of the whole blood is his heir and he cited 4 Rep. 23. 3 Cro. 503. Bunny's case Wyld The Estate is bound by the Surrender Hales If a man doth surrender to the use of John Styles till admitted there is no Estate in him but remains in the Surrenderor but he hath a right to have an admittance If a surrender be to J. S. and his heirs his heir is in without admittance if J. S. dies About this hath indeed been diversity of Opinion but the better Opinion hath been according to the Lord Coke's Opinion I do not see any inconvenience why the admission of Tenant for life or years should not be the admittance of all in Remainder for Fines are to be paid notwithstanding by the particular Remainders and so the Books say it shall be no prejudice to the Lord. Twisd I think it is strong that the admission of Lessee for years is the admission of him in Remainder for as in a case of possessio fratris the Estate is bound so that the Sister shall be heir so here the Estate is bound and goes to him in Remainder Hales I shall not prejudice the Lord for if a Fine be assessed for the whole Estate there is an end of the business but if a Fine be assessed only for a particular Estate the Lord ought to have another If a surrender be to the use of A. for life the Remainder to his eldest Son c. or to the use of A. and his heirs and then A. dies the Estate is in the Son without admittance whether he takes by purchase or descent And Iudgment was given accordingly Draper versus Bridwell Rot. 320. ALL the Court held that an Action of Debt would lye upon a Iudgment after a Writ of Error brought Twisden They in the Spiritual Court will give Sentence for Tythes for rakings though they be never so unvoluntarily left which our Law will not allow of Wyld said that Actions personal transitory though the party doth live in Chester yet they may be brought in the Kings Courts Hales Shew a President where a man can wage his Law in an Action brought upon a Prescription for a duty as in an Action of Debt for Toll by Prescription you cannot wage your Law Pybus versus Mitford Postea THe Chief Iustice delivered his Opinion Wyld Rainsford and Twisden having first delivered theirs Hales I think Iudgment ought to be given for the Defendant whether the Son take by descent or purchase I shall divide the case 1 Whether the Son doth take by descent 2 Admitting he doth not whether he can take by purchase We must make a great difference betweén Conveyances of Estates by way of use and at Common Law A man cannot convey to himself an Estate by a Conveyance at Common Law but by way of Vse he may But now in our case here doth doth retorn by operation of Law an Estate to Michael for his life which is conjoyned with the Limitation to his heirs The reason is because a Limitation to the heirs of his body is in effect to himself this is perfectly according to the intention of the parties Objection The use being never out of Michael he hath the old use and so it must be a Contingent use to the heirs of his body But I say we are not here to raise a new Estate in the Covenantor but to qualifie the Estate in Fee in himself for the old Estate is to be made an Estate for life to serve the Limitation Further Objection It shall be the old Estate in Fee as if a man deviseth his Lands to his heirs the heir is in of the old Estate But I answer if he qualifie the Estate the Son must take it so as in Hutton fo So in this case is a new qualification Roll 789. 15 Jac. If a man makes a Feoffment to the use of the heirs of the body of the Feoffor the Feoffor hath an Estate Tail in him Pannel versus Fenne Moor 349. Englefield and Englefield 2 I conceive if it were not possible to take by descent this would be a Contingent use to the heirs of the body Objection It is limited to the heir when no heir in being Why I say it would have come to the heir at Common Law if no express Limitation had been and it cannot be intended that he did mean an heir at Common Law because he did specially limit it Fitz. tit Entayle 23. An Assise for the Serjeant at Mace's place in the House of Commons The Plaintiff had his Patent read The Court asked if they could prove Seisin They answered that they had recovered in an Action upon the case for the mean profits and had Execution Court For ought we know that will amount to a seisin Twisden Vpon your grant since you could not get seisin you should have gone into Chancery and they would have compelled him to give you seisin Hales A man may bring an Action upon the case for the profits of an Office though he never had seisin So the Record was read of his Recovery in an Action upon the case for the profits Hales This is but a seisin in Law not a seisin in Fact The Counsel for the Plaintiff much urged that the Recovery and Execution had of the profits was a sufficient seisin to entitle them to an Assise It was objected that the Plaintiff was never invested into the Office Hales said That an investiture did not make an Officer when he is created by Patent as this is but he is an Officer presently But if he were created an Herald at Arms as in Segars case he must be invested before he can be an Officer a person is an Officer before he is sworn Hales You are the Pernor of the profits and they have recovered them is not this a Seisin against you They shall find it specially but they chose rather to be Non-suit because of the delay by a special Verdict And the Court told them they could not withdraw a Iuror in an Assise for then the Assise would be depending The Roll of the Action sur le case fuit 19 Car. 2. Mich. Rot. 557. Term. Trin. 15 Car. II. 1663. Judge Hide 's Argument in the Exchequer-Chamber Manby versus Scott A Feme Covert departs
