have but one Elegit At another day the Iudges gave their Opinions severally that Iudgment ought to be given in this Court upon the whole Record for that it is an entire Record and the Execution one and if Iudgment were to be given there upon the demurrer there must be two Executions And because the Record shall not be remanded Twisden said the Record it self was here and that it had been so adjudged in King and Holland's case and in Dawkes Batter's case though my Lord Chief Baron being then at the Bar urged strongly that it was but the tenour of the Record that was sent hither And it is a Maxim in Law that if a Record be here once it never goes out again for that here it is coram ipso Rege so that if we do not give Iudgment here there will be a failer of Iustice because we cannot send the Record back The Iury that tries the Issue must assess the damages upon the demurrer The Record must not be split in this case Accordingly Iudgment was given here Willbraham Snow TRover Conversion Vpon Issue Not-guilty the Iury find a special Verdict viz. that one Talbot recovered in an Action of Debt against one Wimb and had a Fierr facias directed to the Sheriff of Chester whereupon he took the Goods into his possession and that being in his possession the Defendant took them away and converted them c. and the sole point was whether the possession which the Sheriff has of Goods by him levied upon an Execution is sufficient to enable him to bring an Action of Trover Winnington I conceive the Action does not lie An Action of Trover and Conversion is an Action in the right and two things are to be proved in it viz. a Property in the Plaintiff and a Conversion in the Defendant I confess that in some cases though the Plaintiff have not the absolute property of the Goods yet as to the Defendants being a wrong-doer he may have a sufficient property to maintain the Action against him But I hold that in this case the property is not at all altered by the seizure of the Goods upon a Fieri facias for that he cited Dyer 98 99. Yelvert 44. This case is something like that of Commissioners of Bankrupts they have power to sell and grant and assign but they cannot bring an Action their Assignees must bring all Actions It is true a Sheriff in this case may bring an Action of Trespass because he has possession but Trover is grounded upon the right and there must be a Property in the Plaintiff to support that whereas the Sheriff takes the Goods by vertue of a nude Authority As when a man deviseth that his Executors shall sell his Land they have but a nude Authority Cur. The Sheriff may well have an Action of Trover in this case As for the case in Yelvert 44. there the Sheriff seiz'd upon a Fieri facias then his Office determined then he sold the Goods and the Defendant brought Trover And it was holden that the Property was in the Defendant by reason of the determining of the Sheriffs Office and because a new Fieri facias must be taken out for that a venditioni exponas cannot issue to the new Sheriff They compared this case to that of a Carryer who is accountable for the Goods that he receives and may have Trover or Trespass at his Election Twisden said the Commissioners of Bankrupts might have an Action of Trover if they did actually seize any Goods of the Bankrupts as they might by Law Rainsford said let the Property after the seizure of Goods upon an Execution remain in the Defendant or be transferred to the Plaintiff since the Sheriff is answerable for them and comes to the possession of them by the Law it is reasonable that he should have as ample remedy to recover damages for the taking of them from him as a Carryer has that comes to the possession of Goods by the delivery of the party Morton said if Goods are taken into the custody of a Sheriff and the Defendant afterward become Bankrupt the Statute of Bankrupts shall not reach them which proves the Property not to be in the Defendant Twisd I know it hath been urged several times at the Assizes that a Sheriff ought to have Trespass and not Trover and Counsel have pressed hard for a special Verdict Morton My Lord Chief Justice Brampston said he would never deny a special Verdict while he lived if Counsel did desire it Gavell Perked ACtion for words viz. You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen Vpon Issue Not-guilty there was a special Verdict found Jones The Declaration says further whereby her Husband did conceive an evil Opinion of her and refused to cohabit with her But the Iury not having found any such special damage the question is whether the words in themselves are Actionable without any relation had to the damage alledged I confess that to call one Bawd is not Actionable for that is a term of reproach used in Scolding and does not imply any act whereof the Temporal Courts take notice for one may be said to be a Bawd to her self But where one is said to be a Bawd in such actions as these it is actionable 27 H. 8. 14. If one say that another holds Bawdry it is Actionable 1 Cro. 329. Thou keepest a Whore in thy House to pull out my Throat these words have been adjudged to be Actionable for that they express an act done and so are special and not general railing words In Dimock's case 1 Cro. 393. Two Iustices were of Opinion that the word Pimp was Actionable of it self But I do not relie upon that or the word Bawd but taking the words all together they explain one another the latter words show the meaning of the former viz. that her Pimping and Bawdry consisted in bringing young men and women together and what she brought them together for is sufficiently expressed in the words Pimp and Bawd viz. that she brought them together to be naught And that is such a Slander as if it be true she may be indicted for it and is punishable at the Common Law The Court was of the same Opinion and gave Iudgment for the Plaintiff Nisi c. Healy Warde ERror of a Iudgment in Hull Weston The Action is brought upon a promise cum inde requisitus foret and does not say cum inde requisitus foret infra Jurisdictionem Twisd Though the agreement be general cum inde requisitus foret yet if he does request within the Iurisdiction it is good enough and so it has been ruled and this Error was disallowed Boswill Coats TWo several Legacies are given by Will to Alice Coats and John Coats the Executors deposit these Legacies in a third persons hand for them and take a Bond of that third person conditioned That if the Obligor at the request of
2. Suppose the Defendant had taken issue upon the Statutes being burnt and it had been found to have béen burnt and yet had been found afterwards the Defendant could not have any benefit of this Verdict He said it was a proper case for Equity Slater Carew DEbt upon a Bond. The Condition was that if the Obligor his heirs Executors c. do yearly and every year pay or cause to be paid to Tho. and Dor. his wife during their two lives that then c. the Husband dies and the question was whether or no the payment should continue to the Wife Serjeant Baldwin argued that the money is payable during their lives and the longer liver of them he cited Brudnel's case 5 Rep. and 1 Inst 219. b. that whenever an Interest is secured for lives it is for the lives of them and the longer liver of them and Hill's case adjudged Pasch 4 Jac. Rot. 112. in Warburton's Reports Seyse contra The interest of this Bond is in the Obligee the Husband and Wife are strangers and therefore the payment ceaseth upon the death of either of them and of that Opinion was the whole Court and grounded themselves upon that distinction in Brudnel's case betwixt where the Cestuy que vies have an interest and the cases of collateral limitations They said also that in some cases an interest would not survive as if an Office were granted to two and one of them dyed unless there were words of Survivorship in the Grant So the Plaintiff was barred Term. Mich. 26 Car. II. in Communi Banco Farrer Brooks Administrat of Jo. Brooks THe Plaintiff had Iudgment in Debt against John Brooks the intestate and took out a Fieri facias bearing teste the last day of Trin. Term de bonis catallis of John Brooks before the Execution of which Writ John Brooks dies and Eliz. Brooks administers the Sheriffs Bayliff executes the Writ upon the Intestates Goods in her hands Vpon this Serjeant Baldwin moved the Court for Restitution for that a Fieri facias is a Commission and must be strictly pursued Now the words of the Writ are de bonis of John Brooks and by his death they cease to be his Goods The Plaintiff will be at no prejudice the Goods will still remain lyable to the Iudgment only let the Execution be renewed by Scire facias to which the Administratress may plead somewhat Wyndham The property of the Goods is so bound by the Teste of the Writ as that a Sale made of them bona fide shall be avoided which is a stronger case And since the Intestate himself could not have any plea why should we take care that the Administrator should have time to plead And of that Opinion was all the Court after they had advised with the Iudges of the Kings Bench who informed them that their practice was accordingly But Vaughan faid that in his Opinion it was clearly against the rules of Law But they said there were cases to this purpose in Cr. Car. Rolls Moor c. Liefe Saltingstone's Case EJect ' firmae The case upon a special Verdict was thus viz. Sir Rich. Saltingstone being seized in Fee of Rees-Farm on the 17th day of Febr ' in the 19th year of the King made his Will in writing in which were these words viz. for Rees-Farm in such a place I will and bequeath it to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit Sir Richard dyed his Wife entred and sealed such a Writing as this viz. Omnibus Christi fidelibus c. Noveritis that whereas my Husband Sir Richard Salting-stone c. reciting that clause in the Will I do dispose the same in manner following that is to say I dispose it after my decease to my Son Philip and his heirs for ever The Wife died and Philip entred and dyed and left the Lessor of the Plaintiff his Son and heir The question was what Estate Philip took or what Estate the Testator intended should pass out of him This case was argued in Easter-Term last past by Serjeant Scroggs for the Plaintiff and by Serjeant Waller for the Defendant and in Trinity-Term by Serjeant Baldwin for the Plaintiff and Serjeant Newdigate for the Defendant They for the Plaintiff insisted upon the word dispose that when a man deviseth his Land to be disposed by a stranger it has been always held to be a bequeathing of a Feé-simple or at least a power to dispose of the Fee-simple 19 H. 8. 10. Moor 5 Eliz. 57. per Dyer Weston Welshe but they chiefly relyed on Daniel Uply's case in Latch The Defendants Councel urged that the heir at Law ought not to be disinherited without very express words That if the Devisor himself had said in his Will I dispose Rees-Farm to Philip that Philip would have had no more then an Estate for life and what reason is there that the disposal being limited to another should carry a larger Interest then if it had been executed by the Testator himself This Term it was argued at the Bench and by the Iudgments of Ellis Wyndham Atkyns Iustices the Plaintiff had Iudgment they agreed that the Wife took by the Will an Estate for her own life with a power to dispose of the Fee She cannot take a larger Estate to her self by implication then an Estate for life because an Estate for life is given to her by express limitation 1 Bulst 219 220. Whiting Wilkins case For cases resembling the case in question were cited 7 Ed. 6. Brook tit Devise 39. 1 Leon. 159. Daniel Uply's case Clayton's case in Latch It is objected that in Daniel Uply's case there are these words at her will and pleasure to which they answered that if she have a power to dispose according to her discretion and as she her self pleaseth and then expressio eorum quae tacite insunt nihil operatur If I devise that J. S. shall sell my Land he shall sell the Inheritance Kelloway 43 44. 19 H. 8. fol. 9. Where the Devisor gives to another a power to dispose he gives to that person the same power that himself had Vaughan Chief Justice differed in Opinion he said it is plain that the word dispose does not signifie to give for if so then it is evident that the Lessor of the Plaintiff cannot have any title for if the Wife were to give then were the Estate to pass out of her which could not be by such an appointment as she makes here but must be by a legal Conveyance Besides she cannot give what she has not and she has but an Estate for life If then it does not signifie to give what does it signifie let us a little turn the words and a plain certain signification will appear I will and bequeath Rees-Farm to such of my Children as my Wife shall think fit at her disposal at this rate
such power nay if he have Children they must be living at his death Further by these Provisoes if the Contingencies do happen he hath but a power to declare the Vses he hath no Interest in him at all Litt. Sect. 463. It is one thing to have a power or possibility of limiting an Interest another to have an Interest vested 7 Rep. 11. Moor's Reports 366. about the delivery of a Ring where they hold that if it had been to have been done with his own hand it had not been forfeited The case of Sir Edward Clere is different from ours for if a man make a feoffment to the use of his last Will or to the use of such persons as shall be appointed by his last Will in this case he remains a perfect owner of the Land But if a man makes a Conveyance with power to make Leases or to make an Estate to pay Debts he hath here no Interest but a naked power The Duke of Norfolk's case is full in the point A Conveyance to the use of himself for life the Remainder to his Son in Tail with power to revoke under Hand and Seal adjudged not forfeited and yet he had a power to declare his mind as in our case Pagett's case Moor 193 194. Keeling If this way be taken a man may commit Treason pretty cheaply Twisden Whoever hath a power of Revocation hath a power of Limitation The reason is because else the feoffées would be seized to their own Vse Sir William Shelly's case in Latch Twisden There is no difference betwixt the Duke of Norfolk's case and this only here it is under his hand writing and there under his proper hand writing Afterward Term. Pasch 23 Car. 2. 1671. the Court delivered their Opinions Hales being then Chief Iustice Morton I conceive the Iudgment in the Common-Pleas is well given As for the first point whether this Conveyance made by Sir Simon Mayn be fraudulent or not the Counsel themselves have declined it and therefore I shall say nothing to it For the second I conceive no larger Interest is forfeited then during the Life of the Father If it be objected that the Father had by this Proviso jus disponendi I answer it is true he had a power if he had been minded so to do but it was not his mind and Will Now animus hominis est ipse homo but he must not only be minded so to do but he must declare his pleasure Hobart saith if a man will create a power to himself and impose a Condition or Qualification for the Execution of it it must be observed Now here is a personal and individual power seated in the heart of a man And it seems to me a stronger case then that of the Duke of Norfolk put in Englefield's case where yet the Condition was not given to the King by the Statute of Hen. 8. There was a later case adjudged in Latch betwéen Warner and Hynde a case that walked through all the Courts in Westminster-hall there by reason of the ipso declarante it could not be forfeited Rainsford I hold it is not forfeited My reason is because the Proviso is at an end and determined for when he dyed and made no Will there 's an end of the Proviso The altering of the old Trust is to be done by Sir Simon Mayn and it is inseparable from his person nothing can be more inseparable then a mans Will Moor 193. Twisd I am of the same Opinion Hales was of the same Opinion that nothing was forfeited but during Sir Simon 's life The Proviso he said did not create a Trust but potestatem disponendi which is not a Trust He said he did not understand the difference betwéen the Duke of Norfolk's case and this Accordingly the Iudgment was affirm'd In a cause wherein one Aston was Attorney Keeling said That a man may discontinue his Action here before an Action brought in the Common-Pleas But if he do begin there and then they plead another Action depending here and then they discontinue I take it the Attorney ought to be committed for this practice Twisden When I was at the Bar Error was brought and Infancy assigned when the Man was thirty years old and the Attorney was threatned to be turned out of the Roll. Serjeant Newdigate moved for a Certiorari to remove an Indictment hither from Bedford against several Frenchmen for Robbery Keeling Will it remove the Recognisances there to appear Twisden I never knew such a motion made by any but the King's Attorney or Solicitor Rainsford There is no Indictment yet before a Iudge of Assise Keeling You may have a Certiorari but it must not be delivered till the Indictment be found and then the Iudge hath the Prosecutors there and may bind them over hither and so the Trial may be here Keel A Iury was never ordered to a view before their appearance unless in an Assise Twisd Neither shall you have it here but by consent Nosworthy versus Wyldeman THe Plaintiff declares in an Indeb Assumpsit that the Defendant was endebted to him in 50 l. for so much money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Plaintiff could not have an Action for money received by the Defendant to the use of the Defendant But because it might be money lent which the Defendant received to his own use though he was to make good the value to the Plaintiff the Court will presume after a Verdict that it appeared so to the Iury at the Trial. For where a Declaration will bear two constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense And accordingly the Plaintiff had Iudgment Willams versus Lee. AN Action of Account It was prayed that the Court would give further day for giving the Account the matter being referred to Auditors Twisden The Auditors themselves must give further day Keeling The Auditors are Iudges whether there be a voluntary delay or not If they find the parties remiss and negligent they must certifie to the Court that they will not account Roberts Mariott MOved to discontinue an Action of Debt upon a Bond. Keeling We will not favour Conditions Ruled that the other side should shew cause why they should not discontinue Buckly versus Turner ACtion upon the case upon a Promise The case was that Edward Turner Brother to the Defendant was endebted to the Plaintiff for a Quarters Rent and the Defendant in consideration that the Plaintiff mitteret prosequi praedictum Edwardum Turner so the words are in the Declaration promised to pay the money After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that here is not any consideration for there is no loss to the Plaintiff in sending to prosecute c. nor any benefit but
