by Serjeant Jones that they should not pass for though Lands would pass so by a Fine because it was the Agreement of the Parties yet in a Recovery 't is otherwise because more certainty is required therein But in Fines no such Certainty is required and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill Parish or Hamlet is mentioned Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway Postea But there being a Vill called Walton in the Parish of Street and a Fine being levyed of Land in Street the Lands in Walton did not pass unless Walton had béen an Hamlet of Street and the Fine had beén levied of Lands in the Parish of Street And the reason of this difference is because in Fines there are Covenants which though they are real in respect of the Land yet 't is but a personal Action in which the Land is not demanded ex directo but in a Recovery greater preciseness is required that being a Praecipe quod reddat where the Land it self is demanded and the Defendant must make Answer to it Cro. Jac. 574 5 Co. 40. Dormer's Case The Word * Antea 41. Liberty properly signifies a Right Priviledge or Franchise but improperly the extent of a place Hill 22 23 Car. 2. Rot. 225. B. R. Waldron's Case Hutton 106. Baker and Johnson's Case Liberties in Iudgment of Law are incorporeal and therefore 't is absurd to say that Lands which are corporeal shall be therein contained They are not permanent having their existence by the Kings Letters Patents and may be destroyed by Act of Parliament they may also be extinguish'd abridged or increased and a Vinire fac of a * Rast Ent. 267. Liberty or Franchise is not good 't is an equivocal Word and of no signification that is plain and therefore is not to be used in real Writs Rast Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty neither is there any authority in all the Law Books for such a Recovery and therefore if such a thing should be allowed many inconveniences would follow for a good Tenant to the Praecipe would be wanting and the intent of the Parties could not supply that But Barton Serjeant said that this Recovery would pass the Lands in Cotton for as to that purpose there was no difference betweén a Fine and a Recovery Postea 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances and are to be guided by the agreément of the Parties Cro. Car. 270 276. 'T is true a Fine may be good of Lands in an Hamlet Lieu conus or Parish 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler Yet in a * Godb. 440. contra Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned Bro. Brief 142. The demand must be of Lands in a Vill Hamlet or at farthest in a Parish Cro. Jac. 574. And of that Opinion was the whole Court absente Ellis who was also of the same Opinion at the Argument and accordingly in Michaelmas Term following Iudgment was given that by this Recovery the Lands in Cotton did well pass And North Chief Iustice denied the Case in Hutton 106. Postea to be Law where 't is said A Common Recovery of Lands in a Lieu conus is not good and said that it had béen long disputed whether a Fine of Lands in a Lieu conus was good and in King James his time the Law was settled in that Point that it was good and by the same reason a Recovery shall be good for they are both amicable Suits and Common Assurances and as they grew more in practice the Iudges have extended them farther A Common Recovery is held good of an Advowson and no Reasons are to be drawn from the Visne or the Execution of the Writ of Seisin because 't is not in the Case of adversary Procéedings but by Agréement of the Parties where 't is to be presumed each knows the others meaning Indeed the Cursitors are to blame to make the Writ of Entry thus and ought not to be suffered in such practice Where a Fine is levied to two the Fée is always fixed in the Heirs of one of them but if it be to them and their Heirs yet 't is good though incertain but a Liberty is in the nature of a Lieu conus and may be made certain by Averment The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury and so 't is not incorporeal Alford versus Tatnel JVdgment against two who are both in Execution Mod. Rep. 170. and the Sheriff suffers one to escape the Plaintiff recovers against the Sheriff and hath satisfaction the other shall be discharged by an Audita Querela Osbaston versus Stanhope General Replication good DEBT upon Bond against an Heir who pleaded that his Ancestor was seised of such Lands in Fee and made a Settlement thereof to Trusteés by which he limited the Vses to himself for Life Remainder to the Heirs Males of his Body Remainder in Feé to his own right Heirs with power given to the Trusteés to make Leases for threé Lives or 99 years The Trustées made a Lease of these Lands for 99 years and that he had not Assets praeter the Reversion expectant upon the said Lease The Plaintiff replies protestando that the Settlement is fraudulent pro placito saith that he hath Assets by discent sufficient to pay him and the Defendant demurrs Ex parte Def. Newdigate Serjeant The Barr is good for the Plaintiff should not have replied generally that the Defendant hath Assets by discent but should have replyed to the praeter Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee who made a Lease to Saunders under whom he derived a Title and so justifies The Plaintiff replies and sets forth a long Title in another person and that Henry entred and intruded The Defendant rejoyns that Henry was seised in Fée and made a Lease ut prius absque hoc that intravit se sic intrusit and the Plaintiff having demurred because the Traverse ought to have been direct viz. absque hoc quod intrusit and not absque hoc that Henry intravit c. it was said the Replication was ill for the Defendant having alledged a Seisin in Fée in Henry which the Plaintiff in his Rejoynder had not avoided but only by supposing an intrusion which cannot be of an Estate in Fée but is properly after the death of Tenant for Life for that reason it was held ill Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Replication to be good The Defendants Plea is no more than Riens per descent for though he pleads a Reversion 't is not chargeable because 't is a Reversion after
Witton versus Bye 45 Ed. 3. 8. 20 E. 4 13. Covevenant will lie upon the Words Yeilding and Paying If then here is a good Rent reserved the Wife who receives the Profits becomes Executrix de son tort and so is lyable to the payment It hath been held there cannot be an Executor de son tort of a Term but the Modern Opinions are otherwise as it was held in the Case of Porter and Sweetman Trin. 1653. in B. R. And that an Action of Debt will lie against him Indeed such an Executor cannot be of a Term in futuro and that is the Resolution in Kenrick and Burgesses Case Moor Rep. Where in Ejectment upon Not Guilty pleaded it appeared that one Okeham had a Lease for years of the Lands in question who dyed Intestate which Lease his Wife assigned by parol to Burgess and then she takes out Letters of Administration and assigns it again to Kenrick who by the Opinion of the Court had the best Title But if one enter as Executor de son tort and sell Goods the Sale is good which was not so in this Case because there was a Term in Reversion whereof no Entry could be made for which reason there could be no Executor de son tort to that and therefore the Sale to Burgess before the Administration was held void And that there may be an Executor de son tort of a Term there was a late Case adjudged in Trin. 22 Car. 2. between Stevens and Carr which was Lessee for years rendring Rent dies Intestate his Wife takes out Letters of Administration and afterwards Marries a second Husband the Wife dies and the Husband continues in Possession and receives the Profits It was agreed that for the Profits received he was answerable as Executor de son tort and the Book of 10 H. 11. was cited as an authority to prove it Pemberton Serjeant for the Defendant Ex parte Def. would not undertake to answer these Points which were argued on the other side but admitted them to be plain against him for he did not doubt but that Debt would lie upon the Contract where the whole Term was assigned and that there may be an Executor de son tort of a Term but he said that which was the principal point in the Case was not stirred The question was whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all for 't is plain there was none in being in this Case because when the Lessee Re-demised his whole Term to the Lessor that was a Surrender in Law and as fully as if it had been actually surrendred and therefore this was quite different from the Case where Lessee for years makes an Assignment of his whole Term to a Stranger Debt will lie upon the Contract there because an Interest passes to him in Reversion and as to this purpose a Term is in esse by the Contract of the Parties and so it would here against the first Lessor who was Lessee upon the Re-demise but now because of the Surrender the Heir is intituled to enter and the Mother who is the Defendant enters in his Right as Guardian which she may lawfully do If therefore Debt only lies upon the Contract of the Testator as in truth it doth where the whole Term is gone the Plaintiff cannot charge any one as Executor de son tort in the debet and detinet And the whole Term is gon here by the Re-demise which is an absolute Surrender and not upon Condition for in such Case the Surrenderor might have entred for non-performance and so it might have been revived And of this Opinion was the whole Court in both points and would not hear any farther Argument in the Case the Plaintiff having no remedy at Law the Court told him that he might seek for relief in Chancery if he thought fit Harman's Case IN Covenant the breach assigned was that the Defendant did not repair He pleads generally quod reparavit de hoc ponit se super patriam this was held good after a Verdict Quadring versus Downs al' Wardship cannot be where there is no descent IN a Writ of right of Ward the Case was Viz Sir William Quadring being seised of Lands in Fee by Deed and Fine settles them upon his Son William and his Wife for their Lives the Remainder to the second Son in Tail with divers Remainders over The Grandfather dyes the Father and Mother dyes the eldest Son dyes without Issue and so the Land came to the second Son The Plaintiff intitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant whom the Defendant detained and Serjeant Newdigate for him demurred because where there is no descent there can be no Wardship for the second Son is in by purchase and not by descent for here is no mention of the Reversion in Fee and therefore it may be intended that it was conveyed away and besides if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement yet it cannot be thought to descend to the Ward because 't is not said who was Heir for though it be said that the Father of the Ward was Son to Sir William yet 't is not said Son and Heir and of that Opinion was the whole Court in both points for there must be a descent or else there can be no Wardship and it doth not appear that any descent was here because 't is not said that the Reversion did descend nor who was Heir to Sir William which the Plaintiff perceiving prayed leave to amend and it was granted In this Case it was said at the Bar that one might be a Ward in Socage though he be in by Purchase for the Guardian is to have no profit but is only a Curator to do all for the benefit of the Ward and so there need be no descent as is necessary in the Case of a Ward in Chivalry for that being in respect of the Tenure the Guardian is to have profit The Lord Chief Iustice North said Nota. he knew where there was some doubt of the sufficiency of the Guardian in Socage that the Court of Chancery made him give good Security Harding versus Ferne. IN an Action of Assault Battery and Imprisonment Antea Anonymus 'till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause Iudgment was given for the Plaintiff upon the first opening because it appeared the Defendant took more than was warranted by the Execution Ellis versus Yarborough Sheriff of Yorkshire IN an Action of Escape the Plaintiff sets forth that the Defendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff Case lies not against
By the Statute of 21 H. 8. cap. 5. the Ordinary is to grant Administration to the Widow of the Intestate or to the next of his Kin or to both as by his discretion he shall think good and in Case where divers persons claim the Administration as next of Kin which be in equal degree the Ordinary may commit Administration to which he pleaseth and his power was not abridged but rather revived by this late Act by which 't is Enacted 22 23 Car. 2. That just and equal distribution shall be made amongst Wife and Children or next of Kin in equal degree or legally representing their Stocks pro suo cuique jure and the Children of the half Blood do in the Civil Law legally represent the Father and to some purposes are esteemed before the Vncles of the whole Blood 'T is no Objection to say that because the Law rejects the half Blood as to Inheritances therefore it will do the same as to personal Estates because such Estates are not to be determined by the Common but by the Canon or Civil Law and if so the half Blood shall come in for distribution for this Act of Parliament confirms that Law Winnington Sollicitor General contra He agreed that before this Act the half Blood was to have equal share of the Intestates Estate but that now the Ordinary was compelled to make such distribution and to such persons as by the Act is directed for he had not an original power to grant Administration in any case that did belong to the Temporal Courts Sid. 370 371. but it was given to him by the Indulgence of Princes not quatenus a Spiritual Person Hensloes Case 9 Co. Bendl. 133. And if he had not power in any Case he could not grant to whom he pleased But admitting he could his power is now abridged by this Statute and he cannot grant but to the Wife and Children or next of Kin in equal degrée or legally representing their Stocks Now such legal representation must be according to the Rules of the Common and not of the Civil Law for if there be two lawful Brothers and a Bastard eigne and a Question should arise concerning the distribution of an Intestates Estate the subsequent Marriage according to the Law in the Spiritual Court would make the latter legitimate and if so a legal Representative amongst them but this Court will never allow him so to be But the Court were all of Opinion that in respect of the Father the half Blood is as near as those of the whole and therefore they are all alike and shall have an equal distribution and that such Construction should be made of the Statute as would be most agreeable to the Will of the dead person if he had devised his Estate by Will and it was not to be imagined if such Will had been made but something would have been given to the Children of the half Blood And thereupon a Consultaion was granted Anonymus In C. B. FAux Judgment viz. Serjeant Turner took this Exception that the Plaintiff in the Court below had declared ad damnum 20 l. whereas it not being a Court of Record and being sine Brevi the Court could not hold Plea of any Sum above 40 s. and for this Cause the Iudgment was reversed DE Termino Paschae Anno 29 Car. II. in Communi Banco Southcot versus Stowel Intrat ' Hill 25 26 Car. 2. Regis Rot. 1303. IN a Special Verdict in Ejectment The Case was Covenant to stand seised how it differs from a Conveyance at the Common Law Mod. Rep. 226. Thomas Southcot having Issue two Sons Sir Popham and William and being seised in Fée of a Farm called Indyo the Lands now in question did upon the Marriage of his eldest Son Sir Popham covenant to stand seised of the said Farm to the use of the said Sir Popham Southcot and the Heirs Males of his Body on Margaret his Wife to be begotten and for want of such Issue to the Heirs Males of the Covenantor and for want of such Issue to his own right Heirs for ever Sir Popham had Issue begotten on his Wife Margaret Edward his Son and five Daughters and dies Thomas the Covenantor dies Edward dies without Issue And whether the five Daughters as Heirs general of Thomas or William their Vncle as special Heir Male of Thomas per formam doni shall inherit this Land was the Question Two Objections were made against the Title of William the Vncle. 1. Vaugh. 49. Because here is no express Estate to Thomas the Covenantor for 't is limited to his Heirs Males the Remainder to his own right Heirs so that he having no Estate for Life the Estate Tail could not be executed in him and for that reason William cannot take by descent 2. He cannot take by Purchase for he is to be Heir of Thomas and Heir Male the Limitation is so but he cannot be Heir for his five Nieces are Heirs In answer to which these Assertions were laid down 1. That in this Case Thomas the Covenantor hath an Estate for Life by implication and so the Estate Tail being executed in him comes to William by descent and not by purchase for though the Covenantor had departed with his whole Estate and limited no Vse to himself yet he hath a Reversion because he can have no right Heir while he is living and therefore the Statute of 27 H. 8. Hob. 30. creates an Vse in him till the future use cometh in esse and by consequence the right Heirs cannot take by purchase for wherever the Heir takes by purchase the Ancestor must depart with his whole Fee for which reason a Fee cannot be raised by way of purchase to a Mans right Heirs by the name of Heirs either by Conveyance of Land or by Vse or Devise but it works by descent 1 Inst 22. b. And that Vses may arise by Implication by Covenants to stand seized the Authorities are very plentiful Moor 284. 1 Co. 154. Lord Paget's Case cited in the Rector of Cheddington's Case Cro. Eliz. 321. 1 Roll. Rep. 239 240 317 438. Lane vers Pannel Cor. Car. And in the Case of Hodgkinson and Wood in a Devise there was the same limitation as this the Case was Thomas being seised in Fee had Issue Francis and William by several Venters and devised Land to Francis his eldest Son for Life then to the Heirs Males of his Body and for default of such Issue to the Heirs Males of William and the Heirs Males of their Bodies for ever and for default of such Issue to the use of the right Heirs of the Devisor then he made a Lease to William for 30 years to commence after his death and dies William Enters and Surenders this Lease to Francis who Enters and makes a Lease to the Defendant and dyes without Issue and William Enters and makes a Lease to the Plaintiff it was adjudged for William because he being
Heir Male of the Body of the Devisor had by this Limitation an Estate Tayl as by Purchase and that the Inheritance in Fee simple did not vest in Francis 2. If Thomas the Covenantor had no Estate executed in him yet William his Son in this Case may take by way of future springing use because the Limitation of an Estate upon a Covenant to stand seised may be made to commence after the Ancestors Death for the old Seisin of the Covenantor is enough to support it There is a great difference between a Feoffment to Vses and a Covenant to stand seised for by the Feoffment the Estate is executed presently 1 Co. 154. Rector of Cheddington's Case So if there be a Feoffment to A. for Life Remainder to B. in Fee if A. refuse B. shall enter presently because the Feoffor parted with his whole Estate but if this had been in the Case of a Covenant to stand seised if A. had refused the Covenantor should have enjoyed it again till after the death of A. by way of springing use like the Case of Parsons and Willis 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry he will stand seised to the use of B. and his Heirs B. dies the Covenantor doth not marry this Vse arises as well to the Heir of B. as to B. himself if he had been living and he shall have the Land in the nature of a descent But if William cannot take it either by purchase or by descent he shall take it 3. Per formam doni as special Heir to Thomas This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man and the heirs Females of his Body if there be a Son the Daughter is not Heir but yet she shall take it for voluntas donatoris c. So if Lands are given to a Man and the Heirs Males of his Body the youngest Son shall have it after the death of the eldest leaving Issue only Daughters for these are descents secundum formam doni So in this Case the Estate Tail vested in Edward and when he died without Issue it comes to William per formam doni Object The Case of Greswold in 4 5 Ph. Mariae Dyer 156. seems to be express against this Opinion which was that Greswold was seised in Fee and made a Grant for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs he had Issue two Sons and dyed the eldest Son had Issue a Daughter and dyed and if the Daughter or her Vncle should have the Land was the question in that Case And it was adjudged that the Limitation of the Remainder was void because Greswold could not make his right Heir a Purchasor without departing with the whole Fee Postea Brittain and Charnock and therefore Iudgment was given against the special Heir in Tail for the Heir general which was the Daughter Answ Admit that Case to be Law yet the Iudges there differed in their Arguments 'T is not like this at Bar for that Case was not upon a Covenant to stand seised but upon a Deed indented and so a Conveyance at the Common Law But for an Authority in the point the Case of Pybus and Mitford was cited and relied on which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief Iustice Rainsford and Wild but Iustice Twisden was of a contrary Opinion Serjeant Stroud who argued on the other side made three Points 1. Whether this Limitation be good in its creation 2. If the Estate Tail be well executed in Thomas the Covenantor 3. If it be good and well executed whether when Edward died without Issue the whole Estate Tail was not spent 1. And as to the first Point he held that this Limitation to the Heirs Males of Thomas was void in the creation because a Man cannot make himself or his own right Heir a Purchasor unless he will part with the whole Estate in Fee Dyer 309 b. If A. being seised in Fee makes a Lease for Life to B. the Remainder to himself for years this Remainder is void so if it had been to himself for Life because he hath an Estate in Fee and he cannot reserve to himself a lesser Estate than he had before 42 Ass 2. If I give Lands to A. for Life the Remainder to my self for Life the Remainder in Fee to B after the death of A. in this Case B. shall enter for the Remainder to me was void 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'T is true these Cases are put at the Common Law but the Statute of Vses makes no alteration for according to the Rules laid down in Chudleigh's Case by my Lord Chief Iustice Popham 1 Co. 138. 1. Vses are odious and so the Law will not favour them 2. A Rule at Common Law shall not be broke to vest an Vse and the Vses here cannot vest without breaking of a Rule in Law 3. Vses are raised so privately that he who takes them may not know when they vest and for that reason they are not to be favoured 4. The Statute annexes both the Possession and the Vse together as they vest and divest both together Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point The Estate is not executed in Thomas and therefore William cannot take it by descent Heirs of his Body or Heirs Male are good Words of Limitation to take by Purchase from a Stranger but not from an Ancestor for there he shall take by descent and for this there is an Authority Co. Lit. 26. b. John had Issue by his Wife Roberga Robert and Mawd John dies Michael gave Lands to Roberga and to the Heirs of her Husband on her Body begotten Roberga in this Case had but an Estate for Life for the Fee Tail vested in Robert and when he died without Issue his Sister Maud was Tenant in Tail per formam Doni and in a Formedon she counted as Heir to Robert which she was not neither was she Heir to her Father at the time of the Gift yet it was held good for the Words Viz. Heirs of the Body of the Father were Words of Purchase in this Case If therefore no Vse for Life vested in Thomas then William cannot take by descent Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case cited in Hob. 151. 3. To the third Point Admitting both the former to be against him yet since Edward is dead without Issue the Estate Tail is spent But the whole Court were of Opinion Judgment That William should Inherit this Land in question for though at the Common Law a Man cannot be Donor and Donee without he part with the whole Estate yet 't is otherwise upon a Covenant to stand seised to Vses And if any other Construction should be made
