Proviso namely Such as at any time before were not usually let and set to Farm For where a mans power is limited to lease Lands so specially qualified that is let and set usually at any time before when he could not lease at all without such special power given him he is absolutely barr'd from leasing Land which is not so qualified 2. It must be presumed Sir Arthur Throgmorton knew he had such Lands as according to his Intention were not at any time before usually set and let and had reason not to suffer them to be demiseable within that Proviso to the prejudice of those in Reversion As for example his Mansion-house Gardens Curtilages and Lands occupied in Demesne For it had been vain to provide against the leasing of Land in such manner condition'd whereof he had none so condition'd But if notwithstanding it shall be taken that any his Lands which at any time past how long soever since one two or three hundred years were demised as perhaps the scite of his House and all his Demesne were though he knew not of it shall therefore now be demiseable within this Proviso Then is the Proviso inconsistent with it self and repugnant to his meaning for he intended thereby to hinder the demising of some of his Lands But by that construction of the Proviso every part of his Land might be demised for doubtless at some time or other every part of it was demised and probably by Records or other ancient Evidence might appear so to be 3. If this were the meaning of the Proviso the word usually in it was to no purpose for it had been much clearer to say That any Lands at any time heretofore demis'd should be demiseable for 21 years by Sir Peter Temple which doubtless was not Sir Arthur's meaning and consequently this Lease of Looffield not according to his meaning 1. Now for the literal sense of the Proviso Rolls Title Power f. 261. n. 11. 2 Jac. in Banâ—o If power be to make Leases for 3 lives or 21 years of Lands usually letten Land which hath been twice letten is within the Proviso but not Land which hath been but once letten Therefore this Land of Looffield letten but once 12 Eliz. is not within the Proviso But I insist not much upon this case for the words usually demis'd may be taken in two senses The one for the often farming or repeated Acts of leasing Lands to which sense this Case doth reasonably extend But the other sense of Land usually demis'd is for the common continuance of Land in lease for that is usually demis'd and so Land leas'd for 500 years long since is Land usually demis'd that is in lease though it have not been more than once demis'd which is the more receiv'd sense of the words Land usually demis'd 2. The meaning of the words at any time is various and of contrary meaning If it be asked by way of Question Were you at any time at York It is the same as Were you ever or sometime at York So in the Question Was this Land at any time in Lease is the same as Was it ever or some time in Lease But when the words at any time are not part of a Question but of an Answer they have a different and contrary meaning As if it be asked Where may I see or speak with John Stiles and it be answered You may speak with him or see him at any time at his House There the words at any time signifie at all times and not as in the question at some time So when the words are used by way of a plain enunciation and not as part of a Question or Answer As You shall be welcome to my House at any time signifie You shall be welcome at all times So in the present Case if it-be made a Question Was such Land heretofore at any time usually letten and set to Farm imports in the Question Was this Land ever or at some time heretofore how long ago soever usually let to Farm But by way of enunciation if it be said This Land was usually let to Farm at any time heretofore it means This Land was commonly at all times heretofore let to Farm So this Land was usually in Pasture at any time heretofore signifies this Land was always or commonly in Pasture heretofore So you may lease any Land heretofore letten to Farm at any time usually is the same with heretofore letten to Farm commonly at all times And this Construction of the Proviso agrees both with the words and intention of Sir Arthur But what was not farmed at the time of this Proviso made nor 20 years before could not be said to be at any time before commonly Farmed for those 20 years was a time before in which it was not farmed But to come closer The Proviso is that Leases may be made for 21 years of any the Lands in the Deed reserving the Rents thereupon reserved at the time of the Deed made viz. 12 Jac. Which necessarily implies that the Land demiseable by that Proviso must be Land which then was under Rent for where no Rent then was the Rent then thereupon reserv'd could not be reserv'd But Looffield had then no Rent upon it for it was not let of 20 years before nor then and