of setting of so many Letters together but filling up the Blanks makes them of another nature Grants of things of less moment have been adjudged Monopolies 2 Rol. Abr. 215. pl. 5. as a Patent for the sole making of all Bills Pleas and Briefs in the Council of York for by the same reason a like Patent might be granted to make all Declarations in the Courts of Westminster Hall Curia The King hath a Prerogative to Grant the sole Printing to a particular person all the Cases cited for the Plaintiff do not reach the reason of this Case for there is a difference between things of a publick Vse and those which are publick in their Nature even Almanacks have been used to ill purposes as to foretel future Events yet they are of publick Vse to shew the Feasts and Fasts of the Church The Court enclined that the Patent was not good Jackson versus Warren A Motion was made in arrest of Iudgment Amendment for that the day when the Assises were to be held and the place where were left out of the Distringas and so a mis-tryal But the Court were of another Opinion 1 Roll. Abr. 201. for if there had been no Distringas the Tryal had been good because they Jurata is the Warrant to try the Cause which was right and therefore the Distringas was ordered to be amended by the Roll. Dominus Rex versus Sparks 'T IS Enacted by the Statute of 1 Eliz. Where a Punishment is directed by a Statute the Judgment must be pursuant 1 Eliz. cap. 2.13 14 Car. 2. cap. 4. That every Minister shall use the Church-Service in such Form as is mentioned in the Book of Common-Prayer and if he shall be convicted to use any other Form he shall forfeit one whole Years profit of all his Spiritual Promotions and suffer six Months Imprisonment And by the Statute of King Charles the II. All Ministers are to use the publick Prayers in such Order and Form as is mentioned in the Common-Prayer-Book with such Alterations as have been made therein by the Convocation then sitting The Defendant was indicted at the Quarter-Sessions in Devonshire for using alias Preces in the Church alio modo than mentioned in the said Book and concludes contra formam Statuti He was found Guilty and fined 100 Marks and upon a Writ of Error brought Mr. Polexfen and Mr. Shower argued for the Plaintiff in Error that this Indictment was not warranted by any Law and the Verdict shall not help in the case of an Indictment for all the Statutes of Jeofails have left them as they were before Now the Fact as 't is said in this Indictment may be no offence because to use Prayers alio modo than enjoyn'd by the Book of Common-Prayer may be upon an extraordinary occasion and so no Crime But if this should not be allowed the Iustices of Peace have not power in their Sessions to enquire into this matter or if they had power they could not give such a Iudgment because the punishment is directed by the Statute and of this Opinion was the whole Court The Chief Iustice said that the Statute of the 23 Eliz. 23 Eliz. cap. 1. could have no influence upon this Case because another Form is now enjoyned by later Statutes but admitted that Offences against that Statute were enquitable by the Iustices The Indictment ought to have alledged that the Defendant used other Forms and Prayers instead of those enjoyned which were neglected by him for otherwise every Parson may be indicted that useth prayers before his Sermon other than such which are required by the Book of Common-Prayer Clerk versus Hoskins DEbt upon a Bond for the performance of Covenants in certain Articles of Agreement in which it was recited That whereas the now Defendant had found out a Mystery in colouring Stuffs and had entred into a Partnership with the Plaintiff for the term of seven Years he did thereupon Covenant with him that he would not procure any person to obtain Letters Patents within that Term to exercise that Mystery alone The Defendant pleaded that he did not procure any person to obtain Letters Patents c. The Plaintiff replied and assigned for breach that the Defendant did within that term procure Letters Patents for another person to use this Mystery alone for a certain time Et hoc petit quod inquiratur per patriam And upon a Demurrer to the Replication these Exceptions were taken 1. That the Plaintiff hath not set forth what Term is contained in the Letters Patents 2. That he had pleaded both Record and Fact together for the procuring is the Fact and the Letters Patents are the Record and then he ought not to have concluded to the Country Prout patet per Recordum To which it was answered That the Plaintiff was a Stranger to the Term contained in the Letters Patents and therefore could not possibly shew it but if he hath assigned a full breach 't is well enough Then as to the other Exception viz. the pleading of the Letters Patents here is not matter of Record here is a plain negative and affirmative upon which the Issue is joyned and therefore ought to conclude hoc petit c. Curia There is a Covenant that the Defendant shall not procure Letters Patents to hinder the Plaintiff within the seven Years of the Partnership Now this must be the matter upon which the breach ariseth and not the Letters Patents so that it had been very improper to conclude prout patet per Recordum Iudgment for the Plaintiff Rex versus Hethersal THE Defendant was Felo de se Melius inquireddum not granted but for misdemeanor of the Jury and the Coroners Inquest found him a Lunatick and now Mr. Jones moved for a Melius inquirendum but it was denied because there was no defect in the Inquisition but the Court told him that if he could produce an Affidavit that the Iury did not go according to their Evidence or of any indirect Proceedings of the Coroner then they would grant it But it was afterwards quashed because they had omitted the year of the King Friend versus Bouchier Trin. 34 Car. 2. Rot. 920. EJectment upon the Demise of Henry Jones What words in a Will make a general Tail of certain Lands in Hampshire The Iury found this Special Verdict following Viz. That William Holms was seised in Fee of the Lands in question who by his last Will dated in the year 1633. devised it to Dorothy Hopkins for Life Remainder to her first Son and to the Heirs of the Body of such first Son c. and for default of such Issue to his Cousin W. with several Remainders over And in default of such Issue to Anne Jones and to her Heirs who was the Lessor of the Plaintiff That before the sealing and publishing of this Will he made this Memorandum Viz. Memorandum that my Will and Meaning is That Dorothy Hopkins
shall not alien or sell the Lands given to her from the Heirs Male of her Body lawfully to be begotten but to remain upon default of such Issue to W. and the Heirs Males of his Body to be begotten according to the true intent and meaning of this my Will Dorothy Hopkins had Issue Richard who had Issue Henry who had Issue a Daughter now the Defendant The Question was Whether the Son of Dorothy did take an Estate Tail by this Will to him and to the Heirs of his Body in general or an Estate in Tail Male This Case was argued in Michaelmas Term 36 Car. II. And in the same Term a year afterwards by Council on both sides Those who argued for the Plaintiff held that the Son had an Estate in Tail Male and this seems plain by the intention of the Testator that if Dorothy had Issue Daughters they should have no benefit for no provision is made for any such by the Will and therefore the Daughter of her Son can have no Estate who is more remote to the Testator This is like the Case of Conveyances Turnam vers Cooper 2 Cro. 476. Poph. 138. id 25 Ass pl. 14. wherein the Habendum explains the generality of the precedent words as if Lands be given to Husband and Wife and to their Heirs habendum to them and the Heirs of their Bodies Remainder to them and the Survivor to hold of the chief Lord with Waranty to them and their Heirs this is an Estate Tail with a Feé expectant So it is here tho' the first words in the Will extend to Heirs which is general yet in the Memorandum 't is particular to Heirs Males and the words Heirs and Issues are of the same signification in a Will The Memorandum is a confirmation of the Will Ex parte Def. and the construction which hath been made of it is not only inconsistent with the Rules of Law but contrary to the intent of the Testator and against the express words of his Will Cases upon Wills are different from those which arise upon Deeds because in Conveyances subsequent words may be explanatory of the former but in Wills the first words of the Testator do usually guide those which follow As if Land be devised for Life Dyer 171 a. 1 And. 8. id Golds 16. Moor 593. Remainder to F. and the Heirs Males of his Body and if it happen that he dye without Heirs not saying Males the Remainder over in Tail this was held not to be a general Tail but an Estate in Tail Male therefore the Daughter of F. could not inherit Now to construe this to be an Estate Tail Male doth not only alter the Estate of the Sons of Dorothy but of the Issue of W. and nothing is mentioned in this Memorandum of the Limitation over to Jones so that the whole Will is altered by it But this Memorandum cannot enlarge the Estate of Dorothy because 't is inconsistent with the intention of the Testator who gave her only an Estate for Life by the Will but if she should have an Estate Tail she might by Fine and Recovery bar it and so alien it contrary to his express words Besides there is no Estate limited to Dorothy by this Memorandum and she having an express Estate for Life devised to her by the Will it shall never be enlarged by such doubtful words which follow As where a Man had 100 Acres of Land 2 Leon. 226. Moor 593. called by a particular Name and usually occupied with a House which House he lett to S. with 40 Acres parcel of that Land and then devised the House and all the Lands called by that particular Name c. to his Wife Adjudged she should only have the House and the 40 Acres and that the Devise shall not be extended by implication to the other sixty Acres So that to make the design of this Will and Memorandum to be consistent the latter words must be construed only to illustrate the meaning of the Testator in the former Paragraph of the Will and must be taken as a farther declaration of his intention Viz. that the Heirs Males mentioned in the Memorandum is only a description of the Persons named in the Will The Law doth usually regard the intention of the Testator and will not imply any contradictions in his Bequests The Court was of Opinion that it was a plain Case Judicium for in the Limitation 't is clear that 't is a general Tail and it doth not follow that the Testator did not design any thing for his Grandaughters because no provision was made for Daughters For where an Estate is entailed upon the Heirs of a Man's Body if he hath a Son and a Daughter and the Son hath Issue a Daughter the Estate will go to her and not to the Aunt Now this Memorandum doth not come to make any alteration in the Limitation because it directs that the Estate shall go according to the true intent and meaning of the Will and is rather like a Proviso than an Habendum in a Deed. And therefore Iudgment was given accordingly for the Defendant DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. Hicks versus Gore ON Tuesday the 17th day of November there was a Trial at the Barr by a Somerset-Shire Iury in Ejectment The Case was thus The Plaintiff claimed the Lands by virtue of the Statute of 4 5 Ph. Mar. cap. 8. by which 't is enacted That it shall not be lawful for any person to take away any Maid or Woman Child unmarried and within the Age of sixteen years from the Parents or Guardian in Soccage and that if any Woman Child or Maiden being above the Age of twelve years and under the Age of sixteen do at any time assent or agree to such person that shall make any Contract of Matrimony contrary to the Form of the Act that then the next of Kin of such Woman Child or Maid to whom the Inheritance should descend return or come after the decease of the same Woman Child or Maid shall from the time of such Assent and Agreement have hold and enjoy all such Lands Tenements and Hereditaments as the said Woman Child or Maid had in Possession Reversion or Remainder at the time of such Assent and Agreement during the Life of such person that shall so contract Matrimony and after the decease of such person so contracting Matrimony that then the said Land c. shall descend revert remain and come to such person or persons as they should have done in case this Act had never been made other than him only that so shall contract Matrimony Benjamin Tibboth being seised in Fee of the Lands in question to the value of 700 l. per annum had Issue a Son and four Daughters the Son had Issue Ruth his only Daughter who was married to the Defendant Gore her Father died in the time of her Grandfather and her Mother
the Indictment for be it before or after the Offence the Iury ought to find according to the truth of the Case upon the Evidence for they are sworn ad veritatem dicendam c. This must be assigned for Error for if the contrary be said 't is against the Record the Custos Brevium having retorned that the Fine was taken 30 July which could not be in Trinity Term for that ended 8 July otherwise 't is repugnant to it self Econtra It was argued that this is not assignable for Error Dyer 220. b. 12 Co. 124. 't is true if the Party had died before the Entry of the King's Silver it had been Error but if afterwards 't is not so Thus was the Case of Warnecomb and Carril which was Husband and Wife levied a Fine of the Lands of the Wife and this was by Dedimus in the Lent Vacation she being then but 19 years of Age the King's Silver was entred in Hillary Term before and she died in the Easter week and upon a Motion made the first day of Easter Term to stay the engrossing of the Fine it was denied by the Court for they held it to be a good Fine Another reason why this is not assignable for Error 2 Cro. 11. Yelv. 33. is because 't is directly against the Record which is of Trinity Term and can be of no other Term and to prove this he cited Arundel's Case where a Writ of Error was brought to reverse a Fine taken before Roger Manwood Esq in his Circuit he being then one of the Iustices of the Common-Pleas and the Dedimus was returned per Rogerum Manwood Militem for he was Knighted and made Chief Baron the Eerm following the Fine passed and this was afterwards assigned for Trror that he who took the Caption was not a Knight but it being directly against the Record they would not intend him to be the same person to whom the Writ was directed Adjurnatur Afterwards the Fine was affirmed Lock versus Norborne UPon a Trial at Bar in Ejectment for Lands in Wiltshire Verdict shall only be given in Evidence amongst privies the Case was thus Viz. Mary Philpot in the year 1678. made a Settlement by Lease and Release to her self for Life then to Trustees to support contingent Remainders then to her first second and third Son in Tail Male c. then to Thomas Arundel in Tail Male with divers Remainders over It was objected at the Tryal that she had no power to make such Settlement because in the year 1676. her Husband had setled the Lands in question upon her for Life and upon the Issue of his Body c. and for want of such Issue then upon George Philpot in Tail Male with several Remainders over the Remainder to Mary Philpot in Fee Proviso that upon the tender of a Guinea to George Philpot by the said Mary the Limitations as to him should be void George Philpot having afterwards made a Lease of this Land to try the Title the Trustees brought an Ejectment but because the tender of the Guinea could not be proved there was a Verdict for the Defendant And now Mr. Philpot would have given that Verdict in Evidence at this Trial but was not suffered by the Court for if one Man hath a Title to several Lands and if he should bring Ejectments against several Defendants and recover against one he shall not give that Verdict in Evidence against the rest because the Party against whom that Verdict was had may be relieved against it if 't is not good but the rest cannot tho' they claim under the same Title and all make the same defence So if two Tenants will defend a Title in Ejectment and a Verdict should be had against one of them it shall not be read against the other unless by Rule of Court But if an Ancestor hath a Verdict the Heir may give it in Evidence because he is privy to it for he who produceth a Verdict must be either party or privy to it and it shall never be received against different persons if it doth not appear that they are united in Interest Therefore a Verdict against A. shall never be read against B. for it may happen that one did not make a good defence which the other may do The tender of the Guinea was now proved DE Term. Sancti Hill Anno 3 Jac. II. in Banco Regis 1687 8. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General THIS Vacation Sir Robert Sawyer had his Quietus and Sir Thomas Powis was made Attorny General and Sir William Williams of Greys-Inn was made Sollicitor General Rex versus Lenthal AN Inquifition was taken in the second year of this King under the Great Seal of England by which it was found that the Office of Marshal of the Kings-Bench did concern the Administration of Iustice and that Mr. Lenthal was seised thereof in Fee and that upon his Marriage he had setled the said Office upon Sir Edward Norris and Mr. Coghill and their Heirs in Truff that they should permit him to execute the same during his Life c. That the said Trustees had neglected to give their attendance or to execute the said Office themselves that this Canveyance was made by Mr. Lenthal without the notice of this Court that he received the Profits and afterwards granted the said Office to Cooling for Life That Cross and his Wife had obtained a Iudgment in this Court against Bromley and had sued forth Erecution for the Debt and Damages for which he was committed to the custody of the said Cooling and being so in Execution did go at large They find that Cooling had not sufficient to answer Cross and his Wise for the said Debt c. whereupon they impleaded Mr. Lenthal in the Common-Pleas for 121 l. 2 s. 4 d. to answer as superior that at the Trial Mr. Lenthal gave this secret Deed of Settlement in Evidence whereupon the Plaintiffs in that Action were non-suited ad dampnum c. They find that Cooling went out of the said Office and the Trustees neglecting the execution thereof Mr. Lenthal granted the same to Glover for Life that during the time he executed this Office one Wordal was convicted of Forgery and commited to his Custody and that he permitted him voluntarily to Escape by which the said Office was forfeited to the King The King had granted the Office to the Lord Hunsdon Sir Edward Norris and Mr. Coghill come in and plead that Mr. Lenthal was seised in Fee and that he made a Settlement of the Office upon his Marriage with Mrs. Lucy Dunch with whom he had 5000 l. Portion viz. upon them and their Heirs in trust prout in the Inquisition and that he did execute the Office by-their permission Mr Lenthal pleads and admits the Grant to Sir Edward Norris and the other Trustee bearing date such a day c. but saith that the next
same to Mrs. Berkley for Life remainder over to Henry Killigrew in Tail and that he made Mrs. Berkley Executrix of his Will which was found in haec verba That afterwards in the year 1645. the said Sir Henry Killigrew made aliud Testamentum in Writing but what was contained in the said last mentioned Will juratores penitus ignorant They find that Sir Henry Killigrew in the year 1646. died seised of those Lands and that Mrs. Berkley conveyed the same to Mr. Nosworthy 's Father whose Heir he is and that the Defendant Sir William Basset is Cosin and Heir to Sir Henry Killigrew c. The Question upon this special Verdict was whether the making of this last Will was a revocation of the former or not It was argued this Term by Mr. Finch and in Michaelmas Term following by Serjeant Maynard for the Plaintiff that it was not a revocation In their Arguments it was admitted that a Will in it's nature was revocable at all times but then it must be either by an express or implied revocation That the making of this latter Will cannot be intended to be an implied revocation of the former for if so then the Land must also be supposed to be devised contrary to the express disposition in the first Will and that would be to add to the Record which finds Viz. that what the last Will was penitus ignorant It is possible that a subsequent Will may be made so as not to destroy but consist with a former for the Testator may have several parcels of Land which he may devise to many persons by divers Wills and yet all stand together A man may likewise by a subsequent Will revoke part and confirm the other part of a former Will and therefore admitting there was such a Will in this case 't is still more natural that it should confirm than revoke the other If the Testator had purchased new Lands and had devised the same by a subsequent Will no person will affirm that to be a revocation of the former Will When a Man hath made a disposition of any part of his Estate 't is a good Will as to that part so is likewise the disposal of every other part they are all several Wills tho' taken altogether they are an intire disposition of the whole Estate Nothing appears here to the contrary but that the latter Will may be only a devise of his personal Estate or a confirmation of the former which the Law will not allow to be destroyed without an express revocation The Case of Coward and Marshal is much to this purpose Cro. Eliz. 721. which was a devise in Fee to his younger Son and in another Will after the Testators Marriage to a second Wife he devised the same Lands to his Wife for Life paying yearly to his younger Son 20 s. It was the Opinion of Anderson and Glanvil that both these Wills might stand together and that one was not a revocation of the other because it appeared by the last Will that he only intended to make a Provision for his Wife but not to alter the Devise to his Son So where a Man had two Sons by several Venters Cro. Car. 24. Hodgkinson vers Whood Co. Lit. 22. b. 1 Co. 104. a. 319. b. and devises the Lands to his eldest Son for Life and to the Heirs Males of his Body and for default of such Issue to the Heirs Males of his second Son and the Heirs Males of their Bodies Remainder to his own right Heirs and then made a Lease of 30 years to his youngest Son to commence after the death of the Testator the youngest Son entred and surrendred the Term to his elder Brother who made a Lease to the Defendant and then dyed without Issue afterwards the youngest Brother entred and avoided this Lease made by his Brother It was held that the Lease thus made to him was not a revocation of the devise of the Inheritance to his Brother tho' it was to commence at the same time in which the devise of the Inheritance was to take effect but it was a revocation quoad the Term only that the elder Brother should not enter during that time for the devise shall not be revoked without express words and that tho' the Testator had departed with the whole Fee without reserving an Estate for Life to himself yet the Law created such an Estate in him till the future Vse should commence and in such case the right Heirs cannot take by Purchase but by Descent so that here the Inheritance in Fee simple was not vested in the elder Brother by Descent for then the Lease which he made would be executed out of the Feé and the younger Brother would be bound thereby But in the Case at the Bar there is no colour of a Revocation 1. Vpon the nature of the Verdict to which nothing can be added neither can it be diminished for whatever is found must be positive and not doubtful because an Attaint lies if the Verdict be false Therefore the Court cannot take notice of that which the Iury hath not found Now here the entry of the Iudgment is Viz. Quibus lectis auditis per Curiam hic satis intellectis c. But what can be read or heard where nothing appears That Case in the Year-Book of the 2 R. 3. 2 R. 3. f. 3. comes not up to this question it was an Action of Trespass for the taking of his Goods The Defendant pleaded that the Goods did appertain to one Robert Strong who before the supposed Trespass devised the same to him and made him Executor c. The Plaintiff replied that the said Strong made his last Will and did constitute him Executor And upon a Demurrer to this Replication because he had not traversed that the Defendant was Executor it was argued for the Plaintiff that this last Will was a Revocation of the former for tho' there were no express words of Revocation yet by the very making another the Law revoked the former and to prove this two Instances were then given viz. That if a Man devise his Lands to two and by another Will gives it to one of them and dies he to whom 't is devised by the last Will shall have it So likewise if the Testator by one Will giveth Lands to his Son and by another Will deviseth the same again to his Wife then makes an Alienation and taketh back an Estate to himself and dieth and in an Assise brought between the Widow and the Son he was compelled by the Court to shew that it was his Father's intention that he should have the Land otherwise the last Devisee will be entituled to it Now both these Instances are not sufficient to evince that the last Will in this Case was a revocation of that under which the Plaintiff claims because those Wills were contradictory to each other for by one the Land was devised to the Son and by the other to