Estate for years and so having no Freehold the Contingent Remainder could not be supported that Mary could not take by way of Executory Devise because Robert was living when his Son Benjamin dyed within Age that therefore 't is quasi a Condition precedent Grant's Case 10 Co. cited in Lampet's Case 1 Leon. 101. There is a difference between Boraston's Case and this at the Barr for that was a Devise to Executors till Hugh shall attain his Age of 21 years and the mean Profits in the mean time to be applyed by them for payment of the Testators Debts and because he might have computed how long it would be before his Debts could be paid therefore it was adjudged that after the death of Hugh within Age the Executors should continue in possession till Hugh might have attained his full Age had he lived and so a present Devise to them But here the Devise is generally till Benjamin Wharton shall attain his Age of 21 years so that nothing vested in him until that time and he dying before then the Estate shall descend to the general Heir who is the Plaintiff 2. Admitting this should be taken as an executory Devise there must be some person capable to take when the Contingency happens and there was no such person in this Case for Robert was alive when Benjamin dyed and Mary could not then take as Heir of his Body for Nemo est haeres viventis like the Case of 2 Cro. 590. Vaugh. 272. Pell and Brown viz. Brown had Issue William and Thomas he devises Land to his youngest Son Thomas and his Heirs and if he dye living William then to William and his Heirs Thomas did dye without Issue living William and it was adjudged that if those Words Living William had been left out of the Will Thomas would have a Fee Tail which he might have docked by a Common Recovery but by reason of those Words he had only a limited Fee because the Words viz. If he dyed without Issue are not indefinite to create a Tail but are restrained to his dying without Issue Living William which is a limited Fee and his Estate being determined William then had a Fee but if he had died before the Contingency happened viz. in the Life time of Thomas and then Thomas had dyed without Issue the Heirs of William would not have an Estate in Fée for the Reasons aforesaid If therefore nothing vested in Benjamin Wharton nor in Mary his Sister then the Land descends to Augustine Smith as Heir at Law to Elizabeth who was Heir to the Testator and so the Plaintiff hath a good Title Ex parte Def. Newdigate Serjeant contra Here is only an Estate for years in the Sister of the Testator and an Estate in Fee presently vested in Benjamin Wharton and he relyed upon Boraston's Case where the Father having Issue Humfry and Henry devised to his Executors till Hugh his Grandson the Son of Henry should be of Age and then to him in Fée it was there adjudged that the Executors had a Term till Hugh might have attained his full Age and that though he dyed at the Age of nine years yet the Remainder did immediately vest in him in possession upon the death of his Grandfather and that by his dying without Issue the Lands did descend to his Brother So here the Fee descends to Benjamin Wharton in possession and he dying without Issue and within Age the Land shall then descend to his Sister and Heir The like Iudgment was given in the Case of Taylor and Wharton about 12 years since and in Dyer 124. a. A Devise to his Wife till his Son shall be of the Age of 24 years then to the Son in Fee and if he die before 24 years without Issue then to the Wife for Life the Remainder to A. c. The Testator dyed 2 Leon. 11. pl. 16. Dyer 354. a. it was adjudged that the Son had a Fee simple presently for an Estate tail he could not have till he was 24 years old and after the death of his Father there was no particular Estate to support that Estate in the Remainder till he should come to the Age of 24 years so that he took by descent immediately So here a Feé vested in Benjamin presently and he being dead within Age Mary may take as Heir however when she is of Age she shall take as Heir of the Body of Robert by way of executory Devise arising out of the Estate of the Devisor Stiles 240. Owen 148. which needs no particular Estate to support it as in case of a Contingent Remainder for before Mary was of Age Robert her Father was dead and so she might well take Trin. 19 Car. 2. in B. R. Snow versus Cutler Rot. 1704. North Chief Iustice Curia Favourable distinctions have béen always admitted to supply the meaning of Men in their last Wills and therefore a Devise to A. till he be of Age then to B. and his Heirs this is an Estate for years in A. with a Remainder in Feé to B And if such a Devise to A. who is also made Executor or for payment of Debts it shall be for a certain Term of years viz. for so long as according to computation he might have attained that Age had he lived Contingent Remainders are at the Common Law and arise upon Conveyances as well as Wills one may limit an Estate to A. the Remainder to another and so it may be by Devise if the intent of the Parties will have it so But as at the Common Law all Contingent Remainders shall not be good so in Wills no such latitude is given as if none could be bad they are subject to the same Fate in Wills as in Conveyances In this Case Elizabeth had a Term till Benjamin Wharton be of Age for she is Executrix she was likewise Heir at Law to the Devisor and this Land had gone to her had it not béen for this Will so that 't is plain the Testator never intended that a Fee-simple should vest in her but somewhere else for he could never intend the Descent of the Inheritance to that person to whom he had devised the Term. It has beén argued that Mary is Heir at Law to Benjamin as well as Heir of the Body of Robert and so if she can take either way 't is good but to make her Heir to Benjamin 't is necessary that the Estate vest in him before he comes to 21 years and for that Boraston's Case was much relyed on which was also said not to differ from this at the Barr that an Estate passes to Benjamin Wharton in praesenti and that there was no Incapacity for Mary to take by way of Executory Devise as was urged on the other side and therefore why should she not take by way of Executory Devise as Heir of the Body of her Father or at least as Heir of Benjamin her Brother An Executory Devise needs no
and takes notice that this Writ is not returnable into that Court from Wales and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief Iustice there and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ all which had beén in vain if the Capias might go into Wales before the making this Act. Answ But that is an original Writ and so comes not up to this Case Wyndham Iustice agreed in omnibus and said that the Statute of 1 Ed. 6. was very needful for if a Man should be outlawed if the Process should be sent to the Sheriff of the next adjoining County in England he could not have any notice that he was outlawed and so could not tell when oulawed or at whose Suit Vaughan late Lord Chief Iustice held strongly Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him and of the same Opinion was Iustice Twisden Williamson versus Hancock Collateral Warranty Mod. Rep. 192. A Special Verdict was found in an Ejectment where the Case was Richard Lock the Father was Tenant for Life with Remainder in Tail to Richard his Son Remainder to the right Heirs of the Father who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé they by Bargain and Sale convey their Estate to the Defendant The Son in his Fathers life time before the Warranty attached comes of full age the Father dies The Question was whether the Sons Entry was barred by this collateral Warranty thus discended And the thrée Iustices absente North Chief Iustice were clear of Opinion that the collateral Waranty was a barr to the Son and so Iudgment was given for the Defendant Ellis Iustice held that his Entry is taken away for in every Warranty two things are implied a Voucher and Rebutter he that comes in by Voucher calleth the person into Court who is bound in the Warranty to defend his Right or yield him other Land in recompence and must come in by Privity but if a Man have the Estate though he comes in the Post he may rebut that is he may repel the Action of the Heir by the Warranty of his Ancestor without shewing how the Estate came to him Fitzh Nat. Br. 135. In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without shewing how J. S. came by his Estate is good Object It was objected by Serjeant Maynard that no person can take advantage of a Warranty who comes in by way of use as in this Case Answ But 't is expresly resolved otherwise in Lincoln Colledge Case 3 Co. 62. b. and the Prinns in this Case came in by Limitation and Act of the Party and the Defendant who hath the Reversion likewise by Limitation of Vse though he be in the Post shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court that he who comes in by way of use may rebut and Iustice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln Colledge Case to be Law It was formerly objected by the Lord Chief Iustice Vaughan that this Warranty goes only to the Heirs not to the Assigns and here the Estate was conveyed by the two Prinns before the Warranty attached Answ But when the Estate passeth the Warranty and Covenant followeth and the Assignée shall have the benefit thereof though not named and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs the Assigneé though not named shall Rebutt but he cannot Vouch. So if A. enfeoff B. with Warranty and B. enfeoff C. without Déed C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned In this Case though the Warranty did not attach before the Estate in the Land was transferred yet if it attach afterwards 't is well enough and he who hath the Possession shall Rebutt the Demandant without shewing how he came by the Possession If a Warranty be to one and his Heirs without the word Assigns the Assignée indeéd cannot Vouch but he may * 1 Inst 265. a 384. Rebutt for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law But 't is otherwise of a Condition not to Vouch for in such case you may Rebutt 'T is true it hath béen an Opinion that he who claimeth above the Warranty if it be not attached cannot take benefit of it by way of Voucher or Rebbutter as if Tenant in Dower maketh a Feoffment to a Villain with Warranty and the Lord entreth upon him before the descent of the Warranty the Villain can never take advantage of this Warranty by way of Rebutter because the Lords Title is paramount the Warranty and he cometh not under his Estate to whom the Warranty was made If Land be given to two Brothers in Feé with Warranty to the eldest and his Heirs the eldest dies without Issue the Survivor shall not take benefit by this Warranty for the reason aforesaid But in the Case at Barr the Warranty being collateral and annexed to the Land goeth with the Estate and whilst that continues the Party may Vouch or Rebutt so here the Defendant though he be only Tenant at Will for the Estate is in the Bargainors and their Heirs there being no Execucution of it either by Livery or Enrolment yet he may Rebutt Iustice Atkins was of the same Opinion that by this collateral Warranty the Entry of the Lessor of the Plaintiff was taken away for 't is the nature of a collateral Warranty to be a Barr a * Jones Rep. 199 200. 1 Inst 366 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it it extinguishes a Right 't is annexed to the Land and runs with it If then a collateral Warranty be of this nature 't is against all reason that he who is thus bound should make any Title to the Land but 't is very reasonable that he who comes in quasi by that Estate should defend his Title The Opinions of Iustice Jones and Iustice Crook in the Case of * Cro. Car. 368. Spirt and Bence has occasioned this doubt The Case was shortly thus Cann being seised in Fée had thrée Sons Thomas Francis and Henry and devised Lands to the two eldest in Tail and to Henry the Meadow called Warhay which was the Land in question but doth not limit what Estate he should have in it then he adds these Words viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs and for want of Heirs of his * Notwithstanding the word Body he had but an Estate for Life in Warhay for that
to such person or persons and to such use and uses intents and purposes as she should think fit and that the Plaintiff should assent thereunto and not impeach the same in Law or Equity The Marriage shortly afterwards took effect and Philippa by Will in Writing gave all her Estate away in Legacies and Charitable Vses and she devised to the Plaintiff 20 l. to buy him Mourning and gave to Sir William Turner the Defendant 100 l. and made him Executor and she devised to Mr. Hays and to Mr. Grace 20 l. apiece whom she made Overseers of her Will and died There was neither Date or Witnesses to this Will save only the Month and Year of our Lord therein mentioned and that this Will not being proved in the Spiritual Court the Plaintiff moved for a Prohibition and the Defendant took Issue upon the Suggestion In which Case these Points were resolved by the Court. Mod. Rep. 211. 1. If there be an Agreement before Marriage that the Wife may make a Will if she do so 't is a good Will unless the Husband disagreés and his Consent shall be implyed till the contrary appear And the Law is the same though he knew not when she made the Will which when made 't is in this Case as in others ambulatory till the death of the Wife and his dissent thereunto but if after her death he doth consent he can never afterwards dissent for then he might do it backwards and forwards in infinitum 2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dissent 3. If the Husband consent that his Wife shall make a Will and accordingly she doth make such a Will and dieth and if after her death he comes to the Executor named in the Will and seems to approve her choice by saying He is glad that she had appointed so worthy a Person and seemed to be satisfied in the main with the Will and recommended a Coffin-maker to the Executor and a Goldsmith for making the Rings and a Herald Painter for making the Escutcheons this is a good assent and makes it a good Will though the Husband when he sees and reads the Will being thereat displeased opposes the Probate in the Spiritual Court by entring Caveats and the like and such disagreément after the former assent will not hurt the Will because such assent is good in Law though he know not the particular Bequests in the Will 4. When there is an express Agreement or Consent that a Woman may make a Will a little proof will be sufficient to make out the continuance of that Consent after her death and it will be needful on the other side to prove a Disagreement made in a solemn manner and those things which prove a dissatisfaction on the Husbands part may not prove a disagreement because the one is to be more formal than the other for if the Husband should say that he hoped to set aside the Will or by a Suit or otherwise to bring the Executor to terms this is not a dissent Sir Robert Howard versus the Queens Trustees and the Attorney General In the Dutchy UPON a Bill exhibited in the Dutchy Court Jones 126. The Question was whether the Stewardship of a Mannor was grantable in Reversion or not The Attorny General and the Queens Council Butler and Hanmore held that it was not But Serjeant Pemberton and Mr. Thursby would have argued to the contrary for they said it might be granted in Fée or for any less Estate and so in reversion for it may be executed by Deputy But this Question arising upon a Plea and Demurrer the Debate thereof was respited till the hearing of the Cause which was the usual Practice in Chancery as North Chief Iustice who assisted the Chancellor of the Dutchy informed the Court. And he said that in all Courts of Equity the usual course was when a Bill is exhibited to have Mony decreed due on a Bond upon a Suggestion that the Bond is lost there must be Oath made of it for otherwise the Cause is properly triable at the Common Law and such course is to be observed in all the like Cases where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity but if the Case be proper in its own nature for a Court of Conscience and in case where the Déed is not lost the Remedy desired in Chancery could not be obtained upon a Trial at Law there though it be alledged that the Déed is lost Oath need not be made of it as if there be a Déed in which there is a Covenant for farther Assurance and the Party comes in Equity and prays the thing to be done in specie there is no need of an Oath of the loss of such Deed because if it 't is not lost the Party could not at Law have the thing for which he prayed Relief for he could only recover Damages Note also That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption if the Mortgagor be foreclosed he pays no Costs and though it was urged for him that he should pay no Costs in this Case because the Mortgagee was dead and the Heir within Age and the Mony could not safely be paid without a Decree yet it being necessary for him to come into Equity he must pay for that necessity Note also the difference between a Mortgage in Fee and for Years for if 't is in Fee the Mortgagor cannot have a Reconveyance upon payment of the Mony till the Heir comes of Age. It was agreed in this Case by the Court that if there be Tenant for Life Remainder in Fee and they joyn in a Deed purporting an absolute Sale if it be proved to be but a Mortgage he shall have his Estate for Life again paying pro rata and according to his Estate and so it shall be in the Case between Tenant in Dower and the Heir Loyd versus Langford Lessee for Years makes an Assignment of his Term where Debt lies upon the Contract and where not IN a special Verdict the Case was Viz. A. being Tenant in Fee of Lands demised the same to B. for seven years B. re-demises the same Lands to A. for the said Term of seven years reserving 20 l. Rent per Annum A. dyes his Wife enters as Guardian to the Heir of A. her Son and receives the Profits B. brings Debt against her as Executrix de son tort in the debet and detinet and whether this Action would lie or not was the Question Serjeant Baldwyn who argued for the Plaintiff held that it did lie for though the Rent in this Case reserved did not attend the Reversion because the Lessee had assigned over all his Term yet an Action of Debt will lie for that Rent upon the Contract Cro. Jac. 487.
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
Trotter versus Blake In Scaccario THIS was the Case of my Lord Hollis upon a Tryal at the Barr in the Exchequer in an Ejectione firmae Ejectment will not lie for a Forfeiture where the Tenant refused to pay a Fine being doubtful wherein the Case was this viz. The Lord Hollis was seised of the Mannor of Aldenham in the County of Hartford in Fee and the Lands in question were held of the said Lord by Copy of Court Roll and are parcel of the aforesaid Mannor That the Defendant was admitted Tenant and a Fine of 8 l. imposed upon him for such admittance payable at three distinct payments that the 8 l. was personally demanded of him by the Lord's Steward and he refused payment whereupon the Lord enters and seises the Estate for a Forfeiture which he would not have insisted on but that the obstinacy of the Defendant made it necessary for him to assert his Title and Right Mr. Walker the Lord Hollis his Steward being sworn gave Evidence that a Fine of 8 l. was set upon the Defendant when he was admitted and that the Lands to which he was admitted were usually lett for 7 l. per annum so that the Fine was but a little more than a years value That he himself demanded the 8 l. of the Defendant being a Seafaring-man who refused to pay it That he knew the Defendant to be the same person who was admitted to this Copyhold That the Demand was made at the Stewards Chamber in Staple Inn and because it was payable at three several days he then demanded of him only 2 l. 13 s. 4 d. as a third part of the 8 l. and that he did enter upon the 25th day of November last for Non-payment of the said 2 l. 13 s. 4 d. The Council for the Defendant insisted that the Steward ought to produce an Authority in Writing given to him by the Lord to make this Demand and Entry upon refusal Ex parte Def. for the Lords owning it afterwards will not make a Forfeiture But the Court held clearly that there was no need of an express Authority in Writing Curia and that it was not necessary for the Steward to make a Precept for the seizure but that it was necessary that the Demand should be personal The Reason why the Defendant refused to pay this Fine was because he said that by a Decree and Survey made of this Mannor in the Reign of Queen Elizabeth the Fine to be paid for this Copyhold was setled and it was but 3 l. and no more And Sir Francis Winnington Solicitor General said for the Defendant that the Case was very penal on his side but that he would make it clear that there was no colour for the bringing of this Action either as to the Matter or the Form He said that the Mannor of Aldenham had not been long in this noble Lord he came in as Purchaser or a Mortgagee under the Family of the Harvies whose Inheritance it was anciently and there has been some doubt whilst it was in their possession what Fines were customary to be paid upon Descents and Alienations but that is now settled and the Defendant was in the Case of a descent for which the Fine is not to be arbitrary at the Will of the Lord but is reduced to a certainty in Queen Elizabeth's Reign by Consent and Agreement between the Lord and Tenants and that a Survey was then made by vertue of a Commission directed to some Men of Credit and Worth in those days who were impowred to set forth the quantity of Land and the value thereof which was done accordingly and it was then agreed that a year and an halfs value in case of a Descent and two years value in case of an Alienation should be paid as a Fine to the Lord and the proportion of the value was then computed by the Commissioners and decreed by the Court of Chancery to be binding to the Lords and Tenants for ever The Question now is how this years value shall be computed the Lord would have it according to the improved value the Tenant will pay according as it was rated in Queen Elizabeth's time by those Commissioners Now if this Land had decayed in value the Tenant had still been obliged to pay a Fine according to the valuation of that time and if so it would be very unreasonable to make him pay for his Industry and Improvement of the Land now it is raised in value because that was done by his Labour and at his expence so that the doubt being what Fine shall be paid an Ejectione firmae will not lie because the Matter is doubtful and the Law gives the Tenant Liberty to contest it with the Lord and will never let him be under the peril of a Forfeiture because he will not comply with the Lord to give up his Right without Law But the Lord hath another and a more proper remedy for he may bring an Action of Debt for the Fine thus imposed which will try the Right and is not so penal to the Copyholder which Point was lately resolved And that if a Copyholder had a probable cause to induce him to believe that he ought not to pay the Fine demanded let the Right be as it would yet no Ejectment will lie for it must be only in a plain Case that the Lord can enter for a Forfeiture For no Man forfeits his Estate but by a wilful default in himself such a Forfeiture as is done and presumed to be committed upon his own knowledge but want of understanding cannot be made a wilful neglect 'T is true the Decree in Chancery made here cannot vary the Law but it may be Evidence of the Fact for prima facie it shall be intended that such values have been paid time out of mind because the Court have so decreed but then when the Fine was declared to be certain a doubt did arise how the years value shall be reckoned which has been setled also by another Decree and from that time all the respective Lords of this Mannour have taken Fines according to that value which is mentioned in the Survey and this Lord himself hath taken Fines in pursuance of the same so that 't is clear the Fine cannot be Arbitrary but be it so or not 't is not material to this purpose because the Tenant hath a good and colourable ground to insist upon the Decree and Survey and consequently there is no wilful Forfeiture The Lord Chief Baron agreed That if it be a doubt and the Tenant gives a probable Reason to make it appear that no more is due than what he is ready to pay 't is no Forfeiture but the Law in general presumes that the Fine is incertain if the contrary is not shewed now if the Tenants doubt did arise upon the equitableness of the Fine in such case if he refuse to pay 't is a Forfeiture but here it was whether it shall be paid
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