therefore was not demiseable by that Proviso The words or more will not at all help the Plaintiff for the words more or less are words of relation the one of addition to what was before the other of diminution for more or less must relate to something positive in the kind before and can never be a relation to nothing So more wages necessarily implies some before more meat more drink more company and in all expressions more denotes a relation to somewhat before of the kind and in the present Case reserving more Rent must imply some before reserved And therefore where none was at the time of the Deed made 12 Jac. there cannot in any congruity of speech more be reserved or intended to be reserved Quaere If the Record be mended in the point of finding the death of Sir Peter Temple and when he died In this the Chief Justice delivered the Resolution of the whole Court Hill 21 22 Car. II. Rot. 2259. C. B. Ralph Dixon Plaintiff Harts ss versus Dean Harrison Defendant In a Replevin Quare cepit Averia ipsius Radulphi ea detinuit contra vadios plegios c. Distress 21 Maii 21 Car. 2. THe Plaintiff declares That the Defendant 21 die Maii 21 Regis nunc at Sandridge in a place called Fregmorfield took three Cows of the Plaintiffs and detain'd them against Pledges quousque to his damage 40 l. The Defendant as Bailiff of Elizabeth Rooper Widow Samuel Hildersham Gent. and Mary his Wife Michael Biddulph Esq and Frances his Wife Humphrey Holden Esq and Theodosia his Wife avows and justifies the Caption for that the place in quo c. contains a Rood of
a House Barns and Tithe of Woolney and thereof seis'd in the right of his Prebendary makes a Lease to Astly of the Prebend una cum the Glebe House Barn and Tithe for Three Lives rendring the accustomed and ancient Rent of Five pounds Twelve shillings Astly demiseth to Taverner the House Glebe and Barn for a year reserving Twenty shillings and dies the Cestuy que vies living As I concluded before Taverner is Occupant of the House Barn and Glebe-land and consequently lyable to pay the whole Rent being Five pounds twelve shillings yearly though the Land House and Barn be found of the yearly value of Twenty shillings only but because the Rent cannot issue out of Tithes or things that lye in Grant it issues only out of the House Barn and Land which may be distrain'd on 2. If Taverner being Occupant of the Land shall not have the Tithes which remain'd in Astly according to his Lease for three Lives at the time of his death and whereof by their nature there can be no direct Occupancy It follows that the Lease made by Doctor Mallory is determin'd as to the Tithe for no other can have them yet continues in force as to the Land and House and all the Rent reserv'd which seems strange the Land and Tithe being granted by the same Demise for three Lives which still continue yet the Lease to be determined as to part 3. Though the Rent issue not out of the Tithe yet the Tithe was as well a Consideration for the payment of the Rent as the Land and Houses were and it seems unreasonable that the Lessor Doctor Mallory should by act in Law have back the greatest Consideration granted for payment of the Rent which is the Tithe and yet have the Rent wholly out of the Land by act in Law too which cannot yield it 4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only to bind his Successor upon a Lease for Lives more than out of a Fair though it were as the ancient Rent and had been usually answered for the Fair as is resolv'd in Jewel Bishop of Sarum's Case Jewell's Case 5 Rep. Yet in this Case where the Tithe together with Land out of which Rent could issue was demis'd for the accustomed Rent the Successor could never avoid the Lease either in the whole or as to the Tithe only 13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith All Leases made by any Spiritual or Ecclesiastical persons having any Lands Tenements Tithes or Hereditaments parcel of the Possessions of any Spiritual Promotion other than for One and twenty years or three Lives whereupon the accustomed yearly Rent or more shall be reserv'd shall be void Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent this Statute intended that Leases in some sense might be made of Tithes for One and twenty years or Three Lives and an ancient Rent reserv'd but of a bare Tithe only a Rent could not be reserv'd according to Jewell's Case for neither Distress nor Assise can be of such Rent though an Assise may be de Portione Decimarum as is clear by the Lord Dyer 7 E. 6. and the difference rightly stated Therefore a Lease of Tithe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intention of the Statute or Tithe could in no sense be demis'd 5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent to Waste to Forfeiture Conditions and all things that Astly the Lessee or his Assignee if he had made any had been subject to Also Coke's