5 Ed. 4. 6. Now for Authorities I confess there are great ones against me 2 Cro. fol. 335. Heath Ridley Moor. 838. Courtney versus Glanvill My Lord Coke in his Chapter of Praemunire 22 Ed. 4. fol. 37. But the greatest Authority against me is the case of Throgmorton Finch reported by my Lord Coke in his Treatise of Pleas of the Crown Chapter Praemunire But the practice has béen contrary not one person attainted of a Praemunire for that cause In King James his time the matter was referred to the Counsel who all agreed that the Chancery was not meant within the Statute which Opinions are inrolled in Chancery And the King upon the report of their Reasons ordered the Chancellor to proceed as he had done and from that time to this I do not find that this point ever came in question And so he prayed Iudgment for the Defendant Saunders As to that objection that at the time when this Statute was made there were no proceedings in Equity I answer that granting it to be true yet there is the same mischief The proceedings in one part of the Chancery are coram Domino Rege in Cancellaria but an English Bill is directed to the Lord Keeper and decreed so that there is a difference in the proceedings of the same Court But admit that Courts of Equity are the Kings Courts yet they are aliae Curiae if they hold plea of matters out of their Iurisdiction 16 Ri. 2. cap. 5. Rolls first part 381. There is a common objection that if there were no relief in Chancery a man might be ruined for the Common Law is rigorous and adheres strictly to its rules I cannot answer this Objection better then it is answered to my hand in Dr. Stud. lib. 1. cap. 18. he cited 13 Ri. 2. num 30. Sir Robert Cotton's Records It is to be considered what is understood by being impeached Now the words of another Act will explain that viz. 4 H. 4. cap. 23. by that Act it appears that it is to draw a Iudgment in question any other way then by Writ of Error or Attaint One would think this Statute so fully penned that there were no room for an evasion There was a temporary Statute which is at large in Rastall 31 H. 6. cap. 2. in which there is this clause viz. That no matter determinable at Common Law shall be heard elsewhere A fortiori no matter determined at Common Law shall be drawn in question elsewhere He cited 22 Ed. 4. 36. Sir Moyle Finch Throgmorton 2 Inst 335. and Glanvill Courtney's case He put them also in mind of the Article against Cardinal Woolsey in Coke's Jurisdiction of Courts tit Chancery So he prayed Iudgment for the Plaintiff Keeling It is fit that this cause be adjourned into the Exchequer-chamber for the Opinions of all the Iudges to be had in it We know what heats there were betwixt my Lord Coke Ellesmere which we ought to avoid Turner Benny A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Action upon the Case wherein the Plaintiff declared that it was agréeed betwéen himself and the Defendant that the Plaintiff should surrender to the use of the Defendant certain Copy-hold Lands and that the Defendant should pay for those Lands a certain sum of money and then he sets forth that he did surrender the said Lands into the hands of two Tenants of the Manor out of Court secundum consuetudinem c. Exception The promise is to surrender generally which must be understood of a surrender to the Lord or to his Steward and the Declaration sets forth a surrender to two Tenants which is an imperfect surrender 1 Cro. 299. Keeling But in that case there are not the words secundum consuetudinem as in this case Jones Hill 22 Car. 1. Rot. 1735. betwixt Treburn Purchas two points were adjudged 1. That when there is an agréement for a surrender generally then such a particular surrender is naught 2. That the alledging of a surrender secundum consuetudinem is not sufficient but it ought to be laid that there was such a Custom within the Manor and then that according to that Custom he surrendred into c. accordingly is 3 Cro. 385. Coleman contra We do say that we were to surrender generally and then we aver that actually we did surrender secundum consuetudinem and if we had said no more it had béen well enough Then the adding into the hands of two Tenants c. I take it that it shall not hurt Besides we need not to alledge a performance because it is a mutual promise and he cited Camphugh Brathwait's case Hob. Twisden I remember the case of Treborne he was my Clyent And the reason of the Iudgment is in Combe's case 9th Rep. because the Tenants are themselves but Attornies And they compared it to this case I am bound to levy a Fine it may be done either in Court or by Commission but I must go and know of the person to whom I am bound how he will have it and he must direct me In the principal case the Iudgment was affirm'd Nisi c. Turner Davies AUdita Querela The point was this viz. an Administrator recovers damages in an Action of Trover and Conversion for Goods of the Intestate taken out of the possession of the Administrator himself then his Administration is revoked and the question is whether he shall have Execution of the Iudgment notwithstanding the revocation of his Administration Saunders I conceive he cannot for the Administration being revoked his Authority is gone Doctor Druries case in the 8th Report is plain And there is a President in the new book of Entries 89. Barrell I conceive he may take our Execution for it is not in right of his Administration he lays the Conversion in his own time and he might in this case have declared in his own name and he cited and urged the reason of Pakman's case 6th Report 1 Cro. Keeling He might bring the Action in his own name but the Goods shall be Assets If Goods come to the possession of an Administrator and his Administration be repealed he shall be charged as Executor of his own wrong now in this case the Administration being repealed shall he sue Execution to subject himself to an Action when done Twisden I think it hath béen ruled that he cannot take out Execution because his Title is taken away Iudgment per Cur. versus Defendentem Jordan Martin EXception was taken to an Avowry for a Rent-charge that the Avowant having distrained the Beasts of a Stranger for his Rent does not say that they were levant couchant Coleman The Beasts of a Stranger are not liable to a Distress unless they be levant couchant Roll. Distress 668. 672. Reignold's case Twisd Where there is a Custom for the Lord to seize the best Beast for a Heriot and the Lord does seize the
Trespass was brought for taking away a Cup till he paid him 20 shillings The Defendant pleads that ad quandam curiam he was amerced and that for that the Cup was taken Hales We cannot tell what Court it is whether it be a Court-Baron by Grant or Prescription if it be by Grant then it must be coram Seneschallo if by Prescription it may be coram Seneschallo or coram Sectatoribus or coram both Then it does not appear that the House where the Trespass was laid was within the Manor Then he doth not say infra Jur. Cur ' It was put upon the other side to shew cause Jacob Hall's Case ONe Jacob Hall a Rope-dancer had erected a Stage in Lincolns-Inn-fields but upon a Petition of the Inhabitants there was an Inhibition from Whitehall now upon a complaint to the Iudges that he had erected one at Charing-cross he was sent for into Court and the Chief Iustice told him that he understood it was a Nusance to the Parish and some of the Inhabitants being in Court said that it did occasion Broyles and Fightings and drew so many Rogues to that place that they lost things out of their Shops every Afternoon And Hales said that in 8 Car. 1. Noy came into Court and prayed a Writ to prohibit a Bowling-Ally erected near St. Dunstans Church and had it Sir Anthony Bateman's Case IN the Trial at Bar the Son and Daughter of Sir Anthony Bateman were Defendants the Action was an Ejectione Firmae The Defendants admitted the point of Sir Anthony's Bankrupcy but set up a Conveyance made by Sir Anthony to them for the payment of 1500 l. apiece being money given to them by their Grandfather Mr. Russell to whom Sir Anthony took out Administration Hales It is a voluntary Conveyance unless you can prove that Sir Anthony had Goods in his hands of Mr. Russell at the time of the executing it So they proved that he had and there was a Verdict for the Defendants Legg Richards EJectment Iudgment against the Defendant who dies and his Executor brings a Writ of Error and is non-suited It was moved that he should pay Costs Twisden An Executor is not within the Statute for payment of Costs occasione dilationis Hales I am of the same Opinion Harwood's Case HE was brought to the Bar by Habeas Corpus being committed by the Court of Aldermen for marrying an Orphan without their consent Sol. North. We conceive the Return insufficient and that it is an unreasonable Custom to impose a Penalty on a man for marrying a City-Orphan in any place of England Now we marryed her far from London and knew not that she was an Orphan Then they have put a Fine of 40 l. upon him whereas there is no cause why he should be denied Marriage with her there being no disparagement Twisden Mr. Waller of Berkingsfield was imprison'd six months for such a thing So the money was ordered to be brought into Court Vide infra 79. Leginham Porphery REplevin and Avowry for not doing Suit The Plaintiff sets forth a Custom that if any Tenant live at a distance if he comes at Michaelmas and pay eight pence to the Lord and a penny to the Steward he shall be excused for not attending and then says that he tendred eight pence c. and the Lord refused it c. Polynxfen I know no case where payment will do and tender and refusal will not do Hales Have you averred that there are sufficient Copy-holders that live near the Mannor Polynxfen We have averred that there are at least 120. Hales Surely tender and refusal is all one with payment Twisden An Award is made that super receptionem c. a man should give a Release there tender and refusal is enough Iudgment for the Defendant Waldron versus c. HAles It is true one Parish may contain thrée Vills The Parish of A. may contain the Vills of A. B. and C. that is when there are distinct Constables in every one of them But if the Constable of A. doth run through the whole then is the whole but one Ville in Law Or where there is a Tything-man it may be a Ville but if the Constable run through the Tything then it is all one Ville I know where three or four Thousand l. per annum hath béen enjoyed by a Fine levied of Land in the Ville of A. in which are five several Hamlets in which are Tythings but the Constable of A. runs through them all and upon that it was held good for all Here was a case of the Constable of Blandford-Forum wherein it was held that if he had a concurrent Iurisdiction with all the rest of the Constables the Fine would have passed the Lands in all In some places they have Tythingmen and no Constables Polynxfen Lambard 14. is that the Constable and the Tything-man are all one Hales That is in some places Praepositus is a proper word for a Constable and Decemarius for a Tything-man An Indictment for retaining a Servant without a Testimonial from his last Master Moved to quash it because it wants the words contra pacem 2. Becausâ—â—â—ey do not shew in what Trade it was So quash'd Moved to quash another Indictment because the year of our Lord in the Caption was in Figures Hales The year of the King is enough Moved for a Prohibition to the Spiritual Court for that they Sue a Parish for not paying a Rate made by the Church-wardens only whereas by the Law the major part of the Parish must joyn Twisden Perhaps no more of the Parish will come together Counsel If that did appear it might be something Hales A Writ of Error will lie in the Exchequer-Chamber of a Iudgment in a Scire facias grounded upon a Iudgment in one of the Actions mentioned in the 27 of Eliz. cap. 8. because it is in effect a piece of one of the Actions therein mentioned Harwood's Case HE was removed out of London by Habeas Corpus the Return was That he was fined and committed there for marrying a City-Orphan without the consent of the Court of Aldermen Exception 1. They do not say that the party was a Citizen or that the Marriage was within the City and they are not bound to take notice of a City Orphan out of the City for their Customs extend only to Citizens in the City Exception 2. They have not shewed that we had reasonable time to shew cause why we should not be fined Twisden These Objections were over-ruled in one Waller's case Afterward in the same Term Weston spake to it There are two matters upon which the validity of this Return doth depend viz. The Custom and the Offence within the Custom The Custom is laid that time out of mind the Court of Aldermen have had power to set a reasonable Fine upon such as should marry an Orphan without their leave and upon refusal to pay it to imprison him I conceive this Custom as it is laid to
enters Mr. Attorney Finch The first question will be whether this Proviso be a Condition or a Limitation 2. Whether notice be requisite in this case or not For the first I take it to be a Limitation and that it must so be expounded and not as a Condition Dyer 10 Eliz. 317. Plowd queres 108. Moor. 312. 29 Eliz. Com. Banc. 1 Leon. Plac. 383. 2 Leon. 581. Poph. 6 7. 1 Roll. Condition 411. and the same case is in Owen's Reports 112. In case of a Devise a Condition must be construed as a Limitation 3 Cro. 388. There seems to be an Authority against me in Mary Portingtons case 10 Rep. in a reason there given but it is an accumulative reason and does not come to the point adjudged I shall insist upon Wellock Hamond's case in Leon. it is reported likewise in Boraston's case 3 Rep. and my Lord Coke says that it doth resolve a Quaere in Dyer 327. so that express words of Condition may by construction in a Will amount to no more then a Limitation The second point is whether he shall be excused for breach of this Condition for want of notice First I shall consider it in respect of the person Secondly I respect of the grounds of notice in any case First in respect of the person now he may be considered in two capacities as an Infant and as a Devisée Now his Infancy cannot excuse him for the Condition was annexed to the Devise expresly because he was an Infant Secondly He is a Purchasor Now if an Infant purchase an Advowson and the Incumbent dye Laps shall incur though he had notice of the death of the Incumbent and there is the same reason in this case where he is Deviseé Thirdly An Infant is bound by all Conditions in Déed though not by Conditions in Law Com. 57. indeed 31 Ass 17. is against it but in Bro. Condition Plac. 114. that case is said to be no Law and Bro. agreeth with Plowd 375. Secondly Consider him as Devisée and then there will be less ground to excuse the want of notice I take it to be a good difference betwixt Lands devised to an Heir upon Condition and Lands devised to a Stranger upon Condition To the Heir notice must be given but not to a Stranger for the Heir is in by Descent and a Title by Law cast upon him And he may very well be supposed to take no notice of a Devise because the Law takes no notice of a Devise to him Now a Stranger as he must needs take notice of the Estate given so he may very well be obliged to take notice of the terms upon which it is given 4 Report 83. As for the grounds and reasons of the Law when notice in any case is requisite and when not First I take it for a rule that every man is bound to take notice when none is bound to give him notice 1 H. 7. 5. 13 H. 7. 9. 5 Rep. Sir Henry Constable's case 3 Leon. Burleigh's case in the Exchequer 1 Cro. 390. Rolls 856. Litt. Sect. 350. My second ground is that where persons are equally privy and concerned there needs no notice Mich. 1649. Leviston's case 1 Leon. 31. 7 Rep. 117. Mallorie's case 14 H. 7. 21. The third consideration ariseth from the circumstances and strict formality of all notice You must not give notice of a Will by word of mouth but you must leave a Copy of it compared 8 Rep. Fraunce's case Now the Infant in Remainder is incapable of observing these circumstances and they being both Strangers are both to take notice at their peril Now to answer Objections one is that the Condition is penal and inflicts a forfeiture of an Estate and that therefore notice ought to be given I say this is rather a declamation then an argument in Law I will put a case where he that is subject to a penalty must give notice to preserve himself Poph. 10. so that penalty or no penalty is not the business but privity or no privity guides the case And Fraunce's case 8 Report was ruled upon the privity not upon the penalty 2 Cro. 56. and a case adjudged in this Court betwixt Lee and Chamberlyne seem against me but they differ from ours and the 1 Cro. a case between Alford and the Communalty of London is an Authority for me Mr. Solicitor North pro Defendente I will not speak much to that point whether it be a Condition or a Limitation I shall relie for that upon Mary Portington's case that express words of Condition cannot be construed to be a Limitation Dyer 127. Now if this be a Condition then the Heir regularly ought to enter which he cannot do in this case because a Remainder is here limited over The Law does interpret Conditions according to the nature and circumstances of the thing and not strictly always according to the Letter I do not observe that in any case the Law suffers a man to incur a forfeiture where he hath not notice or is not in the Law supposed to have notice He cited 2 Cro. 144. Molineux Molineux and Fraunce's case 8 Report He said it was not the intention of the party that the Devisée should be strip'd of his Estate and be never the wiser Saunders Gerard's case is for me of which I have a private report He urged also the case of Curtis Wolverton Dyer 354. and Penant's case 4 Report It is objected That they that are to have the benefit of the Estate ought to take notice I answer the same Objection might be made in Fraunce's case Another reason given to excuse the not-giving of notice is that the Condition imports no more then Nature teacheth but I answer in case the Executor consent it is no matter whether the Grand-mother consent or not And for their Authorities I shall rely upon 1 Cro. 391. and upon Fraunce's case for answering them So he prayed Iudgment for the Defendant Hales All the difference betwixt this case and Fraunce's is that in that case there is an Heir at Law and not in this Now the Chancery is so just as to observe the Civil and Canon Law as to personal Legacies but not as to Land Anonymus AN Action upon the case upon a promise to pay money three months after upon a Bill of Exchange The Defendant pleads non Assumpsit infra sex annos urged that as this promise is laid he ought to have pleaded that the cause of Action did not accrue within six years Sympson Non Assumpsit infra sex annos relates to the time of payment as well as to the promise Hales That cannot be Twisden If I promise to do a thing upon request and the promise were made seven years ago and the request yesterday I cannot plead the Statute but if the request were six years ago it must be pleaded specially viz. that causa actionis was above six years since Bradcat Tower AN Action was brought upon a Charter-party And
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
out of it The Stat. de donis conditionalibus brought in a new Estate of Inheritance by way of entail now this Estate Tail in Gavelkind Lands hath been taken to descend to all the Brothers and the reason is because it is part of the Fee-simple though created de novo so Vses follow the nature of the Land The cases that have béen cited were not the Opinion of the Court but of them that argued Lamb. 47. saith that the Custom extends to Advowsons Commons Rent-charges as well as to Land It is objected that here must be a prescription I answer Gavel-kind Law is the Law of Kent and is never pleaded but presumed 7 Edw. 3. 38. Co. Litt. 175. 2 Edw. 4. 18. Co. Litt. 140. saith the Customs of Kent are of common right and if so then our Rent-charge will go of common right to all the Brothers Hales Rainsford and Wyld were of Opinion that the Rent ought to descend to all the Brothers according to the descent of the Land because the Rent is part of the profits of the Land and issues out of the Land and they gave Iudgment accordingly A man covenanted to stand seized to the use of the Heirs of his body Hales The Heir and the Ancestor are correlates and as one thing in the eye of the Law and that is the reason why a man shall not make his right Heir a Purchasor without putting the whole feé-simple out of himself If the Fathers Estate turns to an Estate for life there will be no question In the case of Bennet Mitford there did result an Estate for life to knit the Limitation to the original Estate Here 1. We are in the case of an Estate Tail and the Iudges use to go far in making such a Limitation good then 2. We are in the case of an Vse which is construed as favourably as may be to comply with the intention of the party This case is not as if he should have covenanted to stand seized to the use of the Heirs of the body of J. D. there the Covenantor would have had a Fee-simple in the mean time but the case is all one as if the Limitation had been to himself and the Heirs of his own body Vide the Earl of Bedford's case Twisden We must make it good if we can Cur ' advisare vult Austin Lippencott A Special Verdict Francis the Father was Tenant for life the Remainder in Fée to Francis the Son and by the Deed by which this Estate was thus settled 100 l. a year was appointed to be paid to Francis the Son during the Fathers life The Son releaseth to the Father all arrears of Rent Annuities Titles and Demands by virtue of that Indenture and the question was whether this Release passed the Inheritance as well as the Annuity Polynxfen I conceive this Release shall not pass any Estate in the Land and my reason is because there is no mention of the Land nor of any Estate therein The principal thing intended and expressed is the Annuity then the Release concludes to the day of the Release which doth manifest that he did not intend to Release any thing that was not to come to him till after the death of his Father It is true here is the word demand but that will not do it 3 Cro. 258. Then for the word Titles by Plowd 494. and 8 Rep. 153. it is where a man hath lawful cause to have that that another doth possess sometimes it is taken in a larger sense and then it doth include right Vpon construction of this Release I think it ought to be taken in the stricter sense and the intention of the party must guide the construction For where there are general words in the beginning and particular words afterwards the particular do restrain the general and so vice versa for enlargement he cited Hen Hanson's case 15 Car. 2. in this Court where a Release of all demands would not Release a Rent-charge by the Opinion of thrée Iudges against Twisden for that reason and because words in Deeds are to be taken according to common acceptation he cited 2 Rolls 409. In our case the general words of all Suits and Titles are limited and restrained to the Annuity and Title of that and shall not by a large construction be extended to any thing else Hales How hath the Inheritance gone Polynxfen The Grandchild has that Hales I think a Release of all demands will not extinguish a Rent but if it were all demands out of Land it were another thing It hath béen held over and over again that it does not extinguish and discharge a Covenant not broken But what say you to this Release of all Titles for it appears in express terms that the Son did not only release the arrears of the Annuity but the thing it self and not only so but all other Titles by virtue of that Deed suppose the case had been but thus the Father is Tenant for life the Remainder to the Son for Life the Son releaseth to his Father all the Title that he has by vertue of that Deed had not this passed the Sons Estate for life In the cases that you have cited it is allowed that a Release of all Titles will pass a right to Land He had a Title to the Annuity and a title to the Remainder now he releaseth the Annuity and all other Titles which he hath by that Deed or otherwise howsoever To hear Serjeant Maynard on the other side Wilson Robinson A Man deviseth all his Tenant-right Estate at Brickend and all that my Father and I took of Rowland Hobbs c. Levings I conceive that these words pass only an Estate for life for it is not mentioned what Estate he hath 1 Cro. 447 449. a Devise of all the rest of his Goods Chattels Leases Estates Mortgages Debts ready money c. and the Court held that no Fee passed and said it was a doubt whether any Estate would pass in that case but what was for years being coupled only with personal things Trin. 1649. Rot. 153. Jerman Johnson One devised all his Estate paying his Debts and Legacies now his personal Estate came but to 20 l. and his Debts were 100 l. there indeed all his real Estate passed because of the payment of his Debts And in our case the following particulars are but a description of the Land and contain no limitation of the Estate If a man deviseth black Acre to one and the Heirs of his body and also deviseth white Acre to the same person he hath but an Estate for life in white Acre though he hath a Fee-simple in the other for the word also is not so strong as if it had been in the same manner Moor 152. Yel 209. Weston contra I conceive an Estate of Inheritance doth pass for the word Estate comprehendeth all his Interest When a man deviseth all his Estate he leaves nothing in himself in that case
of Jerman it was held that all my Estate comprehends all my Title and Interest in the Land If a man deviseth all his Inheritance this carries the Fee-simple of his Land and the word all his Estate is as comprehensive as that Hales Wyld By a Grant or Release of totum statum suum the Fee-simple will pass if the words had been all my Tenant-right Lands it had been otherwise but the word Estate is more then so if a man deviseth all his Copy-hold Estate will not all his whole Interest pass Adjornatur Norman Foster AN Action of Debt upon a Bond to perform Covenants in an Indenture of Lease one Covenant is for quiet enjoyment and the Plaintiff assigns for breach that a Stranger entred but does not say that he had Title Hales Habens Titulum at that time would have done your business My Lord Dyer's case is that another entred claiming an Interest but that is not enough for he may claim under the Lessee himself He mentioned the cases in Moor 861. Hob. 34. Tisdale Essex If the Covenant had been to save him harmless against all lawful and unlawful Titles yet it must appear that he that entred did not claim under the Lessee himself Hales If I Covenant that I have a lawful right to grant and that you shall enjoy notwithstanding any claiming under me these are two several Covenants and the first is general and not qualified by the second And so said Wyld and that one Covenant went to the Title and the other to the possession Dyer 328. An Assumpsit to enjoy sine interruptione alicujus that is whether by Title or by Tort a quiet possession being to be intended to be the chief cause of the Contract 3 Leon. 43. 2 Cro. 425 315. 444. Adjornatur Angell convicted of Barretry produced a Pardon which was of all Treasons Murders Felonies and all Penalties Forfeitures and Offences The Court said the words all Offences will pardon all that is not capital Blackburn Graves A Copy-holder surrenders to the use of several persons for years successive the Remainder in Fee to J. S. Wyld An admittance of a particular Tenant is an admittance of all the Remainders to all purposes but only the Lords Fine and if the Custom be that the Fine paid by the first Tenant shall go to all the Remainders then the admittance of the first man is to all intents and purposes an admittance of all that come after In this case the possession of the Lessée for years is the possession of the Remainder-man In one Baker Dereham's case there was a surrender to the use of a man and his Heirs of Copy-hold Land that discended according to the Custom of Borough-English the surrenderee dyed before admittance and the Opinion of the Court was that the right would discend to the youngest according to the Custom Vpon a case moved Hales said That if a Tenant in Common bring a personal Action without his fellow joyning in the Suit the Defendant ought to take advantage of it in abatement but if he plead Not-guilty it shall be good but then he shall recover damages only for a moiety If a Tenant in Common seal a Lease of Ejectment he shall recover but a moiety A Iustice of Peace committed a Brewer for not paying the duty of Excise the Brewer was brought into Court by Habeas Corpus Sympson It ought to appear that he was a common Brewer Hales The Statute doth prohibit the bringing of a Certiorari but not a Habeas Corpus And want of averment of a matter of fact may be amended in a Return in Court and if it be not true at their peril be it So it was mended Money owing upon a Iudgment given in the Kings Court cannot be attached Term. Hill 25 26 Car. II. 1673. in B. R. Baker Bulstrode DEbt upon a Bond. The Condition was to Seal and execute a Release to the Plaintiff The Defendant demurs because the Plaintiff did not alledge in his Declaration a tender of a Release It was urged that the Condition was not to make but only to Seal and Execute c. But per Curiam he is bound to do it without a tender And the word Execute or the word Seal comprehends the making And Lamb's case was cited Warren Prideaux Trin. 24 Car. 2. Rot. 1472. A Distress and Avowry for Toll The prescription was for Toll in consideration of maintaining the Key and keeping a Bushel to measure Salt viz. That in consideration thereof he and those c. have had time out of mind c. a Bushell of Salt of every Ship that comes laden with Salt into Slipper-point For the Avowant it was alledged that the maintaining of the Key is for publick good Co. Magn. Cart. 222. Rolls 265. It s true it is not alledged that they did actually use the Weights and Measures 1 Leon. 231. but it being alledged that the Ship came within Slipper-point it is enough to charge the Plaintiff with the payment As for the Distress taken which is part of the Ships lading viz. Salt it is objected that it cannot be distrained because it is part of the thing from which the duty ariseth but I answer that this is not like to a Distress upon Land nor to be judged of according to the rules allowed in cases of such Distresses There were cited on this side 21 H. 7. 1. 3 Cro. 710. Smith Shepheard Dyer 352. Courtney contra I conceive this prescription ought to have some consideration and to be grounded on a meritorious cause to bind a Subject The keeping of the Bushell is no meritorious cause because it is presumed that the party hath the use of it himself Hales The prescription is not for a Port but a Wharfe If any man will prescribe for a Toll upon the Sea he must alledge a good consideration because by Magna Charta and other Statutes every one hath liberty to go and come upon the Sea without impediment Wyld This Custom or Prescription is laid to have a Bushell of Salt of every Ship that comes within the Slipper-point if a Ship be driven in by stress of weather and goes out again the first opportunity that presents shall that Ship pay Hales If he had said that he had a Port and was bound to maintain that Port and that he and all those whose Estate he had c. that might have been a good Prescription but in this case there must be a special inducement and compensation to the Subject by reason of those Statutes by which all Merchants and others have liberty to come in and go out They inclin'd that the Prescription was not good Anonymus A Trial at Bar concerning the River of Wall-fleet the question was whether had not the right of Fishing there exclusive of all others Hales In case of a private River the Lords having the Soil is a good evidence to prove that he hath the right of Fishing and it puts the
proof upon them that claim liberam piscariam But in case of a River that flows and re-flows and is an Arm of the Sea there prima facie it is common to all and if any will appropriate a priviledge to himself the proof lyeth on his side for in case of an Action of Trespass brought for Fishing there it is prima facie a good justification to say that the locus in quo is brachium maris in quo unusquisque subjectus Domini Regis habet habere debet liberam piscariam In the Severne there are particular restraints as Gurgites c. but the Soil doth belong to the Lords on either side and a special sort of Fishing belongs to them likewise but the common sort of Fishing is common to all The Soil of the River of Thames is in the King and the Lord Mayor is Conservator of the River and it is common to all Fisher-men and therefore there is no such contradiction betwixt the Soil being in one and yet the River common for all Fishers c. Sedgewick Gofton HAles said That a Writ of Error in Parliament may be retorned ad prox Parliament such a day but if a particular day be not mentioned then it is naught and although there be a particular day expressed yet if that day be at two or thrée Terms distance the Court will adjudge it to be for delay and it shall be no Supersedeas And he said he had looked into the Books upon the point In the Register he said there is a Scire fac ad prox Parliament but not a Writ of Error Term. Pasch 26 Car. II. 1674. in B. R. Fountain Coke A Trial at Bar. Hales An Executor may be a witness in a cause concerning the Estate if he have not the Surplusage given him by the Will and so I have known it adjudged If a Lessee for years be made Tenant to the Praecipe for suffering a common Recovery that doth not extinguish his term because it was in him for another purpose which the whole Court agreed Jacob Aboab DEbt upon a Bond was brought against him by the name of Jacob and he pleaded that he was called and known by the name of Jaacob and not Jacob but it was over-ruled Sir John Thorowgood's Case IT was moved to quash an Indictment because it ran in detrimentum omnium inhabitantium c. Rolls 2 part 83. Wyld I have known it ruled naught for that cause So quashed Benson versus Hodson A Writ of Error of a Iudgment in the County Palatine of Lancaster in Replevin The Defendant makes Conusance as Bayliff to Ann Mosely The Lands were the Lands of Rowland Mosely and he covenanted to levy a Fine of them to the use of himself and the Heirs males of his body the remainder in Tail to several others the remainder to his own right Heirs Provided that if there shall be a failer of Issue Male of his body and Dame Elizabeth be dead and Ann Mosely be married or of the age of 21 years then she shall have 200 l. per annum for ten years Then Rowland dies leaving Issue Sir Edward Mosely Sir Edward makes a Lease for 1000 years then levies a Fine and suffers a Recovery Then dies without Issue Male And the Contingents did all happen The question is whether this Rent-charge of 200 l. per annum be barred by the Fine and Recovery and shall not operate upon the Lease Levings I conceive the Fine is not well pleaded for nothing is said of the Kings Silver and if that be not paid it is void Then they have pleaded a Common Recovery but not the Execution of it by Entry Now I conceive the Common Recovery doth destroy the Estate Tail but not the Rent The reason why a common Recovery is a Bar is because of the intended recompence Now that is a fictitious thing 9 Rep. Beamonts case 1 Cro. Stone and Newman Cuppledicks case Now this Rent is a meer possibility and hath no relation to the Estate of the Land Then again when the Recovery was suffered the Rent was not in being Now a Recovery will never bar but where the Estate is dependant upon it either in Reversion or Remainder For that case of Moor pl. 201. I conceive he is barred because the Reversion is barred by the Fine 3 Cro. 727. 792. White and Gerishe's case the same case 2 And. 190. Noy p. 9. Another reason is because the Rent remains in the same plight notwithstanding the Fine Another reason is it was a meer possibility at the time of the Fine and Recovery Pell and Brownes case is for me In our case is no Estate in esse to be barred Then this Estate is granted out of the Estate of the Feoffeés As in Whitlocks case 8 Rep. 71. the Estates for years which there is a power to make shall be said to precede all the Limitations There is no other way for securing younger Childrens Portions by the same Deéd but it may be done by another Déed as in Goodyer and Clarkes case Mr. Finch contra I conceive the Rent is barred upon the reason of Capells case They say not 1 Because it doth only charge the Remainder 2 The intended recompence doth not go to it 3 This Lease for 1000 years doth precede the Fine The Law will never invert the operation of a Conveyance but ut res magis valeat Bredon's case Then for the intended recompence that cannot be the reason of barring a Remainder for the Estate Tail was barred before 3 Leon. 157. But Moor fol. 73. saith it is the favour the Law hath for Recoveries And till the Reversion takes place in possession the Rent cannot arise out of the Reversion nor so long as this Lease is in being Hales You make two great points 1 Whether the Rent be barred by the Common Recovery 2 Whether the Rent-charge shall arise out of the Lease for years This is plain if Tenant in Tail grant a Rent-charge and suffer a Common Recovery the Rent-charge will not be avoided So that if Tenant in Tail grant a Rent a Recovery will not bar that though it doth a Reversion but the reason of these cases is because the Estate of him that suffers the Recovery is charged with the Rent Therefore if there be a Limitation of a Vse upon Condition and Cestui que use suffers a Recovery that will not destroy the Condition the Estate being charged with it for the Recoveror can have the Estate only as he that suffered the Recovery had it And therefore there is an Act of Parliament to enable Recoverors to distrein without Attornment Therefore so long as any one comes in by that Recovery he comes in in continuance of the Estate Tail and coming in so he is lyable to all the charges of Tenant in Tail Now what is the reason why Tenant in Tail suffering a Common Recovery a Rent by him in Remainder shall be barred The reason is because the Recoveror comes in
in the continuance of that Estate that is not subject to the Rent but is above all those charges now no recompence can come to such a Rent And therefore there is another reason why a Common Recovery will bar at Common Law upon an Estate Tail which was a Fée-simple conditional a Remainder could not be limited over because but a possibility but now comes that Statute De donis conditionalibus and makes it an estate tail and a Common recovery is an inherent priviledge in the Estate that was never taken away by that Statute De donis the Law takes it as a conveiance excepted out of the Statute as if he were absolutely seised in fee and this is by construction of Law It is true there can be no recompence to him that hath but a possibilitie But the business of recompence is not material as to this charge And the reason of Whites case and other cases put explain this Now what difference between this and Capels case Say they there the charge doth arise subsequent but here the charge doth arise precedent why I say the charge doth arise precedent to the Remainder but subsequent to the Estate tail for it is not to take effect till the Estate tail be determined It was doubted in the Queens time whether a Remainder for years was barred but it hath béen otherwise practised ever since and there is no colour against it Now you do agrée that the Remainder to the right Heirs of one living shall be barred for the Estate is certain though the Person be uncertain So long as the Rent doth not come within the compass and limitation of the Estate tail the Rent is extinct and killed there is nothing to keep life in it But whether doth not the Lease for years preserve it Heretofore it was a question among young men Whether if Tenant in Tail granted a Rent Charge for Life then makes a Lease for three Lives In this case though the Rent before would have dyed with Tenant in Tail yet this Rent will continue now during the three Lives which it will And it hath been questioned if he had made a Lease for years instead of the Lease for lives if that would have supported the Rent Now in our case if the Lease for years were chargeable the Rent would arise out of that But if this Rent should continue then most mens Estates in England would be shaken Wild. The Lease for years doth not preserve the Rent but the Common Recovery doth bar it For Pell Brownes case in that Case the Recovery could not barr the possibility for he was not Tenant in Tail that did suffer the Recovery but he had only a Fee simple determinable and the contingent Remainder not depend upon an Estate Tail nay did not depend by way of Remainder but by way of Contingency It is true Iustice Dodridge did hold otherwise but the rest of Iudges gave Iudgment against him upon very good reason Twisden I never heard that case cited but it was grumbled at Hales But to your knowledge and mine they always gave Iudgment accordingly A man made a gift in Tail determinable upon his non-payment of 1000 l. the Remainder over in Tail to B. with other Remainders Tenant in Tail before the day of payment of the 1000 l. suffers a common Recovery and doth not pay the 1000 l. yet because he was Tenant in Tail when he suffered the Recovery by that he had barred all and had an Estate in Fee by that Recovery At a day after Hales said the Rent was granted before the Lease for years and is not to take effect till the Estate Tail be spent and a common Recovery bars it If there be Tenant in Tail reserving Rent a common Recovery will not bar it so if a Condition be for payment of Rent it will not bar it But if a Condition be for doing a collateeal thing it is a bar And so if Tenant in Tail be with a Limitation so long as such a Tree shall stand a common Recovery will bar that Limitation Lampiere versus Mereday AN Audita Querela was brought before Iudgment entred which they could not do 9 H. 5. 1. which the Court agreed Whereupon Counsel said it was impossible for them to bring an Audita Querela before they were taken in Execution for the Plaintiff will get Iudgment signed and take out Execution on a suddain and behind the Defendants back Thereupon the Court ordered the Postea to be brought in for the Defendant to see if Execution were signed And at a day after Hales said If an Audita Querela was brought after the day in bank though the Iudgment was not entred up yet the Court would make them enter up the Iudgment as of that day So that they shall not plead Nul tiel Record Wyld said a Sheriffs bond for ease and favour was void at Common Law and so it was declared in Sir John Lenthalls case Twisden upon opening of a Record by Mr. Den said It was already adjudged in this Court that a Rent issuing out of Gavelkind Land is of the nature of the Land and shall descend as the Land doth An Action of Debt upon a Bond. Sympson moved in Arrest of Iudgment The Bond was dated in March and the Condition was for payment super vicessimum octavum diem Martii prox ' sequentem It was sequentem which refers to the day which shall be understood of the month next year If it had been sequentis then it had referred to March and then it had beén payable the next year But the Court was of Opinion that it should be understood the currant month Sympson cited a case wherein he said it had been so held Read versus Abington Hales Formerly if Execution was gone before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas Wyld He must not keep the Writ in his pocket and think that will serve At another day Hales said it shall not be a Supersedeas unless shewed to the party and he must not foreslow his time of having it allowed for if it be not allowed by the Court within four days it is no Supersedeas Hales A Writ of Error taken out if it be not shewn to the Clerk of the other side nor allowed by the Court it is no Supersedeas to the Execution And that if a Writ of Error be sued bearing Teste before the Iudgment be given if the Iudgment be given before the Retorn it is good to remove it though at first he said it was so in respect of a Certiorari but not of a Writ of Error And he said that Iudgment when ever it is entred hath relation to the day in bank viz. the first day of the Term So that a Writ of Error retornable after will remove the Record when ever the Iudgment is entred Vpon a motion concerning the amending of Leather-Lane Hales If you plead Not-guilty it goes to the Repair or