Remainder for Life surrenders the Copyhold to the Lord pro tempore who was a Disseisor only of the Mannor ut inde faciat voluntatem suam the Disseisor grants it to a Stranger for Life the Disseiseé enters the Stranger dies and whether the Disseisor or he in the Remainder for Life who made the Surrender had the better Title was the Question So that the Point was Cro. Car. 205. 2 Sid. 151. 1 Roll. Abr. 540. whether this Surrender by a Copy-holder in Remainder into the Hands of the Disseisor be good and shall so extinguish the Right to the Copyhold that it shall not be revived by the Entry of the Disseisee into the said Mannor It was said that in some Cases a Surrender into the Hands of a Disseisor was good that is when the Surrender is made to him to the use of another and his Heirs and he admits him there the person admitted claims not under the Lord but under the Copyholder who made the Surrender 1 Inst 59. b. for nothing passes to the Lord but only to serve the Limitation of the Vse 1 Rol. Abr. 503. litt Q. pl. 1. 4 Co. 24. But in this Case the Grantée must claim from the Lord himself and not from the Copyholder because he had but an Estate for his own Life with which he wholly departed when he made the Surrender to the use of the Disseisor himself In Trinity-Term following this Case was argued by Serjeant Maynard on the other side There are two sorts of Surrenders of a Copyhold 1. Proper 2. Formal and Ceremonious If a Surrender be to the Lord to the use of another this is no proper Surrender for no Estate passeth to the Lord he being only the Instrument to convey it to the Surrendree and this is but nominal But here the Surrender was to the use of the Lord himself which is a proper Surrender and in such Case 't is necessary that the Lord have a Reversion for one Estate is to be turned into the other and there must be a continuing of Estates But Dominus pro tempore who is a Disseisor hath no such Estate Executor de son tort shall sue but he cannot retain If therefore he is not capable to take a Surrender to himself unless he hath such an Estate then here is no Disseisin of the Copyhold 't is only of the Mannor and then no greater Interest passeth to the Disseisor than to a Stranger whilst the true Lord had been in possession for so he is quoad this Copyhold if he was not disseised of it for if the Copyholder had the possession there could be then no Disseisin if he was out of possession then he had nothing but a Right and that cannot be surrendred for it must be an Estate as if a Lessee for years keep possession 't is the possession of the Lord and the Law is the same in case of a Copyhold 2 Co. Bettisworth's Case Piggot and Lord Salisbury's Case Ante The true Owner makes a Feoffment in Fee if Lessee for years continue in possession no Fréehold passeth If Tenant at Will of parcel of the Mannor be in possession that prevents a Disseisin of the Freehold much more in Case of a Copyhold Lessee for years the Remainder to B. for Life the Remainder to C. in Fee C. by Deed makes a Feoffment to B. and Livery c. 't is a void Conveyance because the possession of Lessee for years is the possession of him in the Remainder for Life and as long as the Lessee for years is in the possession the Owner of the Inheritance cannot be out Lit. 324. cap. Attornment North Chief Iustice and Wyndham enclined that the Surrender was not good for it was a material distinction where the Surrender was made to the use of a Stranger and where it terminates in the Lord that a Surrender made by a Copyholder for Life could not transfer but extinguish his Right for he could not give a greater Estate than he had that there must be a Reversion in the Lord to make a Surrender to him to be good and that if a Copyholder keeps in possession there could be no Disseisin But Iustice Atkins contra That this Surrender must have operation to extinguish his Right for though a Copyholder for Life cannot surrender for longer time than his own Life yet if a Surrender be made of such a Copyhold to an Vse 't is good and works by way of Extinguishment of his Right though the Vse be void and if a Copyholder of Inheritance surrender to a Disseisor ut faciat voluntatem who regrants to the said Copyholder an Estate in Tail according to the Surrender this shall bind the Disseisee 1 Roll. Abridg. 503. pl. 3. Tamen quaere The Copyholder in this Case might have sold his Estate to the Disseisor and it had béen good and though the Acts of a Disseisor shall not prejudice the Disseisee yet he could see no reason why the Copyholder who had parted with his Estate should have it again Taylor versus Biddal SPecial Verdict in Ejectment The Case was thus Devise till he be of Age then to him in Fee he dyed within Age yet a Fee vested in him presently Richard Ben was seised in Fee of the Lands in question and had a Sister named Elizabeth formerly married to one Smith by whom she had Issue Augustine Smith now Lessor of the Plaintiff and she afterwards married one Robert Wharton by whom she had Issue a Son called Benjamin and a Daughter called Mary the now Defendant Richard Ben devised these Lands to Elizabeth his Sister and Heir for so long time and until her Son Benjamin Wharton should attain his full Age of 21 years and after he shall have attained his said Age then to the said Benjamin and his Heirs for ever and if he dye before his Age of 21 years then to the Heirs of the Body of Robert Wharton and to their Heirs for ever as they should attain their respective Ages of 21 years Richard the Testator dies Benjamin dyed before he came to the Age of 21 years living Roberr Wharton his Father afterwards Robert dyed And the Question was Whether the Lessor of the Plaintiff as Heir to Elizabeth or Mary either as Heir to her Brother Benjamin or as Heir of the Body of Robert should have this Land This Case was argued by Serjeant Pemberton this Term Ex parte Quer. and by Serjeant Maynard in Easter-Term following for the Plaintiff and they held that Augustine Smith the Lessor of the Plaintiff should have this Land because no Estate vested in Benjamin Wharton he dying before he had attained his Age of 21 years and the Testator had declared that his Sister should have it till that time and then and not before he was to have it so that if he never attained that Age as in this Case he did not the Land shall descend to the Heir of the Testator that Elizabeth had only an
Nomen collectivum and if twenty Breaches had been assigned he still counts de placito quod teneat ei Conventionem inter eos fact ' And of that Opinion was the Court and that the Breach being of all three Covenants the Recovery in one would be a good Barr in any Action afterwards to be brought upon either of those Covenants Parrington versus Lee. INdebitatus Assumpsit Limitation of personal Actions only extends to accompt between Merchants Mod. Rep. 268. 2 Sand. 125 127. Pl. Com. 54. for Mony had and received to the use of the Plaintiff a quantum meruit for Wares sold and an Insimul computasset c. The Defendant pleads the Statute of Limitations viz. non assumpsit infra sex annos The Plaintiff replyed that this Action was grounded on the Trade of Merchants and brought against the Defendant as his Factor c. The Defendant rejoyns that this was not an Action of Accompt and the Plaintiff demurred for that this Statute was made in restraint of the Common Law and therefore is not to be favoured or extended by Equity but to be taken strictly and that if a Man hath a double remedy he may take which he pleaseth and here the Plaintiff might have brought an Action of Accompt or an Action on the Case grounded on an Accompt But Baldwyn Serjeant insisted that the Declaration was not full enough for the Plaintiff ought to set forth that the Action did concern Merchants Accompts and that the Replication did not help it The Court were of another Opinion for that it need not be so set forth in the Declaration because he could not tell what the Defendant would plead so that supposing him to be within the Saving of the Act his Replication is good and 't is the usual way of Pleading and no departure because the Plea of the Defendant gives him occasion thus to reply But the Saving extends only to Accompts between Merchants their Factors and Servants and an Action on the Case will not lie against a Bayliff or Factor where Allowances and Deductions are to be made unless the Accompt be adjusted and stated as it was resolved in Sir Paul Neals Case against his Bayliff Where the Accompt is once stated as it was here the Plaintiff must bring his Action within six years but if it be adjusted and a following Accompt is added in such case the Plaintiff shall not be barred by the Statute Mod. Rep. 71. because 't is a running Accompt but if he should not be barred here then the Exception would extend to all Actions between Merchants and their Factors as well as to Actions of Accompt which was never intended and therefore this Plea is good and the Saving extends only to Actions of Accompt whereupon Iudgment was given for the Defendant Astry versus Ballard In Banco Regis Principals in Execution the Bail are lyable 1 Ventris 315 THE Defendant became Bail for six persons against whom the Plaintiff got a Iudgment and two were put in Execution the Plaintiff afterwards brought a Scire Facias against the Bail who pleaded that two of the Principals were taken in Execution before the Scire Facias brought and whether the Bail was not discharged thereby was now the Question It was agreed that if five had surrendred themselves after Iudgment 2 Cro. 320. 1 Roll. 897. yet the Bail had been lyable but are not so if the Plaintiff as in this Case hath once made his Election by suing out Execution against the Principals and thereupon two are taken and in Custody Before the Return of the second Scire Facias they have Liberty by the Law to bring in the Principals but the Plaintiff having taken out Execution he hath made it now impossible for the Bail to bring them in to render themselves But Sypmson argued that the Bail was not discharged for he ought to bring in the other four or else he hath not performed his Recognizance and so it was adjudged by the Court Sid. 107. for the Law expects a compleat satisfaction The like Resolution was in this Court between Orlibear and Norris Steed versus Perryer IN a Special Verdict in Ejectment the Case was this Republication makes it a new Will viz. Robert Perryer being seised in Fee of the Lands in question had Issue two Sons William his eldest and Robert his youngest Son and being so seised he devises these Lands to his youngest Son Robert and his Heirs Robert the Devisee dies in the Life time of his Father Jones 135. 1 Ventris 341 Mod. Rep. 267. and leaves Issue a Son named Robert who had a Legacy devised to him by the same Will The Grandfather afterwards annexed a Codicil to his Will which was agreed to be a Republication and then he expresly publishes the Will de novo and declared that his Grandson Robert should have the Land as his Son Robert should have enjoyed it had he lived And whether the Grandson or the Heir at Law had the better Title was the Question Pemberton and Maynard Serjeants argued for the Title of the Plaintiff who was Heir at Law That if a Devise be to S. and his Heirs if S. dye living the Devisor the Heir shall take nothing because no Estate vested in his Ancestor so if a Devise be to the Heirs of S. after his decease the Heir shall take by Purchase for he cannot take as Heir for the Reason aforesaid By the death of Robert the Son the Devise to him and his Heirs was void and the annexing a Codicile and Republication of the Will cannot make that good which was void before if it cannot make it good then the Heir cannot take by Purchase and by descent he cannot take for his Ancestor had no Estate and therefore he shall have none Besides this is not a good Will within the Statute which requires it to be in Writing Now the Devise by the written Will was to the Son and the Republication to the Grandson was by Words and not in Writing so that if he cannot take by the Words of the Will he is remediless and that he cannot take as Heir because his Ancestor dyed in the Life time of the Testator Moor 353. Cro. Eliz. 243. Cro. Eliz. 422. Moor 353 404. Skipwith and Barrel on the other side That the new Publication makes it good for it makes a new Will in Writing and it shall take according to the Publication which makes it have the effect of a new Will 'T is true Deeds shall not be extended father than the intent and meaning of the Parties at the time of the Delivery but Wills are to be expounded by another Rule therefore though by the death of the Son the Will was void yet by the Republication it hath a new Life 1 Roll. Abr. 618. 5 Co. 68. 8 Co. 125. The Chief Justice Wyndham and Atkins Iustices were of Opinion for the Grandson against the Heir at Law viz. That the Republication made it a
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must
Case there are general Words and the same as in * 10 Co. 63. Postea Atturney General against Turner Whistler's Case yet this differs from that for here 't is granted adeo plene as the Abbot had it by those Words it doth not pass for then it was appendant but now it is in gross and if the King intended to pass an Advowson as appendant when 't is in gross the Grant is void Hob. 303. In Whistler's Case there are the Words Adeo plene as in this and the Advowson was appendant still but yet there are general Words here that will pass it Adeo plene as the Archbishop had it will not serve because he never had it neither will Adeo plene as the Abbot had it pass this Advowson because he had it in gross but Adeo plene as the King had it by any ways or means whatsoever those general Words are sufficient to pass it The King grants the Mannor and the Advowson of the Church of Laburn which is certain and by particular Name part of what follows as spectan ' to the Archbishop is false for it never belonged to him because it was excepted in the Grant of the Mannor to him but the first discription being full and certain the falsity of the other shall not avoid the Grant especially when the King is not deceived in his Title nor in the Value and when there is a certainty of the thing granted Some false suggestions may make his Grant void as if he grant the Mannor of D. reciting that it came to him by Attainder when it came by Purchase Hob. 229. Lane 11. But if the mis-recital concerns not the Kings Title or Profit it doth not vitiate the Grant 10 H. 2. 4. Sir John Lestrange's Case where the King by Office found had the Wardship of a Mannor and makes a Grant thereof reciting Quod quidem Manerium in manus nostras seisit̄ c. which was not true yet the Grant was held good because it was only to make that certain which was certain enough before by a particular description So in Legat's Case 10 Co. 113. wherein is cited the Case of the Earl of Rutland and Markham to whom the Queén had granted the Office of Parkership c. quod quidem Officium the late Earl of Rutland habuit when in truth the Earl never had it before yet the Grant was held good So also if he grants for and in consideration of Service done or Mony paid if false it avoids not the Grant because such Considerations when past are not material whether they are true or false Cro. Jac. 34. If the King let the Mannor of D. of the value of 4 l. per annum if it be more it is ill but if he let it by a particular Name and then adds Quod quidem Manerium is of such a value 't is good because the * 2 Cro. 34. Quod quidem is but the addition of another certainty so here the Advowson is granted by special and express Name but the Clause that follows Dudum spectan̄ to the Archbishop implies a mistake and had there beén no more in the Case this falsity would never have avoided the Grant But when the King had enumerated several ways by which he thought he might be intitled at last as a proof that he was resolved to pass it he adds these Words viz. as it is in our hands by any way or means whatsoever Atkins Iustice of the same Opinion Where the thing is not granted by an express Name there if a falsity is in the description of that thing the Grant is void even in the case of a common person as if he grant Lands lately let to D. in such a Parish and the Lands were not let to D. were also in another Parish the Grant is void because the Lands are not particularly named Anders 148. Heywood's Case A fortiori in the Case of the King as if he grant omnia illa tenementa situata in Wells when in truth the Lands did not lie there for this reason the Grant was void because it was general and yet restrained to a particular Town and the Pronoun illa goes through the whole sentence But if a thing is granted by an express Name though there is a Falsity in the description yet in the Case of a common person 't is good As when the Subchantor and Vicars Choral of Lichfield made a Grant to Humfrey Peto of 78 Acres of Glebe and of their Tythes Predial and Personal and also of the Tythe of the Glebe All which late were in the occupation of Margaret Peto which was not true yet the Grant was adjudged good for the Words All which are not Words of restriction unless when the Clause is general and the Sentence entire but not when it is distinct Cro. Car. 548. But in the Case of the King if there is a falsity by which the King hath a prejudice and a Falsity upon the suggestion of the Party it will make the Grant void but every Falsity will not avoid his Grant if it be not to his prejudice But let the Falsity in this Case be what it will the Adeo plene as it is in our hands helps it and though it hath been objected that these Words will not help the Grant because nothing new is granted that being done before 't is true there is nothing new granted but that which was before was not well granted till this Clause came which supplies and amends the Falsity for now 't is apparent that the King intended to pass the Advowson as well as the Mannor and therefore at last grants it be his Title what it will In all Cases where the Kings Grant is void because of any mistake in his Title 't is to be intended the King would not make the Grant unless the Title were so as 't is recited but here 't is apparent the King resolved to grant it Judgment Wyndham Iustice agreéd and Iudgment was given accordingly Wilcox versus the Servant of Sir Fuller Skipwith Replevin Justification for an Herriot IN Replevin the Defendant justifies the taking of the Cattle for a Herriot which he alledges to be due upon every Alienation without notice The Plaintiff denies the Herriot to be due upon Alienation And thereupon Issue is joyned The Special Verdict finds the Tenure to be by Fealty and the Rent of 3 s. 1 d. though the Defendant in his Avowry had alledged the Rent to be 12 s. 4 d. and the Plaintiff in his Barr to the Avowry had confessed it to be so Suit of Court and an Herriot which was payable upon every Alienation with or without notice And whether upon this Special Verdict Iudgment should be given for the Plaintiff or the Avowant was the doubt Ex parte Def. Vpon the point of Pleading Serjeant Jones for the Defendant said it had béen objected that the Avowry was ill for ut Ballivus c. bene cogn̄ captionem in
Heir enters and claims generally it shall be intended as Heir and the words that he shall not molest by Suit or otherwise are to be intended occasione praemissorum 3dly There is no néed of Entry to avoid an Estate in case of a Limitation because thereby the Estate is determined without Entry or Claim and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it A. devises Land to B. and his Heirs and dies 't is in the Devisee immediately but indeed till Entry he cannot bring a possessory Action as Trespass c. Pl. Com. 412 413. 10 Co. 40. b. where a Possession vests without Entry a Reversion will vest without Claim Nota. Curtis versus Davenant Prohibition A Bishop cannot appoint Commissioners to tax the Parish for building or repairing a Church IN a Prohibition the Question was whether if a Church be out of repair or being so much out of order that it must be re-edified whether the Bishop of the Diocess may direct a Commission to impower Commissioners to tax and rate every Parishioner for the re-edifying thereof The Court did unanimously agree such Commissions were against Law and therefore granted a Prohibition to the Spiritual Court to stop a Suit there commenced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions It was agréed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures but they cannot appoint what Sums are to be paid for that purpose because the Churchwardens by the consent of the Parish are to settle that As if a Bridge be out of repair the Iustices of Peace cannot set Rates upon the persons that are to repair it but they must consent to it themselves These Parishioners here who contribute to the charge of repairing the Church may be spared but as for those who are obstinate and refuse to do it the Spiritual Court may proceed to Excommunication against them but there may be a Libel to pay the Rates set by the Church-wardens Nurse versus Yearworth in Cancellaria Bill in Cancellaria for the Assignment of a Term. RIchard Yearworth being seised of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct Afterward he makes his Will in writing having then no Issue but his Wife grossement enseint and thereby devises the same Land to the Heirs of his Body on the Body of his Wife begotten and for want of such Issue to the said Christopher the Defendant and his Heirs Richard dies and about a month after a Son is born the Son by vertue of this Devise enjoys the Land but when he attains his full age of one and twenty years he suffers a Common Recovery and afterwards devises the Land to the Complainant Nurse and dies The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him and whether he should have it assigned or not was the Question 1. It was pretended that an Estate in Fée being limited by the Will to Christopher who was Lessee for 99 years the Term is thereby drowned 2. It was objected that the Devise by Richard to the Infant in ventre la mere was void and then the Complainant who claimed by a Devise from the Posthumus could have no Title but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently But notwithstanding what was objected the Lord Keeper Finch decréed that the Lease which was in Trust should be assigned to the Complainant Nurse He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good so that the doubt arises upon the Statute of H. 8. Roll. Abr. tit Devise 609. lit H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur which enacts That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons for in this Case the Devisée not being in rerum naturâ in strictness of spéech is no person and therefore it hath beén taken that such a Devise is void Moor's Rep. and 't is left as a Quaere in the Lord Dyer 304. But in two Cases in the Common Pleas one in the time when the Lord Chief Iustice Hale was Iudge there the other in the Lord Chief Iustice Bridgman's time it hath been resolved that if there were sufficient and apt words to describe the Infant though in ventre sa mere the Devise might be good But in the King's Bench the Iudges since have been divided upon this Point that as the Law stands now adjudged this Devise in our Case seems not to be good But should the Case come now in question he said he was not sure that the Law would be so adjudged for 't is hard to disinherit an Heir for want of apt Words to describe him and 't is all the reason in the World that a Mans intent lying in extremis when most commonly he is destitute of Council should be favoured Whitrong versus Blaney Process into Wales THIS Term the Court delivered their Opinions in this Case North Chief Iustice who had heard no Arguments herein being absent The Case was this The Plaintiff upon a Iudgment in this Court sues out a Scire facias against the Heir and the Ter-tenants which was directed to a Sheriff of Wales the Defendant is returned Tertenant but he comes in and pleads Non tenure generally and traverses the Return the Plaintiff demurs Two Points were spoke to in the Case 1. Whether the Defendant can traverse the Sheriffs Return And all the three Iustices agreéd that he cannot 2. Whether a Scir̄ Fac̄ Ca. Sa. Fi. Fa. c. would lie into Wales on a Iudgment here at Westminster And they agréed it would well lie An Indictment may be removed 2 Cro. 484. Ellis Iustice agreéd If Iudgment be given in Wales it could not be removed into the Chancery by Certiorari and sent hither by Mittimus and then Execution taken out upon that Iudgment here because such Iudgments are to be executed in their proper Iurisdictions and such was the Resolution of the Iustices and Barons Cro. Car. 34. But on a Iudgment obtained here Execution may go into Wales No Execution can go into the Isle of Man because 't is no part of England but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case 2 Bulstr 156. it was held that such a * Het 20. 2 Cro. 484. The Opinion of Dodderidge Roll. 395. 2 Sand. 194. Twisden denied it Writ of Execution goes legally into Wales He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales
Defendant by the Steward of the Burrough of Southwark for that he refused to take the Oath and serve as a Scavenger in the said Burrough though duly Elected according to Custom there and upon nil debt pleaded the Iury found a special Verdict the substance of which was Viz. They find the Act of 14 Car. 2. cap. 2. And the Proviso therein which governed this Case viz. That all Streets and Lanes in London Westminster and the Liberties thereof shall be Paved as they have alwayes used to be Then follows another Clause by which it is Enacted That Scavengers shall be Chosen in the City of London and the Liberties thereof according to the Ancient Usage and Custom so likewise in the City of Westminster but nothing is therein mentioned of Southwark And in all other places a new form of choosing is prescribed Viz. In the other Parishes the Constables Church-Wardens c. shall meet in the Easter-Week and choose two Scavengers in every respective Parish so that the intent of the Act must be though Southwark is not named that still Scavengers shall be chosen there as formerly because London and the Liberties thereof are to follow their Ancient Custom in the choice of this Officer and Southwark is within the City Liberties But whether the Custom of choosing of him was not taken away by this Statute and so the Fine not well Assessed was the Question Ex partte Quer. Baldwyn for the Plaintiffs argued That admitting in Southwark a Scavenger may be chosen according to the new form prescribed in the Act yet this Statute was only in the * Hob. 173. Dyer 341. b. Affirmative and did not thereby take away the custom of choosing him at the Leet Like the Case in Dyer 50. An Act that the Youngest Son shall have an Appeal of the death of his Father Hob. 17. yet that doth not exclude the Eldest because 't is the Common Law and there are no words to restrain him In the 11 Co. 63. Doctor Foster's Case By the Statute of 35 Eliz. against Recusants which gives the Penalty of 20 l. ê“ Month against the Offender the 12 d. for the neglect of every Sunday given by a former * 1 Eliz. Statute is not taken away But where there is a Negative Clause in an Act of Parliament the Law is otherwise as an Act that the Sessions of the Peace shall be kept at Beaumarris tantum non alibi infra ComÌ„ c. and the Iustices kept it at another place and several were Indicted before them at that time but the Iustices were fined and all their proceedings held Coram non Judice by reason of the Negative Prohibition Dyer 135. 1 Inst Sect. 500. 2 Inst 68. By the Statute of Magna Charta cap. 34. a Woman shall bring no Appeal but for the death of her Husband which she might at Common Law before the making of this Statute if therefore she is Heir to her Father the Appeal which she might have brought for his death by these Negative words is taken away Ex parte Def. Barrell for the Defendant though this Law be in the Affirmative yet since it doth not prejudice any person neither can it be injurious if Scavengers are chosen as directed by the Act it shall be taken as a Negative Clause and for this many Instances may be given as the Statute for devising part of the Testators Land doth not take away the custom to devise the whole for that would be an apparent prejudice to the Parties but not so in this Case where 't is not found that the Lord of the Mannor sustains any loss for he is to have nothing when a Scavenger is chosen in the Leet nor are the Inhabitants prejudiced for by this New choosing their Streets shall be kept as clean as before The Form here established doth not consist with the Custom and so hath the Effect of a Negative Clause Hob. 298. It appears by the Scope of the Act That the intent of the Parliament was to take away those old Customs of choosing because the Customs are expressly saved in London and Westminster but in all other places a new way is appointed The pavement of the Streets in Southwark shall be as before but that Clause goes no farther and therefore concerns not the Case of a Scavenger whose duty is not to pave but cleanse the Streets And the words viz. Liberties of the City of London will not help because Southwark is not comprehended under them in that Clause no more than are the Lands which they have in Yorkshire for the word Liberties * Postea 48. there is taken for Limits and can admit of no other Construction Lastly that the Plaintiff cannot have Iudgment because he hath no alledged the Custom to be That the Steward may Fine in case of the refusal to take the Oath c. and Customs are to be taken stictly The Chief Iustice and Iustice Atkins said That 't is true Scavengers are under the power of the Court Leet by Custom and in case of refusal may be fined as well as an Ale-Taster But this Act of Parliament having taken notice that there were Scavengers before that time and Southwark being therein named as distinct from the Liberties of London for 't is provided That Westminster London and the Liberties thereof and Southwark are to have the Streets paved as before which doth not belong to the Office of a Scavenger and so that Clause in the Act concerns not this Case But where it Enacts That in London and Westminster Scavengers shall be chosen as before but in all other places appoints a new way this is as much as if it had said That Scavengers shall be chosen in every place as by the Act prescribed and no other way except in London and Westminster and so great is the inconsistency between the Custom and the Act that they cannot stand both together therefore though the Act is but temporary the Custom is suspended and though it may be some damage to the Lord to make such Construction yet that will not alter the Case for Law-Makers are presumed to have respect to the publick Good more than to any private Mans profit and the Lord may be said in this case to have dispensed with his Interest being a Party to the Act and consenting thereunto But Wyndham and Ellis Iustices inclined That the Custom did continue because the Act was in the Affirmative and therefore they would not construe it to take away a Mans Right and Interest or a Custom where he hath a benefit as the Lord of the Mannor had in this Case who is prejudiced by the loss of his Fees and the intent of the Statute seemed to them to be That Scavengers should be chosen where none were before but not to take away Customs for chusing of them But another Argument was desired by Serjeant Howel the Recorder of London Rozal versus Lampen Variance in the Actions no
Governour of Barbadoes and the Council there have power of probate of Wills and granting of Administration that the Secretary belongs and is an Officer to the said Governour and Council as Register and is concerned about the registring the said Wills and so his Office concerns the Administration of Iustice and then sets forth that this Covenant upon which the Plaintiff brought his Action was entred into upon a corrupt Agréement and for that reason void The Plaintiff replies protestando that this Office concerned not the Administration of Iustice and protestando that here was no corrupt Agréement pro placito he saith that Barbadoes is extra quatuor Maria and was always out of the Allegeance and power of the Kings of England till King Charles the First reduced that Island to his Obedience which is now governed by Laws made by him and not by the Laws of England The Defendant rejoyns protestando that this Island was governed by the Laws of England long before the Reign of King Charles the First and confesses it to be extra quatuor Maria but pleads that before King Charles had that Island King James was seised thereof and died such a day so seised after whose death it descended to King Charles the First as his Son and Heir and that he being so seised 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent absque hoc that King Charles the First acquired this Island by Conquest Baldwyn Serjeant demurred for that the Traverse is ill Ex parte Quer. for the most material thing in the Pleadings was whether Barbadoes was governed by the Laws of England or by particular Laws of their own And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place He said that it was but lately acquired and was not governed by the Laws of England that it was first found out in King James his Reign which was long after the making of that Statute and therefore could not extend to it The Statute of 1 E. 6. cap. 7. Enacts That no Writ shall abate if the Defendant pending the Action be created a Duke or Earl c. And it has béen doubted whether this Act extended to a Baronet being a Dignity created after the making thereof Sir Simon Bennets Case Syd 40. Cro Car. 104. Statutes of England extend no more to Barbadoes than to Scotland or Virginia New England Isles of Jersey and Gernsey 't is true an Appeal lies from those Islands to the King in Council here but that is by Constitutions of their own No Statute did extend to Ireland till Poyning's Law nor now unless named In Barbadoes they have Laws different from ours as That a Deed shall bind a Feme Covert and many others Ex parte Def. Seys Serjeant contra He agreed that the Traverse was ill and therefore did not indeavour to maintain it but said there was a departure betwéen the Declaration and the Replication for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes viz. in Parochia Sancti Martini in Campis and in the Replication he sets forth that this Isle was not in England which is in the nature of a departure as Debt sur obligat ' 1 Maii the Defendant pleads a Release 3 Maii the Plaintiff replies primo deliberat ' 4 Maii 't is a departure for he should have set forth that the Bond was 4 Maii primo deliberat ' Quaere Bro. Departure 14. So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary The Plaintiff replies Quod tali die anno he presented his Clerk and the Bishop refused him the Bishop rejoyns that at the same day another presented his Clerk so that the Church became litigious and the Plaintiff surrejoyns that after that time the Church was litigious he again presented and his Clerk was refused this was a Departure Bro. Departure So likewise as to the place the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress and the Tenant saith that he gave it at L. after he was discharged and at large 40 E. 3. Bro. 32. 1 H. 6.3 The Plaintiff might have said that Nokes was admitted here in England without shewing it was at Barbadoes for the Grant of the Office of Secretary might be made to him here under the Great Seal of England as well as a Grant of Administration may be made by the Ordinary out of his Diocess 2. Except Viz. By the Demurrer to the Rejoynder the Plaintiff hath confessed his Replication to be false in another respect for by that he hath owned it The Defendant hath pleaded that King James was seised of this Island and that it descended to King Charles c. and so is a Province of England whereas before he had only alledged that it was reduced in the time of King Charles his Son and so he hath falsified his own Replication And besides this is within the Statute of 5 Ed. 6. for the Defendant saith that the Plaintiff hath admitted Barbadoes to be a Province of England and it doth not appear that ever there was a Prince there or any other person who had Dominion except the King and his Predecessors and then the Case will be no more than if the King of England take possession of an Island where before there was vacua possessio by what Laws shall it be governed certainly by the Laws of England This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer for which Process might issue and it descends to the Heirs of the Earl at the Common Law And if it be objected that they have a Book of Constitutions in Barbadoes that is easily answered for 't is no Record neither can the Iudges take any notice of it 'T is reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction and that it should be interpreted to extend as well to those Plantations as to England for if another Island should be now discovered it must be subject to the Laws of England Curia advisare vult Lever versus Hosier THIS was a special Verdict in Ejectment Recovery suffered of Lands in a Liberty passeth Lands in a Vill distinct within that Liberty Mod. Rep. 206. Postea The Case upon the Pleading was viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury and whether the Lands in Cotton which is a distinct Vill though within the Liberties shall pass was the Question And it was argued
de se by Inquisition and then comes an Act of Indempnity that shall not divest the King of his Right But where nothing Vests before the Office found a Pardon before the Inquisition extinguishes all Forfeitures as it was resolved in Tomb's Case So if the Pardon in this Case had come before the Presentation the Party had been restored Statu quo c. The King can do no more the Bishop is to do the rest neither is the Presentation revoked by this Act it might have been revoked by implication in some Cases as where there is a second Presentation but such a general revocation will not do it and Iudgment was given for the Plaintiff and a Writ of Error brought but the Cause was ended by Agreement Hill versus Pheasant Gaming at several meetings whether within the Statute AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming which Enacts That if any person shall play at any Game other than for ready Mony and shall lose any Sum or other thing played for above the Sum of 100 l. at any one time or meeting upon Tick and shall not then pay the same that all Contracts and Securities made for the payment thereof shall be void and the person winning shall pay treble the Mony lost It happened that the Defendant won 80 l. at one meeting for whcih the Plaintiff gave Security and another meeting was appointed and the Defendant won 70 l. more of the Plaintiff being in all above 100 l. And if this was within the Statute was the Question The like Case was in the Kings-Bench Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry and in Michaelmas Term following this Case was argued and the Court was divided which the Plaintiff perceiving Anonymus Postea desired to discontinue his Action but the better Opinion was that it was not within the Statute though if it had been pleaded That the several meetings were purposely appointed to elude the Statute Sid. 394. in might be otherwise Calthorp versus Heyton Traverse not good viz. Absque hoc quod legitimo modo oneratus IN Replevin The Defendant avowed for that the King being seised in Fee of a Mannor and of a Grange which was parcel of the Mannor granted the Inheritance to a Bishop reserving 33 l. Rent to be yearly issuing out of the whole and alledges a Grant of the Grange from Sir W. W. who claimed under the Bishop to his Ancestors in Fee in which Grant there was this Clause Viz. If the Grantee or his Heirs shall be legally charged by Distress or with any Rent due to the King or his Successors upon account of the said Grange that then it should be lawful for them to enter into Blackacre and distrein till he or they be satisfied And afterwards the Grantee and his Heirs were upon a Bill Exhibited against them in the Exchequer decreed to pay the King 4 l. per Annum as their proportion out of the Grange for which he distreined and so justified the taking The Plaintiff pleads in barr to the Avowry and traverseth that the Defendant was lawfully charged with the said Rent and the Defendant demurred Baldwyn Serjeant maintained the Avowry to be good Ex parte Def. having alledged a legal charge and that the Barr was not good for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus which being part matter of Law and part likewise matter of Fact is not good and therefore if the Decree be not a legal charge the Plaintiff should have demurred But on the other side it was argued by Seys Serjeant Ex parte Quer. That the Avowry is not good because the Defendant hath not set forth a legal charge according to the Grant which must be by Distress or some other lawful way and that must be intended by some execution at Common Law for the coactus fuit to pay is not enough a Suit in Equity is no legal disturbance Moor 559. The same Case is Reported in 1 Brownl 23. Selby versus Chute Besides the Defendant doth not shew any Process taken out or who were Parties to the Decree and a Que estate in the Case of a Bishop is not good for he must pass it by Deed. North and the whole Court A Rent in the Kings Case lies in Render and not in Demand and after the Rent day is past he is oneratus and the Decree is not material in this Case for the charge is not made thereby but by the Reservation for payment whereof the whole Grange is chargeable The King may distrain in any part of the Land he is not bound by the Decree to a particular place that is in favour only to the Purchasor that he should pay no more than his proportion As to the Que estate the Defendant hath admitted that by saying bene verum est that Sir W. W. was seised The Traverse is ill and Iudgment was given for the Avowant Vaughan versus Wood. Trespass justified for taking corrupt Victualls Mod. Rep. 202. TRespass for taking Beef The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet That he was there chosen and having viewed the Plaintiffs Goods found the Beef to be corrupt which he took and burned The Plaintiff demurrs for that the Custom is unreasonable and when Meat is corrupt and sold there are proper remedies at Law by Action on the Case or presentment at a Leet 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom and Iudgment was given for the Defendant the Chief Iustice being not clear in it Chapter of Southwel versus Bishop of Lincoln Grant of next Avoidance not bind the Successor Mod. Rep. 204. IN a Quare Impedit the Question upon pleading was Whether the Grant of the next Avoidance by the Chapter was good or not to bind the Successor The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publick * Yelv. 106. Act because it extends only to those who are Ecclesiastical persons or if it should be adjudged a publick Law yet this is not a good Grant to bind the Successor for though the Grant of an Avoidance is not a thing of which any profit can be made yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute by which among other things 't is Enacted That all Grants c. made by Dean and Chapter c. of any Lands Tythes Tenements or Hereditaments being parcel of the Possessions of the Chapter other than for the Term of 21 Years or 3 Lives from the time of the making the said Grant shall be void But it was agreed by the Court to be a general Law like the Statute of Non Residency which hath been so ruled and that this Presentment or Grant
of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
year before the Sale After Verdict for the Plaintiff it was moved in arrest of Iudgment by Serjeant Barrell because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words 2 Anders 57. as descending from his Father which Title of the Son the Defendant bought whereas if in truth the Title was in J. S. then nothing descended from the Father to the Son and so the Defendant bought nothing Sed non allocatur for if such construction should be allowed there could be no buying of a pretended Title within the Statute unless it was a good Title but when 't is said as here that the Defendant entred and claimed colore of that Grant or Conveyance which was void yet 't is within the Statute so the Plaintiff had his Iudgment Wine versus Rider al. TRespass against five Quare clausum fregerunt Traverse immaterial and took Fish out of the Plaintiffs Several and Free-Fishery Four of them pleaded Not Guilty and the fifth justified for that one of the other Defendants is seised in Fee of a Close adjoyning to the Plaintiffs Close and that he and all those c. have had the sole and separate Fishing in the River which runs by the said Closes with liberty to enter into the Plaintiffs Close to beat the Water for the better carrying on of the Fishing and that he as Servant to the other Defendant and by his Command did enter and so justified the taking absque hoc that he is Guilty aliter vel alio modo The Plaintiff replies That he did enter de injuria sua propria absque hoc That the Defendants Master hath the Sole Fishing The Defendant demurs Ex parte Def. and Newdigate Serjeant argued for him That the Iustification is good for when he had made a local justification 2 Cro. 45 372. he must traverse both before and after as he has done in this Case 2. The Plaintiffs Replication is ill for he ought not to have waved the Defendants Traverse and force him to accept of another from him because the first is material to the Plaintiffs Title and he is bound up to it Hob. 104. 3. There was no occasion of a Traverse in the Replication for where a Servant is Defendant de injuria sua propria is good with a Traverse of the Command Ex parte Quer. But on the Plaintiffs side Serjeant Baldwin held the Defendants Traverse to be immaterial for having answered the Declaration fully in alledging a Right to the sole fishing and an Entry into the Plaintiffs Close 2 Cro. 372. 't is insignificant afterwards to traverse that he is guilty aliter vel alio modo Then the matter of the Plea is not good because the Defendant justifies by a Command from one of the other Defendants who have all pleaded Not-guilty and they must be guilty if they did command him for a Command will make a Man a Trespasser Curia The Court were all of Opinion that Iudgment should be given for the Plaintiff For as to the last thing mentioned which was the Matter of the Plea they held it to be well enough for the * Mires and Solebay Post Servant shall not be ousted of the advantage which the Law gives him by pleading his Masters Command Then as to the Replication 't is good and the Plea is naught with the Traverse for where the Iustification goes to a time and place not alledged by the Plaintiff there must be a Traverse of both In this Case the Defendant ought to have traversed the Plaintiffs free fishing as alledged by him in his Declaration which he having omitted the Plea for that reason also is ill and so Iudgment was given for the Plaintiff DE Termino Paschae Anno 28 Car. II. in Communi Banco Lee versus Brown IN a Special Verdict in Ejectment The Case was this Where reputed Lands shall pass under general words viz. There were Lands which re vera were not parcel of a Mannor and yet were reputed as parcel A Grant is made of the Mannor and of all Lands reputed parcel thereof and whether by this Grant and by these general Words those Lands would pass which were not parcel of the Mannor was the Question This Term the Lord Chief Iustice delivered the Opinion of the Court That those Lands would pass Postea Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330 384. The King versus Imber Wilkins If the Iury had found that the Lands in question had beén reputed parcel of the Mannor it would not have passed had they found no more because the Reputation so found might be intended a Reputation for a small time so reputed by a few or by such as were ignorant and unskilful But in this Case 't is found that not only the Lands were reputed parcel but the reason why they were reputed parcel for the Iury have found that they were formerly parcel of the Mannor and after the division they were again united in the possession of him who had the Mannor which being also Copyhold have since béen demised by Copy of Court Roll togethet with the Mannor and these were all great marks of Reputation and therefore Iudgment was given that the Lands did well pass 2 Roll. Abr. 186. Dyer 350. Wakeman versus Blackwel Common Recoveries how to be pleaded QUare Impedit The Case was The Plaintiff entituled himself to an Advowson by a Recovery suffered by Tenant in Tail in pleading of which Recovery he alledges two to be Tenants to the Praecipe but doth not shew how they came to be so or what Conveyance was made to them by which it may appear that they were Tenants to the Praecipe and after search of Presidents as to the form of pleading of Common Recoveries the Court inclined that it was not well pleaded but delivered no Iudgment Searl versus Bunion Justification where good IN Trespass for taking of his Cattel The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc adhuc ventur̄ and being so possessed the Plaintiffs Cattle were doing damage and he distrained them Damage fesant ibidem and so justifies the taking c. The Plaintiff demurrs and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years but only that he was possessed of an Acre for a Term of years to come and regularly where a Man makes a Title to a particular Estate in pleading he must shew the particular time of the Commencement of his Title that the Plaintiff may replie to it Curia The Chief Iustice and the whole Court held that the Plea was good upon this difference where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land he is supposed to be in possession
is altogether incertain for it doth not appear what is due 28 H. 8. Dyer 28. 9 Ed. 4. 16. 12 H. 8. 6. a. Ex parte Def. But it was argued for the Defendant that he need not Traverse the Accompt As to the first Objection made that the Plea is not good because it doth not answer the Declaration the Rule as to that purpose is generally good but then the Plaintiff must tell all his Case which if he omits he must then give the Defendant leave to tell where his omission is Sometimes a thing which belongs properly to another may be pleaded in bar or discharge to avoid circuity of Actions as one Covenant may be pleaded to another 1 H. 7. 15. 20 H. 7. 4. So where the Lesseé is to be dispunishable of waste he may plead it to a Writ of waste The Books note a difference where the Covenant is one or two Sentences for in the first case one Covenant may be pleaded in discharge of another but not in the last Keilway 34. 'T is true if the second Covenant had been distinct and independent it could not have been thus pleaded but in this Case 't is not said that the Covenantor for himself his Executors and Administrators doth Covenant c. but ulterius agreat̄ provisum est so that as t is penned provisum est makes a Condition and then the sense is I will accompt if you will discompt and if you refuse to discompt I cannot be charged Dyer 6. 'T is inutilis labor to make up an accompt If the other will not allow what he ought if there be an Annuity pro consilio impenso c. and he will not pay the Mony the other is not to be compelled to give his advice Fitzh Annuity 27. 25 E. 2. Annuity 44. Curia The Chief Iustice and the whole Court were of Opinion that Iudgment should be given for the Plaintiff for Arbitrations Wills and Acts of Parliament are to be taken according to the meaning of the Parties and Damages are to be given according to the merit of the Case In this Case the Defendant is bound to accompt upon request and to pay what Mony is due upon the Accompt and 't is an impertinent question for the Defendant to ask him to make allowance for Parsons Dinners before they come to accompt 'T is as if a Bailiff should say to his Lord I have laid out so much Mony and I will not accompt with you unless you will allow it this is a Capitulation before-hand and is very insignificant by way of discharge They have each a remedy upon these mutual Covenants and the provisum agreat̄ est doth not amount to a Condition but is a Covenant and Iudgment was given accordingly Iustice Ellis said he had a Manuscript Report of the Case of Ware and Chappel which he said was adjudged upon great Debate Stoutfil's Case PRohibition Tythes not to be paid for Brick or Pidgeons It was agreed clearly that no Tythes ought to be paid for Brick because 't is part of the Soil and so it has been often adjudged And it was also said that Tythes shall not be paid for Pidgeons unless it be by special Custom Columbel versus Columbel THE Plaintiff brought an Action of Debt upon a Bond of 500 l. Award pleaded under Seal and not under Hand not good The Defendant demands Oyer of the Bond and Condition which was to observe an Award of A. B. Arbitrator indifferently chosen to determine all manner of Controversies Quarrels and Demands concerning the Title of certain Lands so as the said Award were made and put into writing under the Hand and Seal of the Arbitrator c. and then he pleads that the Arbitrator made no Award The Plaintiff replies an Award by which such things were to be done and sets it forth in haec verba under the Seal of the Arbitrator The Defendant rejoyns that the Arbitrator made no Award under his Hand and Seal according to the Condition of the Bond. The Plaintiff demurrs for that the Defendant ought to plead the Award under the Hand as well as the Seal of the Arbitrator for when he produces it in Court as he doth by a profert hic in Curia he must plead it formally as well as produce it and Iudgment was given for the Plaintiff Norris versus Trist Livery secundum formam Chartae where good IN a Special Verdict in Ejectment The Case was A Deéd is made to threé Habendum to two for their Lives Remainder to the third for his Life and Livery and Seisin is made to all thrée secundum formam Chartae And whether the Livery so made as if they had all Estates in possession whereas in truth one of them had but an Estate in Remainder was good was the Question On the one side it was said by Serjeant Seys that possession in this Case was delivered according to the form of the Deéd within mentioned which must be to two for Life Remainder to the third person and Livery and Seisin being only to accomplish and perfect the Common Assurances of the Land ought to be taken favourably ut res magis valeat quam pereat and therefore if a Feoffment be made of two Acres and a Letter of Attorny to give Livery and the Attorny only enters into one Acre and gives Livery secundum formam Chartae both the Acres pass Dyer 131 40. Coke Litt. 52. a. But on the other side Serjeant Maynard said that there was something more in this Case than what had béen opened for there was a Letter of Attorney made to give Livery to two and instead of doing that he makes Livery to them all which is no good Execution of his Authority and therefore no Livery was made the Authority not being pursued As to the Case in the 1st Institutes my Lord Coke errs very much there in that discourse for in saying that if there be a Feoffment of two Acres and a Letter of Attorney to take possession of both and he maketh Livery of both but taketh possession but of one and that both pass 't is not Law but if the Authority be general as to make Livery and Seisin and he take possession of one and then makes Livery of more secundum formam Chartae that is good and this is the difference taken in the Books 5 Ed. 3. 65. 3 Ed. 3. 32. 43 Ed. 3. 32. 27 H. 8. 6. The Remainder Man in this Case is a méer Stranger to the Livery There is also a manifest difference betwéen a Matter of Interest and an Execution of an Authority for in the first Case it shall be construed according to the Interest which either hath but an Authority must be strictly pursued The Court were all of Opinion that the Livery in this Case was good to two for their Lives Remainder to the third person Curia And the Chief Iustice said that whatever the ancient Opinions were about pursuing
Authorities with great exactness and nicety yet this Matter of Livery upon Endorsements of Writing was always favourably expounded of later times unless where it plainly appeared that the Authority was not pursued at all Sid. 428. as if a Letter of Attorney be made to thrée joyntly and severally two cannot execute it because they are not the Parties delegated they do not agreé with the Authority And Iudgment was given accordingly Richards versus Sely. THIS was a Special Verdict in Ejectione firmae for Lands in the County of Cornwal The Case was this viz. Covenant made to enjoy a Copy-hold de anno in annum 't is a Lease and so a Forfeiture Thomas Sely was seised of the Lands in question for life according the Custom of the Mannor of P. and he together with one Peter Sely were bound in a Bond to a third person for the payment of 100 l. being the proper Debt of the said Thomas who gave Peter a Counter-bond to save himself harmless And that Thomas being so seised did execute a Déed to Peter as a Collateral Security to indempnifie him for the payment of this 100 l. by which Deéd after a recital of the Counterbond given to Peter and the Estate which Thomas had in the Lands he did covenant grant and agree for himself his Executors Administrators and Assigns with the said Peter that he his Executors and Administrators should hold and enjoy these Lands from the time of the making of the said Déed for seven years and so from the end of seven years to seven years for and during the term of 49 years if Thomas should so long live 2 Cro. 301. In which Déed there was a Covenant that if the said 100 l. should be paid and Peter saved harmless according to the Condition of the said Counterbond then the said Déed to be void The Question was whether this being in the Case of Copyhold Lands will amount to a Lease thereof and so make a Forfeiture of the Copyhold Estate there being no Custom to warrant it Ex parte Quer. This Case was argued this Term by Serjeant Pemberton for the Plaintiff and in Trinity Term following by Serjeant Maynard on the same side who said that this was not a good Lease to entitle the Lord to a Forfeiture It hath béen a general Rule that the Word Covenant will make a Lease though the Word Grant be omitted nay a Licence to hold Land for a time without either of those Words will amount to a Lease much more when the Words are to * 2 Cro. 92 398. Noy 14. 1 Roll. Abr. 848 849. Cro. Car. 207. have hold and enjoy his Land for a Term certain for those are Words which give an Interest and so it hath béen ruled in Tisdale and Sir William Essex's Case which is reported by several and is in Hob. 35. and 't is now setled that an Action of Debt may be brought upon such a Covenant And all this is regularly true in the Case of a Fréehold But if the construing of it to be a Lease will work a Wrong then 't is only a Covenant or Agreément and no Interest vests and therefore it shall never be intended a Lease in this Case because 't is in the Case of a Copyhold Estate for if it should there would be a Wrong done both to the Lessor and Lessée for it would be a Forfeiture of the Estate of the one and a defeating of the Security of the other It has beén generally used in such Cases to consider what was the intention of the Parties and not to intend it a Lease against their meaning for which there is an express Authority 2 Cro. 172. in the Case of Evans and Thomas Noy 128. in which Howel covenants with Morgan to make a Conveyance to him of Land by Fine provided that if he pay Morgan 100 l. at the end of thirtéen years that then the use of the Fine shall be to the Congnisor and covenants that Morgan shall enjoy the said Lands for thirtéen years and for ever after if the 100 l. be not paid The Assurance was not made and this was adjuged no Lease for thirtéen years because it was the intent of the Parties to make an Assurance only in the nature of a Mortgage which is but a Covenant And this appears likewise to be the intention of the Parties here because in the very Deed 't is recited that the Lands are Copihold It also sounds directly in Covenant for 't is that Peter shall or may enjoy without the lawful let or interruption of the Lessor All Agreements must be construed secundum subjectam materiam if the Matter will bear it and in most Cases are governed by the intention of the Parties and not to work a Wrong and therefore if Tenant in Tail makes a Lease for Life it shall be taken for his own Life and yet if before the Statute of Entails he made such Lease he being then Tenant in Fée-simple it had been an Estate during the Life of the Lessée but when the Statute had made it unlawful for him to bind his Heir then the Law construes it to be for his own Life because otherwise it would work a Wrong Hob. 276. Co. Lit. 42. So in this case it shall not amount to a Lease for the manifest inconveniency which would follow but it shall be construed as a Covenant and then no injury is done On the Defendants part it was argued by Serjeant Newdigate that though this was in the Case of a Copyhold Ex parte Def. that did not make any difference for the plain meaning of the Parties was to make a Lease But where the Words are doubtful and such as may admit of diverse constructions whether they will amount to a Lease or not there they shall be taken as a Covenant to prevent a Forfeiture So also if they are only Instructions as if a Man by Articles sealed and delivered is contented to demise such Lands and a Rent is reserved and Covenants to repair c. Or if one covenants with another to permit and suffer him to have and enjoy such Lands 1 Rol. Abr. 848. these and such like Words will not amount to a Lease because as hath béen said the intention of the Parties is only to make it a Covenant but here the Words are plain and can admit of no doubt But for an Authority in the Point the Lady * 2 Cro. 301. Mountagues Case was cited where it was adjudged that if a Copyholder make a Lease for a year warranted by the Custom sic de anno in annum during ten years 't is a good Lease for ten years and a Forfeiture of the Copyhold Estate Vide Hill 15 16 Car. 2. Rot. 233. the Case of Holt and Thomas in this Court The Court inclined that it was a good Lease Curia and by consequence a Forfeiture of the Copihold and that a Licence in this
of Record the Proceedings may be denied and tryed by Iury. But the Court inclined that it was pleaded well enough and that it was the safest way to prevent mistakes but if the Plaintiff had replied de injuria sua propria absque tali causa that had traversed all the Proceedings Quaere whether such a Replication had been good because the Plaintiff must answer particularly that Authority which the Defendant pretended to have from the Court but no Iudgment was given Sherrard versus Smith TRespass Quare clausum fregit and for taking away his Goods the Defendant justifies the taking by the command of the Lord of the Mannor of which the Plaintiff held by Fealty and Rent and for non-payment thereof the Goods were taken nomine Districtionis The Plaintiff replies that the locus in quo est extra Hors de son Fee when to be pleaded absque hoc quod est infra feodum The Defendant demurrs specially because the Plaintiff pleading hors de son fee should have taken the Tenancy upon him 9 Co. Bucknal's Case 22 H. 6. 2 3. Keilway 73. 14 Ass pl. 13. 1 Inst 1. b. where this is given as a Rule by my Lord Cook Serjeant Pemberton on the other side agreed Ex parte Quer. 13 Assize 28. 28 Assise 41. that in all cases of Assize hors de son fee is no Plea without taking the Tenancy upon him 2 Ass placito 1. And in 5 E. 4. 2. 't is said that in Replevin the Party cannot plead this Plea because he may disclaim but Brook placito 15. tit hors de son fee saith this is not Law and so is 2 H. 6. 1. and many Cases afterwards were against that Book of Ed. 4. and that a Man might plead hors de son fee as if there be a Lord and Tenant holding by Fealty and Rent and he makes a Lease for years and the Lord distrains the Cattel of the Lessee though the Tenant hath paid the Rent and done Fealty there if the Lessee alledge that his Lessor was seised of the Tenancy in his demesn as of fee and held it of the Lord by Services c. of which Services the Lord was seised by the hands of his Lessor as by his true Tenant who hath leased the Lands to the Plaintiff and the Lord to charge him hath unjustly avowed upon him who hath nothing in the Tenancy 't is well enough 9 Co. Case of Avowries and the reason given in 5 Edw. 4. about disclaimer will not hold now for that course is quite altered and is taken away by the Statute of the 21 H. 8. cap. 19. which Enacts That Avowries shall be made by the Lord upon the Land without naming his Tenant But in case of Trespass there was never any such thing objected as here for what Tenancy can the Plaintiff take upon him in this case He cannot say tenen ' liberi tenementi for this is a bare Action of Trespass in which though the pleading is not so formal yet it will do no hourt for if it had been only extra feodum without the Traverse it had been good enough and of that Opinion was the Court in Hillary-Term following when Iudgment was given for the Plaintiff absente Scroggs And the Chief Iustice said That the Rule laid down by my Lord Coke in 1 Inst 1. b. that there is no pleading hors de son fee without taking the tenancy upon him is to be intended in cases of Assize and so are all the Cases he there cites for proof of that Opinion and therefore so he is to be understood but this is an Action of Trespas brought upon the Possession and not upon the Title In the Case of Avowry a Stranger may plead generally hors de son fee and so may Tenant for years and this being in the Case of a Trespass is much stronger and if the Plaintiff destroys the Defendants justification 't is well enough Sir William Hickman versus Thorne alios Prescription against another Prescription not good without a Traverse IN a Replevin The Defendant justifies the taking for that the locus in quo was his Freehold and that he took the Cattel there damage fesant The Plaintiff in bar to the Avowry replies that the locus in quo c. is parcel of such a Common Field and prescribes to have right of Common there as appendant to two Acres which he hath in another place The Defendant rejoyns that there is a Custom that every Free-holder who hath Lands lying together in the said Common Field may enclose against him who hath right of Common there and that he had Lands there and did enclose The Plaintiff demurs and Serjeant Newdigate took Exceptions to the Rejoynder Ex parte Quer. 1. For that he did not averr that the Lands which he enclosed did lye together and therefore had not brought his case within the Custom alledged Sed non allocatur because he could not enclose if the Lands had not laid together 2. He gives no answer to the Plaintiffs right of Common but by argument which he should have confessed with a bene verum est and then should have avoided it by alledging the Custom of Enclosure like the Case of * 2 Leon. 209. Russel and Broker where in Trespass for cutting Oaks the Defendant pleads that he was seised of a Messuage in Fee and prescribes to have rationabile estoverium ad libitum capiend ' in boscis the Plaintiff replies that the locus in quo was within the Forest and that the Defendant and all those c. habere consueverunt rationabile estoverium c. per liberationem Forestarii and upon a Demurrer the Replication was held naught because the Plaintiff ought to have pleaded the Law of the Forest viz. Lex Forestae talis est or to have traversed the Defendants Prescription and not to have set forth another Prescription in his Replication without a Traverse 3. The Defendant should have pleaded the Custom and then have traversed the Prescription of the Right of Common for he cannot plead a Custom against a Custom 9 Co. 58. Aldred's Case where one prescribes to have a Light the other cannot prescribe to stop it up Serjeant Pemberton contra Ex parte Def. He said that which he took to be the only Question in the Case was admitted viz. That such a Custom as this to enclose was good and so it has béen adjudged in Sir Miles Corbet's Case 7 Co. But as to the Objections which have been made the Defendant admits the Prescription for Right of Common but saith he may enclose against the Commoners by reason of a Custom which is a Barr to his very Right of Common and therefore need not confess it with a bene verum est neither could he traverse the Prescription because he hath admitted it 'T is true where one prescribes to have Lights in his House and another prescribes to stop them up this is not good because
one Prescription is directly contrary to the other and for that reason one must be traversed but here the Defendant hath confessed that the Plaintiff hath a Right of Common but t is not an absolute but a qualified Right against which the Defendant may Enclose and here being two Prescriptions pleaded and one of them not being confessed it must from thence necessarily follow that the other is the Issue to be tryed which in this Case is whether the Defendant can enclose or not The Chief Iustice and the whole Court were of Opinion Curia that where there are several Free-holders who have Right of Common in a Common Field that such a Custom as this of enclosing is good because the remedy is reciprocal for as one may enclose so may another But Iustice Atkyns doubted much of the Case at Bar because the Defendant had pleaded this Custom to Enclose in barr to a Freeholder who had no Land in the Common Field where he claimed Right of Common but prescribed to have such Right there as appendant to two Acres of Land he had alibi for which reason he prayed to amend upon payment of Costs Attorny General versus Sir Edward Turner in Scaccario Exposition of the Kings Grant INformation The Case was Viz. The King by Letters Patents granted several Lands in Lincolnshire by express words and then this Clause is added upon which the Question did arise Nec non totum illud fundum solum terras suas contigue adjacen ' to the Premisses quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari and afterwards a great quantity of Land was gained from the Sea and whether the King or the Patentee was intituled to those Lands was the Question Devise of a possibility good by a common person 2 Cro. 509. pl. 21. 1 Bulst 194. Sawyer for the King argued that he had a good Title because the Grant was void he having only a bare possibility in the thing granted at the time But Levins on the other side insisted that the Grant of those Lands was good because the King may Grant what he hath not in possession but only a possibility to have it But admitting that he could not make such a Grant yet in this Case there is such a certainty as the thing it self is capable to have and in which the King hath an Interest and it is hard to say that he hath an Interest in a thing and yet cannot by any means dispose of it If it should be objected that nothing is to pass but what is contigue adjacen ' to the Premisses granted and therefore an Inch or some such small matter must pass and no more certainly that was not the intention of the King whose Grants are to be construed favourably and very bountifully for his Honour and not to be taken by Inches Postea Company of Ironmongers and Naylor If there are two Marshes adjoyning which are the Kings and he grants one of them by a particular name and description and then he grants the other contigue adjacen ' ex parte australi certainly the whole Marsh will pass and 't is very usual in pleading to say a Man is seised of a House or Close and of another House c. contigue adjacen ' that is to be intended of the whole House In this Case the King intended to pass something when he granted totum fundum c. but if such construction should be made as insisted on then those words would be of no signification 'T is true the word illud is a Relative and restrains the general words and implies that which may be shewn as it were with a Finger and therefore in Doddington's Case 2 Co. 32. a Grant of omnia illa Mesuagia scituate in Wells and the Houses were not in Wells but elsewhere the Grant in that Case was held void because it was restrained to a certain Village and the Pronoun illa hath reference to the Town but in this Case there could be no such certainty because the Land at the time of the Grant made was under Water But if the Patent is not good by the very words of the Grant the non obstante makes it good which in this Case is so particular that it seems to be designed on purpose to answer those Objections of any mistake or incertainty in the value quantity or quality of the thing granted which also supplies the defects for want of right instruction given the King in all cases where he may lawfully make a Grant at the Common Law 4 Co. 34. Moor pl. 571. Bozuns Case And there is another very general Clause in the Patent viz. Damus praemissa adeo plene as they are or could be in the Kings hands by his Prerogative or otherwise * Ante Adeo plene are operative words Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum refluxum maris 'T is true Sid. 149. these words praemissis praed ' spectan ' do follow from whence it may be objected that they neither did or could belong to the Premisses and admitting it to be so yet the Law will reject those words rather than avoid the Grant in that part In the Case of the Abbot of * 9 Co. 27. b. Strata Marcella the King granted a Mannor Et bona catalla felonum dicto Manerio spectan ' now though such things could not be appendant to a Mannor yet it was there adjudged that they did pass Such things as these the King hath by his Prerogative and some things the Subject may have by Custom or Prescription as Wrecks c. and in this very Case 't is said that there is a Custom in Lincolnshire that the Lords of Mannors shall have derelict Lands and 't is a reasonable Custom for if the Sea wash away the Lands of the Subject he can have no recompence unless he should be entituled to what he gains from the Sea and for this there are some Authorities as Sir Henry Constable's Case 2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor But no Iudgment was given Morris versus Philpot in B. R. Release by an Executor before Probate THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant as Administrator to S. for a Debt due from the said intestate to the Plaintiffs Testator The Defendant pleads that the Plaintiff released to him all Brewing Vessels c. and all other the Estate of S. lately deceased this Release was before probate of the Will to which Plea the Plaintiff demurred and whether this Release was a good Barr to the Plaintiffs Action was the Question Ex parte Quer. It was said for the Plaintiff that it was not for if a Conusee release to the Cognisor all his right and title to the Lands of the Cognisor and afterwards sues out
pass why did they levy this Fine sur concessit They might have levyed a Fine sur Cognisance de droit come ceo c. and that had beén a Disseisin Besides what need was there for them to mention any Estate which they had in these Houses if they had intended a Disseisin But this being done such a Construction is to be made as may support the intent of the Parties and it would be very unreasonable that what was intended to preserve the Estate should now be adjudged to work a Dissesin so as to forfeit it and such a Disseisin upon which this collateral Warranty shall operate and barr the Estate in Remainder And therefore no more shall pass by this Fine than what lawfully may and rather than it shall be construed to work a Wrong the Estate shall pass by fractions for both the Estates of William Mitton for Life are not so necessarily joyned and united by this Fine that no room can be left for such a Construction 2. Such a Construction will not agreé with the Nature and Words of this Fine 'T is true a Fine as it is of the most solemn and of the greatest Authority so 't is of the greatest force and efficacy to convey an Estate and the most effectual Feoffment of Record where 't is a Feoffment and likewise the most effectual Release where 't is to be a Release But on a bare Agreément made in Actions betwéen the Demandant and Tenant at the Barr and drawn up there the Iudges will alter and amend such Fines if they did not in all things answer the intention of the Parties 24 Ed. 3. 36. Postea 'T is agreed that Fines can work a Disseisin when they can have no other Interpretation as if Tenant pur auter vie levy a Fine to a Stranger for his own Life 't is more than such a Tenant could do because his Estate was during the Life of another and no longer So a Fine sur Cognisance de droit c. implies a Fée which being levyed by any one who has but a particular Estate will make a Disseisin But this Fine sur concessit has beén always taken to be the most harmless of all others and can be compared to nothing else than a Grant of totum statum suum quicquid habet c. by which no more is granted than what the Cognisor had at the time of the Grant and so it hath been always construed Indéed there is a Fine sur concessit which expresses no Estate of the Grantor and this is properly levyed by Tenant in Fée or Tail but when particular Tenants pass over their several Estates they generally grant totum quicquid habent in tenementis praedictis being very cautious to express what Estate they had therein When this Fine sur concessit was first invented the Iudges in those days looked upon the Words quicquid habent c. to be insignificant and for that reason in Anno 17 E. 3. 66. they were refused The case was Two Husbands and their Wives levied such a Fine to the Cognisee and thereby granted totum quicquid habent c. which Words were rejected and the Iudge would not pass the Fine because if the Party had nothing in the Land then nothing passed and so is 44 Ed. 3. 36. By which it appears that the Iudges in those times thought these Fines did pass no more than what the Cognisor had and for this there are multitude of Authorities in the Year Books Now these Words cannot have a signification to enlarge the Estate granted they serve only to explain what was intended to pass for in the Case at the Barr if the Grant had béen totum quicquid habent in tenementis praedictis there would have been no question of the Estate granted but the Cognisors having granted tenementa praedicta they seem by these subsequent Words to recollect themselves viz. totum quicquid habent in tenementis praedictis Object But it may be objected that the Limitation of the Estate viz. durante vita eorum alterius eorum diutius viventis works a Disseisin because by those Words two Estates for Life pass entire in possession whereas in truth there was but one Estate for Life of the Husband in possession and therefore this was more than they could grant because the Estate Tayl came between the Estate which the Husband and Wife had for their Lives and for the Survivor of them and the Estate which the Husband had for his own Life And this is farther enforced by that Rule in Law That Estates shall not pass by fractions for otherwise there can be no reason why they should not thus pass Answ But this Rule is very fallible and not so much to be regarded 't is true the Rule is so far admitted to be true where without inconveniency Estates may pass without fraction but where there is an inconveniency it may be dispensed withal it being such an inconveniency as may appear to the Iudges to make the thing granted to go contrary to the intent of the Parties And that such Interpretations have been made agrees with the third Reason proposed in this Case viz. That it hath received countenance by judicial Opinions and determinations in former Iudgments 14 E. 4. 4. 27 H. 8. 13. 1 Co. 67. Bredons Case which was thus Tenant for life remainder in tayl to A. remainder in tayl to B. Tenant for life and he in the first remainder levied a Fine sur cognisance de droit come ceo 't was adjudged that this was no Discontinuance of either of the Remainders 1 Roll. Abr. lit I. pl. 4. 1 Inst 45. a. Cro. Car. 406. because each of them gave what he might lawfully viz. The Tenant for Life granted his Estate and the Remainder-man passed a Fee-simple determinable upon his Estate Tail and yet each of their Estates were still divided On the other side it was said that in all Cases where the person who hath a particular Estate takes upon him either by Feoffment in pais or by Fine which is a Feoffment on Record to grant a greater Estate than he hath as in this Case is done though possibly the Estate of the Grantée may determin before that of the Grantor yet 't is a displacing the Reversion as if a Man has an Estate for ten Lives and makes a Grant for the Life of another here is a possibility that the Estate which he granted may be longer than the Estate he had in the thing granted because one Man may survive the Ten and for that reason 't is a divesting 1. In this Case the Estate which the Husband and Wife had is to be considered 2. What they granted And by comparing of these together it will appear whether they granted more than they had The Husband and Wife had an Estate for the Life of the Wife and after the Estate Tail the Husband had an Estate for his own Life now they grant
Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words
of Lands Tenements and Hereditaments 't was adjudged entailed Lands did not pass do not concern this Case but now since they are made forfeitable by that Statute such general words are sufficient to serve the turn By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail because they were not then to be forfeited for Treason 2 Inst 334. 1 Inst 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty was Treason and if entailed Lands are forfeited for Treason then when the Act saith That he shall forfeit all his Lands by those general Words his entailed Lands shall be forfeited And though by the Common Law there can be no Attainder in this Case the Party being dead yet by Act of Parliament that may be done and the words in this Act amount to an Attainder The intent of it was to forfeit Estates Tail which may be collected from the general Words for if a Fee-simple is forfeited though not named why not an Estate Tail especially since the word Hereditaments is very comprehensive and may take in both those Estates Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named for the Words are Every Offender convict of Treason c. shall forfeit all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in use possession or by any Right Title or Means c. and yet a Construction hath been made thereupon in favour of the Crown so a Dignity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament 7 Co. 34. Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court Judgment That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor and that the Question now was whether by the Act of Pains c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus Preface to 3 Co. for by that Statute there was a settled perpetuity Tenant in Tail could neither forfeit or alien his Estate no not in Case of Treason and Forfeiture is a kind of Alienation but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue but all this while his Estate was not to be forfeited for Treason till the Statute of 33 H. 8. cap. 20. which gives Uses Rights Entries Conditions as well as Possessions Reversions Remainders and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King as if such Attainder had been by Act of Parliament Then by the Statute of 5 6 Ed. cap. 11. 't is Enacted That an Offender being guilty of High Treason and lawfully convict shall forfeit to the King all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession by which Statutes that de donis conditionalibus was taken off in Cases of Treason as it had been before by the resolution in 12 E. 4. and by the Statute of Fines as to the Alienation of an Estate Tail by Fine and Recovery If therefore this Act of Pains c. will admit of such a construction as to make Estates Tail forfeit here is a Crime great enough to deserve such a great punishment a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity this they esteemed as another kind of Original Sin which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis And that this Act will admit of such a Construction these Reasons were given 1. From the general comprehensive Words mentioning those things which are to be forfeited viz. Messuages Lands Tenements Reversions and Interests which last Word signifies the Estate in the Land as well as the Land it self or otherwise the Word must be construed to have no effect 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst 334. Non habet potestatem alienandi but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only yet 't is a good Rule for the Iudges to make a Construction of an Act of Parliament by especially in such a Case as this wherein 't is plain that the Law did look upon these Offenders if not attainted yet in pari gradu with such persons and therefore may be a good Warrant to make the like Construction as in Cases of Attainder 3. Because the Offenders are dead for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail because then something might be forfeited viz. an Estate for Life and therefore the Act would signifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law especially since 't is well known that when Men engage in such Crimes they give what Protection they can to their Estates and place them as far as they can out of danger 4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid and therein also a particular Exception of the Wife and Children and Heirs of the Offenders and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration it will never protect their Estate under a voluntary Conveyance made by the Ancestor especially in this Case because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime for Sir John Danvers was Tenant in Tail before and in the year 1647. levies a Fine to barr that Entail and then limits a new Estate Tail to himself in which there is a Provision to make Leases for any number of years upon what Lives soever in Possession or Reversion with Rent or without it and this was but the year before the Crime committed 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
concluded that he had not paid it and therefore they would not admit him to wage his Law without bringing sufficient Compurgators to swear that they believed he swore Truth but such not appearing the Defendant defecit de Lege and Iudgment had been given against him but he offered to bring the Mony recovered and the Costs into the Court and to go to a new Tryal it being a very hard Case upon him at the former Trial where the Demand was of a Quit-Rent of 18 d. per annum the Defendant promised that if the Plaintiff would shew his Title and satisfie him that he had a Right to demand it he would pay him the Rent and at the Tryal express Oath was made of a Promise to pay upon which the Verdict was obtained whereas it was then urged that the Freehold would come in question upon that Promise and so the inferior Court could have no Iurisdiction And afterwards the Chief Iustice said that it hath béen adjudged in the Kings Bench that an inferior Court cannot hold Plea on a quantum meruit for Work done out of the Iurisdiction though the Promise be made within and that he knew where a Person of Quality intending a Marriage with a Lady presented her with a Iewel and the Marriage not taking effect he brought an Action of Detinue against her and she taking it to be a Gift offered to wage her Law but the Court was of Opinion that the property was not changed by this Gift being to a specifical intent and therefore would not admit her to do it Quod nota Styleman versus Patrick AN Action on the Case was brought by the Plaintiff against the Defendant for eating of his Grass with his Sheep Costs allowed so that he could not in tam amplo modo enjoy his Common there was a Verdict for the Plaintiff and it was now moved that he should have no more Costs than Damages because this was a Trespass in its own nature and the Iudge of Assise had not certified that the Title of any Land was in question Bur the Court were all of Opinion Curia that this Case was not within the Statute For it was not a frivolous Action because a little damage done to one Commoner and so to twenty may in the whole make it a great Wrong if the Cause were frivolous the Iudge of Assize may mark it to be such by vertue of the Statute of 43 Eliz. cap. 6. and then there shall be no more Costs than Damages and though in this Case the Plaintiff hath in his Declaration set out a Title to his Common yet the Title of the Land cannot possibly come in question and therefore not to be certified as in Cases of Trespas neither is there any need of a Certificate if it appears by the Pleading that the Title of the Land is in question The Court being against the Defendant as to the Costs his Council then moved in Arrest of Iudgment because the Plaintiff sets forth his Right to the Common only by way of Recital with a cumque etiam Postea c. that he had a Right to Common in such a place sed non allocatur for 't is affirmative enough and afterwards he is charged with doing the Plaintiff damage and so the Case is not like to an Action of Trespas quare cum he did a Trespass for there the sense is imperfect DE Term. Sancti Hill Anno 28 29 Car. II. in Communi Banco James versus Johnson IN Trespass Que Estate where 't is pleadable Mod Rep. 231. the Defendant justified by a Prescription to have Toll and Issue being joyned thereupon the Iury found a special Verdict in which the Case upon the Pleadings was viz. Before the dissolution of Priories the Mannor now in the possession of the Defendant was parcel of the Priory of B. which came to the Crown by the said dissolution and the King made a Grant thereof to Sir Jervas Clifton in Fee together with the said Toll adeo plene as the Prior had it and the Defendant having brought down a Title by several mesne Assignments claims by vertue of a Lease from Sir Jervas for seven years then in being alledging that the said Sir Jervas and all those whose Estate he had might take Toll and whether this Pleading by a Que Estate to have Right of Toll was good in Law the Iury doubted Baldwin Serjeant for the Plaintiff Ex parte Quer. argued that the Iustification was not good because there are two sorts of Toll viz. Toll through and Toll traverse and is in the Kings High Way and the other in a Man 's own Soil and it doth not appear for which the Defendant hath justified If it be for the first then he ought to shew that he did make a Causeway or some other thing that might be an advantage to the Passengers to entitle himself to a Prescription but if it be for the other then he must also shew it was for passing upon his Soil which implies a Consideration 22 Assize Kelw. 148. Pl. Com. 236. Lord Berkley's Case 1 Cro. 710. Smith versus Sheppard by which Cases it appears that the justification ought to be certain Then as to the point in Question he said that Toll cannot be appurtenant to a Mannor and so the Pleading by a Que estate is not good but if that should be admitted yet the Mannor being vested in the Crown by the dissolution the Toll then became in gross and could never after be united to the Mannor or appurtenant thereunto But it was argued for the Defendant by Maynard Serjeant and the whole Court were clear of Opinion that the Issue was upon a particular point and the Title was admitted and that nothing remained in question but the Point in pleading And as to what had been objected That Toll cannot belong to a Mannor 't is quite otherwise for an Advowson a Rent a Toll or any Profit apprender may be appurtenant to it T is true a Man cannot prescribe by a Que Estate of a Rent Advowson Toll c. but he may of a Mannor to which these are appendant 't is likewise true that if the Defendant had said this was Toll for passing the Highway he must shew some cause to entitle himself to the taking of it as by doing something of publick advantage But this general way of pleading is the most usual and so are the Presidents and it ought to come on the other side and to be alledged that the Defendant prescribed for Toll in the High-way and in this Case though the Mannor came to the Crown the Toll remained appurtenant still and so it continued when it was granted out The difference is between a thing which was originally a Flower of the Crown and other things which are not as Catalla Felonum c. if such come again to the King they are merged in the Crown but 't is otherwise in cases of a Leet Park Warren
according to the computed or improved value and therefore he inclined that the Action would not lie The Exemplification of the Decree was offered to be read which being opposed Serjeant Maynard informed the Court that nothing was more usual than to read a Sentence in the Ecclesiastical Court or a Decree in Chancery as Evidence of the Fact It being allowed to be read the Council for the Defendant took notice that the Commission was therein mentioned which was returned into Chancery and burned when the Six Clerks Office was on fire in the year 1618. but a Duplicate thereof was produced which the Defendant had from the Heir of the Harveys and so the Survey was praied to be read which was opopsed by Sir William Jones for he said that it was no Duplicate the Commissioners Names being all written with one Hand and no proof being made that it was a true Copy of that which was returned he likewise observed upon the reading of the Decree that it was an Evidence for the Plaintiff because if there had been a setled Rule for payment of the Fines there had been no occasion to seek relief in Equity and that there was no reason that the Defendant should come into a Court of Law to prove such Settlement by a Decree in Chancery for if there be such a Decree his Remedy is proper there besides the Decree it self only mentions the years value which was to be setled by the Commissioners and which he said was never done so that the Decree which appointed the Commission was not compleated and therefore being but executory is of no force even in Equity The Court were doubtful in the matter and Baron Thurland said That no Action of Debt would lie for this Fine because it was neither upon the Contract nor as ex quasi contractu But as to that Serjeant Maynard answered That many Resolutions had been made in his time of Cases wherein the Old Books were silent Vpon the whole the Court thought this to be a proper Case for Equity and so directed a Iurour to be withdrawn which was accordingly done DE Term. Sanctae Trin. Anno 29 Car. II. in Communi Banco Addison versus Sir John Otway IN a special Verdict in Ejectione firmae A Parish and a Vill within the Parish of the same Name a Recovery is suffered of Lands in the Vill and in the Deed to lead the Uses the Parish is named they make but one Conveyance and the Lands in the Parish do pass Mod. Rep. 250. the Case was thus Viz. There was the Vill of Rippon and the Parish of the same Name and likewise the Vill of Kirkby and the Parish of the same Name in the County of York And Thomas Brathwaite being Tenant in Tail of the Lands in question lying in the said Parishes of Rippon and Kirkby did by Bargain and Sale convey the same lying as in truth they did in the Parishes of Rippon and Kirkby to the intent to make a Tenant to the Praecipe in order to suffer a Common Recovery and thereby he did Covenant to suffer the same which Recovery was afterwards suffered of Lands in Rippon and Kirkby but doth not say as he ought in the Parishes of Rippon and Kirkby and the Verdict in effect found That he had no Lands in the Vills but farther that it was the intent of the Parties that the Lands in the Parishes should pass and whether they should or not was the Question It was said for the Defendant That by this Indenture and Common Recovery the Lands which lie in the said Parishes shall pass 1. Supposing this to be in the Case of a Grant there if the Vill is only named yet the Lands in the Parish of the same Name shall pass because the Grant of every Man shall be taken strongest against himself Owen Rep. 61. So where part of the Lands lie in B. and the Grant is of all the Lands in D. all the Lands in the Parish of D. shall pass because in that Case the Parish shall be intended and if the Law be thus in a Grant a fortiori in the Case of a Common Recovery Postea Barker and Keat which is the Common Assurance of the Land 2. The Verdict hath found that the Defendant had no Lands in the Vills of Rippon and Kirkby and the Court will not intend that he had any there if not found so that nothing passes by the Recovery if the Lands in the Parishes do not pass which is contrary to the intention of the Parties and to the Rules of Law in the like Cases for if a Man deviseth all his Lands in Dale and hath both Free-hold and Lease-hold there by this Devise the Freehold only passes but if no Free-hold the Leases shall pass Cro. Car. 293. So adjudged in the Case of Rose and Bartlet for otherwise the Will would be void 3. The Parish and Vill shall be both intended to support a Trial already had as where a Venire facias ought to issue from the Parish of Dale and it was awarded from Dale generally 't is well enough * 1 Roll. Rep. 21 27 293. Hob. 6. 2 Cro. 263. 1 Roll. Rep. 27. A fortiori to support a Common Recovery which has always been favourably interpreted and yet a new Tryal will help in the one case but a Man cannot command a new Recovery when he will and therefore the Iudges usually give Iudgments to support and maintain Common Recoveries that the Inheritances of the Subject might be preserved for if there be Tenant in Tail the Reversion in Fee or if Baron and Feme suffer a Recovery this is a bar of the Reversion and the Dower and yet the intended Recompence could not go to either Pl. Com. 515. 2 Roll. Rep. 67. 5 Co. Dormer's Case Antea 4. The Iury have found that the intention of the Parties was to pass the Lands in the Parishes which Intention shall be equivalent to the Words Omitted And for that there is a notable Case in 2 Roll. Rep. f. 245. where the intent of the Parties saved an Extinguishment of a Rent The Case was A. makes a Lease for years rendring Rent and then grants the Reversion for 40 years to B. and C. which he afterwards conveyed to them and their Heirs by Bargain and Sale and covenanted to levy a Fine accordingly to make them Tenants to the Praecipe to suffer a Common Recovery to another Vse the Bargain Fine and Recovery were all executed and it was adjudged that they made all but one Conveyance and that the Reversion was not destroyed and by consequence the Rent not extinguished for though the Bargainor might intend to destroy the Reversion by making this Grant to them and their Heirs yet the Bargainees could never have such Intention and though they were now seised to another Vse yet by the Statute of Wills their former Right is saved which they had to their proper Vse and their intention being only to make a
Tenant to the Praecipe the Statute shall be so construed that the intent of the Parties shall stand 5. The Lands in the Parishes pass 1 Anders 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law and therefore as a Construction is not to be made upon part but upon the whole Deed so not upon the Deed or Recovery alone but upon both together 2 Co. 75. Lord Cromwel's Case 6. Antea 'T is the Agreement of the Parties which governs Fines and Recoveries and Lands shall pass by such Names as are agreed between them though such Names are not proper and therefore a Fine of a lieu conus is good though neither Vill or Parish is named therein Poph. 22. 1 Cro. 270 276 693. 2 Cro. 574. So if a Fine be levied of a Common of Pasture in Dale Cro. Car. 308. Winch 122. Sid. 190 191. Antea 't is good though Dale be neither Vill or Hamlet or lieu conus out of a Vill 2 Roll. Abr. f. 19. So in Sir George Symonds his Case Lands as parcel of a Mannor were adjudged to pass though in truth they were used with the Manor but two years and the reason of all these Cases is because it was the Agreement of the Parties that they should pass Object If it be objected That all these Authorities are in Cases of Fines but the Case at Bar is in a Common Recovery which makes a great difference Answ The proceedings in both are amicable and not adversary and therefore as to this purpose there is no difference between them and for an Authority in the point the Case of Lever and Hosier was cited which was adjudged in this Court Trin. 27 Car. 2 Where the Question was Antea whether upon a Common Recovery suffered of Lands in the Town of Sale or the Liberty thereof Lands lying in Dale being a distinct Vill in the Parish of Sale should pass or not and after divers Arguments it was allowed to be well enough being in the Case of a Common Recovery And so was the Case Pasch 16 Car. 2. in B. R. In a special Verdict the Case was That Sir Thomas Thinn being seised of the Mannor of Buckland in Tail and of twenty Acres of Land called and known by a particular name which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Mannor and always used with it Sid. 190. sold the said Mannor and all the Lands reputed parcel thereof with the Appurtenances of which he did suffer a Common Recovery and it was adjudged upon great consideration that though the Recovery did not mention the twenty Acres particularly yet it did dock the Entail thereof because the Indenture which leads the Vses of the Recovery was of the Lands reputed parcel thereof or enjoyed with it and that the shortness in the Recovery was well supplied by the Deed in which Case the Court were guided by the resolution in Sir George Symond's Case Vide 6 Co. Sir Moyle Finch's Case The Authorities against this Opinion are two Antea Lever and Hosieâ— 1. That of Stock versus Fox Cro. Jac. 120. There were two Vills Walton and Street in the Parish of Street and a Fine was levied of Lands in Street it was adjudged that the Lands in Walton did not pass by this Fine But there is another Report of this very Case by my Lord Chief Iustice Roll in his Abr. tit Grants 54. where 't is said if there be in the County of Somerset the Vill of Street and the Vill of Waltham within the Parish of Street and a Man being seised of Lands in the Vill of Street and of other Lands in the Vill of Waltham all within the Parish of Street and he Bargains and Sells all his Lands in Street and having Covenanted to levie a Fine doth accordingly levie it of Lands in Street and doth not mention either in the Indenture or in the Fine any Lands in Waltham the Lands lying there shall not pass from which Report there may be a fair Inference made That it was the Lord Rolls his Opinion that if Waltham had been named in the Indenture though not in the Fine the Lands would have passed and in this Case the Parishes are named in the Indenture of Bargain and Sale but besides in that Case the Party had Lands both in Street and Waltham and so the Conveyances were not in vain as they must be here if the Lands in the Parishes do not pass Antea 2. The other Case is that of Baker and Johnson in Hutton 106. But this Case is quite different from that because there was neither Vill or Parish named in the Indenture but here the Indenture was right for the Lands are mentioned therein to lie in the Parishes c. And for these Reasons Iudgment was prayed for the Defendant This Case was afterwards argued in Michaelmas-Term following by Serjeant Pemberton and Maynard for the Plaintiff who said Ex parte Quer. That the Government of this Nation was Ecclesiastical and Civil the Ecclesiastical runs by Parishes and the Civil by Vills That a Parish is constituted by the Ecclesiastical Power and may be altered by the King and Ordinary of the place that the Parson was superintendent of the Parish and the Constable of the Vill which was also constituted by the Civil Magistrate and from hence it is that in real Actions which are adversary Lands ought not to be demanded as lying in a Parish but within a Vill that being the place known to the Civil Iurisdiction and if a Trespass which is local be laid at Dale generally there being both the Parish and Vill of Dale the proof of the Trespass done in the Parish is not good for it must be at the Vil. They agreed that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded if the Vill be only named without the Parish nothing doth pass but what is in the Vill because where a place is alledged in Pleading it must be of a Vill Moor 710. 1 Inst 125. b. 2 Cro. 121. And this was the ancient way of demanding Lands in a Praecipe quod reddat because of the Notoriety of Vills from whence Visnes do arise and because the Vill is more particular and of more certainty than a Parish and therefore 't is requisite that the Demandant should be very particular in his Demand that the Tenant may know how to make his defence and the Sheriff of what to deliver possession Besides a Vill is more ancient than a Parish and Lands have been demanded within them time out of mind so that the Demand when 't is doubtful of what 't is made shall be supposed of that which is most ancient and such Construction is most conformable to the like Cases