Litt. 41. He must claim by a que Estate from Astly he must averr the Life of Cestuy que vie so as he becomes to all intents an Assignee in Law of the first Lessee 6. Without question the Occupant being chargeable with the Rent shall by Equity have the Tithe which was the principal Consideration for payment of the Rent when no man can have the benefit of the Tithe but the Lessor Doctor Mallory who gave it as a Consideration for the Rent which he must still have Therefore I conceive the Reason of Law here ought necessarily to follow the Reason of Equity and that the Occupant shall have the Tithe not as being immediate Occupant of the Tithe whereof no occupancy can be but when by his possession of the Land he becomes Occupant and the Law casts the Freehold upon him he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest and consequently of the Tithe An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years or Three Lives is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men as is resolv'd in Elsemere's Case Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law the Law will do it for him and none fitter to be so than the Occupant in case of a Lease pur auter vie as this is And if the Occupant being Assignee hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant Pasch 22 Car. II. Judgment for the Defendant Three Justices against the Chief Justice Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell In a Prohibition for his Marriage with Jane the Relict of Bartholomew Abbot his Great Uncle The Questions are Quest 1 WHether the marriage of Thomas Harrison the Plaintiff with Jane his now wife being the Relict of Bartholomew Abbot his great Vncle that is his Grand-fathers Brother by the Mothers side be a lawful marriage within the Act of 32 H. 8. cap. 38 Quest 2 Admitting it to be a lawful marriage within the meaning of that Act Whether the Kings Temporal Courts are properly Judges of it because the unlawfulness or lawfulness of it by that Act doth depend upon its being a marriage within or without the Levitical Degrees For if within those Degrees it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees must arise from the right knowledge ot the Scriptures of the Old Testament specially the Interpretation of which hath been and regularly is of Ecclesiastick Conizance and not of Lay or Temporal Conizance in regard of the Language wherein it was writ and the receiv'd Interpretations concerning it in all succession of time Quest 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other special Conizance of the Levitical Degrees and of marriages within them And though this be no marriage within the Levitical Degrees it being articled in general to be an Incestuous marriage
1 Car. 1. and that Sir Peter Temple entred and was seis'd for term of his life They find he had Issue of the Body of Anne his Wife Anne the now Defendant Daughter and Heir of the Bodies of the said Sir Peter and Anne his Wife and that Anne Wife of Sir Peter died 2. Sept. 3 Car. 1. 1. They find a Demise by Sir Peter Temple to Sir Thomas Gower and Hillyard of the Rectory of Thornbury 9. Maii 23 Car. 1. for 30 l. Rent 2. They find a Demise by him to them of a Messuage in Thornbury 9. March 23 Car. 1. of Woolheads Tenement for 16 l. 13 s. 4 d. Rent 3. They find a Demise to them 9. March 23 Car. 1. of Land in Thornbury held by Roger Rogers Rent 13 l. 6 s. 8 d. 4. They find a Demise 9. March 23 Car. 1. of Nelson's Tenement in Thornbury Rent 16 l. 13 s. 4 d. at Michaelmass and Lady-day 5. They find a Demise 13. March 23 Car. 1. of Lands in Shalston Eversham and Oldwick held formerly by William Hughes Rent 15 s. 4 d. These respective Leases were made for the term of 90 Years determinable upon the Lives of the Lady Baltinglass the Defendant Sir Richard Temple's and the Life of a younger Son of Sir Peter Temple as long as the Lessees should duly pay the Rents reserved and commit no waste according to the Limitation of the Proviso in 12 Jac. which is recited in the respective Leases 6. Then the Iury find quod predicti separales reditus super praedictis separalibus Indenturis Dimissionis reservat fuerint reservat reditus de super premissis praedictis 22. dii Junii Anno Jacobi Regis 12. supradict Et quod praedict separales reditus c. in forma praedict reservat ad Festum Sancti Michaelis Arch-angeli quod fuit 1653. debit non solut sive oblat suerint super idem Festum sed quod iidem reditus infra unum mensem prox post Festum praedictum praefat Annae Roper Defend solut fuerunt 7. They find a Demise to them of the Scite and Priory of Looffield 9. March 23 Car. 1. at the Rent of 100 l. payable equally on Lady-day and Michaelmass-day demised by Sir Arthur Throgmorton and Anne his Wife 20th of May 12 Eliz. 1570. to William Hewer for 21 years Rent 100 l. Lady-day and Michaelmass with some Exceptions for the like term of 90 years and upon like