not Repair but if you will discharge your self you must do it by prescription or ratione tenurae and say that such an one ratione tenurae or such part of the Parish hath always used time out of mind c. Anonymus AN Action of Debt upon a Bond the Condition Whereas one Bardue did give by his Will so much if he should pay it such a day c. The Defendant pleads bene verum est he did give him so much by his Will and Testament but he revoked that and made another last Will. The Court said he was estopped to plead so Hales It doth not appear when the Bond was made and it shall be intended to be made after the parties death Iudgment pro Querente Deereing versus Farrington AN Action of Covenant declaring upon a Deed by which the Defendant assignavit transposuit all the money that should be allowed by any Order of a Forreign State to come to him in lieu of his share in a Ship Tompson moved that an Action of Covenant would not lye for it was neither an express nor implied Covenant 1 Leon. 179. Hales You should rather have applyed your self to this viz. whether it would not be a good Covenant against the party as If a man doth demise that is an implied Covenant but if there be a particular express Covenant that he shall quietly enjoy against all claiming under him that restrains the general implyed Covenant But it is a good Covenant against the party himself If I will make a Lease for years reserving Rent to a Stranger an Action of Covenant will lye by the party for to pay the Rent to the Stranger Then it was said it was an Assignment for maintenance Hales That ought to have been averred Then it was further said that an Assignment transferring when it cannot transfer signifies nothing Hales But it is a Covenant and then it is all one as if he had covenanted that he should have all the money that he should recover for his loss in such a Ship Twisd seemed to doubt But Iudgment Lord Mordant versus Earl of Peterborough TRial at Bar the question was Whether the Earl of Peterborough was Tenant for life only of the Mannor of Mayden The Defendant did not appear the Plaintiff thereupon desired to examine his Witnesses that so he might preserve their Evidence Twisd When they do not appear what good will that do you for they will say you set up a man of straw and pull him down again There was a former Deed of entail with a power of revocation in it and after the Deed exhibited was made whereby the Estate was otherwise settled and there was a Ioynture to the present Lady and done by persons of great Learning in the Law The Revocation was to be by Deed under my Lords Hand and Seal in the presence of thrée Witnesses Now the question was whether this second Deed was a revocation in Law and an Execution of that power And the Court told the Counsel they should find it specially if they would but they refused Hales In 16 Car. Snape and Sturts case If there be a power of revocation and a Lease for years is made it doth suspend quoad the term but after it is good Then it hath been questioned formerly if there be such a power and the person makes a Lease and Release whether it was a Revocation But shall we conceive the learned Counsel in this case would have ventured upon an implicit revocation and not have made an express revocation So that you must be non-suit or find it specially But the issue being If he wee only Tenant for life he said he must go back to the Chancery to amend it for by the Deéd produced he hath an Estate for life and the Reversion in Fee Burgis versus Burgis In Chancery A Man having a long Lease settled it in Trust upon himself for life the Remainder to his Wife for life the Remainder to the first Son of their two bodies the Remainder to the second Son and so to the tenth Son And if they should have no Son or Sons then the Remainder to such Daughter and Daughters of their bodies c. The man and his wife died and left only a Daughter who preferred her Bill against the Trustees for the executing of this Remainder to her The question is whether this Remainder be a good Remainder or whether it be void And the Lord Keeper Finch held it was a void Remainder because it doth depend upon so many and such remote Contingencies for otherwise it would be a perpetuity And he said he would allow one Contingency to be good viz. that to the first Son though the first Son was not in esse at the time of his decease And he said he did deny my Lord Cokes Opinion in Leon. Lovells case which saith that in case of a Lease settled to one and the heirs males of his body when he dies the Estate is determined for he said it shall go to his Executors And he said there was the same case with this in this Court Backhurst versus Bellingham And he said that the Common Law did complain that this Court did encroach upon them whereas they are beholding to this Court for their rules in Equity as Formerly when Ecclesiastical persons made Leases a misnosmer would avoid them but Elsmere in his time would notwithstanding the misnosmer make them good And he cited a case in Dyer and Matthew Mannings case Leon. Lovell and Lampetts case and Child and Bailies case Another case in Chancery One mortgaged Lands then confest a Iudgment and died The Mortgagée buys of the heir the Equity of Redemption for 200 l. The Bill was preferred by the Creditor by Iudgment against the Mortgagée and Heir either to be let in by paying the Mortgage money or else that the 200 l. received by the heir might be Assets And the Court said that the Mortgagees Estate should not be stirred But it was left by my Lord to be made a case whether the two hundred pounds should be Assets in the hands of the heir Mosedell the Marshal of the K. B's Case A Trial at Bar An Action of Debt brought against Mosedell for the escape of one Reynolds The Plaintiff said he could prove that he was at London three long Vacations Twisd It is hard to put three Escapes upon the Marshal for he may be provided only for one and he cannot give in Evidence a Fresh pursuit but it must be pleaded Hales I always let them give in evidence a Fresh suit upon a Nil debet And Wild said it was generally done So they gave evidence of an Habeas corp ad test ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells in Somerset-shire and that he went back threescore miles beyond Wells before he retorned again for London Hales If an Habeas Corpus be granted to bring a person into
construed to be a gift of the Stuff unto her and I shall not be charged in any Action for it besides consider the inconveniencies which will follow if an Action of Trover should be against the husband for then the husband shall be barred of all those helps which my Brothers who maintain that Opinion have allowed unto him and have made reasons for which an Action of the case should lye against him on the Contract namely the Iurors are to examine and set the price or value and the necessity and fitness of things with relation to the degree of the husband whereby care is taken that the husband have no wrong for in an Action of Trover the Iury cannot examine any of those matters but are to enquire only of the property of the Plaintiff and the Conversion by the Defendant and to give damages according to the value of the Goods and so it shall be in the power of the wife to take up what she pleaseth and to have what she lists without reference unto the degrée or respect to the Estate of her husband and he shall be charged with it nolens volens It is objected that the Iury is to judge what is fit for the Wives degrée that they are trusted with the reasonableness of the price and are to examine the value and also the necessity of the things or Apparel Alas poor man what a Iudicature is set up here to decide the private differences between husband and wife the Wife will have a Velvet Gown and a Satten Petticoat the husband thinks Mohair or Farendon for a Gown and watered Tabby for a Petticoat is as fashionable and fitter for his quality The husband says that a plain Lawn Gorget of 10 s. pleaseth him and suits best with his condition the Wife will have a Flanders Lace or pointed Handkerchief of 40 l. and takes it up at the Exchange A Iury of Mercers Silk-men Sempsters and Exchange-men are very excellent and very indifferent Iudges to decide this controversie It is not for their avail and support to be against the wife that they may put off their brayded Wares to the wife upon trust at their own price and then sue the husband for the money Are not a Iury of Drapers and Milliners bound to favour the Mercer or Exchange-men to day that they may do the like for them to morrow And besides what matter of Fact and of that only the Law hath made Iurors the Iudges is there in the fitness of the Commodities with reference to the degree of the husband and whether this or that thing be the most necessary for the wife The matter of Fact is to find that the wife wanted necessary Apparel and that she bought such and such Wares of the Plaintiff at such a price to cloath her self and leaves the fitness of the one and the reasonableness of the other to the Court for that is matter of Law whereof the Iurors have no Conusance Lessée for life of a House puts his Goods therein makes his Executors and dies whosoever hath the House after his death yet his Executors shall have frée Entry Egress and Regress to carry their Testators Goods out of the House by reasonable time Litt. 69. And this reasonable time shall be adjudged by the discretion of the Iustices before whom the cause depends upon the true state of the matter and not by the Iury Co. super Littleton 56. b. So it is in case of Fines for Admittance Customs and Services if the Question be whether the same be reasonable or not for reasonableness belongs to the knowledge of Law 4 Rep. 27. Hubarts case Lessée for life makes a Lease for years and dies within the term in an Action of Trespass brought by the first Lessor against the Lesseé for years he ought by his Plea to set forth what day his Lessor dyed and at what place where the Land lies and at what day he did leave the possession and so leave it to the discretion of the Court whether he did quit the possession in reasonable time or not 22 E. 4. 18. Soinors case The fitness or necessary of Apparel and the reasonableness of the price shall be judged by the Court upon the circumstance of the matter as the same appears by the Pleadings or is found by the Iury but the Iurors are not Iudges thereof Again there is a twofold necessity necessitas simplex vel absoluta and necessitas qualificata vel convenientiae of a simple or absolute necessity in the case of Apparel or Food for a Feme Covert the Law of the Land takes notice and provides remedy for the wife if the husband refuse or neglect to do it But if it be only necessitas convenientiae whether this or that Apparel this or that meat or drink be most necessary or convenient for any wife the Law makes no person Iudge thereof but the husband himself and in those cases no man is to put his hand betwéen the bone and the flesh I will conclude the general question or first point with the Iudgment of Sr. Thomas Smith in his book of the Common-wealth of England lib. 1. cap. 11. fo 23. The naturallest and first conjunction of two towards the making a further Society of continuance is of the husband and wife each having care of the Family the man to get to travel abroad to defend the wife to save to stay at home and distribute that which is gotten for the nurture of the Children and Family is the first and most natural but primate apparence of one of the best kind of Common-wealths where not one always but sometime and in some things another bears rule which to maintain God hath given to the man greater wit better strength better courage to compell the woman to obey by reason or force and to the woman beauty fair Countenance and sweet words to make the man obey her again for love Thus each obeyeth and commandeth the other and they two together rule the House so long as they remain together in one I wish with all my heart that the women of this age would learn thus to obey and thus to command their husbands so will they want for nothing that is fit and these kind of Flesh-flies shall not suck up or devour their Husbands Estates by illegal tricks I am come now to this particular case as it stands before us on this Record Admit that the husband were chargeable by Law by the Contract of his wife yet Iudgment ought to be given against the Plaintiff upon this Declaration as this Verdict is found First the Declaration is That the Defendant was indebted to the Plaintiff in 90 l. for Wares and Merchandizes by the Plaintiff to him before that time sold and delivered and the Verdict finds that the Wares were not sold and delivered to the Defendant but the same were sold to his wife without his privity or consent So it appears that the Plaintiff hath mistaken his Action upon
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
grant There is likewise a clause of warranty of which the Grantee should lose the benefit in a great measure if he were in the Post for then he shall not vouch and there are Opinions that he cannot rebut as in Spirt Bence's case There is also a Covenant that after the sealing and delivery and due execution of c. the party shall quietly enjoy c. now what execution can be meant but by Livery of seisin Foxe's case 8 Rep. has been objected in which it is resolved that the Reversion in that case should pass by way of bargain and sale though the words of grant were demise grant set and to Farm let all words proper to a Common-Law-Conveyance I answer the consideration of money there expressed is so strong a consideration as to carry it that way but the consideration of natural Affection is not so strong and so the cases are not alike the consideration of money has been held so strong as to carry an Estate of Fee-simple in an use without words of Inheritance Winnington contra He insisted upon the intention of the party the consideration of blood and natural affection and the necessity of making this deed good by way of Covenant to stand seized because it could not take effect any other way The clause of warranty and covenant for quiet enjoyment he said were but forms of Conveyances and words of Clerks but the effectual words are those that contain the inducement of the party to make the Conveyance and the words that pass the Estate he cited Plowd queries placito 305. Rolls 2 part 787. placito 25. 1 Inst 49. Poph. 49. in Fosters case which had been cited against him he said the deed was as unformal to pass the Estate one way as another In Osburn Churchman's case he said this point was started but that the resolution was not upon this point it came in question neither upon a special Verdict nor a demurrer Tibs Purplewell's case 40 41 Eliz. Rolls 2 part 786 787. answers all Objections against our case and is in form and substance the same with it He cited one Saunders Savin's case adjudged in the late times in the Common-Pleas viz. That where a man seiz'd in Fee of a Rent-charge granted it to a Kinsman for life and the grantor dyed before attornment it was resolved that upon the sealing and delivery of the deed an use arose Wherefore he prayed that the Iudgment might be affirmed Turner Chief Baron of the Exchequer Turner and Littleton Barons and Atkyns Wyndham and Ellis Iustices of the Court of Common-Pleas were for affirming the Iudgment Vaughan Chief Iustice of the Common Pleas and Thurland puisne Baron contra The six Iudges argued 1. That in a Covenant to stand seized those words of covenanting to stand seized to the use of c. are not absolutely necessary and that it is sufficient if there are words that are tantamount 2. That no Conveyance admits of such variety of words as does this of a Covenant to stand seized 3. That Iudges have always endeavoured to support Deeds ut res magis valeat c. 4. That the grantor in this case by putting in plenty of words shews that he did not intend to tye himself up to any one sort of Conveyance 5. That if the words give and grant had been alone in the deed there would have been no question and that if so then utile per inutile non vitiatur 6. That every mans deed must be taken most strongly against himself 7. That the words give and grant enure sometimes as a grant sometimes as a Covenant sometimes as a Release and must be taken in that sense which will best support the intent of the party 8. That the very point of this case has received two full determinations upon debate and that it were a thing of ill consequence to admit of so great an uncertainty in the Law as now to alter it 9. That there is here a clear intent that the daughter should have this Estate a Deed a good consideration to raise an use and words that are tantamount to a Covenant to stand seized Wherefore the Iudgment was affirm'd Thurland said The intention of the party was not a sure rule to construe deeds by that if Lands were given in connubio soluto ab omni servitio the intent of the giver is to make a gift in Frank-marriage but the Common Law that delights in certainty will not understand his words so because he does not say in libero maritagio In our case the first intent of the Father was to settle the Land upon his Daughter his second intent was to do it by such or such a Conveyance what Conveyance he meant to do it by we must know by his words the words give and grant do generally and naturally work upon something in esse strained constructions are not favoured in the Law Nor ought Heirs to be disinherited by forced and strained constructions If this Deed shall work as a Covenant to stand seized it will be in vain to study forms of Conveyances it is but throwing in words enough and if the Lands pass not one way they will another He cited Crook 279. Blitheman Blitheman's case And 34 35 Dyer 55 he said Pitfield Pierce's case in March was later then that of Tibs Purplewell and of better Authority Vaughan accordant It is not clear that the words give and grant are sufficient to raise an use but supposing that they are by a forced Exposition when nothing appears to the contrary will it thence follow that they may be taken in a sense directly contrary to their proper and genuine sense in such a place as this where all the other parts of the deed are wholly inconsistent with and will not by any possibility admit of such a construction he mentioned several clauses in the deed which he said were proper only to a Conveyance at Common Law He appealed to the Law before the Statute of Vses and said that where an use would not rise by the Common Law there the Statute executes no possession and that by such a deed as this no use would have risen at the Common Law but the Iudgment was affirmed Gabriel Miles his Case HE and his Wife recovered in an Action of Debt against one Cogan 200 l. and 70 l. damages the Wife dies and the Husband prays to have Execution upon this Iudgment The Court upon the first motion enclin'd that it should not survive to the Husband but that Administration ought to be committed of it as a thing in Action but this Term they agreed that the Husband might take out Excution and that by the Iudgment it became his own debt due to him in his own right And accordingly he took out a Scire facias Beaumond Long 's case Cr. Car. 208. was cited Anonymus THe Plaintiff in an Ejectione firmae declared upon a Lease made the tenth day of October habend '
from the 20th of November for five years And the question upon a special Verdict was whether this were a good or a void Lease Serjeant Jones There are many cases in which the Law rejects the limitation of the commencement of a Lease if it be impossible as from the 31st of September or the like now this being altogether uncertain and since there is nothing to determine your Iudgments what November he meant whether last-past or next-ensuing it amounts to an impossible limitation Rolls tit Estate placito 7. 849. ibid. placito 10. betwixt Elmes Leaves Baldwin contra The Law will reject an impossible limitation but not an uncertain limitation Vaughan Atkyns The Law rejects an impossible limitation because it cannot be any part of the parties agreement but an uncertain limitation vitiates the Lease because it was part of the agreement but we cannot determine it not knowing how the Contract was There are many examples of Leases being void for uncertainty of commencements which could not have béen adjudged void if the limitation in this case were good Wyndham Ellis contra And that it should begin from the time of the delivery It was moved afterward and Ellis being absent it was ruled by Vaughan Atkyns against Wyndham's Opinion and Iudgment was arrested Fowle Doble's Case FOrmedon in the Remainder The case was thus There were three Sisters the eldest was Tenant in Tail of a fourth part of 140 Acres c. in thrée Villes A. B. C. the Remainder in Fee-simple to the other two the Tenant in Tail takes Husband Dr. Doble the Defendant The Husband and Wife levy a Fine sur conisance de droit to the use of them two and the heirs of the body of the Wife the Remainder in Fee to the right Heirs of the Husband and this Fine was with warranty against them and the heits of the wife The wife dies without issue living the Husband against whom Lucy and Ruth the other two Sisters to whom the Remainder in Feé was limited bring a Formedon in the Remainder The Defendant as to part of the Lands in demand viz. 100 Acres pleaded Non-tenure and that such a one was Tenant To that plea the Plaintiff demurred As to the rest of the Lands he pleaded this Fine with warranty The Plaintiffs made a frivolous replication to which the Defendants demurred The Plaintiffs Councel excepted to the Defendants plea of Non-tenure 1. That he does not express in which of the Villes the 100 Acres lie 5 Ed. 3. 140. in the old Print 184. 33 H. 6. 51. Sir John Stanley's case But this was over-ruled for the Formedon being of so many several Acres he is not obliged to shew where those lie that he pleads Non-tenure of he tells the Plaintiff who is the Tenant which is enough for him 2. Because he that pleads Non-tenure in abatement ought to set forth who was Tenant die impetrationis brevis orig c. But this was over-ruled also for he says that himself was not Tenant die impetrationis brevis origin but that such another eodem die was Tenant which is certain enough When the Tenant pleads Non-tenure to the whole he needs not set forth who is Tenant otherwise when he pleads Non-tenure of part 11 H. 4. 15. 33 H. 6. 51. At the Common Law if the Tenant had pleaded Non-tenure as to part it would have abated all the Writ 36 H. 6. 6. but by the Statute of the 25 Ed. 3. cap. 16. it was enacted that by the exception of Non-tenure of parcel no Writ should be abated but only for that parcel whereof the Non-tenure was alledged A third exception was taken to the pleading of the Fine viz. because he pleaded a Fine levied of a fourth part without saying in how many parts to be divided This was also over-ruled and 1 Leon. 114. was cited where a difference is taken betwixt a Writ and a Fine and in a Fine it is said to be good that being but a common assurance aliter in a Writ 19 Ed. 3. Fitz. br̄e 244. This exception seems level'd against the Plaintiffs own Writ in which he demands a fourth part without saying in how many parts to be divided The matter in Law was whether or no this warranty being against the husband and wife and the heirs of the wife were a bar to the Plaintiffs or survived to the Husband and it was resolved to be a bar for this warranty as to the Husband was destroyed as soon as it was created the same breath that created it put an end to it for the Husband warranted during his life only and took back as large an Estate as he warranted which destroys his warranty and this is Littleton's Text if a man make a feoffment in Feé with warranty and take back an Estate in Fee the warranty is gone But the destruction of the husbands warranty does not affect the wives 20 H. 7. 1. and Sym's case upon which Ellis said he much relyed Herberts case 3 Rep. can give no rule here for that here the husband is seiz'd only in right of the wife Vaughan said That if the Fine in this case had beén levied to a stranger for life or in Fée who had béen impleaded by another stranger that in that case the Tenant ought to have vouched the surviving husband as well as the heir of the wife or else he would have lost his warranty 2. He said if the Fine had been levied to the use of a stranger who had been impleaded by the heirs of the wife he questioned whether or no the Tenant could have rebutted them for any more then a moity and he questioned the resolution of Sym's case 8 Rep. there is a Case cited in Symme's case out of the 45 Edw. 3. 23. which is expresly against the resolution of the case it is said in the Reports that no Iudgment was given in that case which is false and that the case is not well abridged by Brook which is also false If in case of a voucher a man loseth his warranty that does not vouch all that are bound why should not one that 's rebutted have the like advantage There is a resolution quoted in Sym's case out of 5 Edw. 2. Fitz. tit garranty 78 upon which the Iudgment is said to be founded being as is there said a case in point but he conceived not for Harvey that gave the rule said le tenant poit barrer vous touts ergo un sole in the case there were several co-heirs and if all were demandants all might have been barred and if one be demandant there 's no question but she may be rebutted for her part But Sym's case is quite otherwise for there one person is co-heir to the garranty that is not heir to any part of the Land In 6 Ed. 3. 50. there is a case resolved upon the ground and reason of the 45 Ed. 3. for these reasons he said he could not rely upon Sym's case He agreed
to chuse every year two Surveyors to take care that no unwholsome Victuals were sold within the Precinct of that Mannor and that they were sworn to execute their Office truly for the space of a year and that they had power to destroy whatever corrupt Victuals they found exposed to sale and that the Defendants being chosen Surveyors and sworn to execute the Office truly examining the Plaintiffs meat who was also a Butcher found a side of Beef corrupt and unwholsome and that therefore they took it away and burnt it prout eis bene licuit c. The Plaintiff demurs North. This is a case of great consequence and seems doubtful It were hard to disallow the Custom because the design of it seems to be for the preservation of mens health And to allow it were to give men too great a power of seizing and destroying other men's Goods There is an Ale-taster appointed at Leets but all his Office is to make Presentment at the Leet if he finds it not according to the Assize Wyndham Atkyns Ellis It is a good reasonable Custom It is to prevent evil and Laws for prevention are better then Laws for punishment As for the great power that it seems to allow to these Surveyors it is at their own peril if they destroy any Victuals that are not really corrupt for in an Action if they justifie by virtue of the Custom the Plaintiff may take issue that the Victuals were not corrupt But here the Plaintiff has confessed it by the demurrer Atkyns said if the Surveyors were not responsible the Homage that put them in must answer for them according to the rule of respondeat superior Iudgment was given for the Plaintiff unless c. Thredneedle Lynham's Case UPon a special Verdict the case was thus The Iury found that the Lands in the Declaration are and time out of mind had been parcel of the demesnes of the Mannor of Burniel in the County of Cornwall which Mannor consists of demesnes viz. Copy-hold tenements demisable for one two or three lives and services of divers Free-hold Tenants that within the Mannor of Burniel there is another Mannor called Trecaer consisting likewise of Copy-holds and Free-holds and that the Bishop of Exeter held both these Mannors in the right of his Bishoprick Then they find the Statute of 1. Eliz. in haec verba They find that the old accustomed yearly Rent which used to be reserved upon a demise of these two Mannors was 67 pounds 1 s. and 5 d. then they find that Joseph Hall Bishop of Exeter demised these two Mannors to one Prowse for 99 years determinable upon three lives reserving the old and accustomed Rent of 67 l. 1 s. and 5 d. that Prowse living the Cestuy que vies assigned over to James Prowse the demesnes of the Mannor of Trecaer for that afterwards he assigned over all his Interest in both Mannors to Mr. Nosworthy excepting the demesnes of Treacer then in the possession of James Prowse That Mr. Nosworthy when two of the lives were expired for a sum of money by him paid to the Bishop of Exeter surrendred into his hands both the said Mannors excepting what was in the possession of James Prowse and that the Bishop Joseph Hall's Successor redemised unto him the said Mannors excepting the demesnes of Trecaer and excepting one Messuage in the occupation of Robert and excepting one Farm parcel of the Mannor of Burniel for three lives reserving 67 l. 1 s. 5 d. with a nomine poenae and whether this second Lease was a good Lease and the 67 l. 1 s. 5 d. the old and accustomed Rent within the intention of the Statute of 1 Eliz. was the question After several arguments at the Bar it was argued at the Bench in Michaelmas Term Ann. 26 Car. 2. And the Court was divided viz. Vaughan Ellis against the Lease Atkyns Wyndham for it This Term North Chief Justice delivered his Opinion in which he agreed with Atkyns Wyndham so that Iudgment was given in maintenance of the Lease and the Iudgment was affirmed in the Kings Bench upon a Writ of Error The Chapter of the Collegiate Church of Southwell versus the Bishop of Lincoln and J. S. Incumbent c. IN a Qua. imp the Incumbents Title was under a grant made by the Plaintiffs who were seized of the Advowson ut de uno grosso in the right of their Church of the next avoidance one Esco being then Incumbent of their Presentation to Edward King from whom by mean assignments it came to Elizabeth Bley who after the death of Esco presented the Defendant Vpon a demurrer these points came in question 1. Whether the grantors were within the Statute of the 13 Eliz. or not 2. Whether a grant of a next avoidance be restrained by the Statute 3. If the grant be void whether it be void ab initio or when it becomes so And 4. Whether the Statute of 13 Eliz. shall be taken to be a general Law for it is not pleaded Serjeant Jones For the first point argued that the Grantors are within the Statute the words are Deans Chapters which he said might well be taken severally for of this Chapter there is no Dean If they were to be taken joyntly then a Dean were not within this Law in respect of those possessions which he holds in the right of his Deanry but the subsequent general words do certainly include them and would extend even to Bishops but that they are superiour to all that are expressed by name For the second he said the Statute restrains all gifts grants c. other then such upon which the old Rent c. He cited Cr. Eliz. 440. 5. Co. the case of Ecclesiastical persons 10 Co. the Earl of Salisbury's case For the third point he held it void ab initio it must be so or good for ever For here is no Dean after whose death it may become void as in Hunt Singleton's case the Chapter in our case never dies For the fourth point he argued that it is a general Law because it concerns all the Clergy Holland's case 4 Rep. Dumpor's case ibid. 120. b. Willmote contra North Chief Justice Atkyns Wyndham Ellis Iustices all agreed upon the three first points as Serjeant Jones had argued Atkyns doubted whether the 13 of Eliz. were a general Law or not but was over-ruled They all agreed that the Action should have been brought against the Patron as well as against the Ordinary and the Incumbent but that being only a plea in abatement that the Defendant has waived the benefit thereof by pleading in Bar. And Iudgment was given for the Plaintiff Nisi causa c. Hunt Singleton's case being mentioned Atkyns said he thought it a hard case considering that the Dean and the Chapter were all persons capable that a grant should hold in force as long as the Dean lived and determine then He thought they being a Corporation aggregate of
persons who were all capable that there was no difference betwixt that case and this Ellis said that in Floyd Gregories case reported in Jones it was made a point and that Jones in his argument denied the case of Hunt Singleton he said that himself and Sir Rowland Wainscott reported it and that nothing was said of that point but that my Lord Coke followed the Report of Serjeant Bridgeman who was three or four years their puisne and that he mistook the case Milword Ingram THe Plaintiff declares in an Action of the case upon a quantum meruit for 40 shillings and upon an Indebitat Assumpsit for 40 shillings likewise The Defendant acknowledged the promises but further says that the Plaintiff and he accounted together for divers sums of money and that upon the foot of the Account the Defendant was found to be endebted to the Plaintiff in 3 shillings and that the Plaintiff in consideration that the Defendant promised to pay him those 3 shillings discharged him of all demands The Plaintiff demurred The Court gave Iudgment against the demurrer 1. They held that if two men being mutually endebted to each other do account together and the one is found in arrear so much and there be an express agréement to pay the sum found to be in arrear and each to stand discharged of all other demands that this is a good discharge in Law and the parties cannot resort to the original Contracts But North Ch. Just said if there were but one Debt betwixt them entring into an account for that would not determine the Contract 2. They held also that any promise might well be discharged by paroll but not after it is broken for then it is a Debt Jones Wait. SHrewsbury Cotton are Towns adjoining Sir Samuel Jones is Tenant in Tail of Lands in both Towns Shrewsbury Cotton are both within the Liberties of the Town of Shrewsbury Sir Samuel Jones suffers a Common Recovery of all his Lands in both Vills but the Praecipe was of two Messuages and Closes thereunto belonging these were in Shrewsbury and of c. mentioning those in Cotton lying and being in the Ville of Shrewsbury in the Liberties thereof And whether by this Recovery the Lands lying in Cotton which is a distinct Ville of it self not named in the Recovery pass or not was the question Serjeant Jones argued against the Recovery He cited Cr. Jac. 575. in Monk Butler's case Cr. Car. 269 270. 276. he said the Writ of Covenant upon which a Fine is levied is a personal Action but a Common Recovery is a real Action and the Land it self demanded in the Praecipe There is no President he said of such a Recovery He cited a case Hill 22 23 Car. 2. Rot. 223. Hutton 106. Marche's Reports one Johnson Baker's case which he said was the case in point and resolved for him But the Court were all of Opinion that the Lands in Cotton passed And gave Iudgment accordingly Ellis said if the Recovery were erroneous at least they ought to allo 〈…〉 t till it were reversed Lepping Kedgewin AN Action in the nature of a Conspiracy was brought by the Plaintiff against the Defendant in which the Declaration was insufficient The Defendant pleaded an ill plea but Iudgment was given against the Plaintiff upon the insufficiency of the Declaration Which ought to have been entred Quod Defendens eat inde sine die but by mistake or out of design it was entred Quia placitum praedictum in forma praedicta superius placitat ' materiaque in eodem contenta bonum sufficiens in lege existit c. ideo consideratum est per Cur ' quod Quer ' nil capiat per billam The Plaintiff brings a new Action and declares aright The Defendant pleads the Iudgment in the former Action and recites the Record verbatim as it was To which the Plaintiff demurred And Iudgment was given for the Plaintiff nisi causa c. North Chief Justice There is no question but that if a man mistakes his Declaration and the Defendant demurs the Plaintiff may set it right in a second Action But here it is objected that the Iudgment is given upon the Defendants plea. Suppose a Declaration be faulty and the Defendant take no advantage of it but pleads a plea in bar and the Plaintiff takes issue and the right of the matter is found for the Defendant I hold that in this case the Plaintiff shall never bring his Action about again for he is estopped by the Verdict Or suppose such a Plaintiff demur to the plea in bar there by his demurrer he confesseth the fact if well pleaded and this estops him as much as a Verdict would But if the plea were not good then there is no Estoppel And we must take notice of the Defendants plea for upon the matter as that falls out to be good or otherwise the second Action will be maintainable or not The other Iudges agreed with him in omnibus Atkinson Rawson THe Plaintiff declares against the Defendant as Executor The Defendant pleads that the Testator made his Will and that he the Defendant suscepto super se onere Testamenti praedict c. did pay divers sums of money due upon specialties and that there was a Debt owing by the Testator to the Defendants Wife and that he retained so much of the Testators Goods as to satisfie that Debt and that he had no other Assets The Plaintiff demurred because for ought appears the Defendant is an Executor de son tort and then he cannot retain for his own debt The Plaintiffs naming him in his Declaration Executor of the Testament of c. will not make for him for that he does of necessity he cannot declare against him any other way and of that Opinion was all the Court viz. that he ought to entitle himself to the Executorship that it may appear to the Court that he is such a person as may retain And accordingly Iudgment was given for the Plaintiff Term. Hill 27 28 Car. II. in Com. Banco Smith's Case A Man dies leaving Issue by two several Venters viz. by the first three Sons and by the second two Daughters One of the Sons dies intestate the elder of the two surviving Brothers takes out Administration and Sir Lionel Jenkins Iudge of the Prerogative Court would compell the Administrator to make distribution to the Sisters of the half-blood He prayed a Prohibition but it was denied upon advice by all the Iudges for that the Sisters of the half-blood being a kin to the Intestate and not in remotiori gradu then the Brother of the whole blood must be accounted in equal degree Anonymus AN Action was brought against four men viz. two Attornies and two Solicitors for being Attornies and Solicitors in a cause against the Plaintiff in an inferiour Court falso malitiose knowing that there was no cause of Action against him and
common right the words of reservation ought to be pursued but as to this the Court delivered no Opinion Ognell versus the Lord Arlington Guardian of Sir John Jacob. UPon a Trial at Bar the Court delivered for Law to the Iury that if there be Tenant by Elegit of certain Lands and a Fine be levied of those Lands and five years with non-claim pass that the interest of the Tenant by Elegit is bound according to Saffyn's case 5 Rep. otherwise if the Land had not been actually extended Also that if an Inquisition upon an Elegit be found the party before entry has the possession and a fine with non-claim shall bar his right for before actual entry he may have Ejectione firmae or Trespass and so not like to an interesse termini Barry Trebeswycke IF a Parson have a Pension by Prescription he may either bring an Action at the Common Law or commence a Suit in the Spiritual Court but if he brings a Writ of Annuity at the Common Law he can never after sue in the Spiritual Court for that his Election is determined Wakeman Blackwell IN a Quare impedit the Defendant pleaded a recovery in this manner viz. that John Wakeman Grandfather to the Plaintiff was seized in fee of the Mannor to which c. and that a Praecipe was brought against one Prinne Philpotts adtunc tenentes liberi tenementi c. who appeared and vouched John Wakeman c. and that this Recovery was to the use of J. S. under whom the Defendant claims Strode pro Defendente it is not necessary that the Tenant in a Common Recovery have a Freehold at the time of the purchase of the Writ if he have at the time of the return it sufficeth 7 Ed. 3. 42. 7 Ed. 3. 70. Ass of no. diss 43 Ed. 3. 21. in these Authorities the person against whom the Praecipe is brought comes in by right after the purchase and before the return of the Writ But in 26 Ed. 3. 68. there is an example where the Tenant to the Praecipe comes in by tort but there is this difference if he comes to the Land by his own act be it by right or by wrong there he makes the Writ good otherwise if he come to it by act of Law 8 Ed. 3. 22. a. Formedon 25 H. 6. 4. the reason why you shall not abate the Plaintiffs Writ by your own act is because you cannot give him a better The demandant here is estopped to say that there was not a Tenant to the Praecipe in this Recovery for the Writ is but abatable if brought against one that is not Tenant and as long as it stands not abated but is pleaded to c. it shall conclude all that are parties and privies and all claiming under them 34 Ed. 3. F. tit droit 39. here is in our case an estoppell with a recompence Wakeman the Grandfather who was the first Vouchee in this Recovery might have counterpleaded the lien and extorted the warranty but having vouched over he is past that advantage and is concluded being made a party by Voucher This being a common Recovery the Court will do all they can to make it good A Fine is levied by Dedimus potestatem by Baron and Feme The Commissioners did not return the examination of the wife and yet that is the discriminating difference upon which depends whether the wife shall be bound by the Fine or not 15 Ed. 4. 28. a. Litt. Sect. 670. 6 Ed. 3. 22. a. The Court must needs in this case intend that Prinne Philpots came in by conveyance because Wakeman came in upon the Voucher which he would not have done if there had not been a lien He cited Cro. Jac. 454. Lincoln Colledge case 3 Rep. 48. Hob. 262. Duncomb Wingfield's case To which Pemberton answered that tunc tenens is a sufficient averment in the pleading of a Recovery which is favoured in Law but it is not good alone when in the same sentence a matter is set forth that is inconsistent with it and plainly contradictory as in this case and of that opinion was the Court. The case in Hob. they said was upon a special Verdict where many things may be intended which shall not be so in pleading and in Lincoln Col ' case the Writ is said to be brought against one Edw. Chamberlain in one part of the Record and the Mother is said to be Tenant in another part of the Record and by the other party but here in the same sentence unto flatu there is a flat contradiction Burrow Haggett FOrmedon in the descender The Defendant pleaded in abatement of the Count and took these exceptions 1. That the demandant declares that the right descended to him after the death of Leonard as Brother and heir to Leon and Son and Heir of the Donee but does not alledge that Leonard died without issue 8 Rep. 88. Buckmere's case In ancient Registers the clause is eo quod the issue dyed without issue Co. Ent. 254. b. c. Rast Entr. 365. C. Yelv. 227. Glasse Gyll's case 9 Ed. 4. 36. a man that entitles himself as heir must shew how he is heir Seyse contra The presisidents are on our side and the difference is betwixt a Formedon in the descender and a Formedon in the remainder or reverter In the former they do not mention the dying without issue of him after whose death they claim for the Count there is in effect only to set out their pedigreé but in a Formedon in the Remainder or Reverter it is otherwise 39 Ed. 3. 27. Old Book of Ent ' 339. tit Formed ' bar plac ' 3. Co. Lit. Mandevile's case 26 b 7 H. 7. fol. 7. b. there our case is put in express terms the exception taken to the Count there by Keble is the same that is taken to ours here and there it is over-ruled North I have looked into presidents and find the Count in this case according to them It is a plain and reasonable difference betwixt a Formedon in the discender and a Formedon in the remainder or reverter nor could the demandant be brother and heir to Leonard if Leonard had left children c. Another exception was that the demandant does not set forth that he was Son and heir of John begotten on the body of Jane his wife for it was a gift in special tail But this was over-ruled for in the Writ that is set forth and in the Declaration after the words filio haeredi praedict Johannis came an c. which c. let the words of the Writ into the Count and so it was held good The Prothonotaries said that the forms of Counts were accordingly And Iudgment was given to answer over Nisi causa c. Term. Mich. 28 Car. II. in Communi Banco Blythe versus Hill DEbt upon an Obligation for the payment of money at a day certain The Defendant pleaded that the Plaintiff being
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes
But the Law in many cases takes notice of Parishes in civil affairs and Custom having by degrees introduced it we may allow of it in a Recovery as well as in a Fine Scroggs accordant If an Infant levy a Fine when he becomes of full age he shall be bound by the Deed that leads the Vses of the Fine as well as by the Fine it self because the Law looks upon both as one assurance So the Court was of Opinion that the Lands did pass It was then suggested that Iudgment ought not to be given notwithstanding for that the Plaintiff was dead But they said they would not stay Iudgment for that as this case was For between the Lessor of the Plaintiff and the Defendant there was another cause depending and tryed at the same Assizes when this issue was tryed and by agreément between the parties the Verdict in that cause was not drawn up but agreed that it should ensue the determination of this Verdict and the title to go accordingly Now the submission to this Rule was an implicite agreement not to take advantage of such occurrences as the death of the Plaintiff in an Ejectione firmae whom we know to be no wise concerned in point of interest and many times but an imaginary person It was said also to have Iudgment that there lived in the County where the Lands in question are a man of the same name with him that was made Plaintiff This the Court said was sufficient and that were there any of that name in rerum natura they would intend that he was the Plaintiff Cur̄ We take notice judicially that the Lessor of the Plaintiff is the person interested and therefore we punish the Plaintiff if he release the Action or release the damages Accordingly Iudgment was given Anonymus DEbt upon an Obligation was brought against the Heir of the Obligor hanging which Action another Action was brought against the same Heir upon another Obligation of his Ancestor Iudgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Iudgment first And which should be first satisfied was the question Barrel He shall be first satisfied that brought the first Action North. It is very clear That he for whom the first Iudgment was given shall be first satisfied For the Land is not bound till Iudgment be given But if the Heir after the first Action brought had aliened the Land which he had by descent and the Plaintiff in the second Action commenced after such alienation had obtained Iudgment and afterward the Plaintiff in the first Action had Iudgment likewise in that case the Plaintiff in the first Action should be satisfied and he in the second Action not at all What if the Sheriff return in such a case that the Defendant has Lands by descent which indeed are of his own purchase North. If the Sheriffs return cannot be traversed at least the party shall be relieved in an Ejectione firmae Dominus Rex versus Thorneborough Studly THe King brought a Quare Impedit against the Bishop of _____ and Thorneborough and Studly and declares That Queen Elizabeth was seised in see of the Advowson of Redriff in the County of Surrey and presented J. S. that the Quéen died and the Advowson descended to King James who died seized c. and so brings down the Advowson by descent to the King that now is Thorneborough the Patron pleads a Plea in Bar upon which the King demurs Studly the Incumbent pleads confessing Queen Elizabeths seisin in feé in right of her Crown but says that she in the second year of her Reign granted the Advowson to one Bosbill who granted to Ludwell who granted to Danson who granted to Hurlestone who granted to Thorneborough who presented the Defendant Studly and traverseth absque hoc that Queen Elizabeth died seized The Defendants Council produced the Letters Patents of secundo Reginae to Bosbill and his Heirs The King's Council give in evidence a Presentation made by Queen Elizabeth by usurpation anno 34 Regni sui of one Rider by which Presentation the Advowson was vested again in the Crown The Presentation was read in Court wherein the Queen recited that the Church was void and that it appertained to her to present North Chief Justice Is not the Queen deceived in this Presentation for she recites that it belongs to her to present which is not true If the Queen had intended to make an usurpation and her Clerk had been instituted she had gained the Fee-simple but here she recites that she had right Maynard When the King recites a particular Title and has no such Title his Presentation is void but not when his recital is general as it is here And this difference was agreed to in the Kings Bench in the Case of one Erasmus Dryden The Defendants Council shewed a Iudgment in a Quare Impedit against the same Rider at the suit of one Wingate in Queen Elizabeths time whereupon the Plaintiff had a writ to the Bishop and Rider was ousted Wingate claimed under the Letters Patents of the Second of the Queen viz. by a Grant of one Adie to himself to which Adie one Ludwell granted it anno 33 Eliz. Baldwin It appears by the Record of this Iudgment that a writ to the Bishop was awarded but no final Iudgment is given which ought to be after the three points of the writ enquired North. What is it that you call the final Iudgment there are two Iudgments in a Quare Impedit one that the Plaintiff shall have a writ to the Bishop and that is the final Iudgment that goes to the right betwixt the parties And the Iudgment at the Common Law There in another Iudgment to be given for Damages since the Stat. of West 2. cap. 5. after the points of the writ are enquired of Which Iudgment is not to be given but at the instance of the party Pemberton This Wingate that recovered was a stranger and had no title to have a Quare Impedit Now I take this difference where the King has a good Title no recovery against his Clerk shall affect the King's Title he shall not be prejudiced by a Recovery to which he is no party If the King have a defeasible Title as in our case by Vsurpation there if the rightful Patron recover against the King's Incumbent the King's Title shall be bound though he be not a party for his Title having no other Foundation than a Presentation when that is once avoided the Kings Title falls together with it But though the Kings Title be only by Vsurpation yet a Recovery against his Clerk by a stranger that has nothing to do with it shall not predudice the King covin may be betwixt them and the King be tried Now Wingate had no Right for he claimed by Grant from one Adie to whom Ludwell granted ann 33 Eliz. But we can prove this Grant by Ludwell to have been void for in the 29th of the
additions of his own Accordingly Iudgment was given for the Plaintiffs nisi causa c. Anonymus ACtion of Trespass for taking away four loads of Wheat four loads of Rye four loads of Barly four loads of Beans and four loads of Pease The Defendant as to part pleaded Not guilty And as to the other part justified for that the Plaintiff is Rector of the Rectory Impropriate of Bradwardyne in the County of Hereford and so bound to repair the Chancel and that the Chancel being out of Repair the Bishop of Hereford after monition to the Plaintiff to repair the same had granted a Sequestration of the Tythes c. of the Rectory and that the Defendants being Church-wardens had taken them into their hands and and so justified by vertue of the Sequestration To which the Plaintiff demurred Serjeant Barrel I do not deny but that the Rector of a Rectory Impropriate may perhaps be bound of common right to repair the Chancel But since the Stat. of 31 H. 8. 32 H. 8. c. 7. has converted the Tythes of such Rectories into a Lay-Feé it has consequently exempted them from the Iurisdiction of the Ordinary A doubt was conceived upon the Stat. of 31 H. 8. whereby Pensions Proxies and Synodals are saved what remedy lay for the recovery of them and it was therefore provided by the Stat. 32 H. 8. that the Church should be sequestred The Possessions of Ecclesiastical Persons were subjected to the Iurisdiction of the Ordinary and might be sequestred in many cases by Process out of the Bishops Courts but when-ever the Possessions of Lay-men were charged with any Ecclesiastical payment or Spiritual charge the Ordinary could not take the Land into his hands nor meddle with the Possession thereof in any sort but the constant usage was to compel the persons by Ecclesiastical Censures Anno 1570. there was application made to the Queén to provide a remedy for the Reparation of the Chancels of such Churches whereof the Parsonages were Impropriated Moreover he said A Sequestration does not bind the Interest nor put the Rector out of possession the not submitting to it is only matter of contempt and it can no more be pleaded in Bar to an Action of Trespass than a Sequestration out of Chancery Atkyns I hope not to see it drawn in question Whether a Sequestration out of Chancery may be pleaded in Bar to an Action of Trespass at the Common Law or no. But if it were pleaded I think we need not scruple to allow such a Plea by reason the Court of Chancery at Westminster prescribes to grant such a Process Which is a Court of such Antiquity that we ought to take notice of their Customs Serjeant Baldwin contr He cited F. N. B. fol. 50. M. Reg. Orig. 44. b. ibid. 48. a. the Stat. of Circumspecte agatis 31 Edw. 1. Joh. Diathan in his Commentary upon the legatine Constitutions of Othobone tit ne Praelati fructus Ecclesiarum vacantium perciperent Linw. 136. de aedificand Ecclesiis The Reparation of the Chancel is onus reale impositum rebus non personis 5th Rep. Caudrie's Case 9. he cited the Stat. of 25 H. 8. cap. 19. Sir John Davie's Reports 70. Vaughan 327. Reg. Jud. 22. 26. 13 H. 4. 17. 21 H. 6. 16. b. 28 H. 8. cap. 9. It is Objected That these Tythes are become a Lay-fée To which I answer That by the Stat. of 32 H. 8. there is a remedy given for them in the Spiritual Court It is Enacted indeed That Fines and Recoveries may be suffered of them as of Lands and Tenemets but they are not made Lay-fees to other purposes No Statute exempts them from the Iurisdiction of the Ordinary nor discharges the onus reale The saving in the Stat. of 31 H. 8. preserves the power of Sequestration as well as other particulars there instanced For all Rights of any person or persons their Heirs and Successors is saved c. the saving is large The Parishioners have a right in the Chancel and to have it kept in repair for the Communion-Table is to stand there though they have not Jus sepulturae there The practice is with us And this is is the first instance of disobedience to such a Sequestration Besides there are many Impropriations in the hands of Deans and Chapters and bodies politick which cannot be excommunicated what process will you grant against them but Sequestration I do not mean Appropriations to wit such Rectories as were appropriated to them before the dissolution of Monasteries and have continued so to this day for there is no question but the Ordinary may sequester them but I mean such Impropriations as they have purchased of the King and his Patentees since the dissolution North. The Bishop is in the nature of an Ecclesiastical Sheriff If an Action of Debt were brought against a Clerk and the Sheriff had returned upon a Fieri facias that the Defendant was Clericus beneficiatus non habens Laicum feodum there issued a Fieri facias to the Bishop upon which he used to sequester as they call it the Ecclesiastical possessions of the Defendant but that is not properly a Sequestration for the Ordinary must not return Sequestrari feci he must return Fieri feci or nulla bona in like manner as a Sheriff of a County must do this I have known in experience that a Bishop has been ordered in such a case to amend his return The reason of this Process was because the possessions of Ecclesiastical persons were so distinct from Temporal possessions that they could not be subject to the ordinary process of the Temporal Law no more than possessions of lay-men could be subject to their Iurisdiction And therefore Rectories impropriate being now incorporated into the Common Law and converted into lay-fees It should seem to me that they are thereby exempted from the Iurisdiction of the Ordinary And this I take to be within the reason of Jeffrie's Case in the 5th Rep. where temporal persons that are liable to contribute towards the repairs of the Church out of their temporal possessions are said to be compellable thereunto by Ecclesiastical Censures It has béen said that the Parishioners have a right in the Chancel but I question that it is called Cancellum a cancellis because the Parishioners are barred from thence It is the right of the Parson Windham thought that by the saving in the Stat. of 31 H. 8. the Iurisdiction of the Ordinary was preserved Atkyns The Parson was chargeable with the reparation of the Chancel in respect of the profits which he received They were the proper Debtors Now I think it may be held that the Impropriation affects only the Surplusage of the profits over and above all Charges and Duties issuing out of the Parsonage and wherewith it was originally charged The reparation of the Chancel is a right arising from the first donation which shall not be taken away but by express words Scroggs accordant North. The Defendants plea is
naught for the cause of their justification is that what they did was in executing a Sequestration whereby they were authorized to take into their hands the profits of the Rectory for the reparation of the Chancel Now they ought to avert that they did not take into their hands more than was sufficient for the reparation thereof North. If the Law come to be taken as my Brothers are of Opinion it will make a great step to the giving Ordinaries power to encrease Vicarages For the Parishioners have a right to a Maintenance for one to preach to them Adjornatur Edwards Weeks ACtion upon the case The Plaintiff declares that the Defendant in consideration that the Plaintiff would deliver unto him such a Horse promised to deliver to the Plaintiff in lieu thereof another Horse or five pounds upon request and avers that the Plaintiff had delivered to the Defendant the said Horse and had requested him c. The Defendant pleads that the Plaintiff before the Action brought discharged him of that promise but says not how To which the Plaintiff demurred Strode If he had pleaded a discharge before the request made the plea had been good without shewing how he discharged him but after the request once made a verbal request is not sufficient Cr. Car. Langden Stokes 384. 22 Ed. 4. 40. b. Cur̄ acc ' Et judicium pro querente Nisi causa c. Barker Keate EJectione firmae of Land in Castle-acre in Com̄ Norff. The Defendant pleaded not guilty and the issue was found as to part and for the residue there was a special Verdict viz. That Edm Hudson was seized to him and the heirs males of his body the remainder to William Hudson his Brother and the heirs males of his body That Edm. Hudson by Indenture betwixt himself and Thom. Peeps demised to Thom. Peeps from the Feast of St. Michael then last past for six months rendring a Pepper-corn Rent and that afterwards by another Indenture between himself on the one part and Thom. Peeps Edw. Bromley on the other part reciting the said Lease he bargained and sold the Reversion to Tho. Peeps his heirs and assigns to the intent to make him Tenant to the Praecipe in order to the suffering of a Common Recovery in which Edm̄ Bromley was to be the Recoveror and himself the said Edw. Hudson the Vouchee and that this Recovery was to be to the use of Edm̄ Hudson and his heirs c. and the Iury made a special conclusion viz. That if the Court should adjudge that in this Recovery there were a good Tenant to the Praecipe then they found for the Plaintiff if otherwise for the Defendant Serjeant Waller argued that there was no good Tenant to the Praecipe for that Tho. Peeps never was in possession by vertue of the Lease for six months No Entry is found nor no consideration to raise an use All the consideration mentioned is the reservation of a Pepper-corn which is not sufficient for it is to be paid out of the profits of the Land He compared it to Colyer's case 6 Rep. where a sum in gross appointed to be paid by the Devisee gave him an Estate in Fee-simple but a sum to be paid out of the profits of the Land not He cited the Lord Pagett's case Moor. 343. Dyer 10. placito 31. Besides the consideration in our case is a thing of no value being but a single Pepper-corn If an Infant make a Lease for years rendring Rent the Lease is but voidable but if an Infant make a Lease for years rendring a Rose or a Pepper-corn or any such like trifle the Lease is void He cited Fitzherb tit Entry congeable 26. North. When a Tenant for life or years assigns his Estate there needs no consideration in such case the tenure and attendance and the being subject to the ancient forfeiture and the payment of Rent if there were any is sufficient to vest the use in the Assignee but otherwise in case of a Fee-simple When a man is seised in Fee and makes a Lease for years unless he give possession and that the Lessee enter he must raise an Vse But in our case the reservation seems not sufficient to raise an Vse for an Vse must be raised and the Land united to it before a Rent can result out of it Wyndham It being in the case of a common Recovery we must support it if it be possible In Sutton's Hospital's case 10 Rep. 34. a. it is said that the reservation of 12 d. Rent was a sufficient consideration to vest an Vse in the Hospital and a Rent of 12 d. is as inconsiderable a matter in consideration of a great Estate as a Pepper-corn in our case The case in Dyer that has been cited is made a Quaere in the book I think the reservation of a Rent would have changed an Vse at the Common Law and will raise an Vse at this day If a Feoffee to an Vse had made a Feoffment in Fee rendring Rent the feoffment I conceive would have been to the use of the second feoffée and the first Vse destroyed The other two Iustices delivered no Opinion At another day the cause being moved again North said he had looked upon the President quoted out of Sutton's Hospitals case and that there the reservation of a Rent was mentioned in the Deed as a consideration to raise an Vse which he said would perchance make a difference betwixt that case and this But the Court would advise further Bassett Bassett AN Action of Debt upon an Obligation of 600 l. penalty the Condition was That if the above-bounden John Bassett his Heirs or Assigns shall within six months after the death of Mary Bassett his Mother settle upon and assure unto Hopton Bassett as the Council of the said Hopton Bassett learned in the Law shall advise at the Costs and charges of the said Hopton Bassett an Annuity or Rent-charge of twenty pounds per annum payable half-yearly by equal portions from the death of the said Mary during Hopton Bassett's life if he the said Hopton Bassett require the same at the dwelling house of the said John Bassett or if he shall not grant the same if then the said John Bassett shall pay unto Hopton Bassett within the time aforementioned 300 l. then the Obligation to be void The Defendant pleaded that the Plaintiff to wit the said Hopton Bassett had not tendred any Grant of an Annuity within the time of six months after the death of his Mother according to c. the Plaintiff replyed and the Defendant rejoyned But the Council of both sides and the Court agreed that the whole question arose upon the plea in bar Strode for the Defendant The Plaintiff ought to have tendred us a grant of Annuity to be sealed within six months c. and having neglected that he has dispensed with the whole Condition For 1. This is not a dis-junctive Condition but the payment of
a distinction Our Saviour is called the Son of David though there were 28 Generations betwixt David and him And a republication may impose another sense upon words different from what they had when they were first written as if a man devise all his Lands in Dale and have but two Acres in Dale the words now extend to no more then those two Acres and if he purchase more and dye without any new publication the new purchased Lands will not pass But if there were a new publication after the purchase they would then pass well enough If a man has issue two Sons called Thomas and he makes a devise to his Son Thomas this may be ascertained by an averment Now suppose that Thomas the deviseé dye living the Father and afterward the Father publisheth his Will anew and says that he did intend that his Son Thomas now dead should have had his Land but now his Will and intent is that Thomas his younger Son now living shall take his Land by the same Will In this case to be sure the second Son Thomas shall take by the devise Here the import of the words is clearly altered by the republication Atkyns The words of this Will would not of themselves be sufficient to carry the Land to the Grand-child nor would the intention of the Devisor do it without them but both together do the business Quae non prosunt singula juncta juvant Wyndham Scroggs differed in Opinion and the cause was adjourned to be argued the next Term. North. A man admitted in forma pauperis is not to have a new Trial granted him for he has had the benefit of the Kings Iustice once and must acquiesce in it We do not suffer them to remove causes out of inferiour Courts They must satisfie themselves with the Iurisdiction within which their Action properly lieth Farrington Lee. ASsumpsit The Plaintiff declares upon 2 indebitatus Assumpsits and a third Assumpsit upon an insimul computasset The Defendant pleaded non Assumpsit infra sex annos the Plaintiff replied that himself is a Merchant and the Defendant his Factor and recites a clause in the Statute in which Actions of Account between Merchants and Merchants and Merchants and their Factors concerning their Trade and Merchandize are excepted and avers that this money became due to the Plaintiff upon an account betwixt him and the Defendant concerning Merchandise c. the Defendant makes an impertinent rejoynder to which the Plaintiff demurs Nudigate pro Querente This Statute is in the nature of a penal Law because it restrains the liberty which the Plaintiff has by the Common Law to bring his Action when he will and must therefore be construed beneficialy for the Plaintiff Pl. 54. Cr. Car. 294. Finche Lambe's case to this purpose Also this exception of Accounts between Merchants and their Factors must be liberally expounded for their benefit because the Law-makers in making such an exception had an eye to the incouragement of Trade and Commerce The words of the exception are other then such Accounts as concern the Trade of Merchandise c. now this Action of ours is not indeed an Action of Account but it is an Action grounded upon an Account And the Plaintiff being at liberty to bring either the one or the other upon the same cause of Action and one of the Actions being excepted expresly out of the limitation of the Statute the other by Equity is excepted also He cited Hill 17 Car. 1. in Marshe's Reports 151. Jones 401. Sandys Blodwell Mich. 13 Car. 1. and prayed Iudgment for the Plaintiff Serjeant Baldwin contra He said it did not appear in the Declaration that this Action was betwixt a Merchant and his Factor so that then the plea in bar is prima facie good And when he comes and sets it forth in his Replication he is too late in it and the replication is not pursuant to his Declaration But all the Court was against him in this Then he said the Statute excepted Actions of Account only and not Actions upon an indeb Assumpsit Cur ' Whereas it has been said by Serjeant Nudigate that the Plaintiff here has an Election to bring an Action of account or an Indebitat Assumpsit that is false for till the Account be stated betwixt them an Action of Account lies and not an Action upon the Case When the Account is once stated then an Action upon the case lies and not an Action of Account Et per North if upon an Indebitat Assumpsit matters are offered in evidence that lie in account I do not allow them to be given in evidence North Wyndham Scroggs the exception of the Statute goes only to Actions of Account and not to other Actions And we take a diversity betwixt an account current and an account stated After the account stated the certainty of the Debt appears and all the intricacy of account is out of doors and the Action must be brought within six years after the account stated But by North if after an account stated upon the ballance of it a sum appear due to either of the parties which sum is not paid but is afterward thrown into a new account between the same parties it is now slip't out of the Statute again Scroggs The Statute makes a difference betwixt Actions upon Account and Actions upon the case The words would else have been All Actions of Account and upon the Case other then such Actions as concern the Trade of Merchandise But it is otherwise penned other then such Accounts as concern c. and as this case is there is no account betwixt the parties the account is determined and the Plaintiff put to his Action upon an insimul computasset which is not within the benefit of the exception Atkyns I think the makers of this Statute had a greater regard to the persons of Merchants then the causes of Action between them And the reason was because they are often out of the Realm and cannot always prosecute their Actions in due time The Statute makes no difference betwixt an account current and an account stated I think also that no other sort of Tradesmen but Merchants are within the benefit of this exception and that it does not extend to Shop-kéepers they not being within the same mischief Adjurnatur Horn versus Chandler COvenant upon an Indenture of an Apprentice wherein the Defendant bound himself to serve the Plaintiff for seven years The Plaintiff sets forth the custom of London That any person above 14 and under 21 unmarried may bind himself Apprentice c. according to the custom and that the Master thereupon shall have tale remedium against him as if he were 21 and alledges that the Defendant did go away from his Service per quod he lost his Service for the said term which term is not yet expired The Defendant pleads a frivolous plea. To which the Plaintiff demurs Heley Though such a Covenant shall
is 24 Ed. 3. 30. Pl. 27. which is our very case The King brings a Quare Impedit for a Church appendant to a Mannor as a Guardian the Defendant makes a Title and traverseth the Title alledged by the King in his Count viz. the appendancy the King replies and Traverses the Defendants Title For this cause the Defendant demurs and Iudgment was for the King In this case it doth not appear in the pleading that the King was in by matter of Record and so it is our very case For the King may be in by possession by virtue of a Wardship without matter of Record by Entry c. Stamf. Prerog 54. I rely upon these two Cases But 7 H. 8. Keil 175. is somewhat to the purpose Per Fitz. In a Ravishment of Ward by the King if the Defendant make a Title and traverse the Kings Title the Kings Attorney may maintain the Kings Title and Traverse the Defendants Title I think there is no difference betwéen the Kings being in possession by matter of Record and by matter of Fact Again If matter of Record be necessary here is enough viz. The Queens Presentation under the Great Seal of England And here is a descent which is and must be Jure Coronae It is unreasonable that a Subject should turn the King out of possession by him that hath no Title This is a Prerog Case As to the Statutes objected by my Brother Archer they concern not this case The first enables the Patron to counterplead But here the Patron pleads The rest concern the Kings Presenting En auter droit But here it is in his own Right I think the King in our case may fly upon the Defendants Title and there is no inconvenience in it For the Kings Title is not a bare suggestion For it is confessed by the Defendant that the Quéen did Present But he alledges it was by Lapse For another reason I think Iudgment ought to be for the King viz. because the Defendant has committed the first fault For his Bar is naught in that he has traversed the Queens Seisin in Grosse whereas he ought to have traversed the Queens Presentment modo forma For where the Title is by a Seisin in Grosse it is repugnant to admit the Presentment and deny the Seisin in Grosse because the Presentment makes it a Seisin in Grosse 10 H. 7. 27. Pl. 7. in point and so is my Lord Buckhurst's Case in 1 Leonard 154. The traverse here is a matter of substance But if it be but Form it is all one For the King is not within the Statute 27 El. cap. 5. So he concluded that Iudgment ought to be given for the King Doctor Lee's Case A Motion was made by Raymond for a Writ of Priviledge to be discharged from the Office of Expenditour to which he was elected and appointed by the Commissioners of Sewers in some part of Kent in respect of some Lands he had within the Levell He insisted that the Doctor was an Ecclesiastical person Archdeacon of Rochester where his constant attendance is required Adding that the Office to which he was appointed was but a mean Office being in the nature of that of a Bayliff to receive and pay some small sums of money and that the Lands in respect whereof he is elected were let to a Tenant V. 1. Cr. 585. Abdy's case It was objected against this that this Archdeacons Predecessors did execute this Office and the Court ordered that notice should be given and cause shewn why the Doctor should not do the like Afterward Rainesford Morton only being in Court it was ruled he should be priviledged Because he is a Clergy-man F. B. 175. r. But I think for another reason viz. because the Land is in Lease and the Tenant if any ought to do the Office Take the Writ Lucy Lutterell vid. versus George Reynell Esq George Turbervile Esq John Cory Ann Cory THe Plaintiff as Administratrix to Jane Lutterell durante minori aetate of Alexander Lutterell the Plaintiffs second Son declared against the Defendants in an Action of Trespass for that they simul cum John Chappell c. did take away 4000 l. of the moneys numbred of the said Jane upon the 20th day of October 1680. and so for seven days following the like sums ad damnum of 32000 l. Upon a full hearing of Witnesses on both sides the Iury found two of the Defendants guilty and gave 6000 l. damages and the others not guilty A new Trial was afterwards moved for and denied At the Trial Mr. Attorney General excepted against the Evidence that if it were true it destroyed the Plaintiffs Action inasmuch as it amounted to prove the Defendants guilty of Felony and that the Law will not suffer a man to smooth a Felony and bring Trespass for that which is a king of Robbery Indeed said he if they had been acquitted or found guilty of the Felony the Action would lye and therefore it may be maintained against Mrs. Cory who was as likewise was William Maynard acquitted upon an Indictment of Felony for this matter but not against the rest But my Lord Chief Baron declared and it was agreed that it should not lye in the mouth of the party to say that himself was a Thief and therefore not guilty of the Trespass But perhaps if it had appeared upon the Declaration the Defendant ought to have been discharged of the Trespass Quaere what the Law would be if it appeared upon the pleading or were found by special Verdict My Lord Ch. Baron did also declare and it was agréed that whereas W. Maynard one of the Witnesses for the Plaintiff was guilty as appeared by his own Evidence together with the Defendants but was left out of the Declaration that he might be a Witness for the Plaintiff that he was a good and legal Witness but his credit was lessened by it for that he swore in his own discharge For that when these Defendants should be convicted and have satisfied the Condemnation he might plead the same in Bar of an Action brought against himself But those in the simul cum were no Witnesses Several witnesses were received and allowed to prove that William Maynard did at several times discourse and declare the same things and to the like purpose that he testified now And my Lord Chief Baron said though a hear-say was not to be allowed as a direct Evidence yet it might be made use of to this purpose viz. to prove that William Maynard was constant to himself whereby his Testimony was Corroborated One Thorne formerly Mr. Reynell's Servant being Subpoened by the Plaintiff to give Evidence at this trial did not appear But it being sworn by the Exeter Waggoner that Thorne came so far on his Iourney hitherward as Blandford and there fell so sick that he was not able to travel any further his Depositions in Chancery in a Suit there between these parties about this matter were admitted to be read
Maskew which I confess is a full authority for this that they need not joyn The Case was thus The Testator recovers a Iudgment and dies making his Will thus Also I devise the residue of my Estate to my two Daughters and my Wife whom I make my Executrix I confess I cannot tell why but the Spiritual Court did judge them all both the two Daughters as well as the Wife to be Executrices and therefore we the Iudges must take them to be so The Wife alone proves the Will with a reservata potestate to the Daughters when they should come in But this makes nothing at all in this Case I think this is according to their usual form The Wife alone sues a Scire facias upon this Iudgment and therein sets forth this whole matter viz. that there were two other Executrices which were under seventeen c. It was adjudged for the Plaintiff and affirmed in a Writ of Errour in Cam. Scacc̄ that the Scire facias was well brought by her alone But first I cannot see how a Writ of Errour should lie in that Case in Cam. Scacc̄ For it is not a Cause within 27 Eliz. 2. What reason is there for Iudgment a reason may be given that before an Executor comes to seventeen he is no Executor But I say he is quoad esse though not quoad Excecutionem A Wife Administratrix under seventeen shall joyn with her Husband in an Action and why shall not the Infants as well in our Case Yelv. 130. is express that the Infant must joyn and be named It is clear that no Administration durante minore aetate can be committed in this Case For all the Executors make but one person and therefore why may not all joyn 2. Admitting they may joyn whether the Infants may sue by Attorney I hold that in no Case an Infant shall sue or be sued either in his own or auter droit by Attorney There are but four ways by which any man can sue In propria persona per Attornatum per Guardianum and per Prochein amy 1 Ro. 747. aut 340. 400. post 747. An Infant cannot sue in propria persona That was adjudged in Dawkes versus Peyton It was an excellent Case and there were many notable Points in it First It was Resolved That a Writ of Errour might be brought in this Court upon an Errour in Fact in the Petty Bagg 2. That the Entry being general venit such a one it shall he intended to be in propia persona 3. That it was Error for the Infant in that Case to appear otherwise than by a Guardian 4. That the Errour was not helped by the Statute of Jeoffails In a Case between Colt Sherwood Mich. 1649. an Infant Administrator sued and appeared per Guardianum and it appeared upon the Record that he was above seventeen years of age I was of Council in it and we insisted it was Errour but it was adjudged That he appeared as he ought to appear and that he ought not to appear by Attorney And the Reasons given were First Because an Infant cannot make an Attorney by reason of his inability Secondly Because by this means an Infant might be amerced pro falso Clamore For when he appears by Attorney non constat unless it happen to be specially set forth that he is an Infant and so he is amerced at all adventures and to relieve himself against this he has no remedy but by a Writ of Errour For Errour in Fact cannot be assignd ore tenus And it were well worth the Cost to bring a Writ of Errour to take off an amercement But it is said That the Infants may appear by Attorney in this Case because they are coupled and joyned in company with those of full age I think that makes no difference for that reason would make such appearance good in case that they were all Defendants But it is agreed That if an Infant be Defendant with others who are of full age he cannot appear by Attorney The reason is the same in both Cases If an Infant and two men of full age joyn in a Feoffment and make a Letter of Attorney c. this is not good nor can in any sort take away the imbecility which the Law makes in an Infant I conclude I think the Plaintiffs ought to joyn but the Infants ought to appear by Guardian But since my two Brothers are of another mind as to the last Point there must be Iudgment that the Defendant respondeat ouster Nota Coleman argued for the Defendant his Argument which ought to have been inserted above was to this effect First These five cannot joyn had there been but one Executor and he under seventeen years the Administrator durant̄ minor̄ c. ought to have brought the Action 5 Co. 29. a. But since there are several Executors and some of them of full age there can be no Administration durant ' minor̄ Those of full age must Administer for themselves and the Infants to But the course is that Executors of full age prove the Will and the other that is under age shall not come in till his age of seventeen years But now the question is How this Action should have beén brought I say according to the President of Hatton versus Maskew which was in Cam. Scacc̄ Mich. 15 Car. 2. Rot. 703. wherein the Executor who was of full age brougt the Scire fac̄ but set forth that there were other two Executors who were under age and therefore they which were of full age pray Iudgment It was resolved the Scire fac̄ was well brought and they agreed That the Cases in Yelverton 130. was good Law because in that Case it was not set forth specially in the Declaration that there was another Executor under age So that they Resolved That the Executor of full age could not bring the Action without naming the others 2. However the Infants ought to sue by Guardian and where Rolls and other Books say that where some are of age and some under they may all sue by Artorney It is to be understood of such as are indeed under 21 but above 17. Respondeas ouster After this the Suit was Compounded Term. Pasch 22 Car. II. Regis The great Case in Cancellaria between Charles Fry and Ann his Wife against George Porter Resolved That there is no Relief in Equity against the Forfeiture of Land limited over by Devise in Marrying without consent c. Many particulars concerning Equity THe Case was Montjoy Earl of Newport was seized of an house called Newport-house c. in the County of Middlesex and had three Sons who were then living and two Daughters Isabel married to the Earl of Banbury with her Fathers consent who had issue A. the Plaintiff and Ann married to Mr. Porter without her Fathers Consent who had issue D. both these Daughters dyed The Earl of Newport made his Will in this manner I give and bequeath to my dear wife
against the Infant Sir Heneage Finch Solicitor General The Witnesses who swear that the Earl said He would give the Estate to her prove nothing to the purpose For he did so but upon a condition That they did not hear The after-consent of the Earls or the Countess ought not to make it good which consent at last perhaps was extorted by importunity or compassion For at first they disapproved the Marriage Marrying without consent and dying without issue are coupled in the same Line and the Estate shall as effectually pass over to the Defendant upon the one Limitation as the other For such consent is matter ex post facto and suspitiously to be scan'd For we ought in this Case by Law to proceéd strictly and not derogate from my Lord Newport's intent which plainly appears by the letter of his Will that his Grand-Child should ask consent of such he had thereby appointed to consent before her Marriage were solemnized the actual solemnization of which was an act so permanent that it would admit of no alteration or dissolution An act of such force and efficacy tending clearly and immediatly to the ruine of their Right and Title to the Estate in question and rendring it wholly uncapable of Reviver by any other means than what the Common and Civil Laws of this Realm do permit The post-consent therefore will not avail the Plaintiffs in this Court. Otherwise the Defendant claiming by this Limitation should have indeéd advantage but such as is inconsiderable being liable to alteration by the pleasure of this Court. And for a strict observation of the Testators words the same ought to be in Equity as well as at Law What great respect the old Heathens paid to the Wills of deceased persons may appear in these following Verses Sed Legum Servanda fides suprema voluntas Quod mandat fierique jubet parere necesse est The Countess saying likely in passion That she might marry whom she would c. did not amount to a dormant Warrant to her to marry without consent I am upon Conjecture still that the Plaintiff will insist upon these particulars for it looks as if they would because they read them Doubtless the primary intention of the Clause was in terrorem But the Secondary was that if she offended she should undergo the penalty His intention is to be gathered out of the words only and what ever they say the Earl intended does not press the Question Our Frée-hold is setled in us by vertue of an Act of Parliament I lay it down for a Foundation That a Father may settle his Estate so as that the Issue shall be deprived of it for Disobedience and not be relievable in Equity And now 't is not possible that any Council could advise a man to do it stronger than it is done in this Case And shall a Child break these Bonds and look Disobedience in the face here V. 1 Cr. 476. post 694. 696. If it had been only provided that she should marry with the consent c. and no further it might have been somewhat But since he goes on and makes a Limitation over c. he becomes his own Chancellour and upon this difference are all the Presidents and even those of devising portions viz. devising them over or not as I have understood Infancy can be no excuse in case of the breach of a condition of an Estate in which the Infant is a Purchasor So that nothing rests now in this Case but the point of Notice And why should not the Infant be bound to take notice in this Case as he is to take notice in case of a Remainder wherein he is a Purchasor But if notice be necessary it is not to be tried here now If we had brought an Ejectment and supposing notice had been necessary we had failed in the proof thereof should we have beén har'd for ever as by this perpetual Injunction we should be and shall it be done now without proof If we are not bound to prove Notice at Law much less are we bound to prove it here This Case is Epidemical and concerns all the Parents of England that have or shall have Children that the Obligations which they lay upon their Children may not be cancelled wholly and this Court under colour of Equity protect them in it and be a City of Refuge for relief of such the foulness of whose actions deny them a Sanctuary Pecke If Infancy would excuse such a Clause would signifie nothing For most persons especially of that Sex marry before full age The Lords give no reason why they changed their Opinions Serjeant Fountain Yelverton's Case in 36 Eliz. is a President in the Point for us and Shipdam's Case is much like it This being of a devise Land and that of Money which if it were paid the Land was to go over The grand Objection is That here is an Estate vested by a settlement which is not to be avoided or defeated But I doubt whether a man can lay such a Restraint that there shall not be Relief in any case of Emergency and Contingency Part 712. 3. V. in Leo. 37. It is a part of the fundamental Iustice of the Nation that men should not make Limitations wholly unalterable as by the Common Law men cannot make a Feé unalienable You give relief every day where there are express Clauses that there shall be no relief in Law or Equity where a thing is appointed to be c. without relief in Law or Equity you relieve against them and look upon them to be void In our Case suppose she had married a great Lord or suppose a person had brought notice of the Trustees consent would you not have given relief But secondly I deny the Assumption This Case is not so I agrée it had been well done if they had askt my Lady Newports consent But is there a word in the Will that if the Plaintiff did not he should have no relief in Equity The Estate was devised to my Lady Newport during her life so that the Plaintiff could not be in possession and she might have lived till the Plaintiff was 21 years old Could not my Lady Newport have said Have a care how you marry for you forfeit the Estate if you marry without the consent of two of us three All Ingredients and Circumstances must be taken in a matter of Equity Is it an argument to say He has no Estate therefore take away his Wifes Estate then there will be nothing to maintain her It is agréed That if the Approbation had been precedent it had been well Now she had no notice before the Marriage that it was necessary and when she had that notice she got the approbation and that though subsequent is good enough because it was askt and gotten as soon as she had Notice that she ought to have it The Will is hereby sufficiently observed for the intent of the Will was that she should have such an
Husband as those persons should approve and this marriage is so approved I rely upon this matter but especially upon the word of Notice Serjeant Ellis There was a Case of a Proviso not to marry but with the consent of certain persons first had in writing Consent was had but not in writing and yet you rul'd it good Had this been a Condition in Law as 't is in fact the Law would have helped her If the Estate had been in her there might have been some reason that she should have 〈◊〉 taken notice how it came to her and of the Limitation c. Had the Earl been alive and consented to the Marriage after it was solemnized he would have continued his affection and the Plaintiffs have had the Estate still Why now the consent of the Lords and Countess is as much as his consent he had tranferred his consent to them This is a Ratihabitio you cannot have a Case of more Circumstances of Equity 1. An Infant 2. No notice 3. Consent after 4. Their Declaration that they thought my Lord meant it in terrorem c. What if two of the Trusteés had died should she never have married surely you would have relieved her Serjeant Baldwin Here is as full a consent to the Marriage as could well be in this Case For since the Plaintiff had no notice of the necessity of the Earls consent before the Marriage it had been the strangest and unexpectedest thing in the world that she should have gone about to have askt it The Heir should not have taken notice of such a Forfeiture and why should a man that is named by way of remainder In case of a personal Legacy this were a void Proviso by the Civil Law For I have informed my self of it It is a Maxim with them Matrimonium esse Liberum This amounts to as much as the Condition that the person should not marry at all For when 't is in the Trustées power they may propose the unagreeablest person in the World 't is a most unreasonable power and not to be favoured Sir Thomas Grimes setled his Land so that his Son should pay portions and if he did not he demised the Lands over and it was adjudged relieveable If I limit that my Daughter shall marry with the consent of two c. if each of them have a design for a different Friend if you will not relieve she can never marry Is it not more probable that if the Earl had lived he would rather have given her a Maintenance than have concluded her under perpetual misfortune and disherison Keeling Chief Justice I do not sée how an averment or proof can be received to make out a mans intention against the words of the Will 4 Co. 4. a. 5 Co. 68. Plo. 345. In Vernon's Case though it were a Case of as much Equity as could be it was denied to be received and so in my Lord Cheney's Case Here was a Case of Sir Thomas Hatton somewhat like this Case wherein no Relief could be had Vaughan Chief Justice I wonder to hear of citing of Presidents in matter of Equity For if there be equity in a Case that Equity is an universal Truth Vi. 1 In. 216. and there can be no President in it So that in any President that can be produced if it be the same with this Case the reason and equity is the same in it self And if the President be not the same Case with this it is not to be cited being not to that purpose Bridgman Lord-Keeper Certainly Presidents are very necessary and useful to us for in them we may find the reasons of the Equity to guide us and beside the authority of those who made them is much to be regarded We shall suppose they did it upon great Consideration and weighing of the matter and it would be very strange and very ill if we should disturb and set aside what has been the course for a long Series of time and ages Thereupon it was Ordered That they should be attended with Presidents and then they said they would give their Opinions Three weeks after they came into Chancery again and delivered their Opinions Seriatim in this manner viz. Hale Chief Baron The general question is whether this Decrée shall pass I shall divide what I have to say into these three questions or particulars First I shall consider whether this be a good Condition or Limitation or conditional Limitation For so I had rather call it It being a Condition to determine the Estate of the Plaintiff and a Limitation to let in the Defendant I think it is good both in Law and Equity and my reasons are first because it is a collateral Condition to the Land and not against the nature of the Estate and she is not thereby bound from Marriage Secondly it obliged her to no more then her duty she had no Mother and in case of Marriage she ought to make application to her Grandmother who was in loco Parentis and since the Estate moved from the Grandfather she was Mistris of the disposition and manner of it 'T is true by the Civil Ecclesiastical Law regularly such a Condition were void And therefore if the question were of a Legacy there might be a great deal of reason to question the validity of it because in those Courts wherein Legacies are properly handled it would have been void But this is a case of Land Devise Indeed it is agreed that this is a good Condition and not to be avoided in it self Secondly This being a good Condition and Limitation over The Question is whether there be relief against it in Equity admitting it were a wilful breach I think there ought not to be any I differ from the reasons pressed at the Bar as first That it was a devise by Will by virtue of the Statute c. but that doth not stick with me For if there may not be a relief against a breach of a Condition in a Will there would be a great shatter and confusion in mens Estates and some of those settled by great advice and there have been Presidents of relief in such cases 2 Car. Fitz versus Seymour And 10 Car. Salmon versus Bernard Secondly It has been urged there should be no relief because there is a Limitation over But that I shall not go upon neither There have been many reliefs in such Cases I will decline the latitude of the Objection for that would go a great deal further then we are aware But yet I think there ought to be no relief in this Case It is not like the case of payment of money because there the party may be answered his debt with damages at another day and so may be fully satisfied of all that is intended him But here my first reason is That it is a Condition to contain the party in that due Obedience which Law and nature require 2 'T is a voluntary settlement to the Grandaughter in
tail and the remainder over is so too and both these parties are in aequali gradu to the Devisor and therefore their being both in a parity it would be hard to take the Estate from him to whom and in whose Scale the Law hath thrown the advantage 3 It appears by the body of the Will that the Earl did as really intend it should go over if she married without consent as if she died without Issue for they are both in the same clause There may be as much reason to turn it into a Fee-simple in case as she had died without Issue as in this case For so I doubt the penning of this decretal Order does And 4 I rest upon this It is a Case without a President I remember after that Lanyett's Case had been adjudged that 6 Car. there was a Case I suppose Saunders versus Cornish of a Limitation in Tail Cro 3 part fo 230 it was of a Lease for years and so was adjudged void and then a devise over and it was adjudged void And the Iudges said so far it is gone and we will go no further because we do not know where it will rest I know there is no intrinsical difference in Cases by Presidents But there is a great difference in a Case wherein a man is to make and where a man sees and is to follow a President in the one Case a man is more strictly bound up but in the other he may take a greater liberty and Latitude For if a man be in doubt in aequilibrio concerning a Case whether it be equitable or no in prudence he will determine according as the Presidents have been especially if they have been made by men of good authority for Learning c. and have been continued and pursued Here must be some boundary or we shall go we know not whither It were hard a Court of Equity should do that that is not fit to be done in any Court below a Parliament The Presidents do not come home to the Case Most of them are in case of money Legacies and in some of those Cases we may give allowance in respect of the Law of another forum to which they belong But this is in case of Land only vid ' Swynborne 4. Co. 12. chap. indeed he is no authority but there is a very good Exemplification of this matter 5 I shall consider the allays and circumstances which are observed and offered to qualifie this Case and induce relief 1 'T is said that this clause was only in terrorem and some Witnesses have been examined to prove it But I am not satisfied how collateral averments can be admitted in this case For then how can there be any certainty 2 Cro 145. A Will will be any thing every thing nothing The Statute appointed the Will should be in writing to make a certainty and shall we admit collateral averments and proofs and make it utterly uncertain 2 'T is said in this Case the effect of the Proviso has beén obtained for the Trustees have now declared their consent I must say it is not full for they do not say they would have consented but that possibly such reasons might have been offered as they should have done it And possibly I say not They like good men have only declined the shewing an ineffectual contradicting of a thing which is done and cannot now be recalled undone or altered Besides if there had been but a circumstantial variation the consent afterwards might have been somewhat But here it is in the very substance In the Case before cited at the Bar by Mr. Serjeant Ellis where the consent was to be had in writing and it was had only by Paroll there was great Equity that it should be relieved because it was only a provident circumstance and wisdom of the Devisor viz. for the more firme obliging the party to ask consent which the Devisor considered might be pretended to be had by slight words in ordinary and not solemn Communication or else in passion and heat as in this case when the Plaintiff would not consent to the approved Marriage with the Lord Morpeth the Countess said she might marry where she would Which words imported a neglect of care for the future over the Plaintiff because she would not be ruled by the Countess in accepting the tender of so commendable a Marriage as also for the benefit of the Devisee in the Case aforesaid That in case the Devisee did marry with the consent of the Trustee he might not after through prejudice c. avoid it by denial of such consent and so defeat or perplex the Devisee for want of proof of such his consent 3 'T is said the party is an Infant Why an Infant is bound by a Condition in Fact by Law 't is true we are now in Equity But in Equity since this refers to an Act which she though an Infant is capable of doing viz. to marry it were unreasonable that she should be able to do the Act and not be obliged by Equity to observe the Conditions and Terms which concern and relate to that Act. So that it is all one as if she had been of full age The Statute of Merton cap. 5. provides that Usury shall not run against Infants and yet the same Statute cap. 6. appoints That if an Infant marry without the Licence of his Lord c. he shall forfeit double the value of his Marriage and it is reasonable because Marriage is an Act which he may do by Law while he is under age 4 As to the point of Notice 1 Whether Notice be requisite or no in point of Law I will not determine But I must needs say that it must be referred to Law But 2 If it be not requisite in Law how far a Court of Equity might relieve for want of it I will not now take upon me to determine I will not trench upon matters Gratis of which I know not what will be the consequence But I conceive in this case the Fact is not yet settled whether there were notice or not and it were a hard matter That because no Notice is here proved it should be taken for granted there was none For here are several circumstances that seem to shew there might be Notice and a publick voice in the House or an accidental Intimation c. may possibly be sufficient Notice I shall therefore leave it as a fit thing to be tryed and till that the case in my understanding is not ripe And therefore I will add no more I think this Decree ought to be altered if not set aside But as this Case is there ought to be no relief Vaughan Chief Justice I shall conclude as my Lord Chief Baron did That as this case is there ought to be no relief I will single out this case from several things not material to it as my Lord Chief Baron did c. I think if Land be devised on Condition to pay
with the rest to the reason why the warranty is destroyed viz. because the husband takes back as great an Estate as he warranted for then no use can be made of the warranty If a man that has Land and another warrant this Land to one and his heirs and one of them die without heirs the survivor may be vouched without question The husband never was obliged by this warranty but as to him it was meerly nominal for from the very creation of it it was impossible that it should be effectual to any purpose he cited Hob. 124. in Rolls Osburn's case The whole Court agreeing in this Opinion Iudgment was given for the Tenant Term. Trin. 26 Car. II. in Communi Banco Hamond versus Howell c. THe Plaintiff brought an Action of False Imprisonment against the Mayor of London and the Recorder and the whole Court at the Old-baily and the Sheriffs and Gaoler for committing him to prison at a Sessions there held The case was thus some Quakers were indicted for a Riot and the Court directed the Iury if they believed the Evidence to find the Prisoners guilty for that the Fact sworn against them was in Law a Riot which because they refused to do and gave their Verdict against the direction of the Court in matter of Law they committed them They were afterwards discharged upon a Habeas Corpus And one of them brings this Action for the wrongful Commitment Sergeant Maynard moved for the Defendants that they might have longer time to plead for a rule had been made that the Defendants should plead the first day of this Term. The Court declared their Opinions against the Action viz. That no Action will lie against a Iudge for a wrongful Commitment any more then for an erroneous Iudgment Munday the Secondary told the Court that giving the Defendants time to plead countenanced the Action but granting imparlances did not So they had a special imparlance till Michaelmas Term next Atkyns It was never imagined that Iustices of Oyer and Terminer and Gaol-delivery would be questioned in private Actions for what they should do in Execution of their Office if the Law had been taken so the Statute of 7 Jac. cap. 5. for pleading the general Issue would have included them as well as Inferiour Officers Birch Lake A Prohibition was granted to the Spiritual Court upon this suggestion that Sir Edward Lake Vicar-general had cited the Plaintiff ex officio to appear and answer to divers Articles The Court said that the citation ex officio was in use when the Oath ex officio was on foot but that is ousted by the 17th of Eliz. If Citations ex officio were allowed they might cite whole Counties without Presentment which would become a trick to get money And the party grieved can have no Action against the Vicar-general being a Iudge and having Iurisdiction of the cause though he mistake his power Per quod c. Anonymus BAron Feme Administrators in the right of the Feme bring an Action of Debt against Baron Feme Administrators likewise in the right of the Feme de bonis non c. of J. S. The Action is for Rent incurred in the Defendants own time and is brought in the debet detinet The Defendants plead fully administred to which the Plaintiffs demurred Serj. Hardes for the Plaintiff said the Action was well brought in the debet detinet for that nothing is Assets but the profits over and above the value of the Rent he cited Hargrave's case 5 Rep. 31. 1 Rolls 603. 2 Cro. 238. Rich Frank. ibid. 411. ibid. 549. 2 Brook 202. 1 Bulstr 22. Moor 566. Poph. 120. though if an Executor be Plaintiff in an Action for Rent incurred after the Testators death he must sue in the detinet only because whatever he recovers is Assets but though an Executor be Plaintiff yet if the Lease were made by himself he must sue in the debet detinet Then the plea of fully administred is not a good plea for he is charged for his own occupation If this plea were admitted he might give in evidence payment of Debts c. for as much as the term is worth and take the profits to his own use and the Lessor be stript of his Rent in Styles Reports 49. in one Josselyn's case this plea was ruled to be ill And of that Opinion the Court was and said that Executors could not waive a Term though if they could they ought to plead it specially for it is naturally in them and prima facie is intended to be of more value then the Rent if it should fall out to be otherwise the Executors shall not be lyable de bonis propriis but must aid themselves by special pleading For the plea they said there was nothing in it and gave Iudgment for the Plaintiff Buckly Howard DEbt upon two Bonds the one of 20 l. the other of 40 l. against an Administratrix the Defendant pleaded that the intestate was endebted to the Plaintiff in 250 l. upon a Statute Merchant which Statute is yet in force not cancel'd nor annull'd and that she has not above 40 shillings in Assets besides what will satisfie this Statute The Plaintiff replies that the Statute is burnt with Fire The Defendant demurs And by the Opinions of Wyndham Atkyns Ellis Iustices the Plaintiff had Iudgment For the Defendant by his demurrer has confessed the burning of the Statute which being admitted and agreed upon it is certain that it can never rise up against the Defendant for the Stat. of the 23 Hen. 8. cap. 6. concerning Recognisances in the nature of a Statute-Staple refers to the Statute-Staple viz. that like Execution shall be had and made and under such manner and form as is therein provided the Statute-Staple refers to the Statute-Merchant and that to the Statute of Acton Burnel 13 Ed. 1. which provides that if it be found by the Roll and by the Bill that the Debt was acknowledged and that the day of payment is expired that then c. but if the Statute be burnt it cannot appear that the day of payment is expired and consequently there can be no Execution If the Recognisee will take his Action upon it he must say hic in Cur ' prolat 15 H. 7. 16. Vaughan differ'd in Opinion he said 1. That it is a rule in Law that matter of Record shall not be avoided by matter in pais which rule is manifestly thwarted by this resolution He said it was a matter of Record to both parties and the Plaintiff could not avoid it by such a plea any more then the Defendant could avoid it by any other matter of fact He cited a case where the Obligee voluntarily gave up his Bond to the Obligor and took it from him again by force and put it in suit the Defendant pleaded this special matter and the Court would not allow it but said he might bring his Action of Trespass