for Additio probat Minoritatem and therefore if Father and Son are both of one Name and mention is made of one without an addition of Junior the Law intends the Father so the Vill being more ancient than the Parish that shall be intended if the Parish is not named In 2 Anderson 124. Hartwel Rode and Ashen were several Vills in the Parish of Rode the King granted all his Tythes in Rode and Ashen in tenura Richardi Wake and at the time of the Grant the Tythes of Hartwel were in the Tenure of Wake it was adjudged in the King's Bench that the Tythes in Hartwel did pass but that Iudgment was reversed in the Exchequer Chamber because Rode could not be * In a Praecipe it must be intended a Vill if a Parish be not named because Vills are known at the Common Law but not Parishes those were constituted by the Council of Lyons but 't is otherwise in Grants Owen 61. intended a Parish and so to comprehend Hartwel but must be intended a Vill distinct from a Parish and so the Tythes of Hartwel being also a Vill could not pass by the Grant of them in Rode this also was the Opinion of Popham Owen 60. But Gawdy and Fenner were of another Opinion As to the finding of the Iury that doth not help if the Recovery be not full for they may expound but they cannot enlarge each other In a Formedon nient comprise in the Record and not what is comprised in the Deed is the Plea Things upon a Record are open to the View of all People but a Deed is a Pocket Record and the persons whom it concerneth cannot come at the sight of it so Fines are open and to be seen by all and are to be proclaimed but according to this Interpretation Déeds should be also proclaimed And there is a manifest difference between things conteined in a Fine and in a Déed for a Fine of a Tenement is not good but a Deed of a Tenement is well enough but will not help the Fine and therefore Men should not go out of the Rules of the Law to help a Mistake For which Reasons they prayed Iudgment for the Plaintiff But the whole Court were of Opinion that the Lands in the Parishes did well pass for as Fines and Recoveries did grow in use and are now become Common Assurances they are to be favoured in the Law And it hath been a Rule that even in doubtful things Constructions shall be made to support a Deed if possible Ut res magis valeat quam pereat Co. Lit. 183. By Rippon generally the Vill shall be intended but stabitur praesumptio donec probetur in contrarium and that is proved by the Deed which shews where the Lands lye Indenture by an Infant to declare Uses of a Fine or Recovery make but one Conveyance otherwise he might avoid it as he may a Deed by Infancy Hob. f. 6. 2 Cro. 676 Both the Indenture and Recovery being one Conveyance must be expounded so that every part may stand besides 't is apparent by the intent of the Parties which the Iury have also found that the Lands in the Parishes should pass In the Case of Brock and Spencer a Trespass was laid in Hursly and it was not said whether Vill or Parish the Defendant pleaded that the Lands were held of the Mannor of Marden in the Parish of Hursley c. and the Venire Facias was de Vicineto only and not de Vicineto Parochiae Hursley and it was adjudged good for the Vill and the Parish shall be understood to be the same And as to this purpose they were all of Opinion that there was no difference between a Fine and Recovery 't is true the Law originally took notice of a Vill only because the division of a County into Parishes was of Ecclesiastical distribution but now by process of time that distinction is taken notice of in in Civil Affairs and the Law hath great regard to the Vsage and Practice of the People the Law it self being nothing else but common Vsage with which it complies and alters with the exigency of Affairs it was but lately that the Cursitors would put the Word Parish into a Writ for if a Note was delivered to them of Lands in the Parish of Dale they used always to make it of Lands in Dale till the Court ordered them to do otherwise so that though the Common Vsage was so formerly 't is now otherwise and the Reason of things changing the things themselves also change And if this Recovery should not be construed to pass the Lands the intention of the Parties would faile 't is true there is no Authority express in the point to guide this Iudgment nor is there any against it but if such should be the Opinion of the Court is not to be bound against apparent Right and 't is for the honour of the Law that Men should enjoy their Bargains according as they intended for which Reasons Iudgment was given for the Defendant Goffe versus Elkin THE Condition of a Bond was Affirmative Plea where it ought to be particular where not That if the Plaintiff shall seal to the Defendant a good and sufficient Conveyance in the Law of his Lands in Jamaica with usual Covenants in such manner as by the Defendants Council shall be advised then if the Defendant should thereupon pay unto the Plaintiff such a Sum of Mony c. the Condition should be void In Debt brought upon this Bond the Defendant after Dyer of the Condition pleads that Mr. Wade a Councellor at Law did advise a Deed of Bargain and Sale from the Plaintiff to the Defendant with the usual Covenants of all his Lands in Jamaica and tendred the Conveyance to the Plaintiff who refused to seal the same and so would discharge himself of the Condition the Mony being not to be paid unless the Assurance made To this Plea the Plaintiff demurred by Serjeant George Strode 1. Because the Defendant hath not shewed the Conveyance and an affirmative Plea ought to be particular and not so general as this for to plead generally quod exoneravit is not good but it must be shewed how and so it was adjudged in the Case of * 2 Cro. 165 359 363 503 634. Sid. 106. 2 Co. 4. a. Cro. Car. 383 384. 2 Leon. 214. Horseman and Obbius where the Condition was to indempnifie Lands from the yearly Rent of 20 l. during the Demise the Defendant pleaded quod à tempore confectionis scripti obligatorii hucusque exoneravit c. And upon Demurrer as here it was held no good Plea 2. The Matter of the Condition consists both of Law and Fact and both ought to be set out the preparing of the Deed is Matter of Fact and the Reasonableness and Validity thereof is Matter of Law and therefore they ought to be set forth that the Court may judge thereof * Hob. 107. In 22 E. 4.40 The Condition
of the Officers drive the Sheep to Marwood's Grounds where they left them The Plaintiff demands the Sheep of Solebay and upon his refusal to deliver them brings this Action against the Servant and whether it would lye or not was the Question It was urged at the Barr that the Action would not lie against the Defendant because he had not the possession of the Goods at the time of the Action brought for he presently put them into his Masters Ground And it was said if A. find Goods and S. takes them away before the Action brought Trover will not lie against A. but 't is otherwise if he sell them In this Case it would have been a Breach of Trust in the Servant to have delivered the Goods belonging to his Master to another 'T is true if there be a Conversion though the possession be removed before the Action brought yet the Action will lie but that is because of the Conversion Many Cases were put where the Servant is not lyable to an Action for a thing done by the Command of his Master and where a Bayliff who is but a Servant to the Sheriff shall not be charged in a false Return made by his Master Cro. Eliz. 181. 1 Roll. Abr. 94 95. So if a Smiths Man prick an Horse the Action lies against the Master and not against the Servant The Court before they delivered any Iudgment in this Case premised these two things viz. 1. That 't is necessary in Trover to prove a Property in the Plaintiff and a Trover and Conversion in the Defendant And it was said by Iustice Atkins but denied by the Chief Iustice that though Goods are sold in a Market yet the property is not changed till the delivery for which he cited Keilway 59 77. But the Court held clearly in this Case that the first Sale to Alston was defeated by the Agreement of the Parties afterwards for when a Bargain is made and all the Parties consent to dissolve it and other Conditions are proposed the new Agreement destroys the former Bargain And the Chief Iustice said that if an Horse was bought in a Market for which the Vendeé is to pay 10 l. if the ready Mony be not paid the property is not altered but the Party may sell him to another 2. This new Agréement to have the Sheep if Alston would pay such a Sum of Mony at a future day will not amount to a Sale and the new property is changed and consequently the Sale by H. to the Plaintiff before the day is good and so the property of the Sheep is in him But by the Opinion of the whole Court the Action would not lie against the Defendant 1. The Defendant could be guilty of no Conversion unless the driving the Cattle by vertue of the Replevin would make him guilty but at that time the Sheep were in custodia Legis and the Law did then preserve them so that no property can be changed and if so then there could be no Conversion 2. The Action will not lie against the Servant for it being in Obedience to his Master's Command though he had no Title yet he shall be excused And this Rule Iustice Scroggs said would extend to all Cases where the Master's Command was not to do an apparent Wrong for if the Master's Case depended upon a Title be it true or not 't is enough to excuse the Servant for otherwise it would be a mischievous thing if the Servant upon all occasions must be satisfied with his Master's Title and Right before he obey his Commands and 't is very requisite that he should be satisfied if an Action should lie against him for what he doth in Obedience to his Master But it was said the * Wyne and Rider antea Servant cannot plead the Command of his Master in Barr of a Trespass and it was likewise said that in this Case the driving of the Cattle by the Servant to the Grounds of his Master or a Strangers helping to drive them without being requested is justifiable 3. Because what was done by the Defendant was done in Execution of the Process of the Law and he might as well justifie as the Officer for if he forbid the Defendant to have assisted him yet his assisting him afterwards would not have made him guilty because done in Execution of the Law 4. Because 't is not found that the Servant did convert the Sheep to his own use for the special Verdict only finds the Demand and the Refusal which is no Conversion and though 't is an Evidence of it to a Iury yet 't is not Matter upon which the Court can give Iudgment of a Conversion 10 Co. 57. And therefore the Iury should have found the Conversion as well as the Demand and Refusal 2 Bulstr 313. 1 Roll. Abr. 5. like the Case in 2 Roll. Abr. 693. In an Assise of Rent seek upon Nul tort pleaded the Iury found a Demand and Refusal sic disseisivit it was held to be no good Verdict for the Demand ought to have been found on the Land and shall not be so intended unless found The Plaintiff here hath set forth in his Declaration a Request to deliver then a Refusal and Conversion too which shews that they ought to be found because distinct things and the finding of the Demand and Refusal was only a presumptive not a conclusive proof of the conversion and if the Iury themselves know that there was no conversion yet the Plaintiff hath failed in his Action as if a Trover be brought for cutting Trees and carrying of them away and the Iury know that though the Defendant cut them down yet they still lay in the Plaintiffs Close this is no conversion And though it hath been strongly insisted at the Bar that the Court shall intend a conversion unless the contrary appeared and are to direct a Iury to find the demand and refusal to be a conversion and the Opinion of Dodridge and Croke in 1 Roll. Rep. 60. was much relied on where Adams recovered against Lewis 40 l. in the Court of Exon and three Butts of Sack were taken in Execution and the Plaintiff deposited 22 l in the Hands of the Defendent to prevent the Sale of the Sack which was to be a pledge to return it upon request if the Defendant was not paid before the next Court day the Iury found the Debt was not paid and that no request was made to return the Sack but that the Plaintiff requested the Defendant to return the Mony Yet it was held by those two Iustices That the Law would supply the proof of a * Bulstr 308. Cro. Eliz. 495. Golds 152. Moor 460. Stiles 361. conversion though it was not found for it shall be presumed that the Mony was denied to the Plaintiff and that the Defendant might use it himself and because no other proof could be made that very denial shall be a conversion in Law so a denial of a Rent
upon the Statute and then the Defendant might have pleaded the Act of Indempnity of which he might have the benefit but if not he may be let into the Equity of the Statute of the 33 H. 8. cap. 39. which gives liberty to Purchasers to have contribution and to plead sufficient matter if they have any in discharge of the Debt Ex parte Quer. But on the other side it was said that the Replication was good for if the Sale was after his being Receiver though before he became indebted yet by the Statute of the 13 Eliz. the Lands are subject to a Debt contracted afterwards because it hath a Retrospect to the time he was first Receiver Pl. Com. 321. Dyer 160. By the Common Law both the Body and Lands of the Kings Debtor were lyable from the time he became indebted but because such Debtors oftentimes sold those Lands which they had whilst they were Officers and so the King was defeated therefore was this Statute made to supply that defect of the Common Law by which Statute all the Lands he had at any time during his continuance in the Office were made lyable And though it may be objected That because of this Inquisition the King is limited to a time Viz. that inquiry should be made what Lands Havers had in the 20th year of the King yet it was said the Inquiry may be general The Elegit anciently left out the time because the Law doth determine from what time the party doth become lyable so that the question is about the King's Title which if it appear to precede that of the Ter-tenant then the King's Hands are not to be amoved and thereupon Iudgment was prayed for him Bro. Prerogative 59. Curia adversare vult Barker versus Keat IN a Special Verdict in Ejectione firmae Reservation of a Pepper Corn a good consideration to raise an use to make a Tenant to the Praecipe Mod. Rep. 262 the Iury made a special Conclusion by referring to the Court whether there was a good Tenant to the Praecipe or not which was made by a Bargain and Sale but no Mony paid nor any Rent reserved but that of a Pepper Corn to be paid at the end of six Months upon demand and the Release and Grant of the Reversion thereupon was only for divers good Considerations The Question was if this Lease upon which no Rent was reserved but that of a Pepper Corn be executed by the Statue of Uses or not if it be Cro. Jac. 604. Jones 7. 1 Cro. 110. 5 Rep. 124. b. then there is no need of the Entry of the Lessee for the Statute will put him in actual possession and then the Inheritance by the Release or Grant of the Reversion will pass But if this Lease be not within the Statute because no Vse can be raised for want of a Consideration then it must be a Conveyance at the Common Law Lit. Sect. 465. Co. Lit. 46. b. and so the Lessee ought to make an actual Entry as was always usual before the making of the Statute Serjeant Waller and Maynard argued that here was no Consideration to raise an Vse for the reservation of a Pepper-Corn is no profit to the Lessor 't is not a real and good Rent For so small and trivial a matter is no Consideration for that which must be a good Consideration ought to be Mony or some other valuable thing Then this Conveyance is not executed by the Statute of Vses and if so 't is not good at the Common Law it being only a Lease for years and no Entry without which there can be no possession and if not then there can be no Reversion upon which the Release may operate 't is only an interresse termini and so was the Opinion of my Lord Coke since the Co. Lit. 270. making of this Statute 1 Leon. 194 195. And that no Vse was raised here the Case of my Lord Paget was cited to which this was compared My Lord being seised in Fee Covenanted to stand seised to the Vse of Trentham and others in consideration of payment of his Debts out of the Profits of his own Estate this was adjudged a void Vse because there was no consideration on Trentham's part to raise it the Mony appointed to be paid being to be raised out of the Profits of my Lords Estate The Words of the Lease are Demise Grant c. which are Words at the Common Law Co. Lit. 45. b. and 't is not possible that a future executory Consideration should raise a present Vse for the Pepper Corn is not to be paid till the end of six Months and as this Consideration is executory so it is contingent too for the Lessor might have released before the expiration of the six Months If the Case of * Cro. Jac. 604. pl. 32. Lutwitch and Mitton be objected where it was resolved by the two Chief Iustices and Chief Baron that upon a Deed of Bargain and Sale of Lands where the Bargainee never entred and the Bargainor reciting the Lease did grant the Reversion expectant upon it Cro. Car. 110 400. that this was a good grant of the Reversion from which the Possession was immediately divided and was executed and vested in the Bargainee by virtue of the Statute of Vses This is no Objection to the purpose because in that Case the Bargainor was himself in actual possession So that if there be no good Tenant to the Precipe in this Case though all that joyn in it are Estopped to say so yet the Tenant in Tail who comes in above is not barred 5 H. 5. 9. But on the othe side it was said that the Lessee was in possession by the Statute for the Word Grant being in the Lease and the reservation being a Pepper Corn that will amount to a Bargain and Sale though it hath not those precise words in it 8 Co. 94. Pl. Com. 308. Dyer 146. b. contra But if it should not yet another Vse may be averred than what is in this Lease like Bedel's Case 7 Co. 40. b. Where a Man in consideration of Fatherly Love to his eldest Son did covenant to stand seised to the Vse of him in Tail and afterwards to the use of his second Son there though the consideration respected his eldest Son only in Words yet a consideration which is not repugnant to it may be averred and though an Entry is not found yet it shall not be intended since the Iury have not found the contrary North Chief Iustice At first when this sort of Conveyance was used the Lessee upon the Lease for a year did always make an actual Entry and then came the Release to convey the Reversion but that being found troublesome the constant Practice was to make the Lease for a year by the Deed of Bargain and Sale for the consideration of five shillings or some other small sum and this was held and is so still to be good
damages which he sustained before the Abatement And thereupon Iudgment was given for the Plaintiff Walwyn versus Awberry and others Tythes of a Rectory shall not be sequestred for Repairs of the Chancel Mod. Rep. 258. TRespass for the taking and carrying away of four Loads of Wheat and four Loads of Rye c. The Defendants justifie for that the Plaintiff is Rector of the Rectory impropriate of B. and that the Chancel was out of Repair and that the Bishop of Hereford after Monition first given to the Plaintiff had granted a Sequestration of the Tythes of the Rectory for the repairing the Chancel and that the Defendants were Churchwardens of the Parish and that the particulars mentioned in the Declaration were Tythes belonging to the Plaintiff as Rector aforesaid and that by vertue of the said Commission they took the same for repairing of the said Chancel and that for these Tythes so taken they had accounted to the Bishop To this the Plaintiff demurred The Question was whether an Impropriate Rectory be chargeable for the Repairs of the Chancel by the Sequestration of the Tythes by the Bishop and those who argued in the negative for the Plaintiff could not deny but that Church Reparations did belong to the Ecclesiastical Courts and that as often as Prohibitions have been prayed to that Iurisdiction Consultations have been as often granted notwithstanding in many Cases the Rates for such Reparations have been very unequally imposed and the reason is because those Courts have original Iurisdiction of the Matter It was admitted also that Parishioners are bound to repair the Church and the Rector the Chappel and in this respect of their Lands and therefore if a Man hath Lands in one Town and dwell in another he shall be contributory to the Reparation of that Church where his Lands are and not where he inhabits And that all this was by the common Custom of England long before the making of the Statute of 31 H. 8. cap. 13. by which Parsonages were made Lay Fees but then it must be understood that this was no real Duty incumbent upon them but was a personal burden for which every Parishioner was chargeable proportionably to the quantity of Land which he held in the Parish in which Case if he refused to be contributory the Ordinary did never intermeddle with the possessions but always proceeded by Ecclesiastical Censures as Excommunication of the Party refusing which is the proper remedy But in case of an Appropriation in the Hands of an Ecclesiastical Corporation as Dean and Chapter c. there if a Refusal be to contribute to the Repairs the Ordinary may sequester and the reason is because a Corporation cannot be excommunicated The Ordinary may also sequester in things of Ecclesiastical Cognizance as if the King do not present so he may take the Profits within the six Months that the Patron hath to present and apply them to the Pastor of the Church by him recommended because the Ordinary hath a provisional Superintendency of the Church and there is a necessity that the Cure should be supplyed until the Patron doth present and this is a kind of Sequestration But in some Cases the Ordinary could not sequester the Profits belonging to Spiritual Persons though he was lawfully entituled to them for a particular time and purpose For by the Statute of 13 Eliz. cap. 20. 't is Enacted That if a Parson make a Lease of his Living for a longer time than he is resident upon it that such Lease shall be void and he shall for the same lose one years Profits of his Benefice to be distributed by the Ordinary amongst the Poor of the Parish Now he had no Remedy to recover the Years Profits but in the Ecclesiastical Court he could not sequester and to give him Authority so to do a supplemental Statute was made five years afterwards in the 18th year of the Queens Reign cap. 11. by which Power is given him to grant a Sequestration so that if he could not sequester in a Case of which he had a Iurisdiction by a precedent Statute à fortiori he cannot in a Case exempted as this is from his Iurisdiction But admitting a Sequestration might go then this inconveniency would follow that if other Lands should be sequestred for the same purpose the former Sequestration could not be pleaded to discharge them because the interest is not bound thereby no more than a Sequestration out of Chancery is pleadable to an Action of Trespass at the Common Law This Case cannot be distinguished from that of Jefferies in 5 Co. and from what the Civilians testified to the Court there viz. That the Churchwardens and greater part of the Parishioners upon a general warning given may make a Taxation by Law but the same shall not charge the Land but the person in respect of his Land so that 't is he that is chargeable and may be excommunicated in case of refusal to contribute but his Lands cannot be sequestred because 't is not the business of the Ordinary to meddle with the temporal possessions of Lay-men but to proceed against them by Ecclesiastical Censures and the Parishioners Lands may be as well sequestred for the Repairs of the Church as the Lands of the Impropriator for the Repairs of the Chappel for which Reasons it was held that a Sequestration would not lie Ex parte Def. But on the other side it was said that before the making of the Statute the Rector was to repair the Chancel under pain of Sequestration which the Ordinary had power to grant in case of refusal and that his Authority in many Cases was not abridged by the Statute The Case of * 2 Cro. 518. Parry and Banks was cited where in the 24th Year of H. 8. a Parsonage was appropriated to the Deanary of St. Asaph and a Vicaridge endowed which the Bishop dissolved in the 24th Year of Queen Elizabeth and Parry pretending that notwithstanding this Dissolution it was in the Kings Hands by lapse obtained a Presentation and it was resolved that after the Statute of Dissolutions which made Parsonages Lay Fees the Ordinary could not dissolve the Vicaridge where the Parsonage was in a Temporal Hand but being in that Case in the Hands of the Dean he might The Rector is to repair the Chancel because of the Profits of the Glebe which is therefore Onus reale impositum rebus personis and of that Opinion was Johannes de Atkin who wrote 100 years before Lynwood where in fol. 56. he saith That if the Chancel was out of repair it affected the Glebe And that the Constitution of the Canon Law is such will not be denied Vaugh. 327. and if so Canons being allowed are by use become parcel of the Common Law and are as much the Law of the Kingdom as an Act of Parliament for what is Law doth not suscipere magis aut minus Several Cases were put where the Bishop doth intermeddle with the
Profits of a Parsonage as in the Case of a Sequestration upon a Iudgment obtained against a Spiritual Person where a Fi. Fa. is directed to the Sheriff upon that Iudgment and he returns Clericus beneficiatus non habens Laicum feodum for which reason he cannot meddle with the Profits of the Glebe but the Bishop doth it by a Sequestration to him directed He may likewise retain for the supply of the Cure and pay only the residue which hath been omitted on the other side As the Ordinary might dissolve a Vicaridge endowed where the Parsonage was in the Hands of a Dean so he may sequester an Appropriation in any Spiritual Person and there is no Statute which exempts an Impropriation from such a Sequestration because 't is onus reale at the Common Law and as the Lay Impropriator may sue for Tythes and receive them as before the making this Statute 't is as reasonable since he hath the same advantage that he should have the same Charge and the rather because the saving in the Statute of 31 H. 8. cap. 13. doth still continue the same Authority the Bishop had before though the possession was thereby given to the King The Words of which are viz. Saving to all and every person c. such Right which they might have had as if the Act had not been made which must be the Right of the Ordinary and of no other person An Impropriator pays Synodals and Procurations as well as an Appropriation in the Hands of Ecclesiastical Persons and it would be very inconvenient if a Sequestration should not lie which would quicken them more than an Excommunication and it was said that in England there were above 1000 Appropriations belonging to Corporations aggregate as Deans and Chapters which could not be excommunicated and if the Bishop could not sequester then there was no remedy to repair the Chancel For which Reasons Iudgment was prayed for the Defendant But the whole Court besides Iustice Atkins held that the Lay Impropriation was not to be sequestred for the Repairs of the Chancel And the Chief Iustice said that the Repair of the Chancel was an Ecclesiastical Cause but that the Rectory and Impropriator were Lay and not to be sequestred as the possessions in the Hands of Ecclesiastical Corporations may which he did agree could not be excommunicated but the persons who made up such Corporation might And as to the Sequestration upon a Iudgment it made nothing for the Matter to entitle the Ordinary to a Sequestration in this Case because what he doth in that is in the nature of a temporal Officer for the Sequestration is like the Fieri Facias and being directed to the Bishop he is in that Case if he may be so called an Ecclesiastical Sheriff and by virtue thereof may do as the Sheriff doth in other Cases that is he may seise Ecclesiastical things and sell them as the Sheriff doth Temporal things upon a Fieri Facias but 't is to be observed that he must return Fieri feci and not Sequestrari feci upon this Writ And as to the Saving in the Statute that doth not alter the Case for if any Right be thereby saved 't is that of the Parson for the Parishioners have no right to sit there indeed the Vicar may because he comes in under the Parson So that this Case is not to be put as at the Common Law but upon the Statute of Dissolutions by vertue whereof the Rectory being in the Hands of a Lay Person is become a Lay Fee and so cannot be subject to a Sequestration if it should the next step would be that the Bishop would increase Vicaridges as well in the Case of an Impropriation as Appropriation which would lessen the possessions of such as have purchased under the Act. But Iustice Atkins was of a contrary Opinion he said that it was agreed by all that an Impropriator is chargeable with the Repairs of the Chancel but the Charge was not personal but in regard of the profits of the Impropriation which are originally the Debtor according to the first Donation That the primary Rights of Rectories are the performance of Divine Service and the Repairs of the Chancel and that the Profits which are over and above must then go to the Imprpriator and are to be esteemed then a Lay Fée but that those Duties are the first Rights and therefore must be first discharged That this Right this duty of Repairing was certain and therefore shall not be taken away by Implication but by express Words in the Act which if wanting shall remain still and the Parties shall be compelled to repair under the same Penalties as before But admitting it should be taken away yet the saving in the Act extends to the Right of the Parishioners which is not to sit in the Chancel but to go thither when the Sacraments are administred of which they are deprived when 't is out of Repair nor can they have the use of the Church which properly belongs to them because when the Chancel is out of Repair it not only defaces the Church but makes it in a short time become ruinous He denied that a Sequestration in Chancery cannot be pleaded to barr a Trespass at the Common Law for if it be said that the Chancery have issued such Sequestrations it will be as binding as any other Process issuing according to the Rules of the Common Law And he also denied the Case put by the Chief Iustice that the Lands of the Parishioners might as well be sequestred for the repair of the Church as those of the Impropriator for repair of the Chancel because the Profits of the Rectory might originally be sequestred but the Lands of the Parishioner could not and so the Cases are quite different Judgment But in Easter Term following Iudgment was given against the Defendant upon the point of Pleading which the Court all agreed to be ill 1. The Defendants should have averred that the Chancel was out of repair 2. That no more was taken than what was sufficient for the repair thereof 3. For that the Plaintiff had declared for the taking of several sorts of Grain and the Defendant justifies the taking but of part and saith nothing of the residue and so 't is a Discontinuance and the general Words quoad residuum transgressionis will not help because he goes to particulars afterwards and doth not ennumerate all and thereupon Iudgment was given accordingly Edwards versus Weeks ASsumpsit Parol discharge good before breach of Promise but not afterwards Mod. Rep. 262. The Plaintiff declared that the Defendant in consideration that the Plaintiff at his Request had exchanged Horses with him promised to pay him 5 l. and he alledged a breach in the Non-performance The Defendant pleads that the Plaintiff before any Action brought discharged him of his Promise And upon a Demurrer the Question was whether after a breach of a Promise a parol discharge could be good The
Defendant demands Dyer of the Indenture wherein was a variance between the Covenant which was for notice to be given to the Testator and this Declaration by which notice is averred to be given to the Executor and for this reason he demurred And Serjeant Dolben Recorder of London argued for him that this was in the Nature of a Condition precedent and therefore they ought to have given the Testator notice which according to the Agreement ought also to have been personal which not being done but only notice given to his Executor did make a material and fatal difference between the Covenant and this Declaration 14 H. 6. 1. 1 H. 6. 9. And that in this Case there was no Covenant by the Testator at all for all agree to pay their proportions and the Testator should pay his part which is not a Covenant Barrel Serjeant on the other side said that the Executor doth represent the person of the Testator and that though this Covenant was to give notice to the Testator yet if the Declaration had been of a Covenant to give notice to him his Executors and Administrators c. it had been no material variance so as to prejudice the Action of the Plaintiff because 't is no more than what the Law implies Pl. Com. 192. And upon the first opening this Matter this Term the Chief Iustice and Iustice Atkins enclined that the notice ought to be personal and that the variance was material But afterwards in Hillary Term following mutata opinione the whole Court agreed it to be otherwise because the Covenant runs in Interest and Charge and so the Executor is bound to pay and therefore 't is necessary that he should have notice and that there was no material difference between the Declaration and the Covenant And lastly Antea that the Testator being a Party to the Deed his Agreement to pay amounts to a Covenant though the formal Words of Covenant Grant c. were wanting But then Serjeant Dolben perceiving the Opinion of the Court insisted that the Declaration was naught for another reason viz. they had not declared that this notice was given in writing which is expresly agreed in the Covenant to which it was answered that the Defendant having pleaded that he gave notice secundum formam effectum Conditionis it was well enough But he said that would not help the want of Substance Dyer 243. b. and cited a Case where an Action of Debt was brought for the performance of an Award so as the same was delivered in Writing c. The Defendant pleaded Non deliberavit in scriptis The Plaintiff replyed and set forth the Award in Writing but did not directly answer the Plea of delivering it in Writing only by way of Argument and upon Demurrer there omnes Justiciarii contra Querentem and so they were in this Case that the notice must be pleaded in Writing and that secundum formam Conditionis was not good And so Iudgment was given for the Defendant Frosdick versus Sterling THE Plaintiff alone brought an Action on the Case against the Defendant and sets forth Baron and Feme where the Action if it s not discharged shall survive to her they must both join that he and his Wife in her Right were seised of a Messuage Bake-House and Cole-Yard c. and that the Defendant had erected two Houses of Office so near the said Bake-House that the Walls thereof became foundrous and the Air so unwholesome that he lost his Custom and that the Defendant had digged a Pit so near the said Cole-Yard that the Walls thereof were in danger of falling and that he had built another Wall so near the said Messuage that he had stopped an old Light therein Vpon Not-guilty pleaded there was a Verdict for the Plaintiff And now Serjeant George Strode moved in Arrest of Iudgment for that the Wife should have been joyned in this Action for where she may maintain an Action for a tort done in the Life-time of her Husband if she survive and where she may also recover Damages in such Cases she must joyn and it hath been adjudged that she ought to joyn with her Husband for stopping a way upon her Land Cro. Car. 418. 1 Roll. Abr. 348. pl. 1. 20 H. 6. 1. â— Ed. 4. 15. Cro. El. 461. So also for cutting down Trees on the Ioynture of the Wife made to her by a former Husband by reason whereof the present Husband lost the Loppings they both joyned for though the wrong was done to his Possession and he might have Released yet because there was also a wrong done to the Inheritance they ought both to joyn Cro. Car. 438. 3 Inst 650. So it hath been adjudged that the Husband and Wife in Right of the Wife jojned in an Action of Debt upon the Statute of 2 E. 6. cap. 13. for not setting out of Tythes and held good and where the Wife cured a wound 2 Cro. 205 399. 9 E. 4. 55. both joyned in the Action 11 H. 4. 16. 46. E. 3. 3. The Court held That where the Action if not discharged shall survive to the Wife they ought both to joyn which if they had done here it would have been hard to have maintained this Action because entire Damages are given and for losing the Custom to his Bake-house the Husband alone ought to have brought the Action He may bring an Ejectment of the Lands of his Wife but Iudgment was stayed till moved on the other side Barker versus Warren Justification where 't is not local a Traverse of the place makes the Plea naught AN Action was brought against a Carrier and laid in London for losing of Goods there which were delivered to him at Beverly in Yorkshire to re-deliver at London The Defendant pleads That he was robbed of the said Goods at Lincoln absqe hoc that he lost them in London And the Plaintiff demurred 1. For that Robbery is no excuse for a Common Carrier so that the Plea is not good in substance 2. This was no local Iustification so that the Traverse was ill But on the other side it was said by Serjeant Hopkins that the Plea was good and that the Defendant might Traverse the place For in Trespass for the taking of Goods in Coventry the Defendand pleaded that the Plaintiff did deliver the Goods to him at London to deliver at Dale by force whereof he took them at London and delivered them at Dale accordingly absque hoc that he took them at Coventry and held good for by his Plea he hath confessed the delivery and the taking both at one time and place and he could not have pleaded the delivery at London and justifie the taking at Coventry because the Possession is confessed by the first delivery at London and therefore the justification of the taking at Coventry had been inconsistent 24 H. 6. 5. But it had been otherwise if the Defendant had justified because the Plaintiff
taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
particular Estate to support it for it shall descend to the Heir till the Contingency happen 't is not like a Remainder at the Common Law which must vest eo instanti that the particular Estate determines but the Learning of Exeecutory Devises stands upon the Reasons of the old Law wherein the intent of the Devisor is to be observed For when it appears by the Will that he intends not the Devisee to take but in futuro and no disposition being made thereof in the mean time it shall then descend to the Heir till the Contingency happen but if the intent be that he shall take in praesenti and there is no incapacity in him to do it he shall not take in futuro by an executory Devise Sid. 153. pl. 2. A Devise to an Infant in ventre sa mere is good and it shall descend to the Heir in the mean time for the Testator could not intend he should take presently he must first be in rerum natura 3 Co. 20. a. 1 Inst 378. a. If an Estate be given to A. for Life the Remainder to the right Heirs of B. this is a contingent Remainder and shall be governed by the Rules of the Law for if B. dye during the Life of A. 't is good but if he survive 't is void because no Body can be his right Heir whilst he is living and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder that so when B. dies his right Heirs may take In this Case a Fée did vest in Benjamin presently and therefore after his death without Issue the Defendant is his Heir and hath a good Title if not as Heir at Law yet she may take by way of Executory Devise as Heir of the Body of her Father which though it could not be whilst he was living because nemo est haeres viventis yet after his death she was Heir of his Body and was then of Age at which time and not before she was to take by the Will That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age And so by the Opinion of the whole Court Iudgment was given for the Defendant Evered versus Hone. SPecial Verdict in Ejectment wherein the Case was thus viz. A Man hath Issue two Sons Thomas his eldest and Richard his youngest Son Thomas hath Issue John Richard hath Issue Mary The Father devised Lands to his Son Thomas for Life Constructi-of Words in a Devise and afterwards to his Grandson John and the Heirs Males of his Body and if he die without Issue Male then to his Grandaughter Mary in Tail and charged it with some Payments in which Will there was this Proviso viz. Provided if my Son Richard should have a Son by his now Wife Margaret then all his Lands should go to such first Son and his Heirs he paying as Mary should have done Afterwards a Son was born and the Question was whether the Estate limited to Thomas the eldest Son was thereby defeated And the Court were all clear of Opinion that this Proviso did only extend to the Case of Mary's being intituled and had no influence upon the first Estate limited to the eldest Son Anonymus IN the Exchequer Chamber before the Lord Chancellor Executor of an Executor de son tort not liable at Law the Lord Treasurer and two Chief Iustices the Case was thus viz. The Plaintiff had declared against the Defendant as Executor of Edward Nichols who was Executor of the Debtor The Defendant pleads that the Debtor died intestate and Administration of his Goods was granted to a Stranger absque hoc that Edward Nichols was ever Executor but doth not say or ever administred as Executor for in truth he was Executor de son tort The Plaintiff replies that before the Administration granted to the Stranger Edward Nichols possessed himself of divers Goods of the said Debtor and made the Defendant Executor and dyed and the Defendant demurred and Iudgment was given for the Plaintiff but reversed here for an Executor of an Executor de son tort is not lyable at Law though the Lord Chancellor said he would help the Plaintiff in Equity But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort so his Executorship vanished and nothing shall survive The Lady Wyndham's Case IF Flotsam come to land and is taken by him who hath no Title the Action shall not be brought at the Common Law and no Proceedings shall be thereon in the Court of Admiralty for there is no need of Condemnation thereof as there is of Prizes By the Opinion of the whole Court of Common Pleas. Rose versus Standen Action where misconceived by the Plaintiff and Verdict against him no Barr to a new Action IN Accompt for Sugar and Indigoe the Defendant pleaded that the Plaintiff brought an Indebitatus Assumpsit a quantum meruit and an insimul computasset for 100 l. due to him for Wares sold to which he pleaded Non assumpsit and that there was a Verdict against him and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt The Plaintiff demurred and it was said for him that he had brought his former Action on the Case too soon for if no Accompt be stated the Action on the Case on the Insimul computasset will not lye and so the former Verdict might be given against him for that Reason Ex parte Def. But on the contrary the Defendant shall not be twice troubled for the same thing and if the Verdict had been for the Plaintiff that might have been pleaded in Barr to him in a new Action Curia 2 Cro. 284. But the Court were of another Opinion that this Plea was not good and that if the Plaintiff had recovered it could not have been pleaded in Barr to him for if he misconceives his Action and a Verdict is against him and then brings a proper Action the Defendant cannot plead that he was barred to bring such Action by a former Verdict Antea Putt and Roster Postea Rosal and Lamper Ante. because where 't is insufficient it shall not be pleaded in Barr as in Debt upon Bond the Defendant pleaded another Action upon the same Bond and the Iury found Non est factum the Entry of the Verdict was that the Defendant should recover damages eat inde sine die but not quod Querens nil capiat per Breve so no Iudgment to barr him 2 Cro. 284. But pending one Action another cannot be brought for they cannot both be true If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye the Insimul computasset implies an Accompt and upon Non assumpsit pleaded the Defendant might have given payment in Evidence and for that
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared
that he was seised of a Mesuage and several Lands in the Parish of Dale and that he and all those whose Estate he hath have used to have right of Common for all Commonable Cattle Levant and Couchant upon the Premisses in a certain Meadow there called Darpmore Meadow and in a certain place called Cannock Wood. That the Defendant praemissorum non ignarus had enclosed the said places in which the Plaintiff had right of Common and likewise put in his Cattle as Horses Cows Hoggs Geese c. so that he could not in tam amplo beneficiali modo enjoy the same The Defendant as to the Inclosure and putting in of his Hoggs and Geese pleaded Not Guilty And as to the residue That the Lord Paget was seised of a Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture and likewise of Darpmore Meadow and Cannock Wood and being so seised did by Deed of Bargain and Sale enrolled in consideration of 2000 l. convey the said Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture to the Defendant and his Heirs and by the same Deed did Grant unto him all Waies Commons and Emoluments whatsoever to the said Mesuage and Premisses belonging or therewithal used occupied or enjoyed or taken as part parcel or member thereof virtute cujus the Defendant became seised of the Premisses and that the same were leased and demised for years by the said Lord Paget and all those whose Estate he had a tempore cujus contrarii memoria hominum non existit and that the Tenants or Occupiers thereof a tempore cujus c. used to have Common in Darpmore Meadow and Cannock Wood for all commonable Cattle Levant and Couchant upon the Premisses and used to put in their Cattle into the said places in which c. virtute cujus the Defendant having Right did put in his said Cattle into the said Places to take Common there and averred That there was Common sufficient both for the Plaintiff and himself To this Plea the Plaintiff Demurred This Case was argued by Serjeant Pemberton for the Plaintiff and by Serjeant Weston for the Defendant Ex parte Quer. and for the Plaintiff it was said That it was no good Plea but rather a design to introduce a new way of Common The Reasons offered why the Plea was not good were 1. Cro. Car. 419. That the Defendant could not prescribe because of the Vnity of Possession for the Lord Paget had the Premisses in and to which c. and therefore he hath prescribed by a collateral matter Viz. by alledging that the Land was usually let to Tenants for years but doth not say whether they were Tenants by Copy of Court Roll or not neither doth he make out any Title in them In some Cases where a Man is not privy to the Title he may say generally that the Owners and Occupiers used to do such a thing c. and this way of Pleading may be good but here the Defendant claiming under them ought to set forth their Title or else he can have no Right to the Common 2. By this Plea he intended that the Lord Paget had made a New Grant of this Common for he sets forth That he granted the Premisses and all Commons used with the same and so would intitle himself to a Right of Common in those two places as if Common had been expressly granted to him there which if it should 't is but argumentative and no direct affirmance of a Grant upon which the Plaintiff might have replied non concessit for no Issue can be joyned upon it 3. He ought to have set forth That the Tenants lawfully enjoyed the Common there but he lays only an usage to have Common which may be tortious 4. He doth not say That there is sufficient Common for all the Commoners but only for the Plaintiff and himself 'T is true the Owner of the Soil may feed with his Tenant who hath a Right of Common but he cannot derogate from the first by streightning the Common by a second Grant and so leave not sufficint for the Tenant 5. This Plea amounts to the General Issue Cro. Car. 157. and the Plaintiff hath specially assigned that for a Cause of Demurrer for he saith That the Defendant without any Title put in his Cattle by which the Plaintiff had not sufficient Common and the Defendant pleads he put in his Cattle rightfully and the Plaintiff had Common enough which if it signifie any thing must amount to Not Guilty Ex parte Def. But on the other side the last Objection was endeavoured to be answered first because if that hold yet if the Plea be never so good in Substance the Plaintiff would have Iudgment It was agreed that this Plea doth amount to a General Issue and no more but that every Plea that doth so is not therefore bad for if it otherwise contain reasonable matter of Law which is put upon the Court for their Iudgment rather than referred to the Iury there is is no cause of Demurrer for it is the same thing to have the doubt or question in Law before the Iudges in Pleading as to have it before them upon a Special Verdict In 2 R. 2. 18. A Retainer was pleaded specially by an Administrator which is no more than Plene Administravit yet no Demurrer but the Book saith that the Court ought to be moved 2. The Plea is good as to the matter of it for the Defendant claims the same Common by his Grant which had been used time immemorial and alledges it to be of all Common used with the Premisses and this was a Common so used In Trespass the Defendant justified that Godfrey was seised in Fee of a House and of 20 Acres of Land and that he and all those c. had Common in the place where c. to the said Messuage belonging and that he made a Feoffment to Bradshaw of the same who made a Lease thereof to the Defendant with all Profits and Commodities thereunto belonging vel occupat vel usitat cum praedicto Mesuagio It was adjudged that though the Common was gone and extinct in the Hands of the Feoffor by the unity of the Possession yet those Words were a good Grant of a New Common for the time granted in the Lease and that it was quasi a Common in the Hands of Godfrey the Feoffor Cro. Eliz. 570. Godfrey versus Eyre And though it hath been objected That this Plea is not formally pleaded because it ought to have been direct in alledging a Grant whereas it was only argumentative and brought in by a side Wind he said That as bad as it was 't was drawn by that Serjeant who argued against him and who did very well know that the Averment of sufficiency of Common was needless Curia The Court were all of Opinion That though the Plea did amount to the general Issue yet for that