on the 29th day of April seize the Goods of the said Toplady that after the seizure and before any Venditioni exponas viz. 4 Maij an Extent which is a Prerogative Writ issued out of the Exchequer against two persons who were indebted to the King and by inquisition this Toplady was found to be indebted to them whereupon parcel of the Goods in the Declaration was seized by the Sheriffs upon the said Extent and sold and the Mony paid to the Creditors but before the said Sale or any execution of the Exchequer Process a Commission of Bankrupcy was had against Toplady and that the Commissioners on the second of June assigned the Goods to the Plaintiff The Question was whether this Extent did not come too late And it was held it did or whether the Fi. Fa. was well executed so that the Assignees of the Bankrupts Estate could not have a Title to those Goods which were taken before in Execution and so in Custodia Legis And it was held that they had no Title Fitzgerald versus Villiers WRIE of Error upon a Iudgment in Dower Infant must appear by Guardian and the Error assigned was that the Tenant in Dower was an Infant and no Warrant was alledged of the admission of any Guardian 29 Assise pl. 67. Bridg. 74. Lib. Entr. 45. Hut 92. 4 Co. 53. Lit. 92. Hetl. 52. 3 Cro. 158. Moor 434. Hob. 5. that it might appear to be the act of the Court 't is true an Infant may sue by Prochein Amy but shall not appear by Attorny but by Guardian because 't is intended by Law that he hath not sufficient discretion to chuse an Attorny therefore 't is provided that he appear per Guardianum which is done by the Court who are always careful of Infancy and a special Entry is made upon the Roll. Viz. Per Guardianum ad hoc per Curiam admissum c. 2. The Appearance is by the Guardian in his own Name Viz. Et praedicta Katherina Fitzgerald per Richardum Power Guardianum suum venit dicit quod ipse c. it should have been in the name of the Party quod ipsa c. Adjurnatur Harrison versus Austin A Settlement was made as followeth Viz. What words amount to a Covenant to stand seised That if I have no Issue and in case I dye without Issue of my Body lawfully begotten then I give grant and confirm my Land c. to my Kinswoman Sarah Stokes to have and to hold the same to the use of my self for Life and after my decease to the use of the said Sarah and the Heirs of her Body to be begotten with Remainders over c. The Question was whether this did amount to a Covenant to stand seised so as to raise an use to Sarah without transmutation of the possession The Objection against it was Sid. 26. Moor 687. Dyer 96. 2 Roll. Abr. 786. Winch 59. Plowd 300. that Vses are created chiefly by the intention of the Parties and that by these words grant and confirm the Feoffor did intend the Land should pass at Common Law so it could not be a Covenant to stand seised 't is like the Case where a Letter of Attorny is in the Deed or a Covenant to make Livery there nothing shall pass by way of use but the possession according to the course of the Common Law and therefore there being neither Livery and Seisin or Attornment no use will pass to Sarah It cannot be a Bargain and Sale for that is only where a Recompence is on each side to make the Contract good besides 2 Inst 672. the Deed is not inrolled To this it was answered 1 Vent 137. that it shall be construed to be a Covenant to stand seised though the formal words are wanting to make it so and for that purpose it was compared to Fox 's Case 8 Co. 93. who being seised in Fee devised his Land to C. for Life remainder over for Life reserving a Rent and afterwards by Indenture in consideration of Mony did demise grant and set the same Lands to D. for 99 years reserving a Rent the Lessee for Life did not attorn in which Case there was not one word of any use or any attornment to make it pass by Grant and the Question was whether this Lease for years shall amount to a Bargain and Sale so that the Reversion together with the Rent shall pass to the Lessee without Attornment Hob. 277. and it was held that by construction of Law it did amount to a Bargain and Sale for the words import as much And in this Case it was adjudged that it was a Covenant to stand seised Hexham versus Coniers IN Ejectment the Plaintiff declared de uno Messuagio sive Tenemento An Ejectment will lye for a Tenement and had a Verdict but Iudgment was arrested because an Ejectment will not lye of a Tenement for 't is a word of an uncertain signification it may be an Advowson House or Land but it is good in Dower so is Messuagium sive Tenementum vocat ' the Black Swan for this addition makes it certain that the Tenement intended is a House Rex versus Bunny A Motion was made for a Melius inquirendum to be directed to a Coroner who had returned his Inquisition upon the death of Bunny that he was not compos mentis when in truth he was Felo de se But it was opposed by Serjeant Pemberton and Mr. Pollexfen who said that the Law gives great credit to the Inquest of a Coroner and that a Melius inquirendum is seldom or never granted tho' it appear to the Court upon Affidavits that the Party had his Senses Mod. Rep. 82. It hath been granted where any fault is in the Coroner or any incertainty in the Inquisition returned That there is such a Writ it cannot be denied Cro. Eliz. 371. but 't is generally granted upon Offices or Tenures and directed to the Sheriff 3 Keb. 800. but never to a Coroner in the case of a Felo de se who makes his Enquiry super visum Corporis DE Term. Sancti Mich. Anno 4 Jac. II. in Banco Regis 1688. In Trinity-Vacation last Mr. Justice Holloway and Mr. Justice Thomas Powell had their Quietus and Mr. Serjeant Baldock and Mr. Serjeant Stringer were made Justices of this Court And Mr. Justice Allibon who was a Roman Catholick died in the same Vacation and Sir John Powell one of the Barons of the Exchequer was made a Justice of this Court Sir Thomas Jennor another of the Barons of the Exchequer was made a Justice of the Common-Pleas and Mr. Serjeant Rotheram and Mr. Serjeant Ingoldby were made Barons of the Exchequer Wright Chief Justice Powel Justices Baldock Justices Stringer Justices Shuttleworth versus Garnet Intratur Trin. 1 Willielmi Mariae Rotulo 965. THE Defendant was Tenant of Customary Lands held of the Manor of A. of which Manor B. was Lord
eldest Son for sixty years if he so long lived Remainder to Thomas for Life and that John made a Lease to the Plaintiff for a year The Defendant replied that after the Devise R. Frances made a Feoffment in Fee of the same Lands amongst others to the use of himself for Life Then as to the other Lands to divers Vses contained in the Deed but as to those Lands in which the Distress was taken to the same Vses as in the Will in which Conveyance there was this Priviso That if John should disturb his Executors in the quiet Enjoyment c. or if he shall not suffer them to carry away the Goods in his House then the Uses limited to him should be void He did hinder the Executors to carry away the Goods yet it was adjudged that he should keep his Estate because being a Stranger to the Feoffment he shall not lose it without notice of the Proviso But in answer to that Case notice was not the principal matter of that Iudgment it turned upon a point in Pleading for the Avowant had not shewed any special act of disturbance and a bare denial without doing any more was held to be no breach of the Condition Some other Authorities may be cited to prove notice necessary Green's Case 6 Co. 24. as where Tenant for Life of a Mannor to which an Advowson was appendant did in the year 1594. present Durston who neglecting to read the Articles was deprived nine years afterwards by the Ordinary at the Suit of the Patron who presented him who also dyed two years after the Deprivation then the Queen presented by Lapse whose Presentee was inducted and six years afterwards Durston dyed after whose death he in Remainder presented Green now though the Patron was a Party to the Suit of Deprivation and thereby had sufficient notice that the Church was vacant yet it was adjudged that a Lapse should not incurr but only after notice given by the Ordinary himself and not by any other person whatsoever But this Case may receive this Answer viz. That notice had not been necessary at Law but it was provided by a particular Act of Parliament 13 Eliz. ca. 12. that no Title by Lapse shall accrue upon any deprivation but after six months notice thereof given by the Ordinary himself to the Patron 'T is true the Law is very tender in divesting the Rights of the Subject but where an Estate is created by the Act of the Party and restrained by particular limitations without any appointment of notice there the Law will not add notice and make it necessary because the person who made such a disposition of his Estate might have given it upon what conditions he pleased Therefore it may seem hard that this Estate should be determined by the neglect or omission of the Trustees to give notice of this Proviso but 't is apparent that it was the intent of the Father it should be so for by this Limitation the Estate is bound in the Hands of an Infant the reason is because there is a Privity between an Heir and an Ancestor and therefore the Heir is bound to take notice of such Conditions which his Ancestor hath imposed on the Estate 2. This Estate is determined by the Marriage of the Daughter with Mr. Villiers because there is an express Limitation in the Deed for that very purpose she is enjoyned to marry a Fitzgerald or one who should take upon him that name which is still more extensive and she having neglected to do the one and her Husband having refused to do the other the Aunt in Remainder shall take advantage of this Non-performance And 't is this Remainder over which makes it a Limitation 1 Ventr 202. Owen 112. Goldsb 152. Lit. Sect. 723. for if it had been a Condition then the intent of the Father had been utterly defeated for none but the Heir at Law can enter for the breach of a Condition and such was Katharine in this Case The Proviso in this Deed depends upon another Sentence immediately going before 2 Co. 70. to which it hath reference and then by the express resolution in Cromwel's Case 't is a Limitation or Qualification of the Estate and not a Condition which Estate is now determined without Entry or Claim It was argued that in this Case three things are to be considered E contra 1. The Nature of the Proviso 2. That Notice is absolutely necessary 3. That the Notice given was not sufficient being not such as is required by Law As to the 1st The very nature of this Proviso is condemned by the Civil Law and because it works the destruction of Estates it hath never been favoured at the Common Law All Conditions to restrain Marriage generally are held void by both Laws so likewise are such which restrain people from marrying without the consent of particular persons because they may impose such hard terms before they give their consent that may hinder the Marriage it self and therefore a bare request of such without their subsequent assent has been always allowed to preserve the Estate 2. And which was the principal Point Notice in this Case is absolutely necessary both by the intent of the Father and by the construction of the Law There are three things of which the Law makes an equal Interpretation viz. Uses Wills and Acts of Parliament in which if the intention of the Parties and of the Law makers can be discerned the Cases which severally fall under the direction of either shall be governed by the intention without respect to the disagreeing words nay sometimes the Law will supply the defect of words themselves The Books are full of Authorites where Constructions have been made of Acts of Parliament according to the intent of the Makers and not according to the Letter of the Law As in Eyston and Stud's Case in the Commentaries Plowd Com. 2 pt 463. where the Husband and Wife levyed a Fine of the Lands of the Wife and declared the Vses to their Heirs in Tail the Remainder to the Heirs of the Wife they had Issue and the Husband died the Widow married a second Husband and he and his Wife join in a second Fine and declared the Vses thereof to themselves for Life the Remainder to the Husband and his Heirs for sixty years the Remainder in Tail to their Issue the Remainder to the Heirs of the Wife the Issue of the first Husband entred supposing the Estate had been forfeited by the Statute of H. 7. 11 H. 7. c. 20. which Enacts That if a Woman hath an Estate in Dower or in Tail jointly with her Husband or to her self of the Inheritance or Purchase of him and she doth either sole or with another Husband discontinue it shall be void and he in the Remainder may enter Now this Case was directly within the words of the Statute for the Woman had an Estate Tail in possession jointly with her first Husband
the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the
Revocation or not at all which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds c. the words whereof are Viz. That no Devise of Lands c. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing or other Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or in his presence and by his direction or consent But all devises of Lands c. shall be good until burnt cancell'd torn c. by the Testator c. or unless the same be altered by some other Will or Codicil in Writing or other Writing of the Devisor signed in the presence of three Witnesses declaring the same So that the Question will be whether a Will which revokes a former Will ought to be signed by the Testator in the presence of three Witnesses 'T is clear that a Will by which Lands are devised ought to be so signed and why should not a Will which revokes another Will have the same formality The Statute seems to be plain that it should for it saies that a Will shall not be revoked but by some Will or Codicil in writing or other writing of the Devisor signed by him in the presence of three or four Witnesses declaring the same which last Clause is an entire sentence in the disjunctive and appoints that the Writing which revokes a Will must be signed in the presence of three Witnesses c. Before the making of this Act it was sufficient that the Testator gave directions to make his Will tho' he did never see it when made which mischief is now remedied not in writing the Will but that the Party himself should sign it in the presence of three Witnesses and this not being so signed but only published by the Testator in their presence 't is therefore no good Revocation Iustice Street was of a contrary Opinion that this was a good Revocation That the words in the fifth Paragraph of this Statute which altered the Law were Viz. That all Devises of Lands c. shall be in Writing and signed by the Party so devising or by some other person in his presence and by his express Directions and shall be attested and subscribed in the presence of the Devisor by three or four credible Witnesses In which Paragraph there are two parts 1. The act of the Devisor which is to sign the Will but not a word that he shall subscribe his Name in the presence of three Witnesses 2. The act of the Witnesses viz. that they shall attest and subscribe the Will in the presence of the Devisor or else the Will to be void But the sixth Paragraph is penn'd after another manner as to the Revocation of a Will which must be by some Codicil in writing or other Writing declaring the same signed in the presence of three Witnesses Now here is a Writing declaring that it shall be revoked not expresly but by implication and though that Clause in the disjunctive which says that the revocation must be by some Writing of the Devisor signed in the presence of three Witnesses c. yet in the same Paragraph 't is said that it may be revoked by a Codicil or Will in Writing and therefore an exposition ought to be made upon the whole Paragraph that the intention of the Law may more fully appear Such a construction hath been made upon a whole Sentence Sid. 328. 1 Sand. 58. where part thereof was in the disjunctive as for instance viz. A Man was possessed of a Lease by disseisin who assigned it to another and covenanted that at the time of the assignment it was a good true and indefeasable Lease and that the Plaintiff should enjoy it without interruption of the Disseisor Or any claiming under him in this Case the Diffeisee re-entred and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor or any claiming under him yet he having undertaken for quiet enjoyment and that it was an indefeasable Lease it was adjudged that an exposition ought to be made upon the whole Sentence and so the Plaintiff had Iudgment The Chief Iustice Herbert was of the same Opinion with Iustice Street Rex versus Grimes and Thompson THE Defendants were indicted for being Common Pawn-Brokers Two are indicted for a Confederacy one is acquitted and that is the acquittal of the other and that Grimes had unlawfully obtained Goods of the Countess of c. and that he together with one Thompson per confoederationem astutiam did detain the said Goods until the Countess had paid him 12 Guineas Thompson was acquitted and Grimes was found Guilty which must be of the first part of the Indictment only for it could not be per confoederationem with Thompsom and therefore it was moved in arrest of Iudgment that to obtain Goods unlawfully was only a private injury for which the party ought not to be indicted To which it was answered that a plain Fraud was laid in this Indictment which was sufficient to maintain it and that tho one was acquitted yet the Iury had found the other guilty of the whole But the Court were of Opinion that the acquittal of one is the acquittal of both upon this Indictment and therefore it was quash'd King versus Dilliston Hill 2 3 Jacobi Rot. 494. A Writ of Error was brought to reverse a Iudgment in Ejectment given in the Common-Pleas Infant not bound by a Custom for one Messuage and twenty Acres of Land held of the Manor of Swafling There was a special Verdict found the substance of which was viz. That the Land in question was Copy-hold held of the said Manor of Swafling in the County of Suffolk and that Henry Warner and Elizabeth his Wife in right of the said Elizabeth were seized thereof for Life Remainder to John Ballat in Fee That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court that such Surrender shall be presented at the next Court of the said Manor and publick Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made to come and be admitted Tenant and if he refuseth then after three Proclamations made in each of the said Courts the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seise the Copyhold as forfeited They find that Henry Warner and his Wife and John Ballat made this Surrender out of Court to the use of Robert Freeman and his Heirs who died before the next Court and that John Freeman an Infant was his Son and Heir That after the said Surrender three Proclamations were made at three several Courts held for the said Manor but that the said John Freeman did not come to be admitted Tenant thereupon the Steward of the said Manor made a Precept to the Bayliff who seized the Lands in
c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
Intratur Trin. 1 W. M. Rot. 249. THis was a Trial at the Bar A Will shall not be revoked by a subsequent Writing unless that be also a good Will by a Wiltshire Iury in an Ejectment brought by the Plaintiffs as Heirs at Law to Ann Speke who died seized in Fee of the Lands in Question Vpon not Guilty pleaded this Question did arise at the Trial Whether the Answer of a Guardian in Chancery shall be read as Evidence in this Court to conclude the Infant There being some Opinions that it ought to be read and the Defendants Council insisting on the contrary Mr Iustice Eyres being the Puisne Iustice was sent to the Court of Common-Pleas then sitting to know their Opinions who returning made this Report That the Judges of that Court were all of Opinion that such Answer ought not to be read as Evidence for it was only to bring the Infant into Court and to make him a Party Then the Plaintiffs proceeded to prove their Title as Heirs at Law viz. by several Inquisitions which were brought into Court and by the Heralds Office The Defendants Title likewise was thus proved viz. That the Lady Speke being seised in Fee c. did by Will dated in March 1682. devise the Lands to John Petit for Life Remainder to the Defendant and his Heirs for ever That the Lady Speke died so seised that John Speke the Tenant for Life and Father to the Defendant was also dead c. This Will was proved by several Witnesses one of which likewise deposed that my Lady Speke made two other Wills subsequent to this now produced and a Minister prov'd that she burnt a Will in the Month of December which was in the year 1685. Then the Plaintiffs produced another Will made by her at Christmas 1685. attested by three Witnesses but not in the presence of my Lady so that though it might not be a good Will to dispose the Estate yet the Council insisted that it was a good Revocation of the other for 't is a Writing sufficient for that purpose within the sixth Paragraph of the Statute of Frauds The Case of Sir George Sheers was now mentioned whose Will was carried out of the Chamber where he then was into a Lobby and signed there by the Witnesses but one of them swore that there was a Window out of that Room to his Chamber through which the Testator might see the Witnesses as he lay in his Bed Vpon which Evidence the Iury found this special Verdict viz. That Ann Speke being seised in Fee c. did on the 12th day of March 1682. make her Will and devised the Lands to John Pettit for Life and afterwards to George his Son and to his Heirs for ever upon condition that he take upon him the Name of Speke That the 25th of December 1685. she caused another Writing to be made purporting her Will which was signed sealed and published by her in the presence of three Witnesses in the Chamber where she then was and where she continued whilst the Witnesses subscribed their Names in the Hall but that she could not see them so subscribing They find that the Lessors of the Plaintiff are Heirs at Law and that they did enter c. This matter was argued in Easter Term following and the Question was whether this Writing purporting a Will was a Revocation of the former or not and that depended upon the Construction of the sixth Paragraph in the Act of Frauds viz. All Devises of Lands shall be in Writing and signed by the party or some other in his presence and by his express Directions and shall be attested by three or four Witnesses c. and that such devise shall not be revocable but by some other Will or Codicil in Writing or other Writing c. declaring the same Now the want of Witnesses doth not make the last Will void in it self but only quoad the Lands therein devised it hath its operation as to all other purposes It must therefore be a Revocation of the former and this is agreeable to the Resolution of the Iudges in former times for there being nothing in the Statute of Wills which directs what shall be a Revocation 32 H. 8. cap. 1. Dyer 143. the Iudges in Trevilian's Case did declare that it might be by word of mouth or by the very intention of the Testator to alter any thing in the Will for before the late Statute very few words did amount to a Revocation Moor 429. 1 Roll. Abr. 614 615 616. If Lands are devised and afterwards a feoffment is made of the same but for want of Livery and Seisin 't is defective yet this is a Revocation of the Will though the Feoffment is void The Council on the other side argued that this Will was not void by any Clause in the Statute of Frauds E contra for if this is a Revocation within that Statute then this second Writing purporting a Will must be a good Will for if 't is not a good Will then 't is not a good Revocation within that Law No Man will affirm that the latter Writing is a good Will therefore the first being a Devise of Land cannot be revoked but by a Will of Land which the second is not This Statute was intended to remedy the mischief of parol Revocations and therefore made such a solemnity requisite to a Revocation It cannot be denied but that this latter Writing was intended to be made a Will but it wanting that perfection which is required by Law it shall not now be intended a Writing distinct from a Will so as to make a Revocation within the meaning of that Act. If a Man hath a power of Revocation either by Will or Deed and he makes his Will in order to Revoke a former this is a Writing presently but 't is not a Revocation as long as the person is living Therefore a Revocation must not only be by a Writing but it must be such a Writing which declares the intention of a Man that it should be so which is not done by this Writing Vpon the first Argument Iudgment was given for the Defendant that the second Will must be a good Will in all Circumstances to Revoke a former Will Cross versus Garnet THE Plaintiff declared that on such a day and year there was a discourse between him and the Defendant concerning the Sale of two Oxen then in the possession of the Defendant and that they came to an agreement for the same that the Defendant did then sell the said Oxen to the Plaintiff and did falsly affirm them to be his own ubi revera they were the Oxen of another Man The Plaintiff had a Verdict Cro. Eliz. 44. 1 Rol. Rep. 275. 2 Cro. 474 1 Roll. Abr. 91. More 126. Yel 20. Sid. 146. and Serjeant Thompson moved in arrest of Iudgment that the Declaration was not good because the Plaintiff hath not alledged that the Defendant did affirm the
3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was
Occupant and let the Land to the Plaintiff until c. Et hoc paratus est verificare The Defendant demurred to this Replication and had Iudgment The Matter now in Debate was upon Exceptions to the Barr. 1. For want of a Traverse that Sir Peter Werburton was seised in Fee at the time of the taking c. 2. For want of a sufficient Title alledged in the Plaintiff for that by the Statue of Frauds all Occupancy is now taken away It was argued that the Replication was good without a Traverse Co. Ent. 504. for where the Plaintiff hath confessed and avoided as he hath done here if he had traversed likewise that would have made his Replication double He confesseth that Sir P. W. was seised in Fee of the Mannor but afterwards the Seisin was expresly alledged to be in Sir George the Father and that the place where was parcel thereof which is a Confession and an Avoidance The Avowant should have traversed this Lease but the Traverse of the Plaintiff upon him had made it a worse Issue Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass Cro. Car. 384. the Defendant pleaded that the locus in quo was the sole Freehold of John c. and justified by his Command The Plaintiff replyed that the Land was parcel of the Mannor of Abbots Anne and that W. was seised in Fee and levied a Fine to the use of himself and Wife for their Lives the Remainder to E. for 100 years if he lived so long who after the death of the Cognizors entred and made a Lease to the Plaintiff And upon a Demurrer to this Replication the same Exception was then taken as now viz. that the Plaintiff did not confess and avoid the Freehold of John but the Plaintiff had Iudgment for the Barr being at large and the Title in the Replication being likewise so too the Plaintiff may claim by a Lease for years without answering the Freehold The not concluding with a Traverse is but a form and the Court will proceed according to the Right of the Cause without such form 27 Eliz. c. 5. 't is a defect which after a Ioinder in Demurrer is expresly helped by the Statute of Ieofails which enables the Court to amend defects and want of Forms other than such for which the party hath demurred The Case of Edwards and Woodden is in point Cro. Car. 323. 6 Co. Heyley 's Case Dyer 171. b. 1 Leon. 77 78. contra it was in Replevin the Defendant made Cognizance as Bailiff to Cotton for that the place where c. was so many Acres parcel of a Mannor c. that Bing was seised thereof in Fee who granted a Rent Charge out of it to Sir Robert Heath in Fee who sold it to Cotton c. The Plaintiff in Barr to the Conusance replied and confessed that the Land was parcel of the Mannor c. and that Bing was seised in Fee prout c. and granted the Rent to Sir R. H. but that long before the Seisin of Bing c. one Leigh was seised thereof in Fee who devised it to Blunt for a Term of years which Term by several Assignments came to Claxton who gave the Plaintiff leave to put in his Cattel c. And upon a Demurrer to this Replication an Exception was taken to it for that the Plaintiff did not shew how the Seisin and Grant of Bing to Sir R. H. was avoided for having confessed a Seisin in Fee prout c. that shall be intended a Fee in possession and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt c. and so to Claxton it may be intended that the Grantor was only seised in Fee of the Reversion and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo But three Iudges seemed to encline that the Replication was good and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alledged by the Defendant for he had shewed a Lease for years precedent to the Defendants Title and which was not chargeable with the Rent and his pleading that the Grantor Bing was seised in Fee must be only of a Reversion expectant upon that Lease But if his Confession that Being was seised in Fee prout c. shall be intended a Seisin in Fee in possession yet the Replication is good in substance because the Charge against the Plaintiff is avoided by a former Estate and in such Case 't is not necessary to take a Traverse But after all it was held that if it be a defect 't is but want of a Form which is aided by the Statute and that is this very Case now in question The want of a Traverse seldom makes a Plea ill in substance but a naughty Traverse often makes it so because the adversary is tied up to that which is material in it self so that he cannot answer what is proper and material and therefore in Ejectment upon a Lease made by E. I. Yelv. 151. Bedel versus Lull the Defendant pleaded that before E. I. had any thing to do c. M. I. was seised in Fee after whose death the Land descended to his Heir and that E. entred and was seized by Abatement The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entred absque hoc that E. I. was seized by Abatement and upon a Demurrer this was held to be an ill Traverse for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise and therefore ought not to have traversed the Abatement for having derived a good Title by the Devise to his Lessor 't is an Argument that he entred lawfully and it was that alone which was issuable and not the Abatement therefore it was ill to traverse that because it must never be taken but where the thing traversed is issuable Then it was said that the Conusance was informal because the Avowant should have said that the Locus in quo c. contains so many Acres of Ground c. he only saith that it was parcel of a Mannor besides he neither prays Damages nor Retorn ' Habend ' 2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy it only appoints who shall be a special Occupant Besides here is a Title within the Statute for a Lease for Lives is personal Assets so is a Term in the Hands of an Executor de son tort and in this Case the entring of one Brother after the death of the other made him an Executor de son tort More 126. Sid. 7. and it was never yet doubted but that there may be such an Executor of a Term. Whereupon it was concluded that the Barr was good both as to the Form
Remainder during her Life 84 2. There must be proof of the Stealing an Heiress either by slight or force to bring the person within the Statute of Phil. Mar. 169 3. There must be a continued disassent of the Parent or Guardian for if she once agree 't is an assent within the Statute though she or they disagree afterwards 169 4. Marriage de facto is triable in the Temporal Courts but de Jure in the Spiritual Court only 165 Mandamus Denied to restore a person to a Fellowship of a College 265 2. Denied to restore a Proctor to his Office in Doctors Commons 332 3. It hath been granted to restore an Attorny 333 4. It will not lye to restore a Steward of a Court-Baron 334 Master and Servant See Robbery 2. Where the Act of the Servant shall charge the Master 323 2. Where the Master may have an Action for a Robbery done upon the Servant 287 Melius Inquirendum Not granted but for a Misdemeanour in the Jury 80 2. It never helps a defective Inquisition 336 3. Whether it may be granted to a Coroner in the Case of a Felo de se who makes his Enquiry super visum corporis 238 Merchants See Custom Pleas and Pleading Misfeazance Not Guilty is a good Plea to any Misfeazance whatsoever 324 Misprision of Clerk See Amendment Mistrial 'T is not a Mistrial where the day and place of the Assises is left out of the Distringas for the Jurata is the Warrant to try the Cause 78 Mortuary 'T is not due but by particular Custom of the Place 268 Monopoly The Definition of it 131 N. Ne exeat Regum IS a Writ grounded upon the Common Law and not given by any particular Statute 127 2. It was brought to prevent a person who had married an Heiress without her Parents consent to go beyond Sea 169 Nolle prosequi Whether it may be entred after the Jury is sworn 117 Non compos Mentis If he releaseth his Right that shall not bar the King but he shall seize his Lands during Life 303 2. Surrender made by him is void 305 3. He may purchase Lands and may grant a Rent-Charge out of his Estate and shall not plead Insanity to avoid his own Acts 309 Notice See Executor 115. A Settlement was made in Trust for A. provided she married with the consent of Trustees Remainder to B. she married without consent Whether the Trustees ought not to give notice of this Settlement before the Marriage or whether the Estate is forfeited without notice 29 30 2. Where Conditions are annexed to Estates to pay Mony notice is necessary but where Estates are limitted upon performance of collateral acts 't is not necessary 30 3. Lapse shall not incur upon a Deprivation but after notice given to the Patron by the Ordinary himself 31 4. The Heir himself ought to have notice of such Conditions which his Ancestor hath put upon his Estate because he hath a good title by descent 34 5. Where it ought to be given of Debts to an Executor 115 Number Where the singular number shall be intended by the plural as by Children is meant Child 63 O. Obligation Obligor and Obligee DEbt upon Bond will not lie before the day of payment is past but it may be released before 61 2. Where the Debt is confessed under and Hand Seal whether that will amount to an Obligation 154 Office and Officer Whether the Office of Marshal of B.R. can be granted in Trust 145 2. It cannot be granted for years ibid. 3. Non-Attendance whether a Forfeiture or not 146 4. Non-Feazance is a Forfeiture ibid. 5. It lies in Grant and cannot be transferred without Deed 147 6. Neither a Judicial or a Ministerial Officer may make a Deputy unless there is an express Clause in the Grant that it may be executed per se vel Deputatum 147 150 7. Marshal of B. R. may grant that Office for Life but cannot give the Grantee power to make a Deputy 147 8. That Office may be granted at will 149 9. Deputy may be made without Deed 150 Ordinary Probate of Wills did not originally belong to him 24 2. He had no power at Common Law over the Intestate's Estate 25 3. An Action lay against him at Common Law if he got the Goods and refused to pay the Intestate's Debts 25 4. Was alone entrusted by the Common Law as to the distribution of the Intestates Estate 59 5. Afterwards by the Statute of W. 2. was bound to pay Debts so far as he had Assets 60 6. Then and not before an Action of Debt might be brought against him if he did dispose the Goods without paying Debts ibid. 7. By the Statute of the 31st of Ed. I. he was bound to grant Administration to the next of Kin ibid. 8. Afterwards by the Statute of 21 H. 8. was compelled to grant it to the Widow or next of Kin or both ibid. 9. Before the Statute of Distributions he always took Bond of the Administrator to distribute as the Ordinary should direct ibid. Outlary See 5 Ed. 6. For Treason cannot be reversed without the Consent of the Attorney-General 42 2. For Treason the Party was taken within the year but because he was apprehended and did not render himself he had not the benefit of the Statute 47 3. For Treason and a Rule of Court for the Execution of the person 72 4. For Murder against three persons it was reversed because it did not appear that the Court was held pro Comitatu 2dly 't is said Non comperuit but doth not say nee eorum aliquis comperuit 90 P. Pardon THE King hath power to pardon by general words as felonica interfectio for Murder 37 2. Where his Power is restrained by Act of Parliament yet a Non obstante is a Dispensation to it 38 3. A Suit was commenced for Dilapidations which is to have satisfaction for Damages sustained 't is not pardoned by these general words viz. Offences Contempts and Penalties 56 4 If an Interest is vested in the King a Pardon of all Forfeitures will not divest it without particular words of Restitution 101 241 242 5. An Exception in a Pardon ought to be taken as largely as the Pardon it self 242 6. A Pardon of all Offences except Offences in collecting of the King's Revenue that must be of the stated Revenue and not what arises by any Forfeiture ibid. Parish See Indictment Parliament Writ of Error upon a Judgment in B. R. returnable in Parliament Prorogued from the 28th of April to the 29th of November whether this was a Supersedeas to the Execution because a whole Term intervened between the Teste and Return of the Writ of Error 125 Pedegree Where persons are named by way of Title and where by way of Pedegree 255 Perjury See Information Pleading In pleading of the Statute of Usury you must set forth what Agreement was made and what Sum was taken more than six pound in the Hundred 35 2.
Man from having any Office whatsoever who shall affirm the King to be a Papist 13 Car. 2. cap. 1. that is a person who endeavours to introduce Popery 2. But if the word Papist is not actionable of it self yet as coupled with his Offices 't is otherwise and the Plaintiff may well maintain this Action And of that Opinion was all the Court So the Iudgment was affirmed Malloon versus Fitzgerald ERror of a Iudgment in Ireland Where an Estate Tail shall not be determined for want of notice of a Proviso to determine it for Lands in the County of Waterford the Case upon the special Verdict was this John Fitzgerald was seized in Fee of the Lands in question who had Issue Katherine his only Daughter He by Lease and Release made a Settlement of those Lands upon the Earl of Ossory and other Trustees therein named and their Heirs to the use of himself for Life and after his Decease to the use of his Daughter Katherine in Tail Provided that she Married with the consent of the said Earl and the Trustees or the major part of them or their Heirs some worthy person of the Family and Name of Fitzgerald or who should take upon him that Name immediately after the Marriage but if not then the said Earl should appoint and raise a Portion out of the said Lands for the Maintenance of the said Katherine with a Remainder to Laetitia in Tail John Fitzgerald died his Daughter being then but two years old She afterwards at the Age of fourteen had Notice of this Settlement but not by the Direction of the Trustees That on the 20th of March in the 16th year of her Age she Married with the Plaintiff Edward Villiers Esq without the consent of the Trustees or the major part of them and that her Husband Mr. Villiers did not take upon him the Name of Fitzgerald after the said Marriage That Laetitia the Aunt was married to Franklyn who likewise did not take upon him the Name of Fitzgerald 1. The Questions were Whether the Estate limited to Katherine be forfeited without Notice given to her of the Settlement by the Trustees themselves 2. Whether her Estate be not determined by her marrying Mr. Villiers without their consent And it was argued That the Estate Tail was determined And first as to the point of Notice 't is not necessary to be given to the Daughter because the Father had not made it in the Settlement He might dispose of his Estate at his pleasure and having made particular Limitations of it there is no room now for the Law to interpose to supply the defect of Notice in the Deed. And to this purpose the Mayor of London 's Case was cited which was That George Monox Devised certain Houses to his Executors in Trust and their Heirs Cro Car. 576. Idem Jones 452. upon condition to pay mony to several Charitable uses which if not performed then he devised them over to his Heir in Tail upon the same Conditions and if not performed by him then to the * The Devise to him was void because it was a possibility upon a possibility Mayor and Commonalty of London The Trusts were not performed by the first Devisees A Stranger entered and levied a Fine with Proclamations and five Years passed Then the Mayor of London brought his Action supposing he had a right of Entry for the non performance of the Trusts but was barred by the Fine although it was argued for him that he had not notice of the Devise or breach of the Trust till after the Fine levied which shews that Notice was not necessary for if it had been so when his Title accrewed he could not have been barred by the Fine As Katherine the Daughter takes notice what Estate she hath in the Land so as to pursue a proper Remedy to recover it so she ought to take notice of the Limitations in the Settlement and hath the same means to acquaint her self with the one as with the other and the same likewise as her Aunt had to know the Remainder Suppose a Promise is made to indempnifie another from all Bonds which he should enter into for a third person 2 Cro. 432. Hob. 51. Jones 207. Pop. 164. and then an Action is brought against him wherein the Plaintiff declared that he was bound accordingly and not saved harmless but doth not shew that he gave notice of his being bound yet the Plaintiff shall recover As to the Case of a Copyholder having three Sons who surrendred to the use of his Will 2 Cro. 56. and then devised to his middle Son in Fée upon condition to pay Legacies to his Sisters at full age which were not paid Now tho' it was adjudged that his Estate was not determined upon the non-performance of this Condition without an actual demand and denial and that he was not bound to take notice of the full age of his Sisters yet this is not an Authority which can any wise prevail in this Case because 't is a * If the Devise had been to the eldest Son then it had been a Limitation annexed to his Estate and not a Condition because if it had been a Condition it would have descended upon the Heir who could not be sued for the breach 1 Ventr 199. Rep. Canc. 140. Sid. Poph. 104. Condition to pay Legacies which is a thing in its nature not to be paid without a demand which implies notice In all Cases where Conditions are annexed to Estates to pay Mony there notice is necessary but where Estates are limited upon the performance of collateral acts 't is not necessary And this has been held the constant difference So is Fry and Porter 's Case which was this The Earl of Newport had two Daughters and he devised Newport House to the Daughter of his eldest Daughter in Tail which she had by the Earl of Banbury Provided and upon condition that she marry with the consent of her Mother and two other Trustees or the major part of them if not or if she should dye without Issue then he devised the said House to George Porter in Fee who was the Son of his youngest Daughter and who had married one Thomas Porter without her Fathers consent The Lady Ann Knowles the first Devisee married Fry without the consent of her Grandmother or Trustees and it was adjudg'd against her upon point of Notice that it was not necessary because her Grandfather had not appointed any person to give notice he might have imposed any Terms or Conditions upon his own Estate and all Parties concerned had the same means to inform themselves of such Conditions The third Resolution in Frances Case 8 Co. comes nearest to this now in question it was in Replevin the Defendant avowed the taking Damage Fesant The Plaintiff pleaded in Barr to the Avowry that R. Frances was seized in Fee of the place where c. and devised it to John who was his
Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
the six Months by this means the Conusee of the Statute is defeated for after the inrollment the Land passeth ab initio and the Bargainee in Iudgment of Law was seised thereof from the delivery of the Deed but not by way of Relation but by immediate Conveyance of the Estate by vertue of the Statute of Vses But the Law will not suffer contingent Remainders to waver about and to be so incertain that no Man knows where to find them which they must be if this Doctrine of Relation should prevail Now suppose the Surrendree had made a Grant of his Estate to another person before he had accepted of the Surrender and the Grantee had entred would this subsequent assent have divested this Estate and made the Grant of no effect if it would then here is a plain way found out for any Man to avoid his own acts and to defeat Purchasors Therefore 't is with great reason that the Law provides that no person shall take a Surrender but he who hath the immediate Reversion and that the Estate shall still remain in the Surrenderor until all acts are done which are to compleat the Conveyance Those who argued against the Iudgment E contra held that the Estate passed immediately without the assent of the Surrenderor and that even in Conveyances at the Common-Law 't is divested out of the person and put in him to whom such Conveyance is made without his actual assent 'T is true in Exchanges the Freehold doth not pass without Entry nor a Grant of a Reversion without an Attornment but that stands upon different Reasons from this Case at the Bar for in Exchanges the Law requires the mutual acts of the Parties exchanging and in the other there must be the consent of a third person But in Surrenders the assent of the Surrendree is not required for the Estate must be in him immediately upon the execution of the Deed if he doth not shew some dissent to it If a Man should plead a Release without saying ad quam quidem relaxationem the Defendant agreavit yet this Plea is good because the Estate passeth to him upon the execution of the Deed. It may be a Question whether the actual assent must be at the very time that the Surrender was made for if it should be afterwards t is well enough and the Estate remaineth in the Surrendree till dis-agreement Presumption stands on this side for it shall never be intended that he did not give his Assent but on the contrary because t is for his benefit not to refuse an Estate Therefore where a Feme Sole had a Lease and married Hob. 203. the Husband and Wife surrendred it to another in consideration of a new Lease to be granted to the Wife and her Sons c. this Estate vests immediately in her tho' a Feme Covert and that without the assent of her Husband for the Law intends it to be her Estate till he dissent 't is true in that Case his assent was held necessary because the first Lease could not be divested out of him without his own consent So a Feoffment to three 2 Leon. 224. and Livery made to one the Freehold is in all 'till disagreement So if a Bond be given to a Stranger for my use and I should die before I had agreed to it my Executors are entituled to an Action of Debt and will recover A Feme Covert and another were Ioint-tenants for Life 1 Rol. Rep. 401 441. she and her Husband made a Lease for years of her moiety reserving a Rent during her Life and the Life of her partner then the Wife died this was held to be a good Lease against the surviving Ioint-tenant till disagreement which shews that the agreement of the Parties is not so much requisite to perfect a Conveyance of this nature as a disagreement is to make it void And this may serve as an answer to the second point which was not much insisted on that Mens Titles would be incertain and precarious if after the assent of the Surrendree the Estate should pass by Relation at the very time that the Deed was executed and that it was not known where the Free-hold was in the mean time for if he had agreed to it immediately it had been altogether as private Then as to the Pleadings 't is true that generally when a Surrender is pleaded 't is said ad quam quidem sursum redditionem the Party adtunc ibidem agreavit which implies that the Surrendree was then present and in such Case he ought to agree or refuse Besides those Actions to which an Agreement is thus pleaded were generally brought in disaffirmance of Surrenders and to support the Leases upon which the Plaintiffs declared and then the proper and most effectual Bar was to shew a Surrender and express Agreement before the Action brought It might have been insufficient pleading not to shew an Acceptance of the Surrendree but 't is not substance for if Issue should be taken whether a Surrender or not Cro. Eliz. 249. and a Verdict for the Plaintiff that defect of setting forth an Acceptance is aided by the Statute of Ieofails In this Case there is not only the Word Surrender but * Grant and Release which may be pleaded without any consent to it and a Grant by operation of Law turns to a Surrender because a Man cannot have two Estates of equal dignity in the Law at the same time Neither can it be said that there remained any Estate in Simon Leach after this Surrender executed for 't is an absurd thing to imagine that when he had done what was in his power to compleat a Conveyance and to divest himself of an Estate yet it should continue in him Therefore the Remainder in Contingency to the Lessor of the Plaintiff was destroyed by this Surrender of the Estate to him in reversion for by that means when it did afterwards happen there was no particular Estate to support it But notwithstanding the Iudgment was affirmed and afterwards Anno quarto Gulielmi Mariae upon a Writ of Error brought in the House of Lords it was reversed Idem versus Eundem THIS Point having received a legal determination the same Plaintiff brought another Action of Trespass and Ejectment against the same Defendant Surrender by a person Non compos is void and at a Trial at the Barr in Easter Term nono Gulielmi Regis another special Verdict was found upon which the Case more at large was viz. That Nicholas Leach being seised in Fee of the Lands in question made his Will in these Words viz. In the Name of God Amen c. I devise my Mannors of Bulkworth Whitebear and Vadacot in Devonshire and Cresby Goat and Cresby Grange in Northallerton in Yorkshire unto the Heirs Males of my Body begotten and for want of such Issue Male I devise the same unto my Brother Simon Leach for Life and after his decease to the
said Feoffees made a Feoffment of the Land in Fee without any consideration afterwards Christopher had Issue two Sons Now the Vses limited by the Feoffment of Sir R. C. being only contingent to the Sons of Christopher and they not being born when the second Feoffment was made to their Father the Question now was whether they shall be destroied by that Feoffment before the Sons had a Being in Nature or whether they shall arise out of the Estate of the Feoffees after their Births And it was adjudged in the Exchequer Chamber that the last Feoffment had divested all the precedent Estates and likewise the Vses whilst they were contingent and before they had an existence and that if the Estate for Life which Christopher had in those Lands had been determined by his death before the birth of any Son the future Remainder had been void because it did not vest whilst the particular Estate had a being or eo instanti that it determined So in this Case Mr. Leach cannot have any future Right of Entry for he was not born when the Surrender was made so that the contingency is for ever gone Suppose a Feoffment in Fee to the use of himself and his Wife and to the Heirs of the Survivor The Husband afterwards makes another Feoffment of the same Lands Cro. Car. 102. and dies and the Wife enters the Fee shall not vest in her by this Entry for she had no right the Husband has destroyed the contingent use by the last Feoffment so that it could not accrew to her at the time of his death Nay tho' the particular Estate in some Cases may revive yet if the contingency be once destroyed it shall never arise again As where the Testator being seized in Fee of Houses 2 Sand. 380. devised the inheritance thereof to such Son his Wife should have after her Life if she baptized him by his Christian and Sir-Name and if such Son dye before he attain the Age of 21 years then to the right Heirs of the Devisor He died without Issue the Widow married again then the Brother and Heir of the Testator before the birth of any Son conveyed the Houses thus Viz. To the Husband and Wife and to their Heirs and levied a Fine to those uses Afterwards she had a Son baptised by the Testator's Christian and Sir-Name Then the Husband and Wife sold the Houses to one Weston and his Heirs and levied a Fine to those Vses It was adjudged that by the Conveyance of the Reversion by the Brother and Heir of the Testator to the Baron and Feme before the Birth of the Son her Estate for Life was merged and tho' by reason of her Coverture she might waive the Joint-tenancy 2 Roll. Abr. 796. Wigg versus Villiers and reassume the Estate for Life yet that being once merged the contingent Remainders are all destroied Curia Cro. Car. 502. The Grants of Infants and of persons non compos are parallel both in Law and Reason and there are express Authorities that a Surrender made by an Infant is void therefore this Surrender by a person non compos is likewise void If an Infant grants a Rent-charge out of his Estate 't is not voidable but ipso facto void for if the Grantee should distrain for the Rent the Infant may have an Action of Trespass against him In all these Cases which have been cited where 't is held that the Deeds of Infants are not void but voidable the meaning is that non est factum cannot be pleaded because they have the form though not the Operations of Deeds and therefore are not void upon that account without shewing some special matter to make them of no efficacy Therefore if an Infant maketh a Letter of Attorny though 't is void in it self yet it shall not be avoided by pleading non est factum but by shewing his Infancy Some have endeavoured to distinguish between a Deed which giveth only authority to do a thing and such which conveys an interest by the delivery of the Deed it self that the first is void and the other voidable But the reason is the same to make them both void only where a Feoffment is made by an Infant 't is voidable because of the solemnity of the Conveyance Now if Simon Leach had made a Feoffment in Fee there had still remained in him such a Right which would have supported this Remainder in Contingency This Surrender is therefore void and all persons may take advantage of it Afterwards a Writ of Error was brought to reverse this Iudgment in the House of Lords but it was affirmed Cases Adj. 150. Hall versus Wybank THE Statute of Limitations is Statute of Limitations whether it extendeth to the Defendant being beyond Sea six years 21 Jac. cap. 16. that if any person be entituled to an Action and shall be an Infant Feme Covert Imprisoned or beyond Sea that then he shall bring the Action at full Age Discovert of saue Memory at large and returned from beyond Sea The Plaintiff brought an Indebitatus Assumpsit to which the Defendant pleaded non assumpsit infra sex Annos The Plaintiff replied that the Defendant was all that time beyond Sea so that he could not prosecute any Writ against him c. And upon a Demurrer Serjeant Tremaine argued that the Plaintiff was not barred by the Statute which was made to prevent Suits by limiting personal Actions to be brought within a certain time and it cannot be extended in favour of the Defendant who was a Debtor and beyond Sea because 't is incertain whether he will return or not and therefore there is no occasion to begin a Suit till his return 'T is true the Plaintiff may file an Original and Outlaw the Defendant and so seise his Estate but no Man is compelled by Law to do an act which is fruitless when 't is done and such this would be for if the Plaintiff should file an Original 't is probable the Defendant may never return and then if the Debt was 1000 l. or upwards he would be at a great Expence to no purpose or if the Party should return he may reverse it by Error 'T is a new way invented for the payment of Debts for if the Debtors go beyond Sea and stay there six years their Debts would by this means be all paid The words of the Statute do not extend to this Case for the Proviso is That if the Plaintiff be beyond Sea when the cause of Action doth accrew Cro. Car. 246. 333. that then he have shall liberty to continue it at his return yet 't is within the equity of Law for him to bring his Action when the Defendant returns who cannot be sued 'till then That Statutes have been expounded according to Equity is not now a new Position 2 Roll. Rep. 318. for Constructions have been made according to the sense and meaning and not according to the Letter of many Statutes
the King may be seized in Fee of an Hundred and that he may grant Retorna Brevium the Statutes are plain in it 14 E. 3. c. 9. for otherwise how came any Lords to have Hundreds in Fee but by the Kings Grants And 't is as plain that Hundreds may be divided from the County 2 E. 3. c. 12. for else to what purpose was the Statute of Lincoln made which adjoins Hundreds and Wapentakes to the Counties and provides that they shall never be separated again this shews that they were divided at that time The Objections which have been made are viz. That the Defendant cannot have a Title to this Office by Grant and he hath not made any Prescription to it The Reasons given why he could not have it by Grant were because ancient Hundreds which were united to the Counties by the Statute of Ed. 3. could never afterwards be divided from them by any Grant of the King and those which were excepted in that Statute as being granted in Fee by the King or his Ancestors when they come again to the Crown cannot be regranted because they are merged in it In answer to which it was said that such ancient Liberties which were created by the Crown and did subsist by the King 's Grant before the Statute of Ed. 3. when afterwards they came to the King were not merged but remained a distinct Interest in him The Hundred of Gartree in the County of Leicester was such a Liberty it was an ancient Hundred and granted by Ed. 2. Cole versus Ireland Raym. 360. to John Sedington not in Fee but durante bene placito Regis this Grant was long before the making of the Statute of Ed. 3. and yet afterwards this very Hundred was granted to several other persons by the suceeding Kings of England which shews it was merged in the Crown when it came to the King The other Objection was that Retorna Brevium doth not lie in Prescription Now as to that though it be true that no Title by Prescription can be made to such Franchises and Liberties which cannot be seized as forfeited before the cause of Forfeiture appears on Record because Prescription being an Vsage in pais doth not extend to such things which cannot be had without matter of Record 1 Inst 114. b. Yet my Lord Coke is clear that a good Title may be made to hold Pleas Leets Hundreds c. by Prescripteon only without Matter of Record But notwithstanding what was said to maintain this Plea Iudgment was given against the Defendant Rex versus Griffith THE Defendant was convicted of Manslaughter at the Old-Bayly Indictment for Murder the Party was found guilty of Manslaughter and pleaded his Pardon and afterwards the Indictment was quashed to save the Forfeiture of his Goods and the Record being removed into this Court by Certiorari he pleaded his Pardon and had Iudgment Quod eat inde sine die But being once convicted the Dean and Chapter of Westminster did seize his Goods as forfeited by that Conviction who thereupon although he was out of the Court by that Iudgment yet he moved by his Council to quash the Indictment The Exceptions taken were viz. That the Indictment was Per Sacramentum duodecim proborum legalium hominum jurat ' onerat ' praesentat ' existit modo forma sequen ' Midd. ss Juratores pro Domino Rege praesentant c. That there was no President to warrant such an Indictment for this may be the Presentment of another Iury it being very incoherent to say that it was presented by the Oaths of twelve Men that the Iury do present It ought to be praesentat ' existit quod c. and so is the form of this Court as the Clerk of the Crown inform'd them 2. They present that Griffith and two others did make an Assault on the Body of the deceased and that quidam Johannes in nubibus did wound him with a Gun so that 't is uncertain who did shoot and what Gun was discharged which ought to be certainly laid in the Indictment Vaux 's Indictment for Poisoning Ridley was 4 Co. 44. b. that the said Ridley not knowing the Beer to be poyson'd but being perswaded by Vaux recepit bibit but did not say venenum praedictum and so it not appearing what thing he did drink which ought to have been expresly alledged the Indictment was held insufficient And the reason is plain for an Indictment for Felony being a Declaration for the King against the Life of a Subject ought to set forth a sufficient certainty of the Fact which shall not be supplied either by Argument or any intendment whatsoever And therefore in Long 's Case the Defendant was indicted for discharging a Gun upon Long 5 Co. 122. b. Dans eidem Henrico Long mortale vulnus and doth not say percufsit for which reason that Indictment was also held insufficient because in all Indictments for Murder they ought expresly to alledge a stroke given For these Reasons the Indictment was quashed and a new Roll was made on which this Indictment and Certiorari were both entred and Iudgment quod exoneretur and this was done to avoid the seizure And afterwards in Michaelmas Term primo Will. Mar. it was said by the Chief Iustice that it must be intended these were two persons for no Court would justifie such a Iudgment Anonymus IN Assault and Battery After a Traverse you must not conclude to the Country the Defendant pleaded a Release of all Actions c. The Plaintiff replied that the Release was gotten by duress c. The Defendant rejoyned and shewed cause why it was not gotten by duress but that he sued forth a Capias and did Arrest him c. and that the Release was voluntary c. The Plaintiff surrejoyns and saith that it was gotten by duress absque hoc that it was voluntary Et hoc petit quod inquiratur per patriam Vpon this Issue the Cause was tryed Dyer 353. a. 1 Inst 126. a. Cro. Car. 316. Sid. 341. 2 Cro. 588. 2 Rol. Rep. 186. and the Plaintiff had a Verdict and now it was moved in Arrest of Iudgment that he ought not to conclude to the Country after a Traverse because a Traverse it self is Negative and therefore the Defendant ought to have joyned issue in the Affirmative 't is true if issue had been joyned before the Traverse it might have been helped by the Statute of Ieofails but it was not so in this Case and therefore the Iudgment was Arrested Hitchins versus Basset Mil ' IN Ejectment upon the Demise of Mr. Nosworthy The Iury found a special Verdict A subsequent Will which doth not appear shall not be a Revocation of the former the substance of which was Viz. That Sir Henry Killigrew was seised in Fee of the Lands in question in the County of Cornwal and being so seised did in the year 1644. devise the
before a Coroner the person having drowned himself it was suffocat ' emergit fuit if it had stood singly upon the word emergit it had been insensible but the word suffocat ' expressing the sense it was held good 100 4. Where nothing is vested in the King before Office found ibid. 5. It must always be found that there is an Estate in the person offending and a cause of Forfeiture of that Estate to vest it in the King 336 Interest in a thing See Pardon 4. Where a Man may have an interest in a Chattel without a Property 61 2. Devise to a Wife and Children after Debts and Legacies paid an interest vests in the Devisees but 't is otherwise in case of Administration for there no Interest vests till actual distribution 65 3. A Man may have a Property tho' not in himself as in the Case of Joyntenancy 97 Intestate See Administration Innuendo The proper office of it is to make the subject matter certain 53 2. It will not help insensible words 54 Joyntenancy and Tenancy in Common See Abatement 3. Baron and Feme 12. Interest 3. If one Joyntenant bring an Action against the other unless he pleads the Jointenancy in abatement the Plaintiff will recover 97 2. If two Coparceners lease a House and the Rent is arrear and one brings an Action and recovers Judgment shall be arrested because both ought to joyn 109 3. Tenants in Common must join in the personalty but 't is otherwise in real Actions for though their Estates are several yet the Damages to be recovered survive to all 109 251 4. Where one Commoner may bring an Action against his Fellow 251 Joint Action See Action for a wrong 6. Ioyntenancy 2 3. Where an Action may be joint or several at the Election of the Plaintiff 86 2. Where 't is brought against three Defendants who plead jointly the Jury may sever the Damages and the Plaintiff may take Execution de melioribus damnis as well as where their Pleas are several and Tryals at several times 101 102 3. Judgment against two and one brought a Writ of Error and assigned the Infancy of the other for Error the Writ was abated because both did not joyn 134 4. The Defendants in the original Action must joyn in a Writ of Error but it seems otherwise where the Plaintiffs bring Error 135 5. Two covenant to sell Lands and the Purchasor agreed to pay the Mony to one of them he alone ought to bring the Action 263 6 Where there are several Proprietors of a Vessel for carriage of Goods which are damaged by carrying the Action must be brought against all or against the Master alone 321 322 7 Where two Tenants in Common were sued for not setting out of Tythes the Action ought to be brought not against him who set them out but against the other who carried them away 322 8. Two are bound joyntly one is sued he may plead in Abatement that he was bound with another but cannot plead Non est factum 323 9 In all Cases which are grounded upon Contracts the Parties who are Privies must be joyned in the Action ibid. 10 Action must be brought against all where a promise is created by Law 324 Issue Must be joyned upon an affirmative and a negative by concluding to the Country 80 Iudges The making altering and displacing of several Judges Serjeants at Law and King's Council 71 99 100 104 125 143 191 239 Iustices of Peace Offences against the Statute of 23 Eliz c. 1. for not coming to Church may be enquired of by them in their Sessions 79 2. Where a Statute appoints a thing finally to be done by them yet the Court of King's Bench may take Cognizance of it 95 3. Conviction for keeping of a Gun before a Justice of Peace the time when he had not 100 l. per Annum must be precisely alledged 280 Iustification See Pleading 4 5. Where 't is pleaded by way of Excuse to an Action of Trespass for the taking of any thing the Defendant must averr the Fact to be done and set forth the Warrant to him directed and the taking virtute Warranti and not generally that he took it by a Mandate c. 138 2. In Replevin where the Defendant made Conusance in right of the Lord he may Justifie the taking generally ibid. Iudgment 1. At the Common Law no Execution could be of a Judgment after a year and a day but the remedy was to bring an Action of Debt upon Judgment 187 189 2. Now a Scire Fac. is given upon a Judgment after the year by the Statue of W. 2. 189 3. When a Judgment is once execucuted the Goods are in custodia legis and shall not be taken away by an Exchequer Process or by the Commissioners of Bankrupts 236 L. Lapse See Notice Lease A Covenant in a Lease for years that the Lessee should pay the Rent without obliging his Executors or Administrators 't is determined by his Death 231 2. For 99 yeas if three persons or any of them so long live reserving a Rent and an Herriot upon the death of either the Beast of the Assignee shall not be taken for a Herriot for the Lessee is to pay his best Beast and that shall not be carried further than to the person named 231 Libel Where a Fine and Corporal punishment was imposed upon the Offender after Conviction 68 Limitation An Estate was setled upon Trustees to the use of A. and her Heirs provided she marry with the consent of Trustees remainder over to B. This is a Limitation and not a Condition 32 Limitation of Action See 21 Jac. 16. Where a Trespass is laid with a continuando for more than six years and the Statute pleaded and entire Damages it must be intended only for that which falls within the six years and that the Jury rejected the beginning of the Trespass 111 2. This Statute relates to a distinct and not to a continued Account 112 3. It provides a Remedy when the Plaintiff is beyond Sea at the time when his Right accrews and saves it till he returns whether it may be extended in a Case where the Defendant is beyond Sea longer than six years from the time the Plaintiff was entituled to the Action 311 312 Local Actions Whether Covenant will lie by an Assignee of a Reversion against an Assignee of a Lessee in any other place than where the Land lieth 337 2. Debitum contractus sunt nullius loci ibid. 3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties are transitory ibid. 4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains the Action must be brought in the County where the Land lieth ibid. M. Mayor See Corporation Marriage See Condition 3. Evidence 7. Limitation Notice A Maid above 12 and under 16 taken from Parents or Guardian and Married forfeits her Estate to the next in