by Serjeant Jones that they should not pass for though Lands would pass so by a Fine because it was the Agreement of the Parties yet in a Recovery 't is otherwise because more certainty is required therein But in Fines no such Certainty is required and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill Parish or Hamlet is mentioned Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway Postea But there being a Vill called Walton in the Parish of Street and a Fine being levyed of Land in Street the Lands in Walton did not pass unless Walton had béen an Hamlet of Street and the Fine had beén levied of Lands in the Parish of Street And the reason of this difference is because in Fines there are Covenants which though they are real in respect of the Land yet 't is but a personal Action in which the Land is not demanded ex directo but in a Recovery greater preciseness is required that being a Praecipe quod reddat where the Land it self is demanded and the Defendant must make Answer to it Cro. Jac. 574 5 Co. 40. Dormer's Case The Word * Antea 41. Liberty properly signifies a Right Priviledge or Franchise but improperly the extent of a place Hill 22 23 Car. 2. Rot. 225. B. R. Waldron's Case Hutton 106. Baker and Johnson's Case Liberties in Iudgment of Law are incorporeal and therefore 't is absurd to say that Lands which are corporeal shall be therein contained They are not permanent having their existence by the Kings Letters Patents and may be destroyed by Act of Parliament they may also be extinguish'd abridged or increased and a Vinire fac of a * Rast Ent. 267. Liberty or Franchise is not good 't is an equivocal Word and of no signification that is plain and therefore is not to be used in real Writs Rast Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty neither is there any authority in all the Law Books for such a Recovery and therefore if such a thing should be allowed many inconveniences would follow for a good Tenant to the Praecipe would be wanting and the intent of the Parties could not supply that But Barton Serjeant said that this Recovery would pass the Lands in Cotton for as to that purpose there was no difference betweén a Fine and a Recovery Postea 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances and are to be guided by the agreément of the Parties Cro. Car. 270 276. 'T is true a Fine may be good of Lands in an Hamlet Lieu conus or Parish 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler Yet in a * Godb. 440. contra Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned Bro. Brief 142. The demand must be of Lands in a Vill Hamlet or at farthest in a Parish Cro. Jac. 574. And of that Opinion was the whole Court absente Ellis who was also of the same Opinion at the Argument and accordingly in Michaelmas Term following Iudgment was given that by this Recovery the Lands in Cotton did well pass And North Chief Iustice denied the Case in Hutton 106. Postea to be Law where 't is said A Common Recovery of Lands in a Lieu conus is not good and said that it had béen long disputed whether a Fine of Lands in a Lieu conus was good and in King James his time the Law was settled in that Point that it was good and by the same reason a Recovery shall be good for they are both amicable Suits and Common Assurances and as they grew more in practice the Iudges have extended them farther A Common Recovery is held good of an Advowson and no Reasons are to be drawn from the Visne or the Execution of the Writ of Seisin because 't is not in the Case of adversary Procéedings but by Agréement of the Parties where 't is to be presumed each knows the others meaning Indeed the Cursitors are to blame to make the Writ of Entry thus and ought not to be suffered in such practice Where a Fine is levied to two the Fée is always fixed in the Heirs of one of them but if it be to them and their Heirs yet 't is good though incertain but a Liberty is in the nature of a Lieu conus and may be made certain by Averment The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury and so 't is not incorporeal Alford versus Tatnel JVdgment against two who are both in Execution Mod. Rep. 170. and the Sheriff suffers one to escape the Plaintiff recovers against the Sheriff and hath satisfaction the other shall be discharged by an Audita Querela Osbaston versus Stanhope General Replication good DEBT upon Bond against an Heir who pleaded that his Ancestor was seised of such Lands in Fee and made a Settlement thereof to Trusteés by which he limited the Vses to himself for Life Remainder to the Heirs Males of his Body Remainder in Feé to his own right Heirs with power given to the Trusteés to make Leases for threé Lives or 99 years The Trustées made a Lease of these Lands for 99 years and that he had not Assets praeter the Reversion expectant upon the said Lease The Plaintiff replies protestando that the Settlement is fraudulent pro placito saith that he hath Assets by discent sufficient to pay him and the Defendant demurrs Ex parte Def. Newdigate Serjeant The Barr is good for the Plaintiff should not have replied generally that the Defendant hath Assets by discent but should have replyed to the praeter Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee who made a Lease to Saunders under whom he derived a Title and so justifies The Plaintiff replies and sets forth a long Title in another person and that Henry entred and intruded The Defendant rejoyns that Henry was seised in Fée and made a Lease ut prius absque hoc that intravit se sic intrusit and the Plaintiff having demurred because the Traverse ought to have been direct viz. absque hoc quod intrusit and not absque hoc that Henry intravit c. it was said the Replication was ill for the Defendant having alledged a Seisin in Fée in Henry which the Plaintiff in his Rejoynder had not avoided but only by supposing an intrusion which cannot be of an Estate in Fée but is properly after the death of Tenant for Life for that reason it was held ill Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Replication to be good The Defendants Plea is no more than Riens per descent for though he pleads a Reversion 't is not chargeable because 't is a Reversion after
Heir Male of the Body of the Devisor had by this Limitation an Estate Tayl as by Purchase and that the Inheritance in Fee simple did not vest in Francis 2. If Thomas the Covenantor had no Estate executed in him yet William his Son in this Case may take by way of future springing use because the Limitation of an Estate upon a Covenant to stand seised may be made to commence after the Ancestors Death for the old Seisin of the Covenantor is enough to support it There is a great difference between a Feoffment to Vses and a Covenant to stand seised for by the Feoffment the Estate is executed presently 1 Co. 154. Rector of Cheddington's Case So if there be a Feoffment to A. for Life Remainder to B. in Fee if A. refuse B. shall enter presently because the Feoffor parted with his whole Estate but if this had been in the Case of a Covenant to stand seised if A. had refused the Covenantor should have enjoyed it again till after the death of A. by way of springing use like the Case of Parsons and Willis 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry he will stand seised to the use of B. and his Heirs B. dies the Covenantor doth not marry this Vse arises as well to the Heir of B. as to B. himself if he had been living and he shall have the Land in the nature of a descent But if William cannot take it either by purchase or by descent he shall take it 3. Per formam doni as special Heir to Thomas This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man and the heirs Females of his Body if there be a Son the Daughter is not Heir but yet she shall take it for voluntas donatoris c. So if Lands are given to a Man and the Heirs Males of his Body the youngest Son shall have it after the death of the eldest leaving Issue only Daughters for these are descents secundum formam doni So in this Case the Estate Tail vested in Edward and when he died without Issue it comes to William per formam doni Object The Case of Greswold in 4 5 Ph. Mariae Dyer 156. seems to be express against this Opinion which was that Greswold was seised in Fee and made a Grant for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs he had Issue two Sons and dyed the eldest Son had Issue a Daughter and dyed and if the Daughter or her Vncle should have the Land was the question in that Case And it was adjudged that the Limitation of the Remainder was void because Greswold could not make his right Heir a Purchasor without departing with the whole Fee Postea Brittain and Charnock and therefore Iudgment was given against the special Heir in Tail for the Heir general which was the Daughter Answ Admit that Case to be Law yet the Iudges there differed in their Arguments 'T is not like this at Bar for that Case was not upon a Covenant to stand seised but upon a Deed indented and so a Conveyance at the Common Law But for an Authority in the point the Case of Pybus and Mitford was cited and relied on which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief Iustice Rainsford and Wild but Iustice Twisden was of a contrary Opinion Serjeant Stroud who argued on the other side made three Points 1. Whether this Limitation be good in its creation 2. If the Estate Tail be well executed in Thomas the Covenantor 3. If it be good and well executed whether when Edward died without Issue the whole Estate Tail was not spent 1. And as to the first Point he held that this Limitation to the Heirs Males of Thomas was void in the creation because a Man cannot make himself or his own right Heir a Purchasor unless he will part with the whole Estate in Fee Dyer 309 b. If A. being seised in Fee makes a Lease for Life to B. the Remainder to himself for years this Remainder is void so if it had been to himself for Life because he hath an Estate in Fee and he cannot reserve to himself a lesser Estate than he had before 42 Ass 2. If I give Lands to A. for Life the Remainder to my self for Life the Remainder in Fee to B after the death of A. in this Case B. shall enter for the Remainder to me was void 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'T is true these Cases are put at the Common Law but the Statute of Vses makes no alteration for according to the Rules laid down in Chudleigh's Case by my Lord Chief Iustice Popham 1 Co. 138. 1. Vses are odious and so the Law will not favour them 2. A Rule at Common Law shall not be broke to vest an Vse and the Vses here cannot vest without breaking of a Rule in Law 3. Vses are raised so privately that he who takes them may not know when they vest and for that reason they are not to be favoured 4. The Statute annexes both the Possession and the Vse together as they vest and divest both together Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point The Estate is not executed in Thomas and therefore William cannot take it by descent Heirs of his Body or Heirs Male are good Words of Limitation to take by Purchase from a Stranger but not from an Ancestor for there he shall take by descent and for this there is an Authority Co. Lit. 26. b. John had Issue by his Wife Roberga Robert and Mawd John dies Michael gave Lands to Roberga and to the Heirs of her Husband on her Body begotten Roberga in this Case had but an Estate for Life for the Fee Tail vested in Robert and when he died without Issue his Sister Maud was Tenant in Tail per formam Doni and in a Formedon she counted as Heir to Robert which she was not neither was she Heir to her Father at the time of the Gift yet it was held good for the Words Viz. Heirs of the Body of the Father were Words of Purchase in this Case If therefore no Vse for Life vested in Thomas then William cannot take by descent Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case cited in Hob. 151. 3. To the third Point Admitting both the former to be against him yet since Edward is dead without Issue the Estate Tail is spent But the whole Court were of Opinion Judgment That William should Inherit this Land in question for though at the Common Law a Man cannot be Donor and Donee without he part with the whole Estate yet 't is otherwise upon a Covenant to stand seised to Vses And if any other Construction should be made
Witton versus Bye 45 Ed. 3. 8. 20 E. 4 13. Covevenant will lie upon the Words Yeilding and Paying If then here is a good Rent reserved the Wife who receives the Profits becomes Executrix de son tort and so is lyable to the payment It hath been held there cannot be an Executor de son tort of a Term but the Modern Opinions are otherwise as it was held in the Case of Porter and Sweetman Trin. 1653. in B. R. And that an Action of Debt will lie against him Indeed such an Executor cannot be of a Term in futuro and that is the Resolution in Kenrick and Burgesses Case Moor Rep. Where in Ejectment upon Not Guilty pleaded it appeared that one Okeham had a Lease for years of the Lands in question who dyed Intestate which Lease his Wife assigned by parol to Burgess and then she takes out Letters of Administration and assigns it again to Kenrick who by the Opinion of the Court had the best Title But if one enter as Executor de son tort and sell Goods the Sale is good which was not so in this Case because there was a Term in Reversion whereof no Entry could be made for which reason there could be no Executor de son tort to that and therefore the Sale to Burgess before the Administration was held void And that there may be an Executor de son tort of a Term there was a late Case adjudged in Trin. 22 Car. 2. between Stevens and Carr which was Lessee for years rendring Rent dies Intestate his Wife takes out Letters of Administration and afterwards Marries a second Husband the Wife dies and the Husband continues in Possession and receives the Profits It was agreed that for the Profits received he was answerable as Executor de son tort and the Book of 10 H. 11. was cited as an authority to prove it Pemberton Serjeant for the Defendant Ex parte Def. would not undertake to answer these Points which were argued on the other side but admitted them to be plain against him for he did not doubt but that Debt would lie upon the Contract where the whole Term was assigned and that there may be an Executor de son tort of a Term but he said that which was the principal point in the Case was not stirred The question was whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all for 't is plain there was none in being in this Case because when the Lessee Re-demised his whole Term to the Lessor that was a Surrender in Law and as fully as if it had been actually surrendred and therefore this was quite different from the Case where Lessee for years makes an Assignment of his whole Term to a Stranger Debt will lie upon the Contract there because an Interest passes to him in Reversion and as to this purpose a Term is in esse by the Contract of the Parties and so it would here against the first Lessor who was Lessee upon the Re-demise but now because of the Surrender the Heir is intituled to enter and the Mother who is the Defendant enters in his Right as Guardian which she may lawfully do If therefore Debt only lies upon the Contract of the Testator as in truth it doth where the whole Term is gone the Plaintiff cannot charge any one as Executor de son tort in the debet and detinet And the whole Term is gon here by the Re-demise which is an absolute Surrender and not upon Condition for in such Case the Surrenderor might have entred for non-performance and so it might have been revived And of this Opinion was the whole Court in both points and would not hear any farther Argument in the Case the Plaintiff having no remedy at Law the Court told him that he might seek for relief in Chancery if he thought fit Harman's Case IN Covenant the breach assigned was that the Defendant did not repair He pleads generally quod reparavit de hoc ponit se super patriam this was held good after a Verdict Quadring versus Downs al' Wardship cannot be where there is no descent IN a Writ of right of Ward the Case was Viz Sir William Quadring being seised of Lands in Fee by Deed and Fine settles them upon his Son William and his Wife for their Lives the Remainder to the second Son in Tail with divers Remainders over The Grandfather dyes the Father and Mother dyes the eldest Son dyes without Issue and so the Land came to the second Son The Plaintiff intitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant whom the Defendant detained and Serjeant Newdigate for him demurred because where there is no descent there can be no Wardship for the second Son is in by purchase and not by descent for here is no mention of the Reversion in Fee and therefore it may be intended that it was conveyed away and besides if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement yet it cannot be thought to descend to the Ward because 't is not said who was Heir for though it be said that the Father of the Ward was Son to Sir William yet 't is not said Son and Heir and of that Opinion was the whole Court in both points for there must be a descent or else there can be no Wardship and it doth not appear that any descent was here because 't is not said that the Reversion did descend nor who was Heir to Sir William which the Plaintiff perceiving prayed leave to amend and it was granted In this Case it was said at the Bar that one might be a Ward in Socage though he be in by Purchase for the Guardian is to have no profit but is only a Curator to do all for the benefit of the Ward and so there need be no descent as is necessary in the Case of a Ward in Chivalry for that being in respect of the Tenure the Guardian is to have profit The Lord Chief Iustice North said Nota. he knew where there was some doubt of the sufficiency of the Guardian in Socage that the Court of Chancery made him give good Security Harding versus Ferne. IN an Action of Assault Battery and Imprisonment Antea Anonymus 'till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause Iudgment was given for the Plaintiff upon the first opening because it appeared the Defendant took more than was warranted by the Execution Ellis versus Yarborough Sheriff of Yorkshire IN an Action of Escape the Plaintiff sets forth that the Defendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff Case lies not against
Estate for years and so having no Freehold the Contingent Remainder could not be supported that Mary could not take by way of Executory Devise because Robert was living when his Son Benjamin dyed within Age that therefore 't is quasi a Condition precedent Grant's Case 10 Co. cited in Lampet's Case 1 Leon. 101. There is a difference between Boraston's Case and this at the Barr for that was a Devise to Executors till Hugh shall attain his Age of 21 years and the mean Profits in the mean time to be applyed by them for payment of the Testators Debts and because he might have computed how long it would be before his Debts could be paid therefore it was adjudged that after the death of Hugh within Age the Executors should continue in possession till Hugh might have attained his full Age had he lived and so a present Devise to them But here the Devise is generally till Benjamin Wharton shall attain his Age of 21 years so that nothing vested in him until that time and he dying before then the Estate shall descend to the general Heir who is the Plaintiff 2. Admitting this should be taken as an executory Devise there must be some person capable to take when the Contingency happens and there was no such person in this Case for Robert was alive when Benjamin dyed and Mary could not then take as Heir of his Body for Nemo est haeres viventis like the Case of 2 Cro. 590. Vaugh. 272. Pell and Brown viz. Brown had Issue William and Thomas he devises Land to his youngest Son Thomas and his Heirs and if he dye living William then to William and his Heirs Thomas did dye without Issue living William and it was adjudged that if those Words Living William had been left out of the Will Thomas would have a Fee Tail which he might have docked by a Common Recovery but by reason of those Words he had only a limited Fee because the Words viz. If he dyed without Issue are not indefinite to create a Tail but are restrained to his dying without Issue Living William which is a limited Fee and his Estate being determined William then had a Fee but if he had died before the Contingency happened viz. in the Life time of Thomas and then Thomas had dyed without Issue the Heirs of William would not have an Estate in Fée for the Reasons aforesaid If therefore nothing vested in Benjamin Wharton nor in Mary his Sister then the Land descends to Augustine Smith as Heir at Law to Elizabeth who was Heir to the Testator and so the Plaintiff hath a good Title Ex parte Def. Newdigate Serjeant contra Here is only an Estate for years in the Sister of the Testator and an Estate in Fee presently vested in Benjamin Wharton and he relyed upon Boraston's Case where the Father having Issue Humfry and Henry devised to his Executors till Hugh his Grandson the Son of Henry should be of Age and then to him in Fée it was there adjudged that the Executors had a Term till Hugh might have attained his full Age and that though he dyed at the Age of nine years yet the Remainder did immediately vest in him in possession upon the death of his Grandfather and that by his dying without Issue the Lands did descend to his Brother So here the Fee descends to Benjamin Wharton in possession and he dying without Issue and within Age the Land shall then descend to his Sister and Heir The like Iudgment was given in the Case of Taylor and Wharton about 12 years since and in Dyer 124. a. A Devise to his Wife till his Son shall be of the Age of 24 years then to the Son in Fee and if he die before 24 years without Issue then to the Wife for Life the Remainder to A. c. The Testator dyed 2 Leon. 11. pl. 16. Dyer 354. a. it was adjudged that the Son had a Fee simple presently for an Estate tail he could not have till he was 24 years old and after the death of his Father there was no particular Estate to support that Estate in the Remainder till he should come to the Age of 24 years so that he took by descent immediately So here a Feé vested in Benjamin presently and he being dead within Age Mary may take as Heir however when she is of Age she shall take as Heir of the Body of Robert by way of executory Devise arising out of the Estate of the Devisor Stiles 240. Owen 148. which needs no particular Estate to support it as in case of a Contingent Remainder for before Mary was of Age Robert her Father was dead and so she might well take Trin. 19 Car. 2. in B. R. Snow versus Cutler Rot. 1704. North Chief Iustice Curia Favourable distinctions have béen always admitted to supply the meaning of Men in their last Wills and therefore a Devise to A. till he be of Age then to B. and his Heirs this is an Estate for years in A. with a Remainder in Feé to B And if such a Devise to A. who is also made Executor or for payment of Debts it shall be for a certain Term of years viz. for so long as according to computation he might have attained that Age had he lived Contingent Remainders are at the Common Law and arise upon Conveyances as well as Wills one may limit an Estate to A. the Remainder to another and so it may be by Devise if the intent of the Parties will have it so But as at the Common Law all Contingent Remainders shall not be good so in Wills no such latitude is given as if none could be bad they are subject to the same Fate in Wills as in Conveyances In this Case Elizabeth had a Term till Benjamin Wharton be of Age for she is Executrix she was likewise Heir at Law to the Devisor and this Land had gone to her had it not béen for this Will so that 't is plain the Testator never intended that a Fee-simple should vest in her but somewhere else for he could never intend the Descent of the Inheritance to that person to whom he had devised the Term. It has beén argued that Mary is Heir at Law to Benjamin as well as Heir of the Body of Robert and so if she can take either way 't is good but to make her Heir to Benjamin 't is necessary that the Estate vest in him before he comes to 21 years and for that Boraston's Case was much relyed on which was also said not to differ from this at the Barr that an Estate passes to Benjamin Wharton in praesenti and that there was no Incapacity for Mary to take by way of Executory Devise as was urged on the other side and therefore why should she not take by way of Executory Devise as Heir of the Body of her Father or at least as Heir of Benjamin her Brother An Executory Devise needs no
Heir enters and claims generally it shall be intended as Heir and the words that he shall not molest by Suit or otherwise are to be intended occasione praemissorum 3dly There is no néed of Entry to avoid an Estate in case of a Limitation because thereby the Estate is determined without Entry or Claim and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it A. devises Land to B. and his Heirs and dies 't is in the Devisee immediately but indeed till Entry he cannot bring a possessory Action as Trespass c. Pl. Com. 412 413. 10 Co. 40. b. where a Possession vests without Entry a Reversion will vest without Claim Nota. Curtis versus Davenant Prohibition A Bishop cannot appoint Commissioners to tax the Parish for building or repairing a Church IN a Prohibition the Question was whether if a Church be out of repair or being so much out of order that it must be re-edified whether the Bishop of the Diocess may direct a Commission to impower Commissioners to tax and rate every Parishioner for the re-edifying thereof The Court did unanimously agree such Commissions were against Law and therefore granted a Prohibition to the Spiritual Court to stop a Suit there commenced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions It was agréed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures but they cannot appoint what Sums are to be paid for that purpose because the Churchwardens by the consent of the Parish are to settle that As if a Bridge be out of repair the Iustices of Peace cannot set Rates upon the persons that are to repair it but they must consent to it themselves These Parishioners here who contribute to the charge of repairing the Church may be spared but as for those who are obstinate and refuse to do it the Spiritual Court may proceed to Excommunication against them but there may be a Libel to pay the Rates set by the Church-wardens Nurse versus Yearworth in Cancellaria Bill in Cancellaria for the Assignment of a Term. RIchard Yearworth being seised of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct Afterward he makes his Will in writing having then no Issue but his Wife grossement enseint and thereby devises the same Land to the Heirs of his Body on the Body of his Wife begotten and for want of such Issue to the said Christopher the Defendant and his Heirs Richard dies and about a month after a Son is born the Son by vertue of this Devise enjoys the Land but when he attains his full age of one and twenty years he suffers a Common Recovery and afterwards devises the Land to the Complainant Nurse and dies The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him and whether he should have it assigned or not was the Question 1. It was pretended that an Estate in Fée being limited by the Will to Christopher who was Lessee for 99 years the Term is thereby drowned 2. It was objected that the Devise by Richard to the Infant in ventre la mere was void and then the Complainant who claimed by a Devise from the Posthumus could have no Title but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently But notwithstanding what was objected the Lord Keeper Finch decréed that the Lease which was in Trust should be assigned to the Complainant Nurse He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good so that the doubt arises upon the Statute of H. 8. Roll. Abr. tit Devise 609. lit H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur which enacts That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons for in this Case the Devisée not being in rerum naturâ in strictness of spéech is no person and therefore it hath beén taken that such a Devise is void Moor's Rep. and 't is left as a Quaere in the Lord Dyer 304. But in two Cases in the Common Pleas one in the time when the Lord Chief Iustice Hale was Iudge there the other in the Lord Chief Iustice Bridgman's time it hath been resolved that if there were sufficient and apt words to describe the Infant though in ventre sa mere the Devise might be good But in the King's Bench the Iudges since have been divided upon this Point that as the Law stands now adjudged this Devise in our Case seems not to be good But should the Case come now in question he said he was not sure that the Law would be so adjudged for 't is hard to disinherit an Heir for want of apt Words to describe him and 't is all the reason in the World that a Mans intent lying in extremis when most commonly he is destitute of Council should be favoured Whitrong versus Blaney Process into Wales THIS Term the Court delivered their Opinions in this Case North Chief Iustice who had heard no Arguments herein being absent The Case was this The Plaintiff upon a Iudgment in this Court sues out a Scire facias against the Heir and the Ter-tenants which was directed to a Sheriff of Wales the Defendant is returned Tertenant but he comes in and pleads Non tenure generally and traverses the Return the Plaintiff demurs Two Points were spoke to in the Case 1. Whether the Defendant can traverse the Sheriffs Return And all the three Iustices agreéd that he cannot 2. Whether a Scir̄ Fac̄ Ca. Sa. Fi. Fa. c. would lie into Wales on a Iudgment here at Westminster And they agréed it would well lie An Indictment may be removed 2 Cro. 484. Ellis Iustice agreéd If Iudgment be given in Wales it could not be removed into the Chancery by Certiorari and sent hither by Mittimus and then Execution taken out upon that Iudgment here because such Iudgments are to be executed in their proper Iurisdictions and such was the Resolution of the Iustices and Barons Cro. Car. 34. But on a Iudgment obtained here Execution may go into Wales No Execution can go into the Isle of Man because 't is no part of England but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case 2 Bulstr 156. it was held that such a * Het 20. 2 Cro. 484. The Opinion of Dodderidge Roll. 395. 2 Sand. 194. Twisden denied it Writ of Execution goes legally into Wales He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales
By the Statute of 21 H. 8. cap. 5. the Ordinary is to grant Administration to the Widow of the Intestate or to the next of his Kin or to both as by his discretion he shall think good and in Case where divers persons claim the Administration as next of Kin which be in equal degree the Ordinary may commit Administration to which he pleaseth and his power was not abridged but rather revived by this late Act by which 't is Enacted 22 23 Car. 2. That just and equal distribution shall be made amongst Wife and Children or next of Kin in equal degree or legally representing their Stocks pro suo cuique jure and the Children of the half Blood do in the Civil Law legally represent the Father and to some purposes are esteemed before the Vncles of the whole Blood 'T is no Objection to say that because the Law rejects the half Blood as to Inheritances therefore it will do the same as to personal Estates because such Estates are not to be determined by the Common but by the Canon or Civil Law and if so the half Blood shall come in for distribution for this Act of Parliament confirms that Law Winnington Sollicitor General contra He agreed that before this Act the half Blood was to have equal share of the Intestates Estate but that now the Ordinary was compelled to make such distribution and to such persons as by the Act is directed for he had not an original power to grant Administration in any case that did belong to the Temporal Courts Sid. 370 371. but it was given to him by the Indulgence of Princes not quatenus a Spiritual Person Hensloes Case 9 Co. Bendl. 133. And if he had not power in any Case he could not grant to whom he pleased But admitting he could his power is now abridged by this Statute and he cannot grant but to the Wife and Children or next of Kin in equal degrée or legally representing their Stocks Now such legal representation must be according to the Rules of the Common and not of the Civil Law for if there be two lawful Brothers and a Bastard eigne and a Question should arise concerning the distribution of an Intestates Estate the subsequent Marriage according to the Law in the Spiritual Court would make the latter legitimate and if so a legal Representative amongst them but this Court will never allow him so to be But the Court were all of Opinion that in respect of the Father the half Blood is as near as those of the whole and therefore they are all alike and shall have an equal distribution and that such Construction should be made of the Statute as would be most agreeable to the Will of the dead person if he had devised his Estate by Will and it was not to be imagined if such Will had been made but something would have been given to the Children of the half Blood And thereupon a Consultaion was granted Anonymus In C. B. FAux Judgment viz. Serjeant Turner took this Exception that the Plaintiff in the Court below had declared ad damnum 20 l. whereas it not being a Court of Record and being sine Brevi the Court could not hold Plea of any Sum above 40 s. and for this Cause the Iudgment was reversed DE Termino Paschae Anno 29 Car. II. in Communi Banco Southcot versus Stowel Intrat ' Hill 25 26 Car. 2. Regis Rot. 1303. IN a Special Verdict in Ejectment The Case was Covenant to stand seised how it differs from a Conveyance at the Common Law Mod. Rep. 226. Thomas Southcot having Issue two Sons Sir Popham and William and being seised in Fée of a Farm called Indyo the Lands now in question did upon the Marriage of his eldest Son Sir Popham covenant to stand seised of the said Farm to the use of the said Sir Popham Southcot and the Heirs Males of his Body on Margaret his Wife to be begotten and for want of such Issue to the Heirs Males of the Covenantor and for want of such Issue to his own right Heirs for ever Sir Popham had Issue begotten on his Wife Margaret Edward his Son and five Daughters and dies Thomas the Covenantor dies Edward dies without Issue And whether the five Daughters as Heirs general of Thomas or William their Vncle as special Heir Male of Thomas per formam doni shall inherit this Land was the Question Two Objections were made against the Title of William the Vncle. 1. Vaugh. 49. Because here is no express Estate to Thomas the Covenantor for 't is limited to his Heirs Males the Remainder to his own right Heirs so that he having no Estate for Life the Estate Tail could not be executed in him and for that reason William cannot take by descent 2. He cannot take by Purchase for he is to be Heir of Thomas and Heir Male the Limitation is so but he cannot be Heir for his five Nieces are Heirs In answer to which these Assertions were laid down 1. That in this Case Thomas the Covenantor hath an Estate for Life by implication and so the Estate Tail being executed in him comes to William by descent and not by purchase for though the Covenantor had departed with his whole Estate and limited no Vse to himself yet he hath a Reversion because he can have no right Heir while he is living and therefore the Statute of 27 H. 8. Hob. 30. creates an Vse in him till the future use cometh in esse and by consequence the right Heirs cannot take by purchase for wherever the Heir takes by purchase the Ancestor must depart with his whole Fee for which reason a Fee cannot be raised by way of purchase to a Mans right Heirs by the name of Heirs either by Conveyance of Land or by Vse or Devise but it works by descent 1 Inst 22. b. And that Vses may arise by Implication by Covenants to stand seized the Authorities are very plentiful Moor 284. 1 Co. 154. Lord Paget's Case cited in the Rector of Cheddington's Case Cro. Eliz. 321. 1 Roll. Rep. 239 240 317 438. Lane vers Pannel Cor. Car. And in the Case of Hodgkinson and Wood in a Devise there was the same limitation as this the Case was Thomas being seised in Fee had Issue Francis and William by several Venters and devised Land to Francis his eldest Son for Life then to the Heirs Males of his Body and for default of such Issue to the Heirs Males of William and the Heirs Males of their Bodies for ever and for default of such Issue to the use of the right Heirs of the Devisor then he made a Lease to William for 30 years to commence after his death and dies William Enters and Surenders this Lease to Francis who Enters and makes a Lease to the Defendant and dyes without Issue and William Enters and makes a Lease to the Plaintiff it was adjudged for William because he being
upon the Statute and then the Defendant might have pleaded the Act of Indempnity of which he might have the benefit but if not he may be let into the Equity of the Statute of the 33 H. 8. cap. 39. which gives liberty to Purchasers to have contribution and to plead sufficient matter if they have any in discharge of the Debt Ex parte Quer. But on the other side it was said that the Replication was good for if the Sale was after his being Receiver though before he became indebted yet by the Statute of the 13 Eliz. the Lands are subject to a Debt contracted afterwards because it hath a Retrospect to the time he was first Receiver Pl. Com. 321. Dyer 160. By the Common Law both the Body and Lands of the Kings Debtor were lyable from the time he became indebted but because such Debtors oftentimes sold those Lands which they had whilst they were Officers and so the King was defeated therefore was this Statute made to supply that defect of the Common Law by which Statute all the Lands he had at any time during his continuance in the Office were made lyable And though it may be objected That because of this Inquisition the King is limited to a time Viz. that inquiry should be made what Lands Havers had in the 20th year of the King yet it was said the Inquiry may be general The Elegit anciently left out the time because the Law doth determine from what time the party doth become lyable so that the question is about the King's Title which if it appear to precede that of the Ter-tenant then the King's Hands are not to be amoved and thereupon Iudgment was prayed for him Bro. Prerogative 59. Curia adversare vult Barker versus Keat IN a Special Verdict in Ejectione firmae Reservation of a Pepper Corn a good consideration to raise an use to make a Tenant to the Praecipe Mod. Rep. 262 the Iury made a special Conclusion by referring to the Court whether there was a good Tenant to the Praecipe or not which was made by a Bargain and Sale but no Mony paid nor any Rent reserved but that of a Pepper Corn to be paid at the end of six Months upon demand and the Release and Grant of the Reversion thereupon was only for divers good Considerations The Question was if this Lease upon which no Rent was reserved but that of a Pepper Corn be executed by the Statue of Uses or not if it be Cro. Jac. 604. Jones 7. 1 Cro. 110. 5 Rep. 124. b. then there is no need of the Entry of the Lessee for the Statute will put him in actual possession and then the Inheritance by the Release or Grant of the Reversion will pass But if this Lease be not within the Statute because no Vse can be raised for want of a Consideration then it must be a Conveyance at the Common Law Lit. Sect. 465. Co. Lit. 46. b. and so the Lessee ought to make an actual Entry as was always usual before the making of the Statute Serjeant Waller and Maynard argued that here was no Consideration to raise an Vse for the reservation of a Pepper-Corn is no profit to the Lessor 't is not a real and good Rent For so small and trivial a matter is no Consideration for that which must be a good Consideration ought to be Mony or some other valuable thing Then this Conveyance is not executed by the Statute of Vses and if so 't is not good at the Common Law it being only a Lease for years and no Entry without which there can be no possession and if not then there can be no Reversion upon which the Release may operate 't is only an interresse termini and so was the Opinion of my Lord Coke since the Co. Lit. 270. making of this Statute 1 Leon. 194 195. And that no Vse was raised here the Case of my Lord Paget was cited to which this was compared My Lord being seised in Fee Covenanted to stand seised to the Vse of Trentham and others in consideration of payment of his Debts out of the Profits of his own Estate this was adjudged a void Vse because there was no consideration on Trentham's part to raise it the Mony appointed to be paid being to be raised out of the Profits of my Lords Estate The Words of the Lease are Demise Grant c. which are Words at the Common Law Co. Lit. 45. b. and 't is not possible that a future executory Consideration should raise a present Vse for the Pepper Corn is not to be paid till the end of six Months and as this Consideration is executory so it is contingent too for the Lessor might have released before the expiration of the six Months If the Case of * Cro. Jac. 604. pl. 32. Lutwitch and Mitton be objected where it was resolved by the two Chief Iustices and Chief Baron that upon a Deed of Bargain and Sale of Lands where the Bargainee never entred and the Bargainor reciting the Lease did grant the Reversion expectant upon it Cro. Car. 110 400. that this was a good grant of the Reversion from which the Possession was immediately divided and was executed and vested in the Bargainee by virtue of the Statute of Vses This is no Objection to the purpose because in that Case the Bargainor was himself in actual possession So that if there be no good Tenant to the Precipe in this Case though all that joyn in it are Estopped to say so yet the Tenant in Tail who comes in above is not barred 5 H. 5. 9. But on the othe side it was said that the Lessee was in possession by the Statute for the Word Grant being in the Lease and the reservation being a Pepper Corn that will amount to a Bargain and Sale though it hath not those precise words in it 8 Co. 94. Pl. Com. 308. Dyer 146. b. contra But if it should not yet another Vse may be averred than what is in this Lease like Bedel's Case 7 Co. 40. b. Where a Man in consideration of Fatherly Love to his eldest Son did covenant to stand seised to the Vse of him in Tail and afterwards to the use of his second Son there though the consideration respected his eldest Son only in Words yet a consideration which is not repugnant to it may be averred and though an Entry is not found yet it shall not be intended since the Iury have not found the contrary North Chief Iustice At first when this sort of Conveyance was used the Lessee upon the Lease for a year did always make an actual Entry and then came the Release to convey the Reversion but that being found troublesome the constant Practice was to make the Lease for a year by the Deed of Bargain and Sale for the consideration of five shillings or some other small sum and this was held and is so still to be good
Remainder for Life surrenders the Copyhold to the Lord pro tempore who was a Disseisor only of the Mannor ut inde faciat voluntatem suam the Disseisor grants it to a Stranger for Life the Disseiseé enters the Stranger dies and whether the Disseisor or he in the Remainder for Life who made the Surrender had the better Title was the Question So that the Point was Cro. Car. 205. 2 Sid. 151. 1 Roll. Abr. 540. whether this Surrender by a Copy-holder in Remainder into the Hands of the Disseisor be good and shall so extinguish the Right to the Copyhold that it shall not be revived by the Entry of the Disseisee into the said Mannor It was said that in some Cases a Surrender into the Hands of a Disseisor was good that is when the Surrender is made to him to the use of another and his Heirs and he admits him there the person admitted claims not under the Lord but under the Copyholder who made the Surrender 1 Inst 59. b. for nothing passes to the Lord but only to serve the Limitation of the Vse 1 Rol. Abr. 503. litt Q. pl. 1. 4 Co. 24. But in this Case the Grantée must claim from the Lord himself and not from the Copyholder because he had but an Estate for his own Life with which he wholly departed when he made the Surrender to the use of the Disseisor himself In Trinity-Term following this Case was argued by Serjeant Maynard on the other side There are two sorts of Surrenders of a Copyhold 1. Proper 2. Formal and Ceremonious If a Surrender be to the Lord to the use of another this is no proper Surrender for no Estate passeth to the Lord he being only the Instrument to convey it to the Surrendree and this is but nominal But here the Surrender was to the use of the Lord himself which is a proper Surrender and in such Case 't is necessary that the Lord have a Reversion for one Estate is to be turned into the other and there must be a continuing of Estates But Dominus pro tempore who is a Disseisor hath no such Estate Executor de son tort shall sue but he cannot retain If therefore he is not capable to take a Surrender to himself unless he hath such an Estate then here is no Disseisin of the Copyhold 't is only of the Mannor and then no greater Interest passeth to the Disseisor than to a Stranger whilst the true Lord had been in possession for so he is quoad this Copyhold if he was not disseised of it for if the Copyholder had the possession there could be then no Disseisin if he was out of possession then he had nothing but a Right and that cannot be surrendred for it must be an Estate as if a Lessee for years keep possession 't is the possession of the Lord and the Law is the same in case of a Copyhold 2 Co. Bettisworth's Case Piggot and Lord Salisbury's Case Ante The true Owner makes a Feoffment in Fee if Lessee for years continue in possession no Fréehold passeth If Tenant at Will of parcel of the Mannor be in possession that prevents a Disseisin of the Freehold much more in Case of a Copyhold Lessee for years the Remainder to B. for Life the Remainder to C. in Fee C. by Deed makes a Feoffment to B. and Livery c. 't is a void Conveyance because the possession of Lessee for years is the possession of him in the Remainder for Life and as long as the Lessee for years is in the possession the Owner of the Inheritance cannot be out Lit. 324. cap. Attornment North Chief Iustice and Wyndham enclined that the Surrender was not good for it was a material distinction where the Surrender was made to the use of a Stranger and where it terminates in the Lord that a Surrender made by a Copyholder for Life could not transfer but extinguish his Right for he could not give a greater Estate than he had that there must be a Reversion in the Lord to make a Surrender to him to be good and that if a Copyholder keeps in possession there could be no Disseisin But Iustice Atkins contra That this Surrender must have operation to extinguish his Right for though a Copyholder for Life cannot surrender for longer time than his own Life yet if a Surrender be made of such a Copyhold to an Vse 't is good and works by way of Extinguishment of his Right though the Vse be void and if a Copyholder of Inheritance surrender to a Disseisor ut faciat voluntatem who regrants to the said Copyholder an Estate in Tail according to the Surrender this shall bind the Disseisee 1 Roll. Abridg. 503. pl. 3. Tamen quaere The Copyholder in this Case might have sold his Estate to the Disseisor and it had béen good and though the Acts of a Disseisor shall not prejudice the Disseisee yet he could see no reason why the Copyholder who had parted with his Estate should have it again Taylor versus Biddal SPecial Verdict in Ejectment The Case was thus Devise till he be of Age then to him in Fee he dyed within Age yet a Fee vested in him presently Richard Ben was seised in Fee of the Lands in question and had a Sister named Elizabeth formerly married to one Smith by whom she had Issue Augustine Smith now Lessor of the Plaintiff and she afterwards married one Robert Wharton by whom she had Issue a Son called Benjamin and a Daughter called Mary the now Defendant Richard Ben devised these Lands to Elizabeth his Sister and Heir for so long time and until her Son Benjamin Wharton should attain his full Age of 21 years and after he shall have attained his said Age then to the said Benjamin and his Heirs for ever and if he dye before his Age of 21 years then to the Heirs of the Body of Robert Wharton and to their Heirs for ever as they should attain their respective Ages of 21 years Richard the Testator dies Benjamin dyed before he came to the Age of 21 years living Roberr Wharton his Father afterwards Robert dyed And the Question was Whether the Lessor of the Plaintiff as Heir to Elizabeth or Mary either as Heir to her Brother Benjamin or as Heir of the Body of Robert should have this Land This Case was argued by Serjeant Pemberton this Term Ex parte Quer. and by Serjeant Maynard in Easter-Term following for the Plaintiff and they held that Augustine Smith the Lessor of the Plaintiff should have this Land because no Estate vested in Benjamin Wharton he dying before he had attained his Age of 21 years and the Testator had declared that his Sister should have it till that time and then and not before he was to have it so that if he never attained that Age as in this Case he did not the Land shall descend to the Heir of the Testator that Elizabeth had only an
particular Estate to support it for it shall descend to the Heir till the Contingency happen 't is not like a Remainder at the Common Law which must vest eo instanti that the particular Estate determines but the Learning of Exeecutory Devises stands upon the Reasons of the old Law wherein the intent of the Devisor is to be observed For when it appears by the Will that he intends not the Devisee to take but in futuro and no disposition being made thereof in the mean time it shall then descend to the Heir till the Contingency happen but if the intent be that he shall take in praesenti and there is no incapacity in him to do it he shall not take in futuro by an executory Devise Sid. 153. pl. 2. A Devise to an Infant in ventre sa mere is good and it shall descend to the Heir in the mean time for the Testator could not intend he should take presently he must first be in rerum natura 3 Co. 20. a. 1 Inst 378. a. If an Estate be given to A. for Life the Remainder to the right Heirs of B. this is a contingent Remainder and shall be governed by the Rules of the Law for if B. dye during the Life of A. 't is good but if he survive 't is void because no Body can be his right Heir whilst he is living and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder that so when B. dies his right Heirs may take In this Case a Fée did vest in Benjamin presently and therefore after his death without Issue the Defendant is his Heir and hath a good Title if not as Heir at Law yet she may take by way of Executory Devise as Heir of the Body of her Father which though it could not be whilst he was living because nemo est haeres viventis yet after his death she was Heir of his Body and was then of Age at which time and not before she was to take by the Will That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age And so by the Opinion of the whole Court Iudgment was given for the Defendant Evered versus Hone. SPecial Verdict in Ejectment wherein the Case was thus viz. A Man hath Issue two Sons Thomas his eldest and Richard his youngest Son Thomas hath Issue John Richard hath Issue Mary The Father devised Lands to his Son Thomas for Life Constructi-of Words in a Devise and afterwards to his Grandson John and the Heirs Males of his Body and if he die without Issue Male then to his Grandaughter Mary in Tail and charged it with some Payments in which Will there was this Proviso viz. Provided if my Son Richard should have a Son by his now Wife Margaret then all his Lands should go to such first Son and his Heirs he paying as Mary should have done Afterwards a Son was born and the Question was whether the Estate limited to Thomas the eldest Son was thereby defeated And the Court were all clear of Opinion that this Proviso did only extend to the Case of Mary's being intituled and had no influence upon the first Estate limited to the eldest Son Anonymus IN the Exchequer Chamber before the Lord Chancellor Executor of an Executor de son tort not liable at Law the Lord Treasurer and two Chief Iustices the Case was thus viz. The Plaintiff had declared against the Defendant as Executor of Edward Nichols who was Executor of the Debtor The Defendant pleads that the Debtor died intestate and Administration of his Goods was granted to a Stranger absque hoc that Edward Nichols was ever Executor but doth not say or ever administred as Executor for in truth he was Executor de son tort The Plaintiff replies that before the Administration granted to the Stranger Edward Nichols possessed himself of divers Goods of the said Debtor and made the Defendant Executor and dyed and the Defendant demurred and Iudgment was given for the Plaintiff but reversed here for an Executor of an Executor de son tort is not lyable at Law though the Lord Chancellor said he would help the Plaintiff in Equity But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort so his Executorship vanished and nothing shall survive The Lady Wyndham's Case IF Flotsam come to land and is taken by him who hath no Title the Action shall not be brought at the Common Law and no Proceedings shall be thereon in the Court of Admiralty for there is no need of Condemnation thereof as there is of Prizes By the Opinion of the whole Court of Common Pleas. Rose versus Standen Action where misconceived by the Plaintiff and Verdict against him no Barr to a new Action IN Accompt for Sugar and Indigoe the Defendant pleaded that the Plaintiff brought an Indebitatus Assumpsit a quantum meruit and an insimul computasset for 100 l. due to him for Wares sold to which he pleaded Non assumpsit and that there was a Verdict against him and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt The Plaintiff demurred and it was said for him that he had brought his former Action on the Case too soon for if no Accompt be stated the Action on the Case on the Insimul computasset will not lye and so the former Verdict might be given against him for that Reason Ex parte Def. But on the contrary the Defendant shall not be twice troubled for the same thing and if the Verdict had been for the Plaintiff that might have been pleaded in Barr to him in a new Action Curia 2 Cro. 284. But the Court were of another Opinion that this Plea was not good and that if the Plaintiff had recovered it could not have been pleaded in Barr to him for if he misconceives his Action and a Verdict is against him and then brings a proper Action the Defendant cannot plead that he was barred to bring such Action by a former Verdict Antea Putt and Roster Postea Rosal and Lamper Ante. because where 't is insufficient it shall not be pleaded in Barr as in Debt upon Bond the Defendant pleaded another Action upon the same Bond and the Iury found Non est factum the Entry of the Verdict was that the Defendant should recover damages eat inde sine die but not quod Querens nil capiat per Breve so no Iudgment to barr him 2 Cro. 284. But pending one Action another cannot be brought for they cannot both be true If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye the Insimul computasset implies an Accompt and upon Non assumpsit pleaded the Defendant might have given payment in Evidence and for that
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must