out of it The Stat. de donis conditionalibus brought in a new Estate of Inheritance by way of entail now this Estate Tail in Gavelkind Lands hath been taken to descend to all the Brothers and the reason is because it is part of the Fee-simple though created de novo so Vses follow the nature of the Land The cases that have béen cited were not the Opinion of the Court but of them that argued Lamb. 47. saith that the Custom extends to Advowsons Commons Rent-charges as well as to Land It is objected that here must be a prescription I answer Gavel-kind Law is the Law of Kent and is never pleaded but presumed 7 Edw. 3. 38. Co. Litt. 175. 2 Edw. 4. 18. Co. Litt. 140. saith the Customs of Kent are of common right and if so then our Rent-charge will go of common right to all the Brothers Hales Rainsford and Wyld were of Opinion that the Rent ought to descend to all the Brothers according to the descent of the Land because the Rent is part of the profits of the Land and issues out of the Land and they gave Iudgment accordingly A man covenanted to stand seized to the use of the Heirs of his body Hales The Heir and the Ancestor are correlates and as one thing in the eye of the Law and that is the reason why a man shall not make his right Heir a Purchasor without putting the whole feé-simple out of himself If the Fathers Estate turns to an Estate for life there will be no question In the case of Bennet Mitford there did result an Estate for life to knit the Limitation to the original Estate Here 1. We are in the case of an Estate Tail and the Iudges use to go far in making such a Limitation good then 2. We are in the case of an Vse which is construed as favourably as may be to comply with the intention of the party This case is not as if he should have covenanted to stand seized to the use of the Heirs of the body of J. D. there the Covenantor would have had a Fee-simple in the mean time but the case is all one as if the Limitation had been to himself and the Heirs of his own body Vide the Earl of Bedford's case Twisden We must make it good if we can Cur ' advisare vult Austin Lippencott A Special Verdict Francis the Father was Tenant for life the Remainder in Fée to Francis the Son and by the Deed by which this Estate was thus settled 100 l. a year was appointed to be paid to Francis the Son during the Fathers life The Son releaseth to the Father all arrears of Rent Annuities Titles and Demands by virtue of that Indenture and the question was whether this Release passed the Inheritance as well as the Annuity Polynxfen I conceive this Release shall not pass any Estate in the Land and my reason is because there is no mention of the Land nor of any Estate therein The principal thing intended and expressed is the Annuity then the Release concludes to the day of the Release which doth manifest that he did not intend to Release any thing that was not to come to him till after the death of his Father It is true here is the word demand but that will not do it 3 Cro. 258. Then for the word Titles by Plowd 494. and 8 Rep. 153. it is where a man hath lawful cause to have that that another doth possess sometimes it is taken in a larger sense and then it doth include right Vpon construction of this Release I think it ought to be taken in the stricter sense and the intention of the party must guide the construction For where there are general words in the beginning and particular words afterwards the particular do restrain the general and so vice versa for enlargement he cited Hen Hanson's case 15 Car. 2. in this Court where a Release of all demands would not Release a Rent-charge by the Opinion of thrée Iudges against Twisden for that reason and because words in Deeds are to be taken according to common acceptation he cited 2 Rolls 409. In our case the general words of all Suits and Titles are limited and restrained to the Annuity and Title of that and shall not by a large construction be extended to any thing else Hales How hath the Inheritance gone Polynxfen The Grandchild has that Hales I think a Release of all demands will not extinguish a Rent but if it were all demands out of Land it were another thing It hath béen held over and over again that it does not extinguish and discharge a Covenant not broken But what say you to this Release of all Titles for it appears in express terms that the Son did not only release the arrears of the Annuity but the thing it self and not only so but all other Titles by virtue of that Deed suppose the case had been but thus the Father is Tenant for life the Remainder to the Son for Life the Son releaseth to his Father all the Title that he has by vertue of that Deed had not this passed the Sons Estate for life In the cases that you have cited it is allowed that a Release of all Titles will pass a right to Land He had a Title to the Annuity and a title to the Remainder now he releaseth the Annuity and all other Titles which he hath by that Deed or otherwise howsoever To hear Serjeant Maynard on the other side Wilson Robinson A Man deviseth all his Tenant-right Estate at Brickend and all that my Father and I took of Rowland Hobbs c. Levings I conceive that these words pass only an Estate for life for it is not mentioned what Estate he hath 1 Cro. 447 449. a Devise of all the rest of his Goods Chattels Leases Estates Mortgages Debts ready money c. and the Court held that no Fee passed and said it was a doubt whether any Estate would pass in that case but what was for years being coupled only with personal things Trin. 1649. Rot. 153. Jerman Johnson One devised all his Estate paying his Debts and Legacies now his personal Estate came but to 20 l. and his Debts were 100 l. there indeed all his real Estate passed because of the payment of his Debts And in our case the following particulars are but a description of the Land and contain no limitation of the Estate If a man deviseth black Acre to one and the Heirs of his body and also deviseth white Acre to the same person he hath but an Estate for life in white Acre though he hath a Fee-simple in the other for the word also is not so strong as if it had been in the same manner Moor 152. Yel 209. Weston contra I conceive an Estate of Inheritance doth pass for the word Estate comprehendeth all his Interest When a man deviseth all his Estate he leaves nothing in himself in that case
proof upon them that claim liberam piscariam But in case of a River that flows and re-flows and is an Arm of the Sea there prima facie it is common to all and if any will appropriate a priviledge to himself the proof lyeth on his side for in case of an Action of Trespass brought for Fishing there it is prima facie a good justification to say that the locus in quo is brachium maris in quo unusquisque subjectus Domini Regis habet habere debet liberam piscariam In the Severne there are particular restraints as Gurgites c. but the Soil doth belong to the Lords on either side and a special sort of Fishing belongs to them likewise but the common sort of Fishing is common to all The Soil of the River of Thames is in the King and the Lord Mayor is Conservator of the River and it is common to all Fisher-men and therefore there is no such contradiction betwixt the Soil being in one and yet the River common for all Fishers c. Sedgewick Gofton HAles said That a Writ of Error in Parliament may be retorned ad prox Parliament such a day but if a particular day be not mentioned then it is naught and although there be a particular day expressed yet if that day be at two or thrée Terms distance the Court will adjudge it to be for delay and it shall be no Supersedeas And he said he had looked into the Books upon the point In the Register he said there is a Scire fac ad prox Parliament but not a Writ of Error Term. Pasch 26 Car. II. 1674. in B. R. Fountain Coke A Trial at Bar. Hales An Executor may be a witness in a cause concerning the Estate if he have not the Surplusage given him by the Will and so I have known it adjudged If a Lessee for years be made Tenant to the Praecipe for suffering a common Recovery that doth not extinguish his term because it was in him for another purpose which the whole Court agreed Jacob Aboab DEbt upon a Bond was brought against him by the name of Jacob and he pleaded that he was called and known by the name of Jaacob and not Jacob but it was over-ruled Sir John Thorowgood's Case IT was moved to quash an Indictment because it ran in detrimentum omnium inhabitantium c. Rolls 2 part 83. Wyld I have known it ruled naught for that cause So quashed Benson versus Hodson A Writ of Error of a Iudgment in the County Palatine of Lancaster in Replevin The Defendant makes Conusance as Bayliff to Ann Mosely The Lands were the Lands of Rowland Mosely and he covenanted to levy a Fine of them to the use of himself and the Heirs males of his body the remainder in Tail to several others the remainder to his own right Heirs Provided that if there shall be a failer of Issue Male of his body and Dame Elizabeth be dead and Ann Mosely be married or of the age of 21 years then she shall have 200 l. per annum for ten years Then Rowland dies leaving Issue Sir Edward Mosely Sir Edward makes a Lease for 1000 years then levies a Fine and suffers a Recovery Then dies without Issue Male And the Contingents did all happen The question is whether this Rent-charge of 200 l. per annum be barred by the Fine and Recovery and shall not operate upon the Lease Levings I conceive the Fine is not well pleaded for nothing is said of the Kings Silver and if that be not paid it is void Then they have pleaded a Common Recovery but not the Execution of it by Entry Now I conceive the Common Recovery doth destroy the Estate Tail but not the Rent The reason why a common Recovery is a Bar is because of the intended recompence Now that is a fictitious thing 9 Rep. Beamonts case 1 Cro. Stone and Newman Cuppledicks case Now this Rent is a meer possibility and hath no relation to the Estate of the Land Then again when the Recovery was suffered the Rent was not in being Now a Recovery will never bar but where the Estate is dependant upon it either in Reversion or Remainder For that case of Moor pl. 201. I conceive he is barred because the Reversion is barred by the Fine 3 Cro. 727. 792. White and Gerishe's case the same case 2 And. 190. Noy p. 9. Another reason is because the Rent remains in the same plight notwithstanding the Fine Another reason is it was a meer possibility at the time of the Fine and Recovery Pell and Brownes case is for me In our case is no Estate in esse to be barred Then this Estate is granted out of the Estate of the Feoffeés As in Whitlocks case 8 Rep. 71. the Estates for years which there is a power to make shall be said to precede all the Limitations There is no other way for securing younger Childrens Portions by the same Deéd but it may be done by another Déed as in Goodyer and Clarkes case Mr. Finch contra I conceive the Rent is barred upon the reason of Capells case They say not 1 Because it doth only charge the Remainder 2 The intended recompence doth not go to it 3 This Lease for 1000 years doth precede the Fine The Law will never invert the operation of a Conveyance but ut res magis valeat Bredon's case Then for the intended recompence that cannot be the reason of barring a Remainder for the Estate Tail was barred before 3 Leon. 157. But Moor fol. 73. saith it is the favour the Law hath for Recoveries And till the Reversion takes place in possession the Rent cannot arise out of the Reversion nor so long as this Lease is in being Hales You make two great points 1 Whether the Rent be barred by the Common Recovery 2 Whether the Rent-charge shall arise out of the Lease for years This is plain if Tenant in Tail grant a Rent-charge and suffer a Common Recovery the Rent-charge will not be avoided So that if Tenant in Tail grant a Rent a Recovery will not bar that though it doth a Reversion but the reason of these cases is because the Estate of him that suffers the Recovery is charged with the Rent Therefore if there be a Limitation of a Vse upon Condition and Cestui que use suffers a Recovery that will not destroy the Condition the Estate being charged with it for the Recoveror can have the Estate only as he that suffered the Recovery had it And therefore there is an Act of Parliament to enable Recoverors to distrein without Attornment Therefore so long as any one comes in by that Recovery he comes in in continuance of the Estate Tail and coming in so he is lyable to all the charges of Tenant in Tail Now what is the reason why Tenant in Tail suffering a Common Recovery a Rent by him in Remainder shall be barred The reason is because the Recoveror comes in
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes
in the Mannor 232 R. Recovery sc Common Recovery VIde Gardian Whether can an Infant that suffers a Common Recovery reverse it when he comes of age 49 What shall be bar'd by a Common Recovery and what not 108 109 c. A Common Recovery suffered of Lands in Shrewsbury and the Liberties thereof good to pass Lands in the Liberties of Shrewsbury though lying out of the Town of Shrewsbury 206 The pleading of a Common Recovery V. 218 219 There are two Parishes adjoyning Rippon and Kirby-Marstone and within those two Parishes are two Towns of the same names A man has Lands within the Parishes but not within those Towns and suffers a recovery of Lands in Rippon and Kirby-Marstone generally but the Deed to lead the Uses mentions the Lands as lying in the Parishes of Rippon and Kirby-Marstone 250 c. Recusance and Recusancy An Information for not coming to Church may be brought upon the Stat. of 23 Eliz. reciting the clause in it that refers to 1 Eliz. 191 To an Endictment for Recusancy Conformity is a good Plea but not to an Action of Debt 213 Reddendo singula singulis V. 33. Release A man makes a Release of all Demands and Titles quid operatur 99 100 Reparations of Churches Parishioners how compellable to repair their Parish-Church 194 236 237 The greater part of the Parish shall conclude the Lesser for enlarging the Church as well as repairing it 236 237 The Chancel of a Parish-Church whereof the Rectory is Impropriate is out of repair Whether can the Ordinary sequester the Tythes 258 259 c. Request An Action for keeping a passage stopt up so that the Plaintiff could not come to cleanse his gutter ought the Plaintiff to lay a Request 27 Reservation A Heriot or 40 s. reserved to the Lessor and his Assigns at the Election of the Lessor his Heirs and Assigns yet cannot the Devisee of the Lessor have either the Heriot or 40 s. 216 217 Return false Return Action upon the Case against a Sheriff for that he arrested such a one at the Plaintiffs Suit and suffered him to go at large and at the day of the return of the Writ returned that he had his body ready The Defendant demurs generally 57 In a like Action the Defendant pleads the Stat. of 23 H. 6. cap. 10. and adjudged against the Plaintiff 239 240 V. Action upon the Case Robbery An Action lies against the Hundred upon the Statute of Winchester though the Robbery were not committed in the High-way 221 S. Scandalum Magnatum MY Lord _____ is an unworthy person and does things against Law and Reason Actionable 232 233 c. Scire Facias Scire facias upon a Recognizance in Chancery there is a demurrer to part and issue upon part Judgment must be given in the Court of Kings Bench upon the whole Record 29 Scias facias against Executors to have execution of a Judgment obtained against their Testator they plead That a Ca. Sa. issued against him upon which he was taken and that he paid the money to the Warden of the Fleet who suffered him to go at large This held to be no plea. 194 Seal Whether does the Seals being broken off invalidate a Deed c. given in Evidence 11 Seisin of an Office What shall be a Seisin of an Office and what not 122 123 Serjeants at Law What Serjeants Rings ought to weigh 9 Priviledge of Serjeants 226 Statute-Merchant and Staple V. Administrators Summons V. 197. Supersedeas The very sealing a Writ of Error is a Supersedeas to the Execution 28 The Stat. of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to the Court of Kings Bench but only to the Chancery 45 A Writ of Error in Parliament in what Cases is it a Supersedeas and in what Cases not 106 285 V. 112 Whether is a Sheriff obliged at his years end to deliver a Writ of Supersedeas over to the new Sheriff 222 Survivor The Condition of a Bond is That if the Obligor shall pay yearly a sum of money to two strangers during their two lives that then c. Resolved that the payment is to cease upon the death of either of them 187 T. Tenant in Common TEnant in Common sues without his Companion 102 Tender and Refusal Where ever Payment will do Tender and Refusal will do 77 78 Toll Toll-thorough 47 48 V. Prescription Toll-thorough and Toll-traverse 231 232 Trespass Justification in Trespass 75 Whether does an Action of Trespass lie for immoderately riding a lent Mare 210 In an Action of Trespass it appears upon Evidence that the Fact if true was Felony yet does not this Evidence destroy the Plaintiffs Action Otherwise if it had appear'd upon the Declaration 282 283 Trover and Conversion A Sheriff may have an Action of Trover and Conversion for Goods taken by himself in Execution upon a Fieri facias 30 31 Trover and Conversion decem paririum tegularum valorum Angl. of ten pair of Curtains and Vallance held good 46 47 V. 135 136 c. many Cases of Trover and Conversion and of pleading in that Action Trover and Conversion de tribus struibus foeni 289 290 Trial. Motion for a new Trial. 2 An Action of Covenant is laid at York issue is joyn'd upon a matter in Barwick where shall the Trial be 36 37 c. Tythes Turfe Gravel and Chalk not tythable 35 If the Endowment of the Vicarage be lost small Tythes must be paid according to Prescription 50 Tythes of Cattel feeding in a Common where the Parish is not certainly known 216 A modus to the Rector is a good Discharge against the Vicar ibid. A Parson shall not have Tythe both of Corn and of Sheep taken in pro melioratione agriculturae infra terras arabiles c. ibid. V. tit Custom V. Venire Facias A Venire Facias returnable coram nobis apud Westm held good 81 Venue A Venue refused to be changed because the Plaintiff was a Counsellor at Law 64 Verdict When a Declaration will bear two Constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense 42 43 Matters helpt after Verdict 70 74 75 V. tit Jeofails View A Jury never ordered to View before their appearance but in an Assize 41 Ville What makes a Ville in Law 78 117 118 Visitation of Churches What Ecclesiastical Persons are visitable and what not 11 12 Vniversity Indebitat assumpsit against a Colledge in Oxford the Chancellor of the University demands Conusance whether is his Cause within the Priviledge of the University or not 163 164 Voluntary Conveyance What shall be said to be a Voluntary Conveyance within the Statute of Bankrupts and what not 76 Voucher A Tenant in an Assize avoucheth out of the line is it peremptory or not 7 8 Vses V. Covenant to stand seised V. 175 176 c. A man granted a Rent to one to the use of another and Covenants with the Grantee to pay the Rent to him to the use of the Cestuy que use The Grantee brings an Action of Covenant 223 Whether is the reservation of a Pepper-Corn a sufficient Consideration to raise an Use or not 262 263 Vsury V. 69. W. Wages IF a Mariner or Ship-Carpenter run away he looseth his Wages due 93 Warrant of Attorney Judgment enter'd of another Term than is expressed in the Warrant of Atturney 1 Warranty Feme Tenant in tail remainder to her Sisters in Fee the Tenant in tail and her Husband levy a Fine to the use of them two and the Heirs of the body of the Wife the remainder to the right Heirs of the Husband with Warranty against them and the Heirs of the Wife The Wife dies without issue 181 He that comes to Land by the limitation of an Use may rebut 192 193 Waste What is Waste and what not 94 95 Will. A Will drawn in the form of a Deed. 117 Whether must the Will of a Feme Covert be proved 211 The pleading of a Will of Land 217 Witnesses Who are good Witnesses and who are not 21 73 74 107 283 FINIS
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent