173. Judicium And after many arguments in this Case Hillar 20 Jacob. the Court agreed that the Demise was good and Iudgment was given for the Plaintiff Periman against Pierce and Margaret his Wife TEnant in Socage had issue by his first Wife Joan Elizabeth and Agnes and Alice and Elizabeth by his second Wife Katherine Mary William and Joan by his third Wife and by his Will did Devise his Land to Joan the younger for her life rendering 13 s. 4 d. Rent to William the remainder to William in Tayl the remainder to Elizabeth and Mary for life the remainder propinquo sanguinitatis of the Devisor for ever William dyes without issue Joan the younger dyes without issue Elizabeth had issue William Stokes and dyes Mary had issue William Pierce and dyes Joan the elder dyes having issue John Periman and William Periman Agnes and Alice dye without issue John Periman had issue John Periman the Lessor and dyes Elizabeth and Mary dye Katherine dyes without issue Elizabeth had issue George Dean and John Dean Elizabeth deviseth her Land to John Dean and his Heirs and dyes John Dean hath issue John Dean and dyes the Lessor enters and makes a Lease to the Plaintiff who enters and is ejected by the Defendants by commandment of the said John Dean the son upon which the Plaintiff brought an Ejectment And it seemeth to me that judgment ought to be given for the Plaintiff for all the Land or at least for part thereof And therefore in the first place I conceive that when William the son dyed without issue the remainder in fee did vest in John Perriman who was the eldest son of Joan the elder who was the eldest daughter of the Devisor for although the Devisor had many daughters yet his intent appeared in the Will to a single person and not to divers also it appears that he doth not intend that this remainder should vest in William his son for he deviseth to him a Rent during the life of Joan the younger and afterwards an Estate Tail cannot be in Joan the younger or any of her issues because that an express Estate for life is limited to her nor in Elizabeth or Mary for he deviseth a remainder to them for life nor in any other of his daughters for then he would have named them either by their proper names or as his daughters and not by such circumlocution as is pretended in this Case Also the words of Remainder in fee cannot extend to those daughters for they are proximae consanguinitatis which does clearly exclude his own sons and daughters for they cannot properly be termed to be of consanguinity of the blood of the father as it is said in Sir William Herberts Case Cooks Rep. 3. that filius est pars patris and this is proved by the usual pleading of a Descent for if the Plea be by any except son or daughter the form is to say That the Land descends to him as Cosin and Heir and shall shew how but if by the son or daughter then to plead as before And 30 Assis 47. Land was devised to one for life the remainder to another for life the remainder propinquioribus haeredibus de sanguine puerorum of the Devisor there it is agreed that the sons and daughters are excluded by that Devise And so here in this Case neither William the son nor any of the daughters of the Devisor can take any thing by this Devise for they cannot be said de Consanguinitate de sanguine of the Devisor but the Issues of the Children of the Devisor are comprized within these words And then I conceive that the limitation being in the singular number viz. proximo consanguinitat all the issues of those Children shall not take but one onely and that as I conceive shall be the eldest son of the eldest daughter of the Devisor which was John Periman father of the Lessor of the Plaintiff as in the 20 H. 6. 23. In an Account supposing the Defendant to be his Receivor from the Feast of St. Michael it shall be taken to be the principal Feast of St. Michael the Archangel and not the Feast of St. Michael in Monte Teneb And 13 H 4. 4. 21 H. 68. 37 H. 6. 29. If father and son be of one name scil of J. S. If J. S. be named generally in a Writ Recovery or Deed it shall be intended the father for that he is most worthy And so Pladwels Case in this Court Mich. 38 and 39 Eliz. If a woman hath a Bastard and two legal issues and Land be given to one for life the remainder to the eldest issue of the woman the eldest legal issue shall take and not the bastard although he be the eldest issue for general words shall always be taken in the most worthy sence And so here the Devisor did dispose of his Estate to Joan the younger rendering Rent to William his son the remainder to William in Tail the remainder to two of his daughters scil to Elizabeth and Mary for life the remainder proxim consanguin c. in fee By which words it is apparent that the Devisor intended that for the default of the issues of William and after the death of Elizabeth and Mary the Estate should remain to one who was next of blood to him and that is John Periman the eldest son of his eldest daughter But admitting that all the issues of the daughters shall be in equal degree to take by this remainder as well as the eldest son of Joan the eldest daughter yet I conceive that those daughters who had an Estate devised to them by Will are excluded Cooks 8 Rep. 95. B. Always the intention of the Devisor expressed in his Will is the best Expositor and Director of his words and therefore if Land be devised to one in perpetuum this shall pass a fee although it be otherwise in a Grant So if one deviseth Land to another to dispose of or sell at his pleasure this is a fee to the Devisee Litt. 133. 19 H. 8 9. B. And so in our Case the intent of the Devisor appears to dispose of his Land among his Children and their issues as in Trin. 38 Eliz. Ewre and Heydons Case Heydon was seised of a Messuage in D and of three houses and certain Land in Watford did devise his Messuage in D and all his Land in Watford it was judged the houses in Watford did not pass in regard of the express mentioning the houses in D. and this was affirmed in a Writ of Error Edmund Meskin against John Hickford Administrator of Henry Machin IN an Audita Querela because that the 11 Ed. 1. it was Enacted That in regard that Merchants which heretofore had lent their goods to divers persons were fallen into poverty because they had not such speedy remedy provided for them for the Recovery of their Debts Ac ratione inde multi Mercatores desistebant venire in hanc terram cum Merchandizis
of the most and the rest of all my Land there which is Freehold I give to Henry and Michael upon condition that if they sell it to any but to Matthew my Son then he to enter as of my Gift and then he declares That of all these Bequests his Sons shall bear part and part-like out of all his Copyhold Lands and Free to pay to Elizabeth his wife for her Dowry 40 l. a year during her life and that Son which shall refuse to bear his part shall not enjoy any part of his Bequest but it shall be to the residue c. Sir William Lock dyes Henry and Michael enter and pay their parts of the 40 l. Henry dyes and then Michael dyes And now the Question is Whether the Defendants being Heirs of Michael shall have the Land or the Plaintiffs who claim under the Devisor And for the better arguing of this Case I will first observe that here is not any express words of limitation of an Estate to make any greater Estate to pass then an Estate for life and then I will shew that here are no words in any part of this Will to signifie any certain intention in the Devisor to make an Estate of Inheritance to pass by this Devise And as to the first the Devise is onely to his two sons viz. The rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock and these are all the words of limitation of the Estate and these without question in a Deed or Feoffment will not make a greater Estate then for life And so is Littleton 1. If one purchase Land in perpetuum or to him and his Assigns in perpetuum this is but an Estate for life because it wants these words his Heirs which words make the Inheritance in all Feoffments and Grants and this is an infallible Rule in Grants unless it be in some special Cases as in Frankmarriage or Frankalmoine which being words of art do pass an Inheritance with these words Heirs And in Cases of Grants no intention of the Grantor although it be apparent in the Grant will make an estate of Inheritance to pass as in 19 H. 6. 73. 20 H. 6. 36. A Gift to B. and C. haeredibus with Warranty to them and their Heirs is no Fee-simple because the words of limitation are incertain to whom haeredibus shall be referred and so all one as if it were omitted and then the clause of Warranty although it does declare a certain intent to give an Estate in Fee will not amend the matter in a Grant And so in the 1 Rep. Shelleys Case if one gives Land to one liberis or eitibus suis or semini suo it is but an Estate for life and not an Estate in Tayl yet there is an apparent intent but that will not suffice in a Grant But I agree that in Case of a Devise although the apt words to make an Estate of Inheritance to pass are omitted yet if the intent of the Devisor does appear by any express matter contained in the Will an Estate of Inheritance shall pass for it is sufficient to pass the Inheritance And so Litt. 133. 6. 19 H. 8. 9. 6. If one deviseth Land to another in perpetuum the Devise by these words shall bar an Estate in Fee so if one devise Land to another to give dispose or sell at his pleasure this is an Estate in Fee-simple 19 H. 8. 9. 6. 7 Edw. 6. B. But yet the Law hath restrained such intent For first it ought to be agreeable to Law and not repugnant to it for although in Scholasticas Case in the Comment it is said that a Will is like to an Act of Parliament yet a Will cannot alter the Law or make a new form of an Estate which is not allowed by the Rules of Law as an Act of Parliament is and so adjudged in the Common Bench Hillar 37 Eliz. between Jermin and Ascot Cooks 1 Rep. 85. in Corbets Case That by a Devise a man cannot give an Estate and determine part thereof by a condition and make the residue to continue And if Land be devised to one in Tayl he cannot determine the Estate as to the Devisee himself and yet preserve the Estate to the issue as was endeavoured in this Case And 28 and 29 H. 8. Dyer 33. If Land be devised to one in Fee and if he does not perform such an Act the Land shall remain to another the remainder is voyd for no such remainder can be limited by the Rules of Law This intent ought to be exprest in the Will and collected out of the words of the Will and cannot be averred or supplyed by any forreign matter as in Matthew Mannings Case 8 Rep. 95. 6. Always the intention of the Devisor expressed in his Will is the best Expositor Director and Disposer of his words And Lord Cheyreys Case 5 Rep. 68. Sir Thomas Cheyrey devised certain Land to Henry his Son and the Heirs males of his body the remainder to Thomas Cheyrey of Woodley and the Heirs males of his body upon condition That he or they or any of them shall not alien and the Question was whether there could be an averment that the intent of the Devisor was to restrain H. and his Heirs from aliening and resolved that no such averment could be received for construction of Wills ought to be collected out of the words of the Will The intent of the Devisor ought to be manifest and certain and not dubious as in a Devise of Land to one for ever here the intent is to give an Estate in Fee-simple for no other Estate can continue for ever so if the devise be to one and his Heirs and if he dyes without Heir that it shall remain to another his intent â—y tâ—ars that the word His in the first Devise shall be taken for the Heirs of his body for the Law will sooner presume him to be dead without issue then to be dead without Heir And now to examine our Case with the Rules of Law There are three clauses in this Will as I conceive upon which the pretences of the Defendants are founded to have an Estate in Fee pass by this Devise to which I shall make answer severally The precedent clause to the Devise And as touching my Lands at T. my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock c. And as to this I conceive that here is no colour to enlarge the Estate to the Devisees but this clause is onely a description of Land which he does not intend to devise and which in truth he cannot devise because that Matthew ought to have it by survivor and is principally named therein because of preventing any question between Matthew and the two Devisees after his death for otherwise they might perhaps have pretended that all
the Land in T. should pass to them especially because they were purchased as it might very well be presumed with the mony of the Devisor and he was reputed owner thereof but these words make no Declaration as to the Estate which he intends to demise to Henry and Michael The Condition or limitation annexed to the Devise in these words Upon condition that if they sell it to any man but to Matthew Lock my Son then he to enter upon it as of my gift by this my Will and I conceive that this clause does not shew any intent of the Devisor to enlarge the Estate first limited to Henry and Michael or to give an Estate in Fee to them for it is not if they alien in Fee or in Tail or if they or their Heirs do alien which words or any words to such intent would have declared a manifest intention that the Devisees should have a Fee-simple but here an alienation in general onely is restrained which ought to be taken for a legal alienation and such a one as they may make by reason of the Estate devised to them And that it shall be so intended first it is to be considered that this condition is a restraint annexed to the Estate and is as a Convinct to the Estate and therefore cannot be properly more large then the Estate it self for it is a Rule that every restraint or exception in an Assurance ought to operate upon the Estate or the thing before granted as in the Comment 370. Zouches Case An exception is an exemption of that contained in the general words and if it be not contained in the generality it can be no exception in the specialty and therefore if one doth lease W. acre excepting B. acre the exception is vain This exception of alienation is more proper to be annexed to an Estate for life then in fee for he who makes a Lease for life or years may restrain the Lessee by condition that he shall not alien but the Feoffor cannot restrain the Feoffe from aliening as in Littleton 84. If a Feoffment be made on condition that the Feoffee shall not alien the Condition is voyd for the Feoffee hath power to alien to whom he will for if that condition were good that would take from him the power which the Law gives him which would be against Reason but if the Condition be that he shall not alien to such a person naming the person or any of his Heirs or his issues this is a good Condition because it take not away the power to alien in Fee And Vernons Case 4 Rep. foâ— 3. An Estate in Fee conveyed by the Husband or his Ancestor to a woman for her Ioynture is not a Ioynture within the Statute of 11 H. 7. which restrains alienations made by women for to restrain such an Estate as cannot be aliened is repugnant and against the Rule of Law and therefore not within the intention of the Act. But it hath been objected on the other side 1. Object That this Condition is not voyd because it doth not restrain all their power but leaves them to the liberty to alien to Matthew 2. If the condition be voyd yet it is sufficient to declare the intent of the Devisor that a Fee should pass And as to the first I conceive that the condition is voyd Answer for to restrain generally and that he shall not alien to any but to J. S. is all one for then the Feoffor may restrain him from aliening to any except to himself or such other person by name whom he may well know cannot nor never will purchase the Land So that this condition shall take away all his power and shall make a perpetuity in the Feoffee which is quite contrary to Law neither is there any authority to warrant this restraint for Littleton leaves the Feoffee at liberty to alien to any except to such a one in particular And as to the second I do agree That if the condition to restrain the alienation had been expresly to restrain the Devisees and their Heirs or to have restrained from aliening in Fee or in Tayl or for anothers life although the condition had been voyd yet had it been sufficient to have shewn the intent of the Devisor and to have caused an Estate in Fee to have passed And therefore I do agree to the case in the 9 Rep. fol. 127. where one devised to his Wife for life and after her decease his Son William to have it and if William shall have issue male that he shall have it and if he have not issue male his Son S. shall have it and if he hath issue male his Son shall have it with like Remainders to his other Sons and my Will is If any of my Sons or their Heirs males issues of their bodies alien then the next Heir to enter c. And it was resolved That the Son should have an Estate in Tayl by this Devise First by reason of these words If he have no issue male which is as much as to say iâ— he dye without issue male Secondly because he and his Heirs males are restrained to alien for every restraint especially in Wills does imply that the party in case he were not restrained had power of the thing restrained And so Bakers Case Hillary 42 Eliz. Rot. 143. A Devise to the Husband and Wife the Remainder to their two Sons upon condition that if they or their Heirs go about to alien c. is a Fee-simple also for the Heirs being restrained to alien does shew fully that the Heir shall have the Lâ—nd for otherwise he cannot alien it But here in our condition there are not any words to shew the intent of the Devisor that an Estate in Fee shall pass but the Devisees are restrained to alien generally which as already I have shewed is more agreeable to an Estate for life then an Estate in Fee-simple at the least he does not shew any certain intent that the Devisees shall have an Estate in Fee but that remains dubious and therefore the safe way is to take the same according to the Rules of Law The third clause to explain the intent of the Devisor in this case is the clause of the Charge imposed upon the Land by the Devisor viz. Item All the Lands I have given joyntly betwixt my Sons is that they shall bear part and part-like going out of all my Lands as well Free as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands c. And I conceive that this clause makes nothing as to the enlargement of the Estate and yet I do agree 29 H. 8. Testament 18. 4 Ed. 6. Estates 78. That if one devise Land to another paying 20 l. or another sum in gross this is a good Devise in Fee but it is otherwise when the Land is devised to one paying an annual Rent or bearing an annual charge with the
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4
REPORTS OF THAT GRAVE and LEARNED JUDGE Sir JOHN BRIDGMAN KNIGHT Serjeant at LAVV SOMETIME CHIEF JUSTICE OF CHESTER To which are added Two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for H. Twyford Tho. Dring and Jo. Place and are to be sold at their Shops in Vine Court Middle Temple the George in Fleetstreet and at Furnivals Inn Gate in Holborn 1659. TO THE STUDENTS OF THE COMMON LAWS OF ENGLAND Gentlemen THese Ensuing Reports being brought to me in Manuscript in the peculiar Dialect of our Common Law I discovered the same to be the Hand-writing of that late Judicious and Honorable Person Sir John Bridgman Knight deceased Serjeant at Law heretofore Chief Justice of Chester the memory of whose great Learning and profoundnesse in the Knowledge of the Laws of England still liveth although himself be dead and thereupon bestowed some pains in the perusall thereof wherein I found many things in my weak apprehension worthy of observation which induced me to encourage the Translation thereof into our Native Idiome the Language enjoyned by the present Authority onely to be Used in things of this Nature whereby the same might become of publike Use if any well acquainted with the Authors Character shall doubt the Credit of this Copy they may have the sight of the Originall the better to satisfie themselves by the help of the Stationer The Cases are not placed in time as the same were adjudged but Printed in that order as they were found under the Authors own Hand For this Defect it is hoped that the Table may make amends which you will finde to be a perfect Repertory as to each materiall thing contained in this Book What faults have escaped the Presse will lye in the power of the judicious Reader to correct Mr. Bracton in his first Book Cap. 2. saith Si aliqua nova inconsueta emerserint quae prius usitata non fuerint in Regno Si tamen similia evenerint per simile judicentur cum bona sit occasio a similibus procedere ad similia Let this serve to Apologize for such encouragement as hath been given by me for the publishing of these Reports I having no other aim herein then the Publike good Farewell J. H. Middle Temple 5 Nov. 1658. THE NAMES of the CASES A ALlens case 13 Iac. 39 Ashfields case 14 Iac. 99 Adams case 15 Jac. 107 Agards case 15 Jac. 130 B Bassets case 8 Bishop of Chichesters case 1 Car. 29 C Crockers case 27 Coopers case 60 Crawleys case 13 Jac. 64 D Dawtrees case 18 Jac. 4 Davisons case 5 E Evans case 16 Jac. 118 F Frossets case 14 Jac. 49 G Garths case 22 Gouges case 12 Jac. 52 H Harris and Lewess case 56 Hollands case 69 K The King against Sir John Byron 23 The King Allen against Newton 15 Jac. 113 The King Parker against Webb 14 Jac. 120 L Loyds case 56 Lightfoots case 14 Iac. 88 Lees case 15 Jac. 116 Lingens case 15 Jac. 128 M Moores case 6 Meskins case 16 Mills case 63 Masons case 14 Jac. 87 Mandes case 13 Jac. 92 Mittons case 123 Muschamp and Lock against Blewit Sampson and Jenny c. 132 N Norris case 13 Iac. 47 Newshams case 14 Iac. 100 P Pets case 17 Iac. fo 1 Ponesleys case 18 Iac. 12 Perimans case 14 Sir Thomas Palmers case 11 Iac. 46 Pensons case 66 Parkers case 14 Iac. 89 Perryns case 12 Iac. 90 R Robinsons case 13 Iac. 79 Robinson against Greves 12 Iac. 81 S Samborns case 19 Iac. 9 Smalmans case 13 Iac. 42 Smith for the King against Boynton 13 Iac. 48 Smiths case 13 Iac. 59 Standishes case 14 Iac. 103 Southerns case 13 Iac. 125 T Townleys case 35 U Vanlores case 14 Iac. 58 W Whittons case 32 Weals case 14 Iac. 60 Webbs case 13 Iac. 84 Webb and lucks case 14 Iac. 110 Woods case 16 Iac. 139 THE REPORTS OF Serjeant BRIDGMAN Hill 17 Jac. Rotulo 170. Petts against Browne A Man is seised of Land in Fee and having two Sons doth devise his Land to his younger Son and his Heirs and if he dye without Issue living the eldest Son then the elder shall have the Land to him and his Heirs the Devisor dies the younger Son had issue a Daughter that dyed without issue then the younger Son suffers a common recovery with Voucher to the use of him and his Heirs and after deviseth to another and his heirs and then dies without issue living the elder Son Whether the Devisee or the elder Son should have the Land was the question And the Counsell for the Devisee raised three points 1. Admitting that these words in the Devise were omitted viz. living the eldest Son whether the younger Son had an Estate-taile or not 2. Whether these words do make such alteration of the Estate as to make the Estate a Fee-simple determinable upon this contingency viz. if he die without issue living the elder Son 3. Admitting that there were such a Fee in the younger Son yet whether this Estate devised to the eldest Son be not destroied by the recovery And as to the first point it was argued that if these words of limitation living the elder Son had been omitted the younger son had had an Estate-tail by this Devise the remainder in fee to the eldest Son For although the Devise to the younger Son was to him and his heirs which in case the Devise had stayed there had made a very good Fee-simple to the younger Son yet when the Devisor goes and declares further and deviseth that if he dye without issue that the elder son shall have the Land this last limitation if he dye without issue doth restrain the generality of these words his heirs to the heirs of the body of the younger Son only so that the last Devise to the eldest Son doth declare and exemplifie whâ—t kind of heirs the Devisor intended in the first Devise to the youngest Son and in the 5 H. 6. and the 5. where Land was given to R. and K. his Wife and their heirs and to the heirs of the said R. if the heirs of the said R. and K. his wife issuing should dye and this was adjudged a good Estate in tail And there it was said by Hall that if Land be given to a man and his Heirs for ever Et si contingit ipsum Obire sine haeredibus de corpore suo this is a good estate in tail and in the 19 H. 6. 74. by Vampage If I give land to another and his heirs for ever in the beginning of the Deed and then after I say Quod si contingat that if he die without heirs of his body that it shall remain to another in this case the Law intends by the Si contingat that it is but an Estate-tail And in the Book of Assises 14. Land was given to B. and his heirs to have and to hold to
anothers land hath nothing at all to do with the Land any more then a meer stranger but only to put therein his Cattel and to let them feed there with their mouths and it is not his own Common until his Cattel have fed there 14 H. 8. 10. The Owner of a Common cannot grant the Common to anothers use Et 27 H. 8. 12. A Praecipe does not lye of a Common for it is not my Common untill my Cattell have eaten of it and therefore that which another hath is not mine therefore I cannot have a Praecipe against him who hath not that which I demand and in the 22. Assise 48. and 12. H. 8. 2. If a man hath Common in another mans Soile and a stranger puts in his Cattell there the Commoner shall not have an Action of Trespasse for although he hath Common yet the Herbage doth not belong to him neither can a Commoner do any thing upon the Soile which tends to the melioration or improving of the Common as to cut Bushes Ferne or such things which do much impaire the Common neither can he make a Fence or Ditch to let out the water which spoiles the Common But if he be utterly disturbed of his Common he may have an Assise or a Quod permittat and if any damage or annoyance be made upon the Land whereby he loseth his Common he may have an Assise And as the Commoner may not meddle with the Soile so cannot he meddle with any thing arising out of the Land or that doth grow or is nourished by the same otherwise then to have his Cattell to feed there and therefore it is adjudged Mich. 5. Jac. that a Commoner cannot kill Conies there but may bring his Action on the Case But I agree that a Commoner may distrain Cattell Damage feasant because their being there is a damage not onely to the Owner but also to the Commoner and a Commoner may abate a Hedge or a Gate that hinders him from comming to his Common wherefore I conclude this first matter that the plea as to that is utterly insufficient by the Law if there were not a speciall custome alledged by the Defendant And therefore it is to be considered whether this prescription alledged by the Defendant to hunt and kill Conies there for preservation of his Common be good or no. And I conceive it is unreasonable and not good because it is to the prejudice of the Owner of the Soile without any consideration And it is unreasonable for two causes first because it is too generall for the Defendant may hunt and kill as many Conies as he will for he doth not claim to kill a certain number that do surcharge the Common but generally the Conies there Secondly as this plea is the Defendant makes himself his own Iudge to kill the Conies as often and when he pleases Also it is against Law for it is to the destruction of the Inheritance of another which no person can justifie by custome or prescription unlesse for the benefit of the Common-weal 13 H. 8. 16. It is Law to pull down a House if the next house to it be on fire and so the Suburbs of a Town may be pulled down in time of War and if Enemies be on the Coast it is good Law to come upon another mans Land and make Bulwarks there for the publick good is preferred before any mans private benefit But when it is only for the private benefit of a man it is otherwise 43. Ed. 3. a. The Abbot said that he was Lord of the Town of A. and did prescribe that when the Tenant ceased for two yeares that he might enter untill he be satisfied his arreares And it was held by the Court to be an ill custome to put a man out of his Inheritance yet is that more reasonable then this case for the time when the Lord shall enter is certaine and the time that he shall hold the Land is also certaine and 19. Elizab. Dyer 357. A custome that all Tythes let or granted for more then six yeares of Land in such a Towne was held void by the Court because it is contrary to reason and to the liberty of the estate of him that hath a Fee And 9 H. 6. 44. B. Custome in a Leet that if the petit Iury do make a false Presentment and this found by the grand Inquest they shall be amended and it was held by the Court to be no good custome and against common right but if the custome were that if the petit Iury concealed any thing they ought to present them to be amerced this may be a custome And to prove that Conies are part of the Inheritance see Coke Rep. 7. in the case of Swans But it may be objected that this usage may have a legall beginning viz. That it was so agreed at the time of the grant or creation of the Common I answer That then it ought to have been specially pleaded for else it shall not be so intended as it is proved in the 35 H. 6. 28. Simon Eyres case where a Custome was pleaded in London that if the goods of any man be pawned to a Citizen for a debt due to him that he may detain them untill he be payed his debt and it was urged because that it may be good to bind the Debtor because it may be intended it began by his own grant but it was ruled that it shall not be so intended unlesse it be specially alledged And that a man shall not be Iudge in his own case is proved by 22. Edw. 5. 13. B. The Defendant pleaded that at another time he accounted to the Plaintiff in the presence of A. B. was found in arrear wherefore he was committed to prison there it was adjudged that the party himself could not commit him to Prison and that an Action of false Imprisonment did lie against the Plaintiff And Cook R. 8. Dr. Bonhams Case And in the 5 H. 7. 9. B. If one prescribes that if any Cattel be taken upon his Land damage feasant that he may distreyn them and put them into the Pownd until amends be made according to his own will this was held not good because then he should be his own Iudg which is against reason And in the 19 Edw. 2. gard 127. A Custom was alledged in Ipswich that when an Infant could count and measure that he should be out of Ward and holden to be voyd 13 Edw. the 3. where a Custom was alledged that when one could count 12 d. and measure a yard of cloth he may alien his Land and did aver that the Demandant was of such age but because he did not alledg the age in certain it was adjudged against the Demandant And Dyer 91. a. One grants to another all his Trees which may be reasonably spared agreed that this was a voyd Grant for the incertainty And in the 20 H. 7 8. B. If Cestuy que use of a Mannor does
bargain and sell 10 l. Land parcel of the Mannor no use is changed for the incertainty Trinit 18 Jacob. Ponesley against Blackman IN an Ejectment upon a Lease made by Richard Perriam the 19 of May 18 Jacobi of a Messuage and Land in Thacham and Colthrop in the Parish of Thacham Habendum from the Annunciation last past for three years whereupon the Plaintiff entered and was possest until the Defendant the 20 of May in the same year did Eject him ad dampnum c. The Defendant pleaded Not guilty The Iury gave an Especial Verdict viz. That before the Ejectment John Curre was seised in fee of the said Lands and the seventh of January 10 Jac. for 300 l. did bargain and sell the same to William Perriam and his Heirs upon Condition that if the said John Curre his Heirs Executors or Assignes should pay to the said William his Heirs or Assignes at the house of C. B. in Westminster 300 l. in manner following viz. 10 l. the 9 of July then next coming 10 l. the 9 of January next after which shall be in the year 1613. 10 l. the 9 of July 1614 10 l. the 9 of January next after 10 l. the 9 of July 1615. 10 l. the ninth of January next after 10 l. the ninth of July 1616. 10 l. the 9 of January next after 10 l. the 9 of July 1617. and 210 l. the 9 of January next after that then the Indenture should be voyd Proviso semper And it was agreed by the said Indenture and the said parties that the said William Perriam his Heirs and Assigns shall not take and intermeddle with the actual possession of the said Tenements or with the receit of the Rents issues or profits thereof until default were made of the payment of the said 300 l. or any part thereof contrary to the limitation in the said Indenture And they found likewise that the said William Perriam did not enter into the said Tenements And that afterwards and before the first day of the payment the said Curre did demise the said Tenements to William Dibley and Richard Carter by two several Demises habendum for six years and an half rendering Rent That the said Dibley and Carter by vertue of the said several Demises did enter and take the profits during the said term claiming nothing but by the said several Demises and that they payd the Rents during all that time to Curre and that at the end of the said term they surrendered the Estate to Curre That 11 Octob. 16 Jacobi William Perriam made his Will in writing and thereby did Demise the said Tenements c. to Richard Perriam and dyed That the said Richard Perriam the 19 Maii 18 Jac. did enter and made the Lease to the Plaintiff who entered and was possest until the Defendant did Eject him That the said Richard Perriam was yet living But whether the Defendant were guilty or not they prayed the advice of the Court and if it seemed to the Court that he was guilty then c. It was argued on behalf of the Plaintiff That this agreement by Indenture that the Bargainee shall not meddle with the possession is a Lease for years to the Bargainor Admitting it to be no Lease for years yet is the Bargainor Tenant at will and when he makes a Lease for years and the Tenant enters he is a Disseisor and then when the Bargainor enters he is Tenant at will again and so the Bargainee may very well Demise the Land And as to the first point to make a Lease the Law does require but the agreement of the parties that the Lessee shall enjoy the Land and take the profits and it is not necessary to have any precise words of a Demise or Grant as in 5 H. 7.1 by Frieux If I make one Bayliff of my Mannor for certain years and that he shall have the profits without interruption this is a Lease for years But it was objected that there is no express words that the Bargainor Object 1 shall have the Land or the profit but onely that the Bargainee shall not have it But it was answered that the words did amount to so much Respons for when the Land is sold to the Bargainee by the Law he ought to have the possession and profits but when by the same Deed it is agreed that he shall not intermeddle with the Land it follows that the Bargainor shall have it for he had it before and there was nothing to exclude him but onely this Deed and although by the Deed the Land is conveyed to the Bargainee yet when by the same Deed it is agreed that he shall not have the possession it follows that the possession shall remain in the Bargainor in whom it was before the making of the said Deed for no alteration is made thereof as to the possession As in the 8 Assis 34. one made a Feoffment on condition that if such an act were not done that the Land should return c. and the Feoffor re-entered for the condition broken and there it was objected that his entry was not congeable because he must recover the Land by Action but it was adjudged that his entry was good and the same Law if the words were that for not performing the Feoffor should retake the Land But it was objected That it could be no Lease for the intertainty Object 2 of the time It was answered that notwithstanding it was a good Lease Respons for first it is certain to continue until the time limited for the first payment and if that be done then it is a good Lease until the second payment and is like to the Case where one lets Land for a year and so from year to year as long as both parties shall please this is a good Lease for one year and for every year after when he hath entered before any disagreement And as to the second Point it is clear that the Bargainor is in at the will of the Bargainee because he enters by his agreement and then when the Tenant at will makes a Lease for years and the Lessee enters he is the onely Disseisor but if the Tenant at will infeoffs a stranger then both are Disseisors by the Statute of Westm 2. Cap. 25. And in the 12 Ed. 4. 12 B. If Tenant at will makes a Lease for years this is a Disseisin And the reason hereof is apparent for the Tenant at will hath no Estate in the Land and therefore he hath nothing to transfer to another And in the 23 H. 8. B. If I let anothers Land for years and the Lessee enters he is a Disseisor And 21 H. 7. 26. a. If Tenant at will makes a Lease for years and the Lessee enters this is a Disseisin to the first Lessor And if the Tenant at will be outed by the Disseisor and re-enters he hath reduced the Estate to the Lessor as in the Lord Abergevenies Case reported briefly by the Lord Dyer
been granted with a fee of five marks from time to time by the Bishop grantor and his Predecessors to whom they pleased Cooks 9 Rep. Earl of Shrewsburies Case The Earl of Rutland was made Steward of a Mannor for life without any words to make a Deputy yet it was resolved that he might make a Deputy because it was not convenient for him to exercise such an Office So if an Office doth descend to an Infant he must of necessity make a Deputy And so if a Bishop be seised of a Mannor he may ordain a Steward of the said Mannor and may grant to the Steward a fee for the execution of the said Office according to the resolution in the said Case of the Bishop of Chester Object But it may be objected that here is a greater Fee granted then was before viz. Pasture for two Horses and therefore the Grant is not good to bind the Successor Respons And I do agree that the Grant of the said Pasture is void yet that shall not at all prejudice the Grant of the said Office with the ancient Fee for they are severall and distinct Grants so that the one viz. The Grant of the Office with the ancient Fee is good by the Law against the Successor and the other void against the Successor but it cannot hurt the grant of the Office and ancient Fee no more then if a Bishop should grant an old Office with an ancient fee and also a new Office which was never granted before and all this by one Deed of Grant and this is duely confirmed although this be void against the Successor as to the new Office yet it is good for the ancient Office and the ancient see for although these fees are contained in one Deed yet are they severall and distinct so that one may be good and the other void 33. H. 8. Dyer 48. One seised of a Mannor to which a Villain was reguardant did grant one acre and also the Villain the Villain did pass in gross and the reason there given is because there be severall Gifts contained in one Deed. Also the Averment of the Plaintiff is insufficient viz. That the pasture was never granted by any of the Predecessors of the Grantor so that it may be that they were granted by himself being Bishop many times before the said Statute and then the Successor may well grant it and in the said case of the Bishop of Salisbury it is averred that the Grant was not by the Bishop Grantor nor any of his Predecessors William Whitton Clerk Plaintiff Sir Richard Weston Defendant in an Action of Debt The Case THe Pryor of S. Johns of Jerusalem did hold certain Lands discharged of Tythes by reason of their order Quandiu propriis manibus excolebant the Statute of 31. of H. 8. for discharging of Tythes is made the 32. of H. 8. it was enacted that the King should have to him his Heirs and Successors all the Lands Priviledges and Hereditaments of the said Pryory the King dies and the Lands by Mesne descents doe come to Queen Elizabeth who grants the Land to Sir Henry Weston Grandfather to the Defendant who died seised and the same descended to Sir Richard Weston Father to the Defendant and so from him to the Defendant And If the Land should be held discharged of Tythes as the Pryor held it was the question And I conceive that the Defendant shall hold the land discharged of Tythes in the same manner as the Pryor held the same For the argument of which two things are to be considered 1. Whether the King or his Patentee shall have the same priviledge which the Pryor had by the Statute of the 32. H. 8. or not 2. Admitting that they shall not have this priviledge by generall words of this Statute then Whether they be discharged by the clause of the Statute of 31. of H. 8. of Monasteries or not And I conceive that by each of these Statutes or at least by one of them the King and his Patentees shall hold this Land discharged of Tithes Quamdiu propriis manibus c. And as to the first point I conceive that the Statute of the 32. of H. 8. hath sufficient words to give this priviledge to the King for it gives to the King not only all their Mannors Lands and Tenements but also all their Priviledges belonging to them or to their Religion or Order and this discharge of Tythes is a Priviledge belonging to their Religion or Order for whereas Pope Pascall did order that no Monk or religious Order should pay Tithes afterwards Pope Adrian did grant this priviledge Solis Hierosolimariis Hospitulariis Cistersiensibus Templaribus and did take away that priviledge from all other Orders And I conceive it will not be denied but that the Pryor himself hath this priviledge and if he had it then it will follow that the King and his Patentee hath it also for all their priviledges are given to the King But it may be objected Object that these priviledges are given in respect only of their Order and the Order bring gone the priviledge is gone also I do agree that all personall priviledges concerning their Order are gone by reason of their dissolution Respons but such priviledges as concern the Land and will make the Land most profitable to the King are remaining and are given to the King for the intent of the Statute was to give it to the King in as ample and beneficiall manner and with all such priviledges concerning the Land as they themselves had And although Tythes are not issuing out of the Land nor shall be extended for unity of possession of the land as in the 42. Ed. 3.13 Where a Pryor having Tythes did purchase the Land and made a Feoffment yet shall he have the Tythes and so if a Parson makes a Lease for yeares of his Glebe-land yet he shall have Tythes thereof yet the priviledge to hold the Land discharged of Tythes is a priviledge concerning the land and is not like to the case of the appropriation of a Rectory to the Templars which was disappropriate by the dissolution of their Order for the reason there is because the appropriation was made to a body corporate which body being dissolved it is impossible they should retain the same and no body else can have it without a new appropriation or an Act of Parliament and for Appropriations to Abbeys c. the clause in the 31. of H. 8. was necessary for otherwise the Patentees of the King being Lay-people and not capable of an Appropriation they cannot have it but by speciall provision by Act of Parliament but any man may hold Land discharged of Tythes But it may be again objected that in the same Parliament an Act was made to revive temporall Liberties Priviledges and Franchises Object 2 of Monasteries and therefore all those had been lost if it had not been for this Statute and Sprituall priviledges are not revived by
conceive that the request is made in good time enough Answer for two Reasons The Estate here is to be made by the Defendant and although he be not bound to do it without request yet may he do it or at least he may offer to do it without any request and therefore if there be any loss in the not doing of it it is his own fault because he did not offer to make the Estate and is not the Plaintiffs fault and if he had offered to make the Estate and the Plaintiff had refused he had been excused And therefore the rule is given in the Lord Cromwels Case aforesaid that when a woman or a Grantee upon condition is to make an Estate to the Grantor and no time is limited he hath time for his life unless the party who is to have the Estate do hasten it by request but if an advowson be granted on such condition the Regrant ought to to be before the Church becomes voyd so if the condition be to grant Rent payable at certain days the Grant ought to be before any day of payment for otherwise he shall lose the Presentation and the Rent which will incur before the Grant made And in the 14 Ed. 3. Debt 138. In a Debt upon a Bond the Defendant pleaded the Condition viz. That if he granted twelve marks Rent the Bond should be voyd and demanded Iudgment c. because no time was limited so that he might do it when he would and said that he was always ready to grant the twelve marks Rent and because he demurred not issue was joyned c. If this not making request shall be any damage to the Plaintiff it must be because the Defendant suffers loss by it as in the cases above cited but in this case the Defendant hath the same remedy for the 20 l. although no Estate be made as he should have had if the Estate had been made for by the fourth Article it is agreed that if there be no Estate made of the Land the Plaintiff shall enter at the Anunciation 1612. And I conceive that this payment ought to be made at the time limited for the entry for it is a mutual agreement that doth binde both parties and therefore it lies not in the power of the Plaintiff for his want of entry to defeat the Defendant of his 20 l. agreed to be payd to him but when he enters it shall be intended that he entered when it was agreed he should enter viz. at the Anunciation 1612. And if he payd it not then the Defendant might have had his Action of Covenant whether any Lease were made or not And in Sir Andrew Corbets Case Cook Rep. 4. 81. certain Land is devised to A. B. until 800 l. pound be levyed that is until it may be levyed and so in case of a Lease or limitation of a use for otherwise it should be in their power to hold out the Lessor for ever and so in case of an Elegit upon the Statute of Westm the 2d. cap. 18. and of Retinue for the double value of a Marriage by the Statute of Merton cap. 6. Opinion of the Court. And the whole Court was of Opinion that the request came too late whereupon they were of Opinion to give Iudgment against the Plaintiff but I prayed that the Plaintiff might discontinue his Suit which was granted Rot. 609. Michaelmas 13 Jacob. Smalman Plaintiff against John Agborrow and Edmund Agborrow Defendants IN an Action of Trespass for that the Defendants the 13 Maii 13 Iacob six Heifers of the Plaintiff of the price of 20 l. at Dodenham in a place called Well-Marsh did take chase and drive away to the damage of 10 l. c. The Defendants to all except the chasing did plead Not guilty And as to the chasing they said that the place where c. is and at the time wherein c. was the Freehold of one Francis Agborrow and so did justifie as his servants for damage feasant c. Replication The Plaintiff replyed that before the said Francis Agborrow had any thing c. the Dean and Chapter of the Cathedral of St. Mary the Virgin in Worcester were seised in fee of the Mannor of Aukerden and Dodenham whereof the place where c. is and at the time whereof c. was parcel c. And that the 25 of November 10 Elizab. the said Dean and Chapter by their Indenture did Demise the said Mannor to William Agborrow and Jane his Wife and to the said Francis Agborrow for their lives And that the 20 Febru 39 Elizab. William Agborrow dyed seised and that the 21. of Decemb. 39. Eliz. Jane did marry with Robert Hawkins And that the 25. Febr. 40. Eliz. Robert Hawkins and the said Jane by their Indenture did demise the said Mannor to William Hawkins and William Heaven for sixty years from the date c. if the said Jane and Francis Agborrow or either of them should so long live rendring twenty pounds rent and that the 25. of Mar. 13. Jac. William Hawkins and William Heaven did grant their Estate to the Plaintiff whereby he was possessed and put in his Cattel there to grase which were there untill the Defendant took them away c. And did aver the life of Francis Agborrow The Defendants rejoyn and say that the said Jane did die the 14. Rejoynder of Mar. 12. Jac. and that Francis Agborrow did hold himself in c. Per jus accresendi Vpon which the Plaintiff demurred in Law A man and a woman are Ioynt-tenants for life the woman marries The Case the Husband and Wife by Indenture do let their moyety for years rendring Rent and after the woman dies And the question was whether the surviving Ioynt-tenant could avoid this Lease And I conceive he cannot And for the Argument of this Case I shall observe these two things thereof That if the woman who made this Lease had been sole at the time of the making this Lease had been good during her life and the life of her Companion the other Ioynt-tenant That this Lease being made by the Husband and Wife is not void but voidable And as to the first Point Littleton fol. 63. and 64. saies that if two Part. 1 Ioynt-tenants in Fee be and one grants a Rent-charge and dies the Survivor shall hold the Land discharged but if one makes a Lease for years and dies the Lease is good against the Survivor and in Hales Case in the Comment If two Ioynt-tenants be for years and one of them does grant to I.S. that if he payes twenty pounds at Michaelmas he shall have his moyety and the Grantor dies and I. S. does pay the money yet shall not he have the Land because the Condition precedes the Estate but if he make a Lease for yeares to commence at a day to come and dies before the day yet is the Lease good against the Survivor and so in Trin. 37. Eli. Harbury and
years not expired at the time of her marriage she should have the Messuage then in his tenure being his Mansion-house which house now is in the tenure of the Plaintiff and an Annuity of 20 l. out of all his other Lands Tenements and Houses of the Devisor in the said Parish with a clause of distress and to detain the same until the said Annuity were payd to the said Ellinor and if Ellinor did marry he did devise all his said Lands except the said Mansion-house to the said Thomas Butler and his Children and made the said Ellinor his Executrix and dyed possessed And the said Ellinor entered claiming the Devise and the 16 of January 1606. marryed the Plaintiff and the 30 of April 1606. the Plaintiff and his Wife did agree to have the said Mansion-house and the said Annuity and Thomas Butler by their assent did enter into the residue And the 12 Jan. 1606. Elianor dyed And at our Lady-day 12 Jacob. 10 l. of the said Annuity was behinde wherefore the Plaintiff the 26 of May 12 Jacob. did enter and take certain goods for the said 10 l. and would have deteined them in the name of a Distress and the Defendants rescued them ad damnum 40 l. The Defendants pleaded Not guilty The Iury found the Lease made by the Bishop and the confirmation with the several Assignments and the Devise as in the Declaration is set forth saving the Devise to the said Thomas Butler from the day of the death of the said Ellinor which clause was not found and they found also that John Butler the 3 Novemb. 3 Jacob. dyed and that Ellinor did enter claiming by the Devise and that she married the Plaintiff and also their agreement to have the Mansion-house and Rent as a Legacy and the entry of Thomas Butler in the residue by the assent of the Executor and the death of Ellinor and that the 10 l. was behinde and that the Plaintiff took the goods and would have detained them as a Distress and that the Defendants rescued them And if the Defendants were guilty they found for the Plaintiff if not they found for the Defendant c. And I conceive Iudgment ought to be given for the Defendants For first I conceive that the Wife of John Butler had not any Rent at all out of the house in which the Distress was taken If she had any Rent yet it is determined by her death And I conceive the Case to be thus Lessee for years of two houses does devise them to his Wife for 28 years which is all the term if she live so long unmarryed and after her death to Thomas Butler and if the woman marries that she shall have one Messuage for the residue of the term and 20 l. Rent ex omnibus aliis terris suis with a clause of Distress and then Thomas Butler shall have the other Messuage The Devisor makes his Wife Executrix and dyes and the Wife enters claiming by the Devise and then marries the Plaintiff and then they agree to have the house that was devised to her after her marriage with the Rent and Thomas Butler by their assent does enter into the residue the Wife dyes and the Plaintiff distrains for Rent behinde after her death and the Defendants rescue the Distress whereupon the Plaintiff brings his Action And as to the first I conceive that the Wife can have no Rent by this Devise and that for three Reasons Because the Wife did take the entire term as Executrix and therefore she cannot have a Rent out of the same term and therefore I conceive it will not be denyed that if Lessee for years deviseth a Rent to I. S. and makes him his Executor and dyes I. S. shall have no Rent for in as much as he hath the term as Executor he shall have no Rent as Legated for it is extinct in the term and although he hath one in his own right and the other as Executor yet cannot he have both together 4 Ed. 6. B. Surrend 52. If one hath a term as Executor and purchase the Reversion the Lease is extinct And although the term in our case is devised to a stranger yet by the Law it does first vest in the Executor and the Devisee cannot have it without the delivery or consent of the Executor And if a Devisee does enter into a term or takes goods without the delivery of the Executor the Executor may have an Action of Trespass against him 20 Ed. 49. 2 H. 6. 16. 11 H. 4. 84. 37 H. 6. 30. although in the 27 of Henry the 6. 8. a. diversity is taken between a thing certain and uncertain for it is there said that if the thing devised be certain and a stranger takes it the Executor shall have an Action of Trespass but in old Nat. Bre. 87. there is no diversity So that it is clear that the term first vesteth in the Executor and so the Rent which the Executor had is extinguished by unity of possession Object And whereas it hath been objected That although the term does first vest in the Executor yet when he assents to the Devise he is then immediately in by the Devisor and therefore the Rent is not extinct Answer I answer That there the agreement does divest all the Estate that the Devisor had gained by his entry but in our case the woman hath as high and right an Estate in the Land as she hath in the Rent and although there be a possibility of severing the Land from the Rent yet that cannot revive the Rent being extinct as if one hath Land of the part of his Father and hath a Rent out of the said Land of the part of his Mother the Rent is extinct and cannot be divided although he dye without issue And that the Wife hath as high Estate in the Land as she hath in the Rent appears in Cook 6 Rep. Sanders Case where if an Executor commits waste before he assent to the Legacy an Action of waste lies against him which proves that the Executor hath the term And although the Devisee after his assent is in by relation by the Devisor yet this will not ayd the Rent no more then if a Son having Rent out of his Fathers Land and the Father dyes and the Son endows his Wife this shall not revive the Rent which was extinct before yet is the Wife in as of the Estate of her Husband and the Estate and possession of the Son is utterly defeated But admit that the Rent be not extinct yet here is no agreement to have the Rent for here are two Devises 1. Of the Land to the Wife if she continue unmarryed the remainder to Thomas Butler and the other of twenty pounds Rent to commence after her marriage wherefore the assent of the Executrix to the Devise of the Land is no execution of the Devise of the Rent Comment 5. 21. B. Welden and Elkingtons Case If a Termor deviseth a Rent or a
Common tâ—â—ne and the Term to another and dies and the Executor payes the Rent or suffers the Devisee of the Common to put in his Cattell this is no assent as to the Term for the Term is one thing and the profit out of it is another thing but there in the principall Case the assent of the Executor of the Devise to occupy the Land was a sufficient assent to the Remainder of the Term because the occupation of the Land and the Land it self is all one and Comment 541. the same agreed and that the first assent doth go to all And it is no assent to the Term neither can it be taken by Implication to be any assent to the Devise of the Rent for every Act that does enure to another Act by Implication ought to be such as of necessity ought to enure to the other Act which cannot be taken to be otherwise and therefore 2 R. 2. Attornment the 8th A Woman grants a Reversion to which a Rent was incident and afterwards marries the Grantee to whom the Tenant payes the Rent this is no Attornment for it is indifferent whether he payes the Rent to him as Grantee or in right of his Wife Dyer 302. Vivors Case que recover Rents of severall Tenants as Bayly and then they be granted to him and after the Grant they be paid to him this is no Attornment for they may be paid to him as he is Baily as well as he is Grantee But if the Lessee do surrender to him in the Reversion then it is a good Attornment for a Surrender cannot be to any but to him that hath the Reversion And so in our Case it is cleer that the assent to the Legacy of the Land it self is not any expresse assent to the Rent nor any implyed assent for there may be an assent to the one and not to the other and where the Wife had assented to the Devise of the Term she hath utterly dismist her self of the Term as Executor notwithstanding the assent to the Rent but having once assented to the Devise of the Term she hath no more to do with it and therefore in such Case the Legatee of the Rent ought to sue in the Court Christian for his remedy against the Executor in the same manner as if a Term were devised to one and the Executor will not assent to it but sells the Term to another And in this case if the Testator were indebted after this assent to the Devisee of the Term the Term cannot be put in execution for this Debt but the assent of the Wife is in her a Devastavit 21 Ed. 4. 21. 37 H. 6. 30 2 H 6. 16. Also here is no Rent devised out of this house for the Devise is Ex omnibus aliis terris suis which word all excludes all the Lands wherof any mention was made before And Coke Rep 1. Mildmayes Case There Sir H.S. did covenant for a Ioynture for his life and for the advancement of his Issue Male if he had any and for advancement of his three Daughters and for continuance of his Land in his blood to be seised to the use of himself for life and then of part to the use of his Wife for her life with other remainders to his Issues Males and Females Proviso that it should be lawfull for him to limit any part to any person for life or years for payment of Debts or Legacies preferment of his Servants or other reasonable considerations And then he did limit the part of one of his Daughters to another for the term of a thousand years and this was adjudged a void limitation and one principall reason was because that the word other cannot comprehend any consideration mentioned in the Indenture before the Proviso and the advancement of his Daughter was mentioned before Object 2 But it may be objected that other Lands shall be understood such as shall be demised after her marriage and so will not relate to the house whereof there was mention made before Answer That this Obligation is against the recited resolution for it may as well be said in this Case that other considerations shall be other then what are mentioned in the said Proviso but it was resolved that other shall exclude all considerations mentioned before the said Indenture and so he excludes in this case all mention before in this Writ And this Case was argued at the Bench Pasch 14. Jac. And all the Iustices did agree that all the exceptions taken by the Counsell of the Defendant as well to the matter as to the pleading to be of no force saving the principall point sc If the Rent shall be determined by the death of the Wife or not and herein the Court was divided viz. Haughton and Crook held that it was determined but Coke and Doderidge on the contrary Et sic pendet c. Hillar 12. Iac. Iohn Harry and Lewis Howell against Grace Harry IN a Writ of Errour brought to reverse a Judgment given in a Writ of Dower brought by the said Grace of the endowment of Richard Harry her Husband And the Error assigned was because the demand amongst other things was De tertia parte de uno Horreo uno pomario and the Tenants pleaded Ne unques accouple in legall matrimony which was certified against them whereupon Judgment was given against them whereupon the Demandant did surmise that her husband died seised and so prayed her Dower with damages Et petit breve tam de habere facias seisinam quam de inquirendo de damnis and the Writ of Error was purchased before the return of the said Writ or any Judgment given thereupon And I conceive that it is Error for the Demand ought to be as certain and formall as a Writ for the Writ of Dower being generall De libero tenemento the Demand ought to make it certain and therefore it is of the same nature as the Writ is 8. Ass 29. 13. Ass 2. 13. Ed. 3. br 265. A Chappell or an Hospitall shall not be named but by the name of a Messuage and 8 H. 6. 3. Praecipe quod reddat does not lye of a Cottage and Cokes 11. Rep. Serbes Case in an Ejectione firmae of a Close called Dumote Close containing three acres adjudged insufficient for the name and quantity will not serve without the quality and certainty ought to be comprised in the Court because the possession is to be recovered And it was adjudged that the Error would not lye Loyde against Bethell HUmphrey Loyde brought a Writ of Error in the Kings Bench against Bechell and others to reverse a Recovery had at Cardiff in the County of Flynt by Nicholas John ap Robert Loyde to whom the Defendants are Heires against John ap De ap Robert Loyde for the now Plaintiff of Land in the County of Flynt which Assise did begin in the time of Queen Mary and did continue untill the Reign of Queen Elizabeth the third year
Sir William the Remainder to the said Elizabeth for life the Remainder to the Plaintiff in Fee as the Defendants alledged and so they were at Issue And the Iury found the Lease and the descent of the Reversion and the Fine 33 Eliz. and the use and the death of John Parsons ut supra And that the one and twentieth of September 5 Jac. Sir William Ligon and Elizabeth his wife did make a Deed of Indenture of the said Tenements in these words This Indenture made c. between them of the one part and the Plaintiff on the other part whereby Sir William for seven hundred pounds before the ensealing and delivery paid to Sir William by the Plaintiff did covenant that he and Sir William before Christmas next should levy to the Plaintiff a Fine with Proclamations of the said Tenements which Fine and all Fines and Assurances to be had within seven years should be to the use of the Plaintiff and his Heirs upon Condition that if Sir William and Elizabeth or any of them or the Heirs or Assigns of Sir William should pay to the Plaintiff or his Assigns nine hundred forty three pounds at the Annunciation 1611. that the Estate of the Plaintiff should cease and that Sir William and Elizabeth and his Heirs should enter and the Fine should be to the use of Sir William and Elizabeth and the heirs of Sir William And Sir William covenanted with the Plaintiff that he and his Heirs untill the nine hundred forty three pounds be to be paid should have and enjoy to their use under the said Condition and according to the meaning of the said Indenture and if default of payment should be made then after such default the Premisses and the Rents and Profits thereof if such default should be shall be taken and enjoyed to their use without any interruption of Sir William and Elizabeth c. and discharged and saved harmlesse of all Incumbrances c. made by Sir William c. except the said Lease and Sir William covenanted that if the nine hundred forty three pounds should be paid to pay to the Plaintiff the charge of the assurance Pasch 5 Jac. The Fine was levied by Sir William and his wife to the Plaintiff and they found that the sixteenth of April 6 Jac. the Conusance of the Fine was made at M. in the County of Wilts and that after the said Conusance and before the said fifth of September Pasch 20. Martii 5 Jac. the said Sir William made another Indenture between him and his wife of the one part and the Plaintiff of the other part whereby Sir William and Elizabeth for seven hundred pounds before paid to them by the Plaintiff Sir William and Elizabeth did bargain sell and grant to the Plaintiff and his heirs the said Tenements upon the like Condition as aforesaid and Sir William did covenant that he and his wife should make a further assurance by Fine c. and that all such assurances should be to the Plaintiff and his Heirs under the said Condition untill default of payment and after such default to the use of the Plaintiff and his heirs absolutely and if payment be made to the use of Sir William and Elizabeth and the heirs of Sir William and the Plaintiff did covenant that Sir William and Elizabeth and their heirs untill the Annunciation 1611. should have all the Rents and Profits of the Premisses without interruption of the Plaintiff or his heirs That the eighth of December 6 Jac. Sir William Ligon died after whose death scil the aforesaid time quo c. the Defendants as Bayliffs to Elizabeth did take the said Oxe in the said place for the said seventy eight pounds six pence of the said Rent for three quarters ending at Christmas 9 Jac. But whether the Distresse was well or not they prayed the advice of the Court c. And upon this Verdict it was adjudged in the Common Pleas after many Arguments that the Plaintiff should recover For all the Iustices did agree that the said Fine was to the use of the Plaintiff and his Heirs whereupon the Defendant brought this Writ of Error and assigned the Error in the point of Iudgment only And it was objected by the Councell of the Plaintiffs in the Writ of Error that that it was apparent upon this assurance that it was made for the assurance of the payment of seven hundred pounds lent by the Plaintiff to Sir William and Sir William was to repay nine hundred forty three pounds which was full Interest according to the rate of ten in the hundred and then by the expresse Covenant in the first Indenture the Defendant in the Writ of Error was to have the Rents and Profits of the Land also whereby Worfeild should have more then ten pounds in the hundred and then the assurance is void by the Statute of Vsury then although by the last Indenture it is provided that Sir William and his wife should have the Rents and Profits untill the day of payment yet this shall not bind the wife for it is found expresly that she did disagree to this Indenture But I conceive that the Distresse was not well taken but that the Fine was to the use of William Worfeild and his heirs and so the Rent belonged to him And first as to the Objection that the assurance is void by reason of the Statute of Vsury that cannot be 1. Because it was not found that there was any lone of mony or usurious Contract and therefore it may be and so it shall be intended that the seven hundred pounds was paid bona fide after the purchase of this conditionall Estate made to William Worfeild 2. The Consideration is for seven hundred pounds paid before the ensealing and delivery of the Indenture so that if it be admitted that the seven hundred pounds was lent as Interest yet it may be that this was tent so long before the making of the Indenture that the nine hundred forty three pounds to be paid with the Profits of the Land does not exceed the principall debt according to the rate of ten pounds in the hundred And that Vsury shall not be intended without it be expresly found by the Iury vide Coke 10. Rep. the Case of the Chancellor of Oxford fol. 56. Covin shall not be intended or presumed in Law unlesse that it be expresly averred and so was it agreed in the Case between Tyrer and Littleton in the Common Pleas for the taking of an Oxe The Defendant pleaded Not guilty and the Iury found that Thomas Tyrer held certain Land of John Littleton by Rent and Herriot and the 42 of Eliz. did enfeoff John Tyrer his Son and heir who made a Lease to Thomas Tyrer for forty years if he should so long live to the intent that Joyce whom he intended to marry should not have her Dower during his life Thomas died possessed of the Oxe and the Defendant took it for a Herriot And they found
inter vicinos suos apud Edmunton praedict which is not sufficient for that it ought to be alledged in fact that he made or caused lites discordia and not that he was like to make them And if an Indictment be insufficient although that the party does plead Not guilty and be acquitted yet he shall not have a Conspiracy or an Action on the Case for by such Indictment he cannot be in any danger and 9 Ed. 4. 12. If one be indicted on an insufficient Indictment and he does not take advantage thereof but pleads not guilty and is acquitted and brings a Writ of Conspiracy the Defendants may show how that the Indictment was insufficient so that the Plaintiff was not duly arraigned and they shall have advantage thereof Vide Cook 4 Rep. Vaux Case And 34 H. 6. 9. If the party indicted be misnamed and be acquitted he shall not have a Conspiracy because the Indictment was voyd as to him And Dyer 286. If the offence in the Indictment be pardoned by a general pardon and yet the party pleads Not guilty and is acquitted he shall not have a Conspiracy because he was in no jeopardy And this Case being moved by Chilborn Serjeant and George Crook for the Plaintiff the fourth of February 15 Jacob. I shewed to the Court that the Plea was good for the reasons and authorities afore cited and also that the Indictment was insufficient for the Reasons afore shewed Judgment And therefore Iudgment was given Quod querens nihil caperet per Billam Michaelmas 15 Jacob. Thomas Muschamp Knight and Margaret his wife and Thomas Lock Esq and Jane his wife against Colan Bluet Michael Sampson Edward Jenny and Elizabeth his wife In the Exchequer IN an Action of Trespass for that the Defendants the first of January 14 Jacob. by force and arms the Close of the Plaintiff at Tottenham did break and enter possessionem tenementorum praedict a praedicto primo Januarii usque diem billae scil 20 Maii 15 Jacob. habuerunt tenuerunt custodierunt ad damnum 40 l. Quo minus c. The Defendants pleaded Not guilty The Iury found that before the Trespass Sir William Lock Knight was seised in Fee of the said Tenements and held them in Socage and that he and Matthew Lock his son were Ioynt-tenants in Fee of other Copyhold Lands in Tottenham and that he had issue Thomas Matthew John Henry and Michael That the 15 Martii 1549. Sir William made his Will in writing and thereby did devise these Tenements to Henry and Michael in these words I give to Thomas Matthew Iohn Henry and Michael my five Sons my dwelling House in Bow-lane and my House at the Lock in Cheap and my House at the Bell in Cheap to the intent that they or some of them may dwell in them and keep the Retaining Shop still in my name to continue there Item I give to Iohn Lock my House that Paris dwelleth in I give to Henry Lock my House that Iohn Edwards dwelleth in I give to Michael Lock the three Houses wherein W. B. and P. dwell I give to Henry Lock the House that Kew dwelleth in I give to Matthew Lock the two Houses wherein S. and T. dwell I give to Henry and Michael Lock all my Houses in the Poultry Bucklersbury and St. Iohns and a House that Goodman dwelleth in I give to Matthew Lock all my Houses at Dowgate and in the Vintry I give to Thomas Lock all my Houses in Cheap lying in St. Peters Parish I give to Thomas Lock my Land at Martin and Wimbleton that I may give him except one Farm called Martin Holts which I give to Henry and Michael Lock I give to all my five Sons the half of the Leg Entry which I purchased of late And as touching my Lands at Tottenham my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Land there which is Freehold I give to Henry and Michael Lock upon this condition that if they shall sell it to any man but to Matthew Lock my Son then he to enter upon it as of my Gift by this my Will Item All the Houses and Lands that I have given joyntly betwixt my Sons is That they shall bear part and part-like going out of all my Houses and Lands upon my Blessing as well Freehold as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands and Houses as well Copyhold as Freehold for which Sum I am bound as appeareth by certain Indentures c. and which of my Sons refuseth to bear his part of the aforesaid Sum of 40 l. I will that he or they shall enjoy no part of my Bequest by me to them given in this my Will but my Gift given to him oâ— them to go to the rest of my well-willing Sons which be content to fulfil this my Will and Bond that I am bound in to be performed Sir William Lock dyed seised and Elizabeth his Wife did survive him Henry and Michael did enter into the said Tenements and payd their parts of the said 40 l. to the said Elizabeth Henry dyes and Michael payd his part of the said 40 l. Thomas Lock was Son and Heir of the said Sir William and had issue Matthew Lock his Son and Heir and dyes Matthew the Son of Thomas deviseth the said Tenements to the Plaintiffs habendum from the death of the said Michael for seven years The 28 of July 15 Jacob. Michael Lock dyed seised of the said Tenements And the said Colan Bluet Michael Sampson and Elizabeth Jenny the Defendants are the next Heirs of the said Michael and that the said Bluet Sampson and Jenny in the right of the said Elizabeth his Wife after the death of the said Michael Lock did enter upon whom the Plaintiffs did enter upon whom the Defendants re-entred and made the Trespass But whether the Entry of the Plaintiffs was legal or not the Iury did doubt and if legal they found for the Plaintiff if not for the Defendants And I conceive that Iudgment ought to be given for the Plaintiffs for I conceive that Henry and Michael Loâ—k had but an Estate for their lives by this Devise which by their deaths is ended so that nothing can descend to the Heirs of Michael being the survivor and by consequence the Lease made to the Plaintiffs by Matthew Lock the Heir of the Devisor is good and the Entry of the Plaintiffs is lawful The Case And the Case upon the whole matter I conceive to be this Sir William Lock being seised of certain Land in Fee and being Ioynt-tenant with Matthew Lock one of his Sons of Copyhold Land within the same Town had issue Henry Michael Thomas and two other Sons and by his Will did devise to his Sons divers Lands severally And after says Touching my Lands at T. my Son Matthew is joyned Purchaser with me already
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
tenth of August next following at the said City did use the art and trade of Starch-making and that he the 21 of September 15 Jacobi did get into his hands by buying and not by Devise Grant or Lease twenty Quarters of Wheat residue of the said 400 Quarters to the intent to convert the same into Starch and the 20 October in the same year did convert the same into Starch and the 26 of October did sell the same to several persons and that every one of the said Quarters at the 21 of September was of price 36 s. But whether the Defendant were guilty of the Ingrossing aforesaid according to the form of the Statute the Iury knew not and therefore desired the Opinion of the Court but if otherwise c. And this Record was removed into the Kings-Bench by a Certiorare Judicium And Iudgment was given against the King and the Informer Moor against Sir George Reynel Marshal of the Marshalsee IN an Action of the Case wherein the Plaintiff declares That he the 15 Jacobi did recover in the Common-Pleas 240 l. Debt against one Gilbert Alsop and 20 l. damages and that the Plaintiff in execution of the said Debt did prosecute the said Gilbert by several Iudicial Writs issuing out of the said Court. And that he by a Writ of Exigi Facias issuing out of the said Court the next Term after the said Iudgment directed to the Sheriff of the City of Exceter and Returnable before the said Iustices Quindena Martini that the said Gilbert the 28 Octob. 15 Jacobi was Out-lawed in the said City at the Suit of the Plaintiff in the Plea of Debt aforesaid unde tunc convictus fuit c. That Michaelmas 15 Jacobi the Plaintiff took out of the said Court a Capias ut lagatum against the Defendant then to the said Sheriff directed returnable Octabis Purificationis That the 8 Octob. 15 Jacobi the said Writ was delivered to the said Sheriff That the 20 January 15 Jacobi the Sheriff took the said Gilbert and held him in his Custody That the 23 Januarii 15 Jacobi a Habeas Corpus was awarded to have the Dâ—â—â—ndâ—nt cum causa c. Lunae proxim post crastinam purificationis At which day he came to the said Court in the Custody of the said Sheriff who returned the said Writ That the twelfth of February the Defendant was committed by the said Court to the Marshalsey the Defendant then and yet being Marshall nevertheless the Defendant the thirteenth of April 18. Jacobi at Westminster did suffer the said Gilbert to escape against the will of the Plaintiff he being unsatisfied his said Debt and damages whereupon the said Plaintiff hath lost his said Debt and damages ad damnum 300 l. The Defendant pleaded that the said Gilbert was committed to him by vertue of the said Writ but said further that he remained in his Custody from the aforesaid twelfth of Febr. untill the twenty seventh of Febr. the 16. Jac. during all which time the Plaintiff never prayed to have the said Gilbert in execution neither was the said Gilbert ever committed at the request of the Plaintiff to the Marshalsey in execution for the said debt and damages And pleaded further that the twenty seventh of Febr. 16. Jac. the said Gilbert did escape against the will of the Defendant which is the same escape whereon the Plaintiff doth declare Upon which Plea the Plaintiff did demur Bridgman for the Plaintiff I conceive Iudgment ought to be given for the Plaintiff for when the Defendant Alsop in the first Action was taken by the Capias utlagatum after Iudgment he was in execution for the Plaintiff Vide Cokes Rep. Vernons Case for in asmuch as the King by the originall Suit of the party is entitled to have all the Goods and Chattels and the Profits of the Land with his body also by reason of the Outlawry it is good reason that if the Defendant be taken at the Suit of the King that as the King shal have benefit by the suit of the party so the party should have some benefit by the suit of the King Resolved by the Court that when he was taken by the Capias utlagatum issuing out of the Kings Bench he shall be in execution for the Plaintiff presently after the Arrest if the Plaintiff will although his body was never brought into the Court and although the Court did not commit him in execution for the party Note that in all Cases when the Defendant may have a Capias ad satisfaciendum and the party Defendant is taken by a Capias pro fine there the Defendant is in execution presently if the Plaintiff wil without any Prayer of the party but when the Plaintiff hath Iudgment and le ts pass his time so that he cannot presently neither by Capias nor by Fieri facias but is driven to his Scire facias there if the Defendant be taken by a Capias pro fine the Plaintiff must pray that he may remain in execution for him but this cannot be done without such Prayer Vide 5. Rep. Frosts Case 22. Assise 74. If one condemned for a Disseisin with force or fees be taken for the Fine yet he shall not go at large if the party prayes that he may remain for his execution and in 11. H. 7. 15 when the party may have execution without a Scire facias the execution for the King shall be prayed for the party and it is not materiall whether there were a Capias in the Originall but otherwise if it be after a year 2. Rich. 3. If one be taken for a fine to the King within the year and the King pardons him yet he may remain for the party And so in this Case I conceive that Gilbert was in execution for the party and if he was not yet the Plaintiff hath proved him in execution from whence he escaped by the default of the Defendant so this Action doth well lye Also the Plaintiff doth charge the Defendant with an escape 13. April 18. Jacobi and the Defendant pleads an escape the 27. Febr. 16. Jacobi which was a year and two daies before the escape alledged by the Plaintiff to which the Defendant hath made no answer and although he concludes that it was the same escape which makes the plea good where the time is not materiall yet it is not in this case for here it is admitted by the Defendant that the Plaintiff might have prayed him in execution so long as he remained in prison but it may be he made his prayer afterwards viz. between the 27. Febr. 16. Jac. and the 13. April 18. Jac. as it may very well be in this case and then the averment of the Defendant is nothing to the purpose Also the Defendant saith that he remained in Prison from the twelfth of February 15. untill the seven and twentieth of February 16. Jacobi during which time the Plaintiff did not pray him in execution in which case
Mercatori deliberarentur idem Mercator haberet seisinam terrarum quae fuerunt in manubus debitoris die recognitionis facti in quorumcunque manubus postea devenirent sive per Feoffamentum vel aliter quod post debitum persolutum terrae debitoris exit inde per Feoffamentum returnarent tam Feoffatus Anglice the Feoffee quam aliae terrae debitoris quodque insuper si debitor vel fidemsores ejus obierent Mercator nullam haberet authoritatem ad corpus haeredis capiendum sed terras suas haberet si aetatis foret aut quando erit plenae aetatis quosque quantitatem Anglice the quantity valorem debiti de terris levasset prout per eundem actum inter alia plenius apparet Cumque etiam quidam Richardus Davies de Mitton infra parochiam de Breeden in Com. Wigorn. generosus post editiones seperalium actuum praedictorum scil ultimo die Junii anno Regni Dominae Elizabeth nuper Reginae Angliae quadragesimo tertio apud Civitatem Glocestriae in Comitat. Civitatis Glocestriae per quendam Henricum Machen generosum nuper defunct in vita sua ductus fuisset coram Johanne Thorne Gulielmo Hill tunc Vicecomitibus Balivis ejusdem Civitat custodibus Majoris precii sigilli Mercatoris intra eandem Civitatem Thoma Atkins Armigero tunc Clerico ad recognitiones debitorum intra Civitatem illam accipiend deputat Custodit minoris precii ejusdem sigilli ad tunc ibidem coram eisdem Vicecomitibus Ballivis Clerico per quoddam scriptum suum obligatorium tunc ibidem recognitum sed secundum formam Statutarum praedictarum non confect neque format gerens dat eodem die anno devenisset tent obligat praefato Henrico in quingentis libris legalis monetae Angliae quod quidem scriptum sequitur in haec verba Noverint universi per praesentes me Richardum Davis de Mitton in parochia de Breeden in Comitatu Wigorn. generos teneri per hoc praesens scriptum de Statuto Mercatorium firmiter obligari Henrico Machen de Crickley in Comitat. Civitatis Glocestriae generos in quingentis libris bonae legalis monetae Angliae solvend eidem Henrico Machen aut suo certo Attornato Executoribus Assignatis suis Et si non fecero volo concedo quod currant supra me Haeredes Executores Administrator meos districtiones poenae praemissae in Statut edit in Parliamento Domini Edwardi primi quondam Regis Angliae apud Acton-Burnel Westminst pro dâ—bitis Mercatorum recuperand Et facta fuit haec recognitio in Civitate Glocestriae coram Johanne Thorne Gulielmo Hill Vicecomitibus Ballivis Civitat Glocest praedict custodibus Majoris precii sigilli recogn Statut. Mercatorum ac Thoma Atkins Armigero Clerico Dominae Reginae custode minoris precii sigilli Recogn Statut. praedict ad Recognitiones debitorum apud Civitatem Glocest praedict secundum formam Statuti capiend deputat In cujus rei testimonium huic praesenti scripto ego praefatus Richardus Davis sigillum meum apposui sigillum praedictum ad Recognitiones secundum formam Statuti praedict ordinat pro Majore securitate inde praesentibus apponi procuravi Dat. apud Glocest praedict ultimo die Julii anno Regni Dominae Reginae Elizabethae Dei gratia Angliae Franciae Hilerniae Reginae Fidei Defensoris quadragesimo tertio ac Anno Domini 1601. The Case RIchard Davis being seised of Land in fee did acknowledg a Statute Merchant of 500 l. to Richard Machin to be payd to the Conusee c. without expressing any day of payment the Conusor made a Lease of the Lands to E for years who grants his Estate to B the Conusee dyes intestate and his Administrator extends the Land whereupon the Assignee of the Term brings his Audita Querela And whether the Audita Querela will lie or not was the Question And I conceive that it will not lie In which the Question is onely Whether this Statute being without an express day of payment be good or not and warranted by the Statutes of Acton-Burnel de Mercatoribus or not And I conceive this is a good Statute and well warranted by the said Statutes And first the intention scope and purpose of this Statute is to be considered and that was as I conceive to provide speedy remedy for Merchants as well Foreigners as Natives to receive their Debts and this is grounded on very good reason for Merchants are necessary members of the publique good for by them and their Trade the King hath profit by his Customs 2. The King and his Subjects have Foreign Commodities for their necessary use 3. They are the means of uttering the Commodities of this Land in Foreign parts 4. The Subjects of the King are educated and instructed in Navigation And the necessity of Merchants and their good usage appears in Magna Charta 30. Omnes autem Mercatores nisi publice antea prohibiti fuerunt habuerunt salvum securum conductum exire de Anglia venire in Angliam morare ire per Angliam tam per terram quam per aquam ad emendum vel vendendum c. And because their repair into this Land was so necessary these Statutes were made to give them security and remedy for their Debts arising for the sale of their Merchandizes and this is the whole scope and purpose of the Statute And to examine the parts of these Statutes I conceive that some parts of this Statute are substantial and material and therefore ought precisely to be observed and some are not so substantial and this of the day is such a one And first the Debtor ought to come before the Major or other Officer and Clerk appointed to take tâ—e Statute He must there acknowledg the Debt The Recognizance must be inrolled The Clerk ought to make a Writing obligatory It ought to be sealed with the Seal of the Debtor and the Seal appointed by the King which by the last Statute ought to be of two parts whereof one is to remain with the Major or other Officer and the other with the Clerk There ought to be a time of payment and this ought to be so certain that the Major by view of the Roll may certifie that the time is past And as to the other parts not substantial Although the Statutes appoint the taking of the Statute before the Maior or other chief Officer in the singular number yet the same may be done before any two chief Officers as it is usual in many Towns Although the Statute ordains the inrolment and the writing to be of the proper hand of the Clerk yet it may be written by his Clerk or servant Although the time of the payment be limited by the Statute to be at a day certain yet it is sufficient if the time be certain although no particular day be exprest in the Statute But all the first six
matters being of substance ought to be observed as in Trinit 37 Eliz. in this Court between Worsly and Charnock a Statute acknowledged which had but one piece of the Seal adjudged voyd and the same adjudged in the Case of Ascue and Hollingworth Trin. 37 Eliz. Rot. 343. and this is upon very good reason for when the King hath committed the Custody of the Seal to two scil to the Major and the Clerk and to each a part the part committed to one is not sufficient And all the other aforesaid substantial parts are material parts of the said Statute except the writing of the Statute with the proper hand of the Clerk Then the Question in this Case is no more then if there be a sufficient time limited for the payment and such a time as the Major may certifie to be incurred in case it be so required And I conceive there is for when he acknowledgeth the Debt to be due and no time is expressed the Law appoints the payment to be immediately and that is such a time as the Major by his Certificate may take notice of 44 Ed. 3. 9. a. If a Bond be made and no day of payment therein limited it is due presently 4 Ed. 4 49. B. 9 Ed. 4. 22. but he shall not recover damages without demand 14 H. 8. 29. 6. If one be bound in a Bond and no day of payment be limited and then the Obligor is bound in another Obligation to pay the mony at a day certain if the mony be not payd at the day he forfeits his second Bond and yet by the first Bond it was not payable before request But that request is because as I conceive that he shall recover no damages before request but the mony is due presently and when the Law appoints a time certain that is as good as if it had been exprest in the Bond it self As in the Statute of Westm 1. cap. 38. where it is ordained that in a Writ of Mortdancester the Demandant shall count of the seisin of his Ancestor from the time of the Coronation of King Henry the third Yet if an Infant brings a Mortdancester of the seisin of his Father or Mother he need not alledg this in his Writ because it appears to the Court. 16 Ed. 4.47 In an Action on the Case for disturbing the Plaintiff of holding a Fair and the Plaintiff prescribed to have a Fair in C. for three days scil ab hora nona in vigilia sancti Petri ad vincul and for two days and a half next following and this was held to be good because two days and two half days make 3 days And if the Statute had been in the hundred hour or the thousand hour after the making thereof here is no day limited and yet I conceive that no body will doubt but that this is a good Statute Cook Rep. Signior Montjoyes Case If one having authority to make Leases reserving the usual Rent does let Land whereof the ancient Rent was a Quarter of Corn reserving eight Bushels this is a good Lease for the Law respecteth not the forms of words but the substance and effect of the matter Object But it may be objected That if the Statute doth not mention a day of payment it is to no purpose to acknowledg such a Statute for if the mony be payable presently the Debtor may pay the mony and spare the making of the Statute I answer Respons that the Statute intends onely to provide assurance to the Merchant for his debt and not to give any day of payment to the Debtor but to leave that to the agreement of the parties and when the Merchant hath delivered his Goods there is reason he should have present security and not present payment for them unless it be otherwise agreed amongst themselves but if they agree upon a day of payment that may be put into the Statute or else to have a Defeasance but this is not of necessity There is a Rule in Law that every Lease ought to have a certain time of beginning and also of ending yet if one makes a Lease for twenty years and does not say when it shall commence this is a good Lease for the Law will suppose the Lease to begin presently And it is ordered by the Statute that the Writing obligatory shall be written with the proper hand of the Clark yet it is a good Statute although it be written by his Servant but otherwise in case of Authority to revoke as in Coke Rep. Scroopes case he who hath power under his hand to revoke cannot do it otherwise Mich. 18. Jac. Thair against Thair and Trin. 42. Eliz. Birde against Stride Furthermore these Statutes being taken for assurance of Merchants shall be expounded favourably for them so far as the variance if any be of the Letter shall not impeach it 5. Rep. 77. a 21. Edw. 3. 18. 10 Rep. 67. 27 H. 8. 10. 4 Rep. Vernons case And the form of the Statutes in Glocester Hereford and Bristoll and many other Towns is to mention no day of payment but some are made Sine ulteria dilatione some Immediate but the most usuall do run as in our case and the formes of Presidents are much to be regarded As in the Comment 163. Frogmorton against Tracy Two Iustices held that an Avowry by the Defendant was not good without averment as ought to be in every Plea but when all the Presidents were shewn without averment they were satisfied And the same case is put in the Comment 320. B. for a Rule that the Records of every Court are the most effectuall proofs of the Law of things treated in that Court and in the 39. H. 6. 30. In a Writ of Mesne the Tenant shewed the Tenure only between the Mesne and the Tenant and not the Tenancy between the Mesne and the Lord Paramount wherefore the Iudges held the Plea naught but when they had seen the Book of Presidents wherein it was usuall to omit this they changed their opinions and said that they would not alter the Presidents And in the 5. Ed. 4.19 B. Babintons case The custome and course in a Court and the Presidents in a Court do make a Law Vide Rawlins case Coke Rep. 14. And the Statute provides only for Merchants for their debts and yet none will deny that if such a Statute be acknowledged to one who is not a Merchant or never used Merchandizes yet it is good And Trin. 22. Judicium Jac. This case was argued by the Iudges on the Bench and Jones held the Statute good but Hutton contra and Winch and Hubbert held the Statute good Wherefore Iudgment was given Quod querens nihil Capiat per breve Garth against Ersfeild Knight in Cancellar In a Scire facias to have Execution of a Recognizance of eight hundred pounds acknowledged in the Chancery by Sir Thomas Ersfeild the Father of the Defendant the third of May 14. Jac. THE CASE SIr Thomas Ersfeild the
Defendants Father was seised in Fee of divers Lands and made a Feoffment to the use of himself for life the remainder to the Defendant his Son in Tail with divers remainders over with power of revocation by writing under his hand and Seal and publisht in the presence of three Witnesses And then for the consideration of four hundred pounds did enter into this Recognizance to the Plaintiff and dies And whether this Land were extendable or not against the Son was the question And I conceive that by the Statute of the 27. Eliz. this Recognizance may be extended against the Son the words of which Statute are And be it further enacted by the Authority aforesaid that if any person or persons have heretofore sithence the beginning of the Queens Majesties Reign that now is made or hereafter shall make any conveyance Gift Grant or Demise Charge Limitation of Use or Uses or Assurance of in or out of any Lands Tenements or Hereditaments with any Clause Provision Article or Condition of Revocation Determination or alteration at his or their will or pleasure of such Conveyance Assurance Grants Limitation of Uses or Estates of in or out of the said Lands Tenements or Hereditaments or of in or out of any part or parcell of them contained or mentioned in any Writing Deed or Indenture of such Assurance Conveyance Grant or Gift and after such Conveyance Grant Gift Devise Charge limitation of Use or Assurance so made or had shall or do bargaine sell demise grant convey sell or charge the same Lands Tenements or Hereditaments or any part or parcell thereof to any person or persons bodies Politick or Corporate for money or other good consideration paid or given the said first Conveyance or Assurance Gift Grant Demise Charge or Limitation not by him or them revoked made void or altered according to the power and authority reserved or expressed unto him or them in and by the said secret Conveyance Assurance Gift or Grant That then the said former Conveyance Assurance Gift Grant or Demise as touching the said Lands Tenements and Hereditaments so after sold bargained conveyed demised or charged against the said Bargainees Vendees Lessees Grantees and every of them their Heirs Successors Executors Administrators and Assigns and against all and every person and persons which have shall or may lawfully claim any thing by from or under them or any of them shall be deemed taken and adjudged to be void frustrate and of none effect by vertue and force of this present Act. So that this Statute doth not only aide Purchasors of the Lands but those who for a valuable consideration have any charge out of the Land or upon the Land But it may be objected that the Statute doth make the revokable Conveyance void only against the Bargainees Vendees Grantees Object and Lessees but does not speak of any Conuzee But I answer that it appears by the foregoing words Respons that the Statute intends to aide not only Bargainees c. but also all that have any charge out of the Land or upon the Land and although the last words of the Statute doe not speak expresly of Conuzees yet the Statute shâ—ll be expounded to extend to them and the Statute of West 2. cap. 1. Quod illi quibus tenementa data sunt in Taile potestatem alienandi c. which words seem only to restrain the Dâ—nee in Tail yet in the 5. Edw. 2. Form 52. the issue is thereby restrained and 3. Edw. 3. Formedon 46. that Tenant in tail cannot charge the Land no more then alien can forfeit the Land so that if he grant a Rent or acknowledge a Statute or Recognizance or commit Felony or Treason and dies the Issue shal have the Land discharged And this Statute hath alwaies been taken as to the equity thereof to releive Purch sors and those who have and therefore in Coke R. 3. 82. B. Standen and Bullocks case Mich. 42. 43. Eliz. where a man had conveyed his Land to the use of himself for life and then to the use of divers others of his blood with future power of revocation as after such a Feast or after the death of such a one and after and before the power of revocation commenc'd he for a valuable consideration did bargain and sell the Land to another and his Heirs this bargain and sale is within the remedy of the Statute for although the Statute saith the said first Conveyance not by him revoked according to the power by him reserved which seems by the literall sense to be intended of a present power of revocation for no revocation may be made by force of a future power untill it comes in esse yet it was holden that the intention of the Act was that such a voluntary Conveyance which was originally subject to the power of revocation be it in present or in future shall not be good against a Purchasor bona fide upon valuable consideration and if other construction be made the Act will signifie very little and it will be easie to evade such an Act. And so if A. hath reserved to him a power of revocation by the assent of B. and then A. bargains and sells the Land to another this bargain and sale is good and within the remedy of the said Act. The King against Sir John Byron Knight IN a Quo Warranto for that the Defendant for a year past hath used and yet doth use without any Warrant within the Mannor of Colswick in the County of Nottingham within the bounds of the Kings Forest of Sherwood and within the reguards of the said Forest to have a Park within the said Mannor with a Pale Hedge and Ditch inclosed being two hundred acres of Pasture and a hundred acres of Wood within the said Park Et ad venandum capiendum occidendum apportandum in the said Park and two hundred acres of Pasture and a hundred acres of Wood omnes omnimodas damas Domini Regis Forrestae suae praedict in parcum praedict praedict 200. acr pasturae 100. acr Bosci aliquo tempore venand occidend Ita quod Forrestini Domini Regis forestae praâ—dict nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum intra parcum praedictum 200. acr pasturae 100. acr Bosci sine licentia defendentis The Defendant pleaded that John Biron Knight the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land two hundred acres of Meadow three hundred acres of pasture and a hundred acres of wood in Colwick in the County aforesaid now and time out of mind called the Mannor of Colwick within the meets and bounds of the Forâ—st aforesaid And that the said John Byron the Grandfather and all those whosâ— Estate the said John Byron hath in the aforesaid house and a hundred acres of land two hundred of Meadow and three hundred of Pasture and a hundred of Wood in Colwick aforesaid have had
against Humphrey Bigges And Manwood fol. 1. A Forest is a certain Territory of Ground priviledged for wild Beasts and Fowles of the Forest to rest and abide in the safe protection of the King for his Princely delight and pleasure and doth consist of four things 1. Vert. 2. Venison 3. Particular Laws and Priviledges 4. Certain Officers But by this pretence of the Defendant the Forest of the King is priviledged for wild Beasts to rest in protection of the King but they are subject to being destroyed by the Defendant for by such pretence none can enter there but he or his Keepers And I conceive that no body can pretend to have any profit or pleasure in the Forest which tends to the destruction of the Forest and that is the reason that one cannot prescribe to have Common in a Forest for Sheep Geese Goats or Hoggs for to suffer them to Common there is Ad magnum nocumentum ferarum forestae and such a prescription the Defendant maketh which is not only Ad magnum nocumentum but to the utter destruction of the Forest And if it be objected that this Park claimed by the Defendant is but a little part of the Forest this is no answer for as in the Case of a Common no man may prescribe to have Sheep c. in the Forest so cannot he in any part of the Forest and if the Defendant may prescribe to have such an irregular Park in part of the Forest so may others claim such like prescriptions in other parts of the Forest and so the King shall lose all the Franchise of his Forest and the Defendant may make his Fence or Ditch so low without-side and so high within that the Kings Deer cannot get out again when they are come in and so this Park shall be in the nature of a Trap to catch the Kings Deer And further he that will prescribe to have any common profit or pleasure in the Freehold or Inheritance of another ought to make his prescription in such manner so that he must leave the residue of the profits to the Owner and cannot utterly exclude the Owner and therefore if one doth prescribe to have all the Herbage Pannage and Profits of the Land of I. S. no man can conceive that this prescription is good Neither can a Commoner prescribe that the Lord of the Soile cannot put in any Cattell into the Land But in our case the very Franchise of the Kings Forest doth consist of Vert Venison Lands and Officers of the Forest for the King may have a Forest although he hath no Land there And in the Commentaries 332. If a Mannor within the Forest of Waltham do escheat to the King and the King grants the Mannor to one in fee yet shall not he have the liberty of the Forest And the same Law is where the King grants all the Land which he hath in the Forest But notwithstanding I agree that one may have a Park within a Forest by prescription or by grant but then the same ought to be kept so inclosed that the Beasts of the Forest cannot enter into the Park which if not done it is a forfeiture of the liberty of the Park and so it is if he have a Salterie or Deer-leap for the nature of a Park is to be inclosed and in the 10. H. 7. 6. it is said that a Park consists of Soile Inclosure and Game and in the 15. Ed. 3. closure and game And in the 15 Edw. the 3. Thomas Earl of Lancaster Lord of a Forest did grant leave to one John Harrington to make a Park within the said Forest and there it is adjudged that if the Grantee does so sleightly inclose the Park so that the Forest-beasts may get in there that it is a forfeiture and the Lord of the Forest may enter and take the Deer But by the pretence of the Defendant the King shall not have so much power in this Land being in the midst of the Forest as he hath in the Lands of any of his Subjects which do lie without the Forest for if Forest Beasts stray or wander into the Land of a Subject out of the Forest the Foresters may enter into this Land and rechase them into the Forest again Crocker against Kelsey HVsband and Wife Tenants in Tail of the Gift of the Husband the remainder to the Husband in fee The Husband dyes the Son and Heir of the Husband and Wife does levy a Fine with proclamations to the use of him and his Heirs the Wife does let a Lease of the Land for 21 years and dyes the Son deviseth his Land to E and his Heirs and dyes And Whether this Lease made by the Wife were good to binde the Devisee was the Question And I conceive that the Lease is good For although that by the Fine the Estate-tail is barred as to the Conusor and all his issues yet does the Wife remain Tenant in Tail as before and therefore this Lease made by her is a good Estate derived out of her Estate-tail and shall binde all except the issues in Tail who may claim per formam Doni And so is it in the 33 H. 8. Dyer 51. B. Tenant in Tail before the Statute of the 27 H. 8. does make a Feoffment to the use of himself in fee and then he and his Feoffees make a Lease for years rendering Rent and then is the Statute made the Tenant in Tail dyes and then the issue aliens by Fine before any entry or receit of the Rent and holden by all the Iustices except Sanders that the Alienee shall not avoyd this but otherwise of a Rent granted And suppose the Fine had not been levyed by the issue he shall not avoyd the Lease without entry and if he had aliened after the death of his Mother and before entry the Alienee should never avoyd the Lease And in the 29 Assis 51. and the Comment 557. Tenant in Tail acknowledgeth a Statute-Merchant the issue is attaint of Felony and pardoned the Tenant in Tail dyes the issue enters and the Conusee sues out Execution And because the issue was disabled to inherit the Estate-tail therefore he had it as an Occupant and so it was subject to the Execution And although the remainder in Fee does pass by way of interest by the Fine yet that cannot come in possession so long as any issue in Tail is living and therefore if a stranger had entered after the death of the Wife the Son could not have had a Formedon in the remainder for that must suppose the death of the Donees in Tail without issue the which cannot be in our Case Comment 560. Austens Case Sir Thomas Wyat Tenant in Tail of the Gift of the King made a Lease for years rendering Rent and dyed Sir Thomas his son accepts the Rent and after was attaint of Treason and executed having issue and adjudged that the King should have the Land in point of Reverter discharged of the Lease
the Statute and therefore they are gone The reason of making of this Act was Answer because divers priviledges which they had as Bona Catalla Fellonum c. were extinct by the accession to the Crown and therefore it was necessary to revive them but if the Statute had not been made yet shall the King have all those Priviledges which were not extinct as Parks Chases Warrens Markets Fairs c. And that this priviledge is given to the King may be proved by a Proviso in the Statute whereby it is provided that all priviledges of Sanctuaries before used or claimed in houses or other places commonly called S. Johns Hold and all other Sanctuaries before used and appertaining to the said Hospitall shall be void and of none effect whereby it appears that if that Proviso had not been made the priviledge of Sanctuaries had been in the King and his Patentees in the same Mannor as had been used before the dissolution and that by force of this word Priviledge and yet this priviledge of Sanctuary does not concern the Land as discharge of payment of Tythes doth Object 3 But it may be again objected that the Statute of the 31. H. 8. hath an expresse clause for discharge of the payment of Tythes which needed not to have been if the generall words would have served Answer I answer that there were two reasons to put this Clause into the said Statute 1. To induce purchasers to buy the said Land and at a greater price 2. For the infinite manners and means of discharge which the Abbots had so that it would be very hard for Purchasers to know them and this appears in Coke Rep. 2. Bishop of Canterburies Case but in our Case the means is very well known and therefore such clause was not necessary And as to the second point I conceive that the clause for discharge of the payment of Tythes doth extend to the possession of this Pryory and yet I do agree that their Lands are given to the King not by the Statute of 31. of H. 8. but by the 32. of H. 8. And to prove this the Statute of 31. H. 8. does extend to all Abbies Pryories Hospitalls and other Religious and Ecclesiasticall houses and this Pryory was Religions and Ecclesiasticall for they vowed Obedience and Chastity and the case in the 27. H. 8. 16. in the case of Martin Dockwray where it is holden that Fryers are dead persons in the Law be they of an Abby or any other Pryory and that appeares by the Statute of 32. of H. 8. of their dissolution by which it is enacted that the Fryers shall sue and be sued by their proper names and that they shall have such capacities liberties and freedomes as were given to other Religious persons in an Aâ—â— at the first Session of this Parliament And in further proof hereof divers Rectories were appropriate to them and Tythes given to them and they enjoyed them and the Statute gives them to the King by which it does appear that they were Religious and Ecclesiasticall Object 4 But it may be likewise objected that the Statute of the 31. of H. 8. does not discharge Chanteries or Colledge lands given to King Edward the sixth of Tythes Answer I answer That the reason of that is that because Colledges although they were Ecclesiasticall yet they were not regular And Coke 2. Rep. 48. B. but the Fryers of S. John of Jerusalem were Ecclesiasticall and Regular And it is not inconvenient that the King and his Patentees should have the benefit of the clause of the Statute of 31. of H. 8. in those lands given to the King by the Statute of the 32. of H. 8. as the Statute of Acton Burnell does provide that if the Extender upon a Statute Merchant does extend the Lands too high they shall answer this to the Conusee and the Statute of 23. H. 8. does order a new form of Recognizance to be taken before any of the cheif Iustices yet the Conusee shall have the said benefit of the Statute of Acton Burnell although it was made two hundred years before the other Statute And for Authority in this point Dyer 277. The Pryor of S Johns of Jerusalem with the Fryers two or three years before the dissolution did make a Lease of a Mannor for years which Lessee did pay Tythes to the Church of Rochester proprietary and after the dissolution the King did grant the reversion of the Mannor to one Stathome and to his Heirs in such ample manner as the Pryor had the same c. the Lease does expire If he and his heirs having the Mannor in their own possession shal be discharged of Tythes or not was the question in Chancery and on consideration had of the Statute of the 31. of H. 8. cap. 13. it seemed by the Lord Keeper Sanders Southcott and Dyer that they be discharged untill they let the same out to others to Farm And Pascha 11. Jac. in the Common Pleas in the case of Weney this case did come into question and argued by Coke Warburton Winch and Nicholls and they were divided in their Opinions Saturday the sixth day of June in the ninth year of the Reign of King Charles Between Francis Townley Esquire Plaintiff Edward Sherborne Executor of Richard Mountford deceased Executor of Thomas Challoner deceased Defendant Vpon hearing and debating of the matter as well on the fifteenth as the eighteenth of June last the Court being assisted with Mr. Iustice Hutton and Mr. Iustice Jones upon the Plaintiffs Bill of Review for the reviving and reversall of a Decree made in a Cause wherein the said Richard Mountford deceased Executor of Thomas Challoner was Plaintiff against the now Plaintiff and Thomas Foster Esquire concerning the summe of one thousand seven hundred pounds raised out of the Rents and Profits of certain Lands and Tenements in Linsted Ardingley and Worth in the County of Sussex in trust for the said Thomas Challoner during his Minority and which the now Plaintiff by the Decree of this Court was to pay in case the said Foster should fail to pay the same severall matters were offered by the Plaintiffs Councell for the reversall of the said Decree as namely that the now Plaintiff was decreed to pay the summe of one thousand seven hundred pounds as raised out of the profits of the Infants Lands settled upon an account made up by the said Forster with the said Thomas Challoner the Infant after he came to age whereto the Plaintiff Townley was neither party nor privy nor ever consented nor ought to be bound thereby And secondly that the said Plaintiff is by the said Decree made lyable to the payment of all the profits raised out of the said Infants Estate whereas he never received any profits at all and although he gave some Acquittances yet the same were onely for the three first half yeares and no more and were but to ballance an account the monies disbursed amounting to as much as
the Receipts and there being three other Co-trustees with him the Plaintiffs Councell conceived that he ought not to be charged with more then he himself received especially for that the other parties trusted and who received the profits were or were reputed to be men of ability and responsible Touching which last point being that where on the Plaintiffs Councell chiefly insisted for the reversall of the said Decree as against the now Plaintiff It appeared unto this Court that Challoner Father of Thomas the Infant did heretofore make a Lease of the said Lands to one Weeks for five and thirty yeares and afterwards conveyed away the Reversion to Thomas Challoner his Brother and after the death of Francis according to an Award made between the said Weeks and Thomas Challoner the Brother who was Vncle to Thomas the Infant the Lease of five and thirty years and the Reversion in Fee-simple were to be assigned to parties trusted by the said Weeks and one Barbara Challoner Mother of the said Infant and by the said Thomas the Vncle the Lease to be intrust for Weeks for life the remainder to Barbara for life the remainder to Thomas the Infant and the reversion in fee to be in trust for the said Thomas the Infant But upon the limitation or Condition that the said Thomas the Infant when he came of age should make some assurance to Thomas the Vncle according to the Award wherein if he failed then the trust limited to him should cease and the Trustees should be seised for Thomas the Vncle. In pursuance whereof the now Plaintiff and the said Forster were trusted together with one Langworth and Lovell to take the Estate in the Lease and did take an Assignment thereof from Weeks the 12th of June 9. Jacobi And all the Trustees sealed the Counterpart and the same day the now Plaintiff and Forster assigned their moyity in the said Lease to one Mr. Peacock and Robert Forster who were not privy nor acquainted therewith and on the thirteenth of June the ninth of King James the said Thomas Challoner the Vncle passed over the Inheritance to the now Plaintiff and Thomas Forster whereby it was probable that the said Assignment made by the now Plaintiff and Thomas Forster of their interest in the moyity of the Lease was to keep the same from being extinguished After which assurance so made Weeks during his life and Barbara after him during her life received the profits of the said Lands and Barbara in the year of our Lord 1614. dyed And it appeared that soon after the death of the said Barbara viz. 23. of March 12. Jacobi Langworth one of the Trustees of the Lease being dead whereby his interest in the moyety survived in Lovell that Thomas Challoner the Vncle procured the said Lovell to assign over his interest in the said Lease to the said Thomas Challoner the Vncle lyable to the said trust as by a Copy of the Assignment now read appeared And it appeared by the confession of the now Plaintiff and by his answer to the former Bill and by the Acquittances now produced that the now Plaintiff joyned with the said Thomas Forster in giving acquittances for the three first half years Rents but it did not appear that he ever received any after or gave any more Acquittances but it doth appeare by the proofs that the said Thomas Challoner the Vncle who had the Assignment from Lovell did receive the Rents of the Tenants and payd the same over to the said Thomas Forster and that when the Infant came of age he called the said Thomas Forster and Thomas the Vncle to an account and that they did account And that the said Thomas Forster did then deliver him a Book of account which the Defendant now produced in Court by which it did appear that for the three first half years the Rents were received by the said Thomas the Vncle and by him paid to the now Plaintiff and the said Thomas Forster for the use of the Infant but for all the subsequent time the same were received by the said Thomas Challoner the Vncle and by him paid to the said Thomas Forster alone who as was not now denyed was at the time of such receits generally taken to be of great ability and responsable as it also appeared by the proofs that the said Infant after he came of age had declared the said Thomas Forster to be his Debtor and did by his Will read in Court give the said summe of one thousand seven hundred pounds to the said Mountford as a Debt owing by the said Thomas Forster solely not mentioning the now Plaintiff Vpon all which this Court was fully satisfied that the now Plaintiff received no penny of profits after the three first half years but whether he ought to be charged with all that the said Thomas Forster received being a Co-trustee with him in respect the said Forster is now declined in his Estate as is conceived this Court somewhat doubted and although a president was produced wherein this Court had charged parties trusted but onely according to their several and respective receits and not one for the other yet in respect the Defendants Councel opposed the same alledging many presidents to be on the other side and the Lord Keeper conceived the case to be of great consequence and thought not fit to determine the same suddenly but to advise thereof and desired the Lords the Iudges assistance to take the same into their serious considerations and to assist him with their advice therein whereby some course might be settled that parties trusted might not be too much punished lest it should dishearten men to take any trust which would be inconvenient on the one side nor that too much liberty should be given to parties trusted lest they should be emboldened to break the trust imposed on them and so be as much prejudicial on the other side And the Lord Keeper and the Lords the Iudges assistants afterwards conferring together and upon mature deliberation concerning the case to be of great importance his Lordship was pleased to call unto him also Mr. Iustice Crook Mr. Iustice Barcley and Mr. Iustice Crawley for their assistance also in the same and appointed presidents to be looked over as well in this as in other Courts if any could be found touching the point in question whereupon several presidents were produced before them some in this Court and some in the Court of Wards where parties trusted were chargeable onely according to their several and respective receits and not one to answer for the other but no president on the contrary was produced to them Whereupon his Lordship after long and mature deliberation on the case and serious advice with all the said Iudges did this day in open Court declare the resolution of his Lordship and the said Iudges That where Lands or Leases were conveyed to two or more upon trust and one of them receives all or the most part of the profits
himself his boy and his horse Item The Defendant is to deliver the said house to the Plaintiff with all the appurtenances thereto belonging or in any wise appertaining Tenantable and in good repair Item The Defendant is to make as good a Lease as can be devised by Councel unto the Plaintiff and his Assigns And the Defendant pleaded performance of these Articles Plea Replication The Plaintiff did reply that the said 23 of April 1610. there was not any Demise made by the said John Sowdley of the said Mannor-house and of the houses called Sowdley Hall and of the Land lately in the Tenure of the aforesaid Reynold Sowdley and that the Plaintiff since the making of the said Articles viz. 9 Maii 10 Jacob. at great Sowdley aforesaid did require the Defendant to make a Lease of the said Mannor-house and houses with the aforesaid Land late in the Tenure of the said Reynold Sowdley scituate in great Sowdley aforesaid in the Parish aforesaid and in the County aforesaid to one Walter Welden Thomas Welden and John Welden for their lives according to the effect of the said Articles and that the said Walter Thomas and John were there and then ready to accept of the said Demise of the premisses of the Defendant and yet the Defendant did refuse to make the said Demise of the premisses to the said Walter Thomas and John Demurrer Vpon which the Defendant demurred in Law And I conceive that the Plaintiff ought to have Iudgment And fist to answer the Objections that are made against the Plaintiff upon the Articles Object 1 That the Lease ought to have been made to the Plaintiff himself for three lives and not to any other Answer I answer The words are plain That the Lease shall be made to the Plaintiff or his Assigns in the disjunctive and therefore it is in his election either to take the Lease to himself for three lives or to take it to his Assigns for three lives and so should it be if the words were to the Plaintiff and his Assigns as it is resolved in the Comment fol. 288. Chapman against Dalton where a man did let Land to another and did covenant at the end of the term to make such another Lease to the Lessee and his Assigns the Lessee made his Executor and dyes and the Executor does make his Executor and dyes and there it was adjudged that the Lease ought to be made to the Executor of the Executor for he is the Assignee in Law to the first Testator and the word and shall be taken for the word or and there it is clearly agreed that if the Lessee had named any in his life-time to take the said Lease it ought to be made to him and so as it is there said if I be obliged to make a feoffment to you or your Assigns such as you name to take the feoffment are your Assigns indeed and so in our Case these three persons named by the Plaintiff are his Assigns to whom the Lease ought to be made 21 Ed. 3. 29. Object 2 The other Objection is that the Lessee named by the Plaintiff ought to be ready upon the Land to take the Lease for a Lease for life cannot be made off the Land Answer I answer That when a man is bound to infeoff the Obligee and no time is limited he ought to do this upon request 27 H. 8. 6. B. and the same Law of a feoffment upon condition to re-infeoff him 44 Ed. 3. 9. 14 H. 8. 21. 18 Assis 18. 17 Assis 20. but yet the Obligor at his peril ought to do it during his life otherwise the condition is broken So in our Case the Plaintiff ought first to require the Defendant to make the Lease and this of necessity ought to be done where he can finde the Defendant for it is impossible to do it on the Land unless the Defendant be there and the Plaintiff cannot compel him to be there But when the Plaintiff hath made his request the next action is then to be done by the Defendant and therefore he ought to go to the Land and to be ready there to make the Lease And in the 22 Ed. 4. 43. A. is bound to B. on condition that C. shall infeoff B. by such a day and did shew that C. was there ready on the Land and B was not there to receive the Feoffment and there it was argued whether the issue should be upon the being of C. upon the Land who ought to make the Lease or of B. who was to take the Lease and in fine it was adjudged that the issue should be whether C. were there or not for he ought to be there or else the Bond was forfeit So that the Defendant upon request ought to go to the Land and there to attend a convenient time to make the Estate and then if the persons named do not come thither he is excused but when he goes not to the Land but does utterly refuse to make the Estate it is to no purpose for the Assigns to come to the Land and admitting the Law would enforce them to attend there then I demand how long they ought to attend for in all places where the attendance of one is required in a place certain by the Law the time of his attendance is limited 18 and 19 Eliz. Dyer 354. The third Objection is that the Article for making of the Lease Object 3 is to make a Lease of the said Mannor whereas no Mannor is mentioned before and the request is to make a Lease of the houses and of the Land late in the Tenure of Randolph Sowdley To this I answer That the Demise in the first Article Answer is of the Mannor-house and all the Lands which were in the Tenure of Randolph Sowdley with all the appurtenances thereto belonging then when he agrees to make a Lease of the said Mannor it shall be intended the Mannor mentioned before and although it be not in verity a Mannor yet in reputation it may be a Mannor and that is enough to make it to be put in the agreement 22 H. 6. 39. a. where one pleaded a Feoffment of eight Acres of Land by the name of the Mannor of D. and adjudged by the Court to be a good Feoffment although the acres were not set forth and in the 27 of H. 6. 2. a Plough-land may pass by the name of a Mannor The request is made too late for the time limited to enter is the Object 4 Anunciation 1612. and the request is not until the ninth of June next after and that is too late for the Lessor ought to have 20 l. fine upon the entry and making of the Lease and therefore the request ought to be made at the time that the entry was to be made and for that purpose Andrews Case and the Lord Cromwels Case in L. Cooks Rep. were cited To which Objection Cook and all the Court did seem to incline But I
Bartons Case Two Ioynt-tenants are for life and one lets his moyety for years to commence after his death and dies and agreed to be a good Lease against the Survivor for as Litton saith every Ioynt-tenant is seised Per my per tout and hath an Estate in one moyety not only for his own life or his own time but also for the time and life of his Companion and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues but a Rent-charge shall not bind his Companion because he claimes by the first Conveyance which is above his Companions Estate And as to the second point it is cleer that when Husband and Wife Part. 2 make a Feoffment in Fee or a Lease for years of the Land of the Wife rendring Rent the Wife after the death of her Husband may accept the Rent and make the Lease good as in 26 H. 8. 2. the case of the Feoffment is agreed and if a Woman after the death of her Husband does accept the Rent she shall be barred in a Cui in vita 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years by Indenture and the Husband dies and she accepts the Rent she shall be bound thereby and shall not avoid the Lease Vpon which two things being as I conceive unquestionable it follows that this Lease at the time of the making thereof is not void but voidable And therefore the sole question will be how this Lease is voidable and if it may be avoided by the surviving Ioynt-tenant or not And I conceive that it is avoidable by the Wife only if she survive her Husband and not by the other Ioynt-tenant and that for two reasons First Because the Survivor comes in above the Lease and therefore cannot take advantage of any imperfection or defect to avoid the Lease 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two and one dies the other may plead the Estate to be made to him only for he is not in by him that is dead but by the Feoffor or Lessor and Dyer 187. a. Two Ioynt-tenants for life one makes a Lease for yeares rendring Rent and dies the Survivor shall not have the Rent And if Tenant for life makes a Lease for years rendring Rent and surrenders to the Lessor the Lessor shall not have the Rent for he is in by his Reversion which is above the Lease for years and 28. H. 8. 96. a. An Executor had Iudgment to râ—cover a Debt and died intestate whereupon Administration is committed to another he shall not have a Scire facias upon this Iudgment because that he being Administrator immediately to the Testator is above the recovery Secondly There is no privity between the surviving Ioynt-tenant and the Lessor to make him avoid the Lease which is voidable as in 8. Rep. Whittinghams case Privies in blood as Heir generall or speciall shall avoid a voidable estate made by the Ancestor as if an Infant make a Feoffment in Fee his Heir may well enter and avoid the Feoffment but Privies in Law as Lord by escheat Lord of a Villain or Lord who enters for Mortmain shall never take benefit of the Infancy because they are but strangers And therefore if an Infant make a Feoffment in Fee and dies without Heir the Feoffment is unavoidable 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate as Ioynt-tenants Husband and Wife Donor in Tail and Donee Lessor and Lessee it is there also resolved that they shall not take advantage of Infancy unleâ—â—e it be in some speciall cases And therefore if Tenant in Tail within age makes a Feoffment in Fee and dies without Issue the Donor shall not enter contrary to the opinion of Rick and Frisby 6. H. 4. 3. because that here is only a Privity in Estate between them and no right does accrue to the Donor by the death of the Donee So if two Ioynt-tenants in Fee be and one of them being within age makes a Feoffment in Fee and dies the Survivor shall not enter but if two Ioynt-tenants within age do make a Feoffment one joynt Right remains in them and therefore if one dies the Right will survive and the Survivor may enter in all and the same Law of Covertue or non sanae memoriae as it is said also in Whittinghams case and in Fitzherb N. B. 192. K. If two Ioynt-tenants within age do alien in Fee they must sue severall Writs of Dum fuit infra aetatem because that the cause of their Action is their nonage which is severall for the nonage of the one is not the nonage of the other But if Husband and Wife within age do make a Feoffment of the Wifes land and the Husband dye the Wife shall have a Dum fuit infra aetatem 14. Ed. 3. Dum fuit infra aetatem 6. and 12. H. 7. 18. B. Kelloway In a Formedon by the Lord Brook against the Lord Latimer if an Infant does make a Feoffment none shall avoid this but the Infant himself and his Heirs and no stranger and the same Law of a Feme Covert And as to the case of Harvey and Thomas 33. Eliz. cited in the Lord Cromwells case Where the Husband made a Lease of his Wifes Land for years and then he and his Wife aliened by Fine and the Husband dies the Conusee shall avoid this Lease which I agree to for the Lease being made by the Husband only is utterly void against the Wife and cannot be made good by any Act done by the Wife and the Land passeth all from the woman by the Fine and therefore the Lease cannot bind the Conusee The Survivor in one case cannot make the Lease good by the acceptance of the Rent because that the Rent does not belong unto him and therefore he shall not be received to avoid this Lease as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his Ancestor for he shall not have the Rent or the arrearages incurred in the life of his Ancestors and the reason is as I conceive because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages the which cannot be to the Lord because that the Rent is not due to him and therefore the Lord shall lose his action rather then the Tenant shall be deprived of his advantage of saving the land by his tender And by this case also the Aunt and the Neice shall not joyne in a Cessavit for a ceasing made before the Title of the Neice accrued but in Nat. F.B. 139. it is otherwise there of joynt-tenants as I conceive the reason whereof is because as I conceive the Survivor shall have all the Rent and therefore the tender may be made to him
of price every quarter twenty shillings Ad revendendum contra formam statuti c. And did aver that Stephen Bointon named in the first Information and Stephen Bointon named in the last Information are one person and not divers and that the said three hundred quarters of Barley and a hundred quarters of Beans specified in the last Information are parcell of the aforesaid Barly and Beans in the first Information Unde petit judicium of the said last Information the said first Information depending determinable Vpon which Plea Mr. Attorney demurred in Law And I conceive that Iudgment ought to be given for the King and the Informer for two reasons The offence in the first Information is alledged to be between the first of June 12. Jac. and the two and twentieth of May 13. Jac. so that for any thing appears to the contrary this may be done between the first of June 12. Jac. and twentieth of July next which is not any part of the time contained in the last Information and then that is no answer to the ingrossing between the twentieth of July 12. Jac. and the two and twentieth of May next unlesse he had averred in fact that it was within the time contained in the last information The twenty second of May 13. Jac. is not answered to at all and it may be that the Ingrosment was on that day for the plea of Not guilty goes only between the two and twentieth of May 13. Jac. and the fourth of July next and the last information is between the first of June 12. Jac. and the twenty second of May so that the twenty second of May is utterly excluded and that is part of the time contained in the last information The first Information is for ingrossing of Beans and Pease being a mixt Grain and the last Information is for Beans only and Beans by themselves cannot be parcel of Beans and Pease being a mixt Graine And after Iudgment was given for the King and the Informer Judgment and that principally for the second exception Michalm 14. Jacob. Frosett against Walshe IN an Ejectment of one Messuage ten acres of Land six of Meadow and thirty of Pasture in Mansell Lacy upon a Lease made by Hen Hering the younger the twenty fourth of October 13. Jac. to have from the twenty third of October last past unto the twenty second of October next c. The Defendant pleaded not guilty And the Iury found that the said Tenements were Copyhold parcell of the Mannor of Mansell Lacy devisable in Fee and that there is a Custome within the said Mannor that every customary Tenant of the said Mannor of any Inheritance may surrender the said Tenements out of Court into the hands of two customary Tenants of the aforesaid Mannor to the use of any person or persons and their Heirs and that the said surrender by the Custome of the said Mannor ought to be presented at the next Court to be holden within the said Mannor otherwise the surrender to be void And they found that one Thomas Herring was seised in Fee at the will of the Lord according to the custome of the Mannor of the said Tenements and that he and Anne his Wife the twenty second of Decemb. the 28. of Eliz. at Mansell aforesaid did surrender the said Tenements out of Court into the hands of William Garrows and Hugh Ireland then being two customary Tenants of the said Mannor to the use of Rowland Whittington George Whittington and Robert Whittington and their Heirs and that the said Rowland George and Robert by vertue of the said surrender did enter into the said Tenements and held the same and paid the Rents thereof that were due to the Lord and that the said Thomas Herring before the Ejectment died and that no Court was holden within the said Mannor during his life nor ever since and that the said Rowland Whittington afterwards and before the Ejectment died and the said William Garnar and Hugh Ireton also died before the Ejectment and that the said Henry Herring is the Son and Heir of the said Thomas Herring and that the said Henry the twenty fourth of October the 13. Jac. did enter and made the Lease to the Plaintiff who did enter and was possest untill the Defendant as Servant of the said Rowland and Robert Whittington the twenty sixth of October the same year did enter and oust the Plaintiff And if it seemed to the Court that the Defendant was guilty the Iury found for the Plaintiff and if otherwise for the Defendant And I conceive that Iudgment ought to be given for the Plaintiff The Custome is precisely found that the surrender which is made out of Court is good so it be presented at the next Court so that here is a perfect assurance made according to the custome of the Mannor which the Copyholder that surrenders cannot avoid unlesse something fall out afterward that may avoid the surrender for as to the Cases that have been put by the other side that every Custome shall be taken strictly and therefore the custome of Rent that saves the Land of him that is hanged for Felony does not extend to an Attainder by Outlawry nor the custome that an Infant of the age of fifteen years may make a Feoffment does not warrant a Lease and Release I agree all these to be Law but I cannot conceive how any of them can be applyed to the present question for I do not endeavour to extend this custome in any point beyond the true expresse Letter of the custome viz. That the surrender shall be good if it be presented at the next Court. Object 1 But there have been two things objected to impeach this surrender That Herring who made the surrender is dead And as to that I conceive that the surrender is good notwithstanding for every Copyholder of Inheritance hath as good power to dispose of his land according to the Custome as a Tenant in Fee-sipmple hath by the Rules of the Common-law for although he that comes in by surrender ought to be admitted by the Lord yet all the Estate passeth from the Copyholder who surrenders and the Lord is but an instrument to make the admittance and he gives not the Estate and therefore it follows that the Estate is given by the Copyholder himself Cooks Rep. 4. Charls Pennifathers Case That Copyholders derive not their Estates from the Estate of the Lord and therefore if a Disseisor or Tenant at sufferance do make an admittance upon a surrender or upon a descent this shall binde the Disseisee and if Tenant for years of a Mannor or a Tenant at will does make a voluntary Grant according to the custom this shall binde him in the Reversion and the same Law of a Feoffee upon Condition Dyer 342. And so if there be Lord of a Mannor wherein are Copyholds for life and the Lord marries and grants Copies the Wife shall not avoyd this 9 Rep. Swans Case and 4 Rep.
Also the Bar is not good because the Defendant says he was possessed of five Steers and doth not say of the aforesaid 9 H. 6. 16. In a Quare Impedit brought by the King of a Chantery in the Chappel of St. Thomas in D. and made title to it and the Defendant pleaded that there was a Chantery in the said Chappel and made title to it and traversed the title of the King and adjudged to be no plea because he did not answer to the Chantry whereof the King had declared And Pasch 14 Elizab. Downing against Hayward In a false imprisonment in Suffolk the Defendant did justifie as servant to A. to whom a Commission of Rebellion of Chancery was directed and the Plaintiff pleaded De son tort Demesne and found for the Plaintiff and reversed again by Error in the Star Chamber because that when the matter of justification is upon matter of Record and matter in fact or of matters done in two Counties that cannot joyn the Issue ought to be upon one only And Pasch 15 Jac. Iudgment was given against the Plaintiff by the opinion of Mountague Crook and Doderidge because that all that was done after Sir Thomas Buriets Warrant was illegall but they agreed that the Plaintiff might have an Action for the charging of Felony and for all that was done before the said Warrant But Haughton disagreed who conceived that Iudgment should be given for the Plaintiff because the Plea of the Defendant was no justification for what was done before the warrant but at last Iudgment was given for the Defendant Judgment Mills against Marshall IN a Writ of Error to reverse a Iudgment given for the now Defendâ—nt against the Plaintiff in the Common Pleas upon an Action of Debt on a Bond of twenty pounds Hil. 11 Jac. Ror 1109. And the Bond was made the twentieth of Jan. in the sixth year of King James and it was on Condition to stand to the Award of George Cockrell Edward Sureton and William Wasse to arbitrate of and concerning all matters then depending between â—hem so that the said Award be made and delivered to the parties under the hands and Seals of the said Arbitrators before the twenty ninth of January next The Defendant pleaded that the Arbitrators the twenty fourth of January in the sixth year of King James did make their Award of the Premisses by Indenture under their hands and Seals 1. That all Controversies and Suits between them unto the date of the written Arbitrement should cease and that the Plaintiff should have liberty to drive his Cattell to the River Eâ—ke c. and that the Plaintiff and Defendant should work and maintain at all times from thence forward a sufficient Hedge by the top of the Scar Sicut terrae praedicti Querentis Defendentis extendunt Anglice as their own Ground goes for security of the Cattell and Sheep which said Hill doth extend to the Land of Henry Facherly unto the Pale which then was between the Land of the Defendant and if any Trees or Woods growing in or neer the Woods of either party shall fall in controversie at any time that it shall be arbitrated by the said Arbitrators three or two of them which Arbitrement was delivered to the parties the same day and the Defendant pleaded that he had performed c. The Plaintiff replyed that the Defendant did not make a sufficient Hedge upon the top of the Scarr Prout terra sua extendit the Defendant said that before the Writ purchased viz. the fourth of April 12 Jacob. at Eshdayle in the County aforesaid he did make a sufficient Hedge upon the top of the Hill aforesaid prout terra sua extendit and so they were at Issue and found for the Plaintiff and Iudgment given and the Defendant brought this Writ of Error And I conceive Iudgment ought to be affirmed Coke 5 Rep. Slingsbles Case If one let white Acro to I.S. and B. Acre to I. D. and covenant with them Et quemlibet eorum that he is Owner each of them may have an Action and Coke 5. Rep. Hurgots Case Submission to an Award so as it be delivered to either of the parties ought to be delivered to each of them 39 H. 6. 7. And all the Court did agree that each of them ought to inclose against his own Land only and so the breach was well assigned wherefore the Iudgment was well assigned wherefore Iudgment was affirmed Hilar. 13 Jac. Crawley against Marrow IN an Ejectment upon a Lease by Robert Faldoc dated the one and thirtieth day of August the thirteenth year of King James of two Houses two Orchards forty acres of Land ten of Meadow and fifty of Pasture in Bridgenorth Habendum from the tenth day of the said month for three years whereupon the Plaintiff was possessed untill the Defendant the eighth of October in the same year did enter and eject him ad damnum c. Vpon not guilty pleaded The Iury found the Defendant not guilty for all except one House and five acres of Land and found further that before the said time the twentieth day of Decemb. 11 Eliz. Rowland Hayward Knight was seised in Fee of the said one house and five acres of Land and ten of Meadow and being so seised thereof did enfeoff John Day and Robert Marshall in Fee to the use of John Whitbrooke and Margaret his Wife in Taile the remainder to the right Heirs of John Whitbrooke and that the last of January 12 Eliz. John Whitbrooke did enter into a Recognizance of a thousand pounds in the Chancery to Richard Faldoe which money was not paid to Richard in his life time That John Whitbrooke and Margaret had issue John Whitbrooke Knight and after and before the fourteenth of January 8. Jacob. died and before the said day Richard Faldoe made his Will and did make Amphillis his Wife his Executor and died and Amphillis did make Robert Faldoe Esquire and Thomas Shepheard Knight her Executors and died who undertook the Executorship 14. Jan. 8. Jac. Robert Shepeard and Faldoe had a Scire facias to the Sheriff of Middlesex to have execution of the Recognizance whereupon John Whitbrook was returned dead whereupon they had a Scire facias against the Heir and the Ter-tenant whereupon John Whitbrook was returned Heir and Ter-tenant who pleaded that he had no Land that was the Conusors at the time of the Recognizance or ever since by hereditary descent from the Conuzor in Fee and said that he ought not to be charged as Ter-tenant because he hath no Freehold that was the Conusors The Plaintiff replyed that the said John Whitbrook had divers lands by descent from the said Conuzor viz. A house called the Hospitall thirty seven Tenements or Messuages five Cottages one Tost one Dove-house thirty nine Gardens six Barns fifty four acres of Land thirty nine of Meadow and thirty six of Pasture in Bridgnorth and that the said John Whitbrook was Tenant of the Premisses
a County of it self but because it was made a County since the Teste of the Writ the Writ was adjudged to be good 3. These Ter-tenants are estopped to plead Non-tenure because that they with the residue at first did plead that John Chatterton was Tenant of parcel of the Land by which Plea they have taken upon themselves to be Tenants of the Land and therefore they cannot afterwards plead Non-tenure 41 Ed. 3. 4. In a Praecipe quod reddat against I. S. who pleaded to the Writ and the Writ abated whereupon the Writ did abate and a new Writ brought for Jornies Accompts against I. S. he shall not plead Ioyntenancy with the other because he hath admitted himself sole Tenant by the first Writ 33 H. 6. 3. In a Formedon against the Husband who pleaded Ioyntenancy with his wife for which the writ a bated and a new writ was purchased against the husband and wife who pleaded non-tenure and adjudged a good plea for the benefit of the wife but if the last writ had been against the husband only he could not have pleaded non-tenure 22 H. 6. 54. B. In a Praecipe quod reddat the Tenant pleaded Non-tenure the Demandant said that before he brought another Writ against the Tenant and I. S. who made default for which a Grand Cape was awarded upon which I. S. made default and the now Tenant said that he was sole Tenant and waged his Law of Non-summons which the Demandant did acknowledge whereupon the writ abated and this Writ purchased by Jornies Accounts and there it is argued if he shall have advantage of this because the first Writ did abate by his own default but it was agreed that if he could have such advantage the Tenant shall be estopped to plead Non-tenure and adjudged that the Tenant shall answer 42 Ed. 3. 16. In a Praecipe quod reddat one took the severall Tenancy on his part and the other of the other part and they were estopped because that a former proces was against them and others and they took the entire Tenancy upon them without that that the others had any thing and did gage their Law of Non-summons wherefore the first writ did abate and this writ purchased by Journies Accounts And so in our Case when all the Tenants have pleaded that I. C. was Tenant of parcell not named in the returne they have taken the Tenancy upon them and therefore they cannot afterwards plead Non-tenure And now the Writ being maintainable notwithstanding these exceptions Part. 2 it is to be considered whether there be any error in the Recovery or not And I conceive clearly that the appearance of the Wife within age by Attorney is Error for by the Rule of the Common Law in every Praecipe quod reddat whereby Land is demanded if the Tenant appear he ought to appear either in person or by one lawfully authorized by him and that is the reason that if Iudgment be given against one upon an appearance by the Attorney where the Attorney had no Warrant to appear that this is Error untill it be remedied in case where a Verdict is past by the Statute of 32 of H. 8. of Repleader but if the Iudgment be given upon default or demurrer or upon a Verdict and no Warranty by him who recovered this is not Warranted by the Statute Dyer 93. 20 Eliz. Dyer 363. and the reason is because that the Land or thing in demand is lost or gained by one who had no Warranty and then the Rule of Law is that an Infant shall not appeare by Attorney and 1 H. 5. 6. adjudged that an Infant cannot be Attorney for another and so therefore it is there said that he cannot appear by an Attorney 22 H. 6. 31. b. There by Newton if an Infant sue by an Attorney it is Error And the Law in this case stands with great reason for the Warrant of Attorney is made by the Infant which although it be sufficient when it is of full age yet it shall be dangerous to permit Infants to lose their Land by their Attorney while they have not discretion enough to choose such who shall be faithfull to them and therefore the Law hath made better provision for them to wit that they shall appear by their Gardian admitted and allowed by the Court so that in regard of the imbecility of the Infant the Court makes choyce of a sufficient trusty person to plead and defend their cause Nat. Br. 27 H. 1. an Infant shall sue by his next friend but if he be Defendant in any Action he shall make defence by his Guardian and not by his next of kin and the Court does assigne a Guardian for an Infant who is Defendant and that is commonly one of the Officers of the Court and in 22 H. 6. 31. where Hungerford and his Wife brought an Action of Trespasse for taking of their Villain being in their Service The Defendant pleaded that he was free c. and as to the losing of the Service that he was not retained and found for the Plaintiff and severall damages viz. for the taking of nine and twenty pounds and for the losing of the Service twenty shillings And it was argued neither Iudgment should be entred because the Retainer was not found And after Markham moved that the Plaintiffs being within age did appear by their Attorney and did declare that all the proces continued by the Attorney whereas it ought to have been by their Guardian so that all was Error And Newton said that if it were so there was good reason to have a Writ of Error and after the Plaintiffs released the twenty shillings and had Iudgment of the other So that an Attorney being alwaies made by the party ought to be therefore made by one of ability to give such Authority which ability cannot be in an Infant for all Authorities made by an Infant â—re utterly void And that the appearance of an Infant by Attorney in any Action is Error does appear by the said Book if the 22 H. 6. 31. 9 Eliz. Dyer 262. b. Object But it may be objected that the Husband in this case is of full age and therefore he may make an Attorney for himself and his Wife Answer But I answer that the Law is not so for the Rule of Law is that the Husband cannot give away or lose the Inheritants of his Wife but it must be given or lost by her her self and by her own act and therefore if the Inheritance in this case being to the Wife she is the principle and only to be taken notice of and she ought to appear in such manner as the Law hath appointed in regard of her nonage 14 Ed. 3. Age 88. In a Cessavit against the Husband and Wife the Husband did appear by an Attorney and the Wife by her Guardian and upon suggestion that she was of full age the Guardian was hidden to bring her into Court to see whether she were
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
James of a house in the Parish of St. Mary Abchurch in the Ward of Candlewick-street Habendum from Michaelm last past for three years and layd the Ejectment to be the 28 Octob. in the same year The Defendant pleaded Not guilty And the Iury found that William Say was seised in Fee of the said Messuage and of two other Messuages in the Parish of St. Johns in Walbrook London and held them in Socage And that the 8 Octob. 1562. the said William having issue Francis his Son and Margaret Agnes and Alice by his Will in writing did devise the said Messuage in these words I bequeath to Francis my Son all my three Houses after the death of my Wife Barbara and his Mother and if Margaret Agnes and Alice and either of them do out-live their Mother and their Brother Francis and his Heirs then they to enjoy the three Houses for their lives and the three Houses then I give freely to my Sisters Sons Iohn Wittinbury and Roger Wittinbury and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses and to discharge them for ever William Say the Devisor dyes Barbara enters Francis Agnes and Alice dye without issue Barbara dyes Margaret enters John Wittinbury dyes without issue Roger Wittinbury dyes without issue and the Lessor is Cosin and Heir to him viz. Son of Margaret Pierson Sister of the said Roger. The 18 of August 13 Jacob. Margaret dyed seised having issue John Savage her Son and Heir who entered which Son the 17 February 13 Jacob. did infeoff Edward Jackson in Fee who the second of September 13 Jacob did infeoff Richard Slydhurst in Fee who the third of September 13 Jacob. did make the Lease to the Defendant for four years who entered upon whom the Lessor did enter and made the Lease to the Plaintiff upon whom the Defendant did enter And prayed the Opinion of the Court c. And I conceive Iudgment ought to be given for the Defendant But first as to the Question that hath been made scil What Estate John and Roger Wittingbury shall take if they shall take any Estate at all by this Will I shall not argue for I agree that if they have any Estate it is a Fee-simple in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd scil the Poor And also the persons to pay are the two Wittingburies and their successors who in the Exposition of the Will shall be taken for their Heirs and Assigns and also in respect of the limitation of the payment scil for ever which in a Will makes a Fee-simple and â—â—â—â—s much as the charge is to continue for ever it follows also that the Estate ought to continue for without the Estate the charge cannot be But I conceive that John and Roger shall take nothing by this will or at least that they shall take but a future Estate to begin after the death of Francis without Heir and then their time will never come for John Savage under whom the Defendant doth derive his Estate is Heire to Francis and therefore the Plaintiff nor his Lessor being Heire to Robert Wittingb the Survivor cannot have this house And to prove this here is an Estate limited by expresse words to Francis and his Heirs and no apparent intent by the Devisor that the word Heirs shall be restrained to the Heirs of his body unlesse by reason of the limitation of the Remainders afterwards which cannot be as hath been said if Francis had a Fee-simple But as to this I say that the same reason may be given when a man deviseth Land to A. and his Heires and if he die without Heire that it shall remain to B. and his Heires in which case if the Devise to A. shall be restrained to an Estate in Taile the Remainder to be is good but no such intent can be collected against expresse words and therefore the Remainder is utterly void as in 19 H. 8. 8. B. where the Rule is given that when the intent of the Testator does not agree with the Law his intent shall be void and this is a certain Rule And West 2. cap. 1. where it is provided Quod voluntas donatoris observetur yet it ought alwaies to agree with the Rules of Law as is proved by the 8. Assise 33. where was a Gift in Taile to two and if one dies that the Survivor shall have all to him and the heirs of his body now doth the Law say that they have severall Inheritances but the will of the Donor was that the Survivor should have all which being repugnant to the Rule of Law was adjudged to be a void Clause 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives the Remainder to the heires of their bodies is an Estate-taile executed notwithstanding the expresse will of the Donor because an Estate for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another So that in Wills if the intent be against Law they are void And so is it if the intent be ambiguous and not manifestly to be collected out of the words of the Will And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail Câ—ke 6. Rep. Wildes Case One devised land to A. for life the Remainder to B. in Taile the Remainder to R. and his wife and after their deaths to their Children who then had two Children the Devisor dies and A. dies and B. dies without Issue and and it was adjudged that the Children of R. and his wife should have only an Estate for life because that by Iudgment of Law they have but an Estate for life and if R. and his wife should have an Estate in Taile it ought to be by the intent of the Devisor which intent ought to be manifest and certain and so expressed in the Will and in this case no such intent does appear for perhaps his intent was to accord with the Rule of Law 15 16 Eliz. 9. a. A. having three Houses having three Sons and a Daughter did devise to B. his first Son a House paying ten pounds to his Sister and he to enter after the death of the wife of the Devisor and did devise to his second Son another Houses paying to the Daughter ten pounds and he to enter at the age of one and twenty years and did devise the third House to the third Son paying ten pounds to his
favourably then a Plea yet is it all one for I agree that a Verdict need not be so formall as a Plea but if it wants substance either on the one party or the other this shall prejudice the party as much as if there had been a pleading for the Court cannot give Iudgment without some matter found and therefore for as much as in our Case the life of Sir Richard makes for the Defendant and all the validity of his Lease depends thereon he ought to prove by evidence that Sir Richard was alive so that the Iury might have found it and because it was not so found the Court will not intend that he is alive and therefore he shall be taken to be dead and so his confirmation is finished But admitting it shall be intended that he is alive yet I conceive that immediatly upon the death of Valentine his Estate which he had by the limitation of the use is determined and vanisht and he is remitted to his Estate-taile and then his confirmation as I have already proved which doth charge the Estate which he hath by limitation of the use cannot endure Yet I will agree that if Tenant in Taile makes a Feoffment to the use of himself for life and after to the use of his Issue being within age and dies that his Issue shall not be remitted as it is resolved in the Comment 111. Townsends Case and 207. Standbridge and Morgans Case But the diversity is when the Estate-taile is discontinued wherby the Entry of the Issue is taken away and he is put to his Formedon there he shall not be admitted for the limitation of a use to him for if he will take the Estate according to the use he ought to take it in the same manner as he had the use but when no discontinuance is made of the Estate-taile it is otherwise as in Townsends Case Comment 111. Where Amy the wife of Roger Townsend was Tenant in Taile and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life the Remainder to the use of their eldest Son for life with divers Remainders over the husband and wife died and resolved that neither the wife nor the Son are remitted and the reason there was because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance to the purging of which the wife was driven to her Cui in vita and cannot avoid this by Entry as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee and he enters he is remitted because his Entry was congeable And so Dyer 191. 2 3 Eliz. Land is given to the husband and wife and to the Heirs of the body of the husband the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life the Remainder to the first Son for life the Remainder to the right heirs of the husband the husband dies and it was resolved in the Court of Wards that the wife should be remitted notwithstanding the Statute of Vses because that her Entry was congeable and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father and the Father dies now forasmuch as that a right of Entry was in the Father which by his death doth descend to the Son he shall be remitted notwithstanding that he came to the possession by his own proper and wrongfull Act which is as strong against a Remitter as an Agreement is to a Vse And so if the Son and another doth disseise the Father and the Father dies the Son is remitted and shall put out his companion And then Sir Richard being remitted the Confirmation as I have shewed before being but a charge upon the Advowson is meerly determined and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age who at full age doth grant a Rent-charge or a Common and the Father dies the Issue shall hold discharged and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent and enfeoffs his Son within age and the Tenant in Taile dies the Issue shall hold the Land discharged and the same Law by Catesby in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land and dies and the reason is because the Statute that was charged is vanisht And although that the opinion of Bromley 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter yet the case of a Rent is there also agreed that it is determined by the Remitter and the same Law is in Ioynt-tenancy if one doth make a Lease for years so that he doth dispose of the possession this shall bind the Survivor but otherwise if he charges the Land with a Rent or other thing and so is it where a husband hath a term in right of his wife as in 7 H. 9. 2. 3. And as to the last part of the Case so If the Fine levied by Valentine the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation or not and I conceive that it doth not for three causes First the Fine is not with any Proclamations so that it is no bar to the Intail and therefore it is no more then a bare Grant of a Tenant in Tail Secondly As this Fine is found it cannot be intended to be levied by Valentine Knightley the Son of Sir Richard but by a stranger of that name for it is first found that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir apparent and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs and Valentine Knightley Esquire Deforceator wihout saying the aforesaid and therefore I conceive that Valentine Knightley Esquire who levied the Fine cannot be intended to be Valentine Knightley Son and Heir of Sir Richard and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea and then a matter is alledged apud Westmonasterium without praedict it shall be intended the same place but when another addition is given to the person or place it is otherwise and therefore in the second place if it be sayd apud Westmonasterium super Thamesin it shall not be taken for one place 5 Ed. 6. Dyer New Book of Entries 650. 35 36 Eliz In the Kings Bench Vpon a Trespasse for breaking his Close and breaking and spoyling two Gates and three perches of Hedge the Defendants prescribed to go there in perambulation upon which there was a demur c. and adjudged for the Plaintiff 1. Because that he ought to alledge this by custome and not by prescription 2. Because the Bar was that the Plaintiff had obstructed the
disproof of the second And as to this I conceive that it is a Rule infallible in the exposition of Deeds that when two clauses are contained in a Deed the one contradicting the other the first shall be good and the last voyd 2 Ed. 2. Feoffments and Deeds 94. One gave Land to R. with A. his daughter in Frank-marriage habendum to R. and his Heirs with warranty to him and his Heirs they dyed and their Son brought a Mortdancestor and because the first clause was in Frank-marriage and the other in Fee the Iustices doubted to which of them they should have regard and at last adjudged that when there were several or two clauses in a Deed repugnant or of divers natures that more regard ought to be taken to the first then to the last But otherwise in Wills for there the last part of a Will shall controul the first as if one first doth devise Land to A. and after devise this to another and it is to both in fee yet the last devise shall stand 19 Ed. 3. Tayl 1. In a Writ of Ad Terminum qui praeteriit the Tenant pleaded a Gift in Frank-marriage to his Father and Mother by Deed which was thus that is to say habendum to them for their lives and resolved that the Gift in Frank-marriage being first that it is good and the Habendum being contrary is voyd and there the same rule is given where two clauses are contained in a Deed and the one is contrary to the other And in Tracy and Throgmortons Case Comment 153. It is a ground in Law that if the Habendum in a Deed be contrary to the Estate given by the premisses the Habendum shall be voyd as if a Grant be made to one and to his Heirs Habendum for life the Habendum is voyd 13 H. 7. 23. and 24. and Dyer 272. A Termor does grant his term to another Habendum after the death of the Grantor adjudged that the Habendum is voyd And 2 Ed. 4. If one release all his right in B. acre which he purchased of I. S. and in truth he did not purchase it of I. S. but of another or else had it by descent yet is the release good for the first clause shall stand and the other shall be voyd And Dyer 292. b. One having a Close called Callis lying in Hurst in the County of Wilts does make a Lease of his Close called Callis in the County of Berks and adjudged that it shall pass for the first words shall be and the other shall be voyd And Dyer 32 H. 847. 6. a Lease was made for life without impeachment of waste and if it happen him to make waste that then it shall be lawful for the Lessor to enter Shelley conceived there that the condition was voyd because it was repugnant to the former Grant but some conceived that the Grant shall be intended that he shall not be punished by action Whereupon I collect that if the condition in the last clause cannot agree with the first the last is voyd and so Dyer 56. 6. If I release to A. all actions which I. S. hath against him the Release is good and the words viz. which I. S. hath against him are voyd for by words subsequent a Deed may be qualified and abridged but not destroyed And as to the third manner of exposition viz. to construe all the words of the limitation as well the first as the last to be voyd There is a Rule in Law that when words in a Deed Plea or Record are so repugnant that the true sence thereof cannot be known to the Court what is to be judged or construed upon them that all shall be taken to be voyd as appears by divers Books 33 H. 6. 26. In an action on the Case wherein the Writ was that whereas the Plaintiff had a way by reason of his tenure the Defendant had levyed a Wall whereby his way was stopped and there Prisot said that the Writ was not good for the repugnancy and 9 H. 7. 3. a. One pleaded Null tiel Record hoc paratus est verificare per idem Recordum this was adjudged insufficient because the Plea is repugnant viz. the first part which is not a Record and the last that there is such a Record and Dyer 70. 5 Edw. 6. And so here if these two limitations in the begining of this Lease are so repugnant one to the other that they cannot consist together then both shall be adjudged voyd and then there being no certain time put for the beginning of the Lease the Lease shall begin presently as in 3 Ed. 6. 6. A man made a Lease for years to commence after the end of a Lease made to I. S. and in truth I. S. had no Lease the Lease shall begin presently And as to the fourth manner of exposition I conceive that these ambiguous words shall be construed if it may be that all may be good as to a reasonable exposition and that is that the 56 years shall begin from the 20 Decemb. 1 Eliz. but the Lease does not take effect in possession until the end of the other Lease for terminus annorum hath two significations scil one the time or number of the years and the other the Estate or interest of the term and therefore if one does grant his term the Estate does pass thereby and this diversity is taken and explained the 35 H. 8. 6. and in Cooks 1 Rep. Cheddingtons Case So that I conceive that the first words in the Habendum here ought to be applyed and referred to the time or number of years according to the first definition of the term and the last shall be applyed to the last definition and shall be taken onely as words explanatory put in for better caution by the Bishop to avoyd contention between the Lessees viz. That the last Lessee shall not meddle with the possession until the end of the first term and by this construction and no other may all the words agree together Dyer 9 Eliz. 261. 6. Abbot and Covent did make two Leases of two parcels of Land to two persons 1531. for 31 years and after the successor 1535. reciting both the Leases did make a new Lease to the other in these words Noveritis nos praedict Abb. c. dictis 31 annis finitis complet concessise to the Lessee the said Land holden from the day of the making of these presents termin praedict finitis until the end and term of 31 years from thence next following And the Iustices of the Common Bench held that it shall commence to take effect in possession at the end of the former term and not before and from the day of the making of these presents is but a declaring of the first sentence which is obscure to some intents and if it were not so exprest the Lessee shall have but a Lease for four years which was not the intent of the parties as it should seem but the
Estates yet in Wills the intent of the Devisor is sufficient either to limit the Estate or to describe the person that shall have it And therefore if Land be given to one in perpetuum if it be by Grant or Feoffment yet there passeth but an Estate for life but if it be given by Will it is an Estate in Fee and 4 Ed. 6. Estates 78. If one deviseth his Land to another paying 10 l. to his Executors or any other person the Devisee hath an Estate in Fee so if one deviseth his Land to give or dispose of or sell at his will this is a Fee-simple 19 H. 8. 96. 7 Ed. 6. Devise 38. And the reason in all these cases is because that by these words the intent of the Devisor doth appear that a Fee shall pass and therefore the defect of words shall not defeat his intent And as the intent is sufficient without apt words to make an Estate so is it also to describe the person who shall take the Devise although he be not formally named according to the precise rule in Grants as in 21 R. 2. Devise 17. where one devised Land to one for life the remainder to another for life the remainder to the Church of St. Andrews in Holborn and it was adjudged that after the death of the Devisees for life the Parson of the Church shall have the Land for in as much as the Church was not capable it shall be taken that the intent of the Devisor was that the Parson who is as it were the Father of the Church and so the Head of it should have the Estate And in the 13 H. 7. 17. In every Devise the intent of the Devisor shall be taken for if a man deviseth all his goods to his Wife and that after his decease his Son and Heir shall have his House although that no Devise of the House be made to the Wife by express words but by implication because the Heir is not to have the House during the Wifes life yet because the intent of the Devisor was that the Son should not have it during the life of his Wife she shall have the House for her life To which all agreed Then in our case 1. The Devisor willeth that a Chaplain shall celebrate for his Soul and that he shall have eight Marks out of his Tenements yearly for his stipend but if he had stayed there the Devise should have been voyd for the Chaplain is not such a person as may take these eight Marks as a Rent and therefore he goes further and first he limits what service the Preist shall do and this he appoints to be done by the disposition of the Parson 2. He doth dispose of the residue of the profits of the Tenement for such a time viz. until R. shall be 24 years of age and be a Priest and doth devise that he shall be preferred to the Chantery before any other if he will accept it and if not that he shall have nothing 3. He makes provision for the perpetual continuance of the Chaplain in these words scil That the Parson and four of the best of the Parishioners shall present and finde a Chaplain to perform the said Chantery for ever de tenementis meis superius non legat which is the said Tenement out of which the said eight Marks are limited to be payd 4. He doth inflict a penalty upon the Parson if the Chantery should be voyd scil That the other Land devised by him to the Parson shall go to the Wardens of L. Bridg for the reparation thereof 5. He makes a perpetual disposition for the residue of the profits of the Tenement viz. That they shall be put into a Chest under the custody of the Parson and four of the Parishioners to buy ornaments and Books for the Church And these parts of the Will being well considered as I conceive it will be clear that the intent of the Devisor was that the Parson should have this Tenement for here the main scope of his Will is that a Chaplain shall be maintained perpetually and that he shall have eight Marks stipend out of that Tenement and that it shall be provided and found by the Parson and four of the Parishioners and that the residue of the profits shall be bestowed by them to buy ornaments and Books for the Church so that a perpetual charge is imposed upon the Parson scil to finde the Priest and to buy ornaments c. and this charge is to be defrayed with the profits of the Tenement and that can be done by none but by him that shall be owner of the Tenement and therefore it follows that the Parson shall have the Tenement And that such implication in a Will is sufficient to make an Estate is proved by the 15 H. 7. 126. If one devises his Land to be sold for payment of his Debts the Executor shall sell the Land for because the charge to pay Debts lies upon the Executors his intent shall be taken to have them sell the Land and 22 and 23 Elizab. Dyer 171. A man seised in Fee of divers Mannors doth devise them to his Sister in Fee except my Mannor of D. which I do appoint to pay my Debts and makes two Executors and dyes and one Executor dyes and the other sells thâ— Mannor and adjudged good for so his intent shall be taken and not to relinquish it to his Sister and 19 H. 6. 24 and 25. and 1 Edw. 6. Devise 36. If one devise that his Executor shall sell his Land this is no devise of the Land to them but an authority for they may perform the Devisor to sell the Land although they have no Estate therein and the Vendee shall be in by the Devisor but if one devise that his Executors shall grant a Rent-charge out of his Land or that they shall give the Land in Fee or in Tayl to I. S. this is an implyed Devise to them for otherwise they cannot perform the intent of the Devisor Trin. 9 Eliz. 516. and so in the 40 Assis 26. One did devise his Land in L. to A. and his Heirs to finde twelve Marks for two Chaplains and grants that the Parson and the Parish may distrein for this if it be behinde and there it is debated whether the King shall have the twelve Marks or not and it is agreed there that the Chaplains have no Estate in it because they are removable at the will of A. but because the Distress is given to the Parson who is perpetual it was adjudged that the King shall have the twelve Marks whereupon I do observe that by this Distress limited to the Parson and the Parishioners the twelve Marks were vested as a Rent in the Parson and so made it a Mortmain Object But it may be objected That the last clause in the Will for the disposing of the residue of the profits does go onely to the Land devised to Wardens of the Bridg. Answer But this
cannot be First because that the Land devised to them is onely a Chamber and a mansion of little value and that is to repair the Bridg and that is a work of such charge that no surplussage can be intended Secondly The clause is Id quod clarum fuerit ultra solutionem reparationem c. which are the very words in the clause used for the disposing of the residue to R. for the time and cannot be referred to the Devise of the Wardens of the Bridge because that the things devised to them are apparently to be for the reparation only and no payment is limited out of it but the Tenement out of which the Stipend is to be payd is first charged with this payment and then with the reparation of the Tenement and then with the Ornaments and Books for the Church And afterwards this Case was argued by Coventrey the Kings Sollicitor for the Plaintiff and by S. Chibborne for the Defendant And Mich. 16. Jac. The Barons viz. Tanfeild Bromley and Denham did openly declare their opinion that the Land was not demised to the Parson by this Will and thereupon they commanded Iudgment to be entred for the Defendant which was entred accordingly Trinit 15 Jacob. John Adams against Roger James Knight and others IN a Replevin for taking of twelve Cowes and two Calves the twenty fourth of May the 14. of King James at Upminster in a place called Nelfeild alias Newfeild ad damnum 10 l. The Defendants did justifie the taking c. as Bayliffs of Thomas James and Moily Deale for that the place contained twenâ—â— acres of Pasture And that William Latham was seised in Fee of the Mannor of Upminster whereof the said twenty acres are parcell and the twenty fifth Maii 13 Eliz. devised the same to George Wiseman excepting one Close of Land or Pasture called Crouckfeild containing by estimation fifty acres and a parcell of a Close called Ecrowchfeild containing by estimation sixty acres and all Woods and Frees and Profits of Court Leets Waifes Estrayes Escheats Hermots Reliefs Goods and Chattels of Felons and Fugitives Deodands and Treasure Trove Habendum from Michaelm 1576. for sixty one years rendring forty pounds Rent at the Annunciation and Michaelmas The first of Octob. 1576. George Wiseman entred The twentieth of August 35 Eliz. William Latham by Deed inroled for the consideration of two thousand pounds did bargain and sell the Mannor to Roger James Father of the Defendant Roger in Fee and the 15 Decemb. 39 Eliz. Roger James the Bargaines did devise the third part of the Mannor to John his Son after whose death John was seised of the third part in Fee The seventh of August 11 Jacob. John James by Indenture for a thousand pounds paid by Thomas Fryth did bargain and sell to the said Thomas Fryth and Moyle Deale the said Reversion of the said third part Habendum from the said seventh of August for a hundred years ex intentione that they should grant or assign the said term to Thomas Fryth or his Assignes upon condition that he should pay a thousand pounds to the said Roger James viz. five hundred pounds the seventeenth of August 1614. and five hundred pounds the seventeenth of Febr. next after And because sixty pounds thirteen shillings foure pence was behind to the said Thomas James and Moyle Deale for halfe a yeare ending at Mich. 12 Jac. they did well justifie the taking c. The Plaintiff said that after the seventh of August Bar. 11 Jac. and before the said Mich. 12 Jac. viz. the ninth of August the 11 Jac. the said Thomas James and Moyle Deale did bargain and sell to the said Thomas Fryth all their Estate in the said third part whereby he was and yet is possessed Replication The Avowants replyed that the Bargain and Sale was upon Condition to pay the said thousand pounds to the said Roger James at the said days of payment and that Thomas Fryth did not pay the said five hundred pounds the seventeenth of August 1614. Rejoynder The Plaintiff rejoyned that after the said ninth of August 11 Jac. scil 10. August 11 Jac. the said John James was seised in Fee of the Reversion of the third part expectant upon the estate of the said George Wiseman And that the tenth of August 11 Jacob. John James by Indenture inroled did bargain and sell the said Reversion to the said Thomas Fryth and his heires That the seventeenth of August 11 Jac. John James by Indenture dated the aforesaid seventh of August 11 Jac. fâ—r a thousand pounds did bargain and sell the said third part to the said Thomas James and Moyle Deale Habendum from the said seventh of August 11 Jac. for a hundred years and that they after scil the aforesaid seventeenth of August 11 Jac. did bargain and sell to the said Thomas Fryth upon condition before expressed Absque hoc that the said John James did bargain and sell to the said Thomas James and Moyle Deale the said Reversion before the said tenth of August 11 Jac. and absque hoc that the said Thomas James and Moyle Deale before the said tenth of August 11 Jac. did bargain and grant the said Reversion to the said Thomas Fryth on condition as aforesaid Vpon which the Avowants demurred and shewed for cause that this is a departure from the Bar and that the said Rejoynder is in it self repugnant And I conceive that Iudgment ought to be given for the Plaintiff in the Replevin for that the Conusance is utterly insufficient for three causes 1. The Defendants make Conusance as Bayliffs to Thomas James and Moyle Deale and do endeavour to entitle themselves to a third part of the Reversion and Rent upon the Lease to Wiseman by the Devise of Roger James and it doth not appear in all the Conusance that Roger James was dead before the Grant made by John James to the said Thomas James and Deale for it is not set forth that he died but only by implication scil the bargain and sale by Latham is pleaded to Roger James lately dead which doth refer to the time of the plea which was long after the Grant to Thomas James and Deale and after the Rent due and the taking of the Distresse then it is alledged that after the death of Roger James the Devisor John James entred which is not sufficient because it is not alledged in fact that he dyed or when he diâ— dye And all the Court agreed the Avowry insufficient as to this exception Secondly the bargain and sale of the Reversion by John James to the said Thomas James and Moyle Deale is pleaded to be made the seventh of August 11 Jac. Habendum from the aforesaid seventh of August for a hundred years whereby the day it self is excluded and so the Grant is to take effect in the future which cannot be by the Rules of Law as in Bucklers Case 2. Rep. where Buckler Tenant for life in Mich. Term 20 Eliz. made
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
Leases of the Recusant but the woman here being married hath no Lands or Goods and therefore the King cannot have any thing and the Goods or Lands of her Husband cannot be taken for his wifes offence she being convicted by Indictment only to which the husband is no party Object But it may be objected that the wife may perhaps survive the husband and then she may have Goods and Lands and the King may seise them I answer that first it may be also that the husband may survive and then the King shall never have any thing Answer as it is resolved in Dr. Fosters Case 2. This Objection is upon two possibilities 1. That the husband may first dye 2. That the wife then shall have Lands and Goods And I have alwaies taken it for a Rule that a possibility shall never take away a present Action or Suit as is proved by divers Cases as in 5. Rep. Harisons Case and 9. Rep. fol. 108. 109. And as it is said in Elmers Case 5. Rep. that two possibilities cannot maintain hospitality or repair a Churche so I say in this case that one such possibility to recover this penalty for the King cannot hinder the Informer of his Suit nor oppose the good reformation of Recusants intended by the Statute for then all marryed women addicted to Popery will be Recusants upon confidence that if they be once convicted by Indictment the which they themselves may procure to be done then they shall not be subject to any penalty during the lives of their husbands who peradventure may survive them and as it was well observed in Dr. Fosters Case that married women are the most dangerous Recusants because that they have the education of their Children and the government of their Servants But it may be objected Object that if the Informer may sue and recover against the husband and wife then if the wife does survive the King shall have these Lands and goods according to the 28 Eliz. or may sue the husband and wife according to the 35 Eliz. for these penalties and so shall be two waies punished for the same offence No such inconvenience can happen Answer for as it is resolved in Dr. Fosters Case the recovery of the Informer being legall shall bar the King as in the 19 Ed. 2. where the Testator was bound in a Recognizance for performing of Covenants this was no bar in debt upon an Obligation but that the Plaintiff may recover and if after such recovery the Statute be forfeited and execution thereupon the Executor shall have an Audita Querela for that he had lawfully administred the goods before for payment of the Bonds And after viz. Mich. 17 Jac. I moved the Court that the Plea of the Defendants was insufficient for that the Statute did ordain that upon every Indictment of Recusancy proclamation should be made and that the body of the Offender should be rendred to the Sheriff of the County before the next Assises or Gaol-delivery and if such Offender so proclaimed does not appear but makes default that he shall be convicted c. And the Defendants have pleaded that Proclamation was made that the body of the said Katherine should be rendred at the next Assises or Gaol-delivery c. and therefore she is not convict at all because she was not proclaimed according to the Statute for this Proclamation differs in two materiall circumstances from the form prescribed by the Statute first in omission of the Sheriff to whom the body is to be rendred 2. In the time for the Statute limits it to be done before the next Assises c. but this Proclamation gives a larger time scil at the Assises Whereupon all the Court agreed that the Plea was insufficient for the causes aforesaid and that now the wife was not convicted by proclamation Wherefore Iudgment Judgment was given for the King and the Informer John Mitton Administrator of George Mitton of Goods not Administred by Alice Mitton against John By. IN an Action of Debt for twenty five pounds for that William Marquess of Winchester the twentieth of October 30 Eliz by Indenture did devise to John By the Father of the Defendant three parts of the Mannor of Newnham in the County of Southampton excepting all Fines Reliefs Amerciaments Courts Woods Copies Fishings and Royalties Habendum from Michaelmas next for one and twenty years rendring six shillings ten pence Rent at the Annunciation and Michaelmas The twentieth of January 1. Jac. John By the Father made his Will and made the Defendant his Executor and died possessed The fourteenth of Novemb. 2 Jacob. the Defendant granted the Term to the Intestate The sixteenth of Novemb. 2 Jac. The Intestate did grant all the Term by Indenture to the Defendant rendring fifty nine pounds Rent at the Annunciation and Michaelmas whereby be entred and had possession of the Land and twenty five pounds of the said Rent for half a year ending at Michaelmas 15 Jacob. was behinde to the Plaintiff after the death of the Intestate which yet the Defendant doth not pay ad damnum c. The Defendant says that the Intestate the twenty sixth of June 5 Jac. did release by Deed to the Defendant all Actions Suits Debts Duties from the begining of the world until the day of the date of the said writing Whereupon the Plaintiff demurred in Law And I conceive that Judgment ought to be given against the Plaintiff For that in Littleton 118. If one doth release to another all Demands this is the best Release that may be and shall enure to the most advantage of him to whom it is made For by such Release all Actions Reals and Personals and Appeals and Executions are gone and extinct and if a man hath title to enter into any Land by such Release his title is gone and 20 Assis 5. where in an Assise for Rent a Release of all Demands was pleaded and the common Opinion was that it was good wherefore the Plaintiff was non-suited and 5 Edw. 4.42 by Danby A Release of all Demands by a Lord to his Tenant is a good bar and extinguishment of his Seigniory for although no Rent was behinde at the making of the Release yet is the Rent always in Demand and 6 H. 7. 15. If the King releaseth all Demands yet as to him the Inheritance shall not be included But in case of Rent or right of Entry by a common person and every thing therein implyed is gone by such Release And 14 H. 8. 9. by Pollard By Release of all Demands the Rent is extinct for Rent is to be had by Demand and if one doth determine the means he hath to come by a thing he doth determine the thing it self And Litt. 118. If a man hath a Rent-service or Rent-charge or Common of Pasture by such Release of all Demands all is gone from the Land from whence the Service or Rent is issuing or the Common of Pasture But if one lets Land to another
5 Rep. fol. 64. 2. In regard of the quality and therefore it is much debated in Wagons Case if the penalty of 5 l. were reasonable or not but here no certain penalty is set down but left to the discretion of any of the Shoomakers of Exeter and that is against the course of all Laws for when a Law is made it is necessary that the penalty thereof should be known to the end men might not offend But admitting this Order to be good yet have not the Defendants pursued the same in the taking of this Distress and that for two Reasons They have distrained before their time for the Order is That if any refuse to pay the sum assessed that then upon due proof thereof they may distrain c. and then they plead that the refusal of the Plaintiff to pay the same was duly proved before the Master and Wardens which is insufficient for when it is said upon due proof this is intended upon proof by Verdict as in 10 Ed. 4. 11. On a Bond with condition that if the Obligor proves that it was the will of A. that B. shall make an Estate to the Obligor c. this proof must be by Verdict but if it be to be proved before J. S. there it is sufficient to produce witnesses that will testifie the same and so in the fourth and fifth of Queen Mary where Buckland was bound to the Lord Ewers to produce before the said Lord sufficient witnesses to discharge a certain debt due by B. to the Lord and he pleaded that he produced W. and A. before the said Lord and that they proved that he did not ow the said Debt and agreed to be no good Plea because he did not shew how the proof was made before the said Lord. So that this Plea is utterly insufficient 1. Because no such proof can be made before the Master and Wardens as is intended by the Order 2. Because the Defendants have not shewn how the proof was made so that the Court might judg whether it were sufficient or not and so in 22 Ed. 4. 40. the Lord Lisles Case upon a Bond that if the Defendant shewed sufficent discharge of a Rent c. who pleaded that he did offer to shew a sufficient discharge and agreed to be no Plea for he ought to shew what discharge that the Court might judg thereof So in the ninth Report Case of the Abbot of Strata Marcella fol. 34. in a Quo Warranto the Defendant pleaded that the Abbot had and used divers liberties which he could not have without a Charter and resolved no Plea unless by reason of the Statute of the 32 of H. 8. cap. 20. for reviving of Liberties The Order is That upon refusal to pay the penalty and upon proof thereof the Master c. may enter into the House Booth Shop Ware-house or Cellar of the Offendor and there to distrain any of his goods c. And the Defendants have not averred that these goods were taken in any of the said places but onely at the City of Exeter Judgment And at last it was adjudged that the Plea was not good A TABLE OF THE PRINCIPAL MATTERS Contained in this BOOK Action and what words bear Action ACtion brought by a Master for beating his servant not good without saying per quod servitium amisit 48 Where no particular averment need to be in a Declaration for scandalous words 60 Thou and Waterman did kill thy Masters Cook good action ib. Grant to one against whom an action lies not to sue him within a year not good 117 Advowson The nature of it and how and in what manner to be granted 95 96 Affinity and Consanguinity Who shall be taken to be proximus Consanguinieus in a Devise 15 Appearance Where to be in person and where by Attorney 73 74 Where the Husband shall appeare alone and where with his Wife 74 Arbitrement Where the Arbitrement in part shal be a good award for that part although the agreement be to end all controversies 90 91 Authority and Licence To revoke how to be performed 21 Authorities and Licenses strictly to be performed 114 115 License not to be assigned over ib. Ayd Who shall have ayd of the King 87 88 89 Baron and Feme WHere the Husband shall appear alone his Wife being within age and where she shall appear by her Guardian with her husband 74 75 Vid. Appearance Buying and selling Things sold and warranted by the Vendor to be good In what cases good 127 Diversity between things necessary and not necessary as to the warranting of them 128 By-Law How a Custom to make By-Laws to restrain a legal Trade or Art shal be good and how not 140 141 Common WHat priviledge the Owner of the soil hath in a Common and what priviledge the Commoner hath 5 10 Vid. Prescription Remedy for him that is disturbed of his Common 10 Commoner may distraine damage feasant ib. Prescription to hunt and kill Conies in a Common not good 11 Prescription of Common in a Forest Vid. Prescription Condition and Limitation WHat time shall be limited in Law to make an estate upon Condition 41 Conspiracy Where Jurors cannot be said to be guilty of Conspiracy Vid. Jury Conspiracy cannot be where the Indictment is insufficient 132 Copyhold What shall be taken to imply an admittance 82 Copyholder necessary to be admitted and what estate he hath without admittance 82 83 Where the estate surrendred remains until admittance 84 Court and Processe in Courts Records of a Court the effectuall proofs of the Law of things tried in that Court 21 Presidents and Costome of a Court makes a Law in that Court ib. Devises Testator and Executor c. WHere words of limitation comming after the estate in a Devise shall abridge the estate devised 1 2 3 Devise to a man and his heirs quod si contingat c. where those words shall make a limited fee or estate Tail or other estate 3 Where the Act of the Executor shal not be said to be the Act of the Testator 47 Where an Executor shall not have choice to take as a Devisee 54 Where the assent of the Executor to the devise of the Land shall not be accounted any Execution as to the Devise of the Rent out of the same Land and where otherwise 55 Where a perpetual charge devised to be paid out of Land shall make the party that is to pay the same tenant in fee-simple 85 How far the intent of the Devisor shall be admitted and how largely observed 85 105 106 135 Dower Certainty ought to be in the demand of Dower as wel as in the writ 56 Ecclesiastical Persons WHere the confirmation of the Patron and Ordinary of a charge made by the Incumbent is good and where not 95 Leases made by the Incumbent and confirmed by Patrons or others where good and where not ib. Leases made by the Incumbent which are void and what are voidable and
But in our Case the act being done by the issue in Tail himself shall not enable him to make voyd the Lease made by his Mother no more then if a Tenant in Tail makes a Lease for years and levies a Fine with proclamations to the Donor and dyes having issue yet the Donor shall not avoyd the Lease Vid. Lord Aberganies Case Cook 6 Rep. And although that the Wife were a Ioyntress within the Statute of 11 H. 7. yet is this Lease clearly out of the Statute because that it is no bar or discontinuance to the Estate in Tail as it is in Sir George Browns Case Cook 3 Rep. for this Lease was voydable by the issue unless he had bar'd himself by his own Fine And I conceive this Lease is also good against the Devisee for when a Tenant in Tail makes a Lease for years or grants a Rent common c. or acknowledgeth a Statute or doth in some other manner charge the Land this is a good Lease Grant or Charge to binde the Tenant in Tail and all other except the issues in Tail and those in Reversion And the reason of this is because the Statute of Westminster 2. cap. 1. that was made to avoyd such charges does not ayd any persons except the issues in Tail and those in Remainder and Reversion And therefore if Tenant in Tail grant a Rent or acknowledg a Statute and dyes the issue shall not be charged with it and so shall his Feoffee but if the Tenant in Tail himself after such charge infeoffs another and dyes the Feoffee shall hold the Land charged and if a Tenant in Tail makes a Lease for years and dyes and the issue doth accept the Rent the Lease is made good and is absolute but if he dyes seised of the Estate-Tail the issue hath his election either to make the Estate good by his acceptance of the Rent or to avoyd the Lease by his entry and if he infeoff a stranger before entry the Feoffee shall never avoyd the Lease and if the issue doth accept the Rent he maketh the Lease good for his time and as the Feoffee of the Tenant in Tail and all those who come to the Land by any assurance made be the Tenant in Tail whereby the Estate in Tail is barred or discontinued shall hold the Estate charged with the Leases and charges made by the Tenant in Tail so shall all those in like manner who come to the Land under the said Tenant in Tail although the Estate-tail doth remain not barred or discontinued saving the issues in Tail who are ayded by the Statute of Westminster the 2. And therefore if Tenant in Tail grants a Rent in fee and takes a Wife and dyes the Wife shall hold charged with the Rent and so if a woman Tenant in Tail grants a Rent and marries and hath issue and dyes the Husband being Tenant by the curtesie shall hold the Land charged for they are not ayded by the said Statute and so if Tenant in Tail grants a Rent in Fee and makes a Lease for three lives warranted by the Statute of the 32 of Hen. the 8. and dyes the Lessee shall hold the Land charged Cooks Rep. 9. Count. Bedfords Case And in the said Case of the Lord Abergeveny it is said that the surviving Ioyntenant by acceptance of the Lease hath deprived himself of the way and means of avoyding the charge for vis accrescendi was the onely means of avoyding it and the right of survivor is gone by the Release And so in our Case the issue in Tail might have avoyded this Lease by his entry but he hath quite barred himself by his Fine And as to the Statute of the 11 H. 7. cap. 20. I conceive that nothing is prohibited by this Statute but onely such Acts as are a bar of the Estate-tail or a discontinuance thereof for so are the words of the Stature viz. If any woman shall discontinue alien release or confirm with Warranty c. And in Sir George Browns Case in Cooks Repor fol. 350. it is there argued Whether a Discontinuance without Warranty be within that Statute but it was resolved that these words with Warranty doe refer onely to Releases and Confirmations which make not discontinuance without Warranty for the intention of the Statute was not onely to prohibit every bar but also every discontinuance but here in this case there is no bar or discontinuance for the woman hath made a Lease for years rendering Rent by which the Estate-tail is neither bound nor discontinued but she remains Tenant in Tail as she was before and so dyed seised of such Estate and therefore if it had not been for the Fine levyed by the issue in Tail himself she might have entered and have avoyded the Lease and this is not like the Case there put by Anderson where Feme Tenant in Tail in Ioynture within the Statute does accept a Fine sur conusans de droit come ceo c. and therefore does grant and render the Estate for 1000 years for though this be no discontinuance of the Estate-tail yet is it a bar of the Estate during the time And Hillar 22 Jacob. I argued this Case again and all the Court viz. Doderidge Jones and Whitlock did agree That the issue in Tail was barred by the Fine to avoyd this Lease and that although the Estate-tail was barred yet is it not extinguished but remains in esse to support the Lease so long as any issue in Tail does remain alive and so they agreed the Lease to be good Wherefore Iudgment was given for the Plaintiff Judicium George Bishop of Chichester Plaintiff John Free-land Defendant 1 Caroli Rot. 607. THe Case was That a Bishop was seised in fee of a Park to which there was the office of a Keeper belonging with a fee of five marks with a Livery granted from time to time by the Bishop And the Bishop does grant the said Office together with the fees necnon cum pastura pro duobus equis in eodem Parco which Grant was confirmed by the Dean and Chapter The Bishop dyes and another is made Bishop And whether this Grant was good to binde the Successor was the Question And I conceive that this is a good Grant against the Successor and will binde him And first I conceive it will not be denyed but that if a Bishop hath a Park he by the Common Law may grant the Office of the Keeper of that Park to whom he will with such fees and wages and for such an estaâ—e as he will and this being confirmed by the Dean and Chapter is good to binde the Successor and therefore it is to be considered Whether any alteration of the Law be made in this point by reason of any Statute In the Bishop of Salisburies Case Cooks 10 Rep. it is there resolved that by the Statute of the first of Elizabeth Bishops are thereby generally restrained from making any estate or interest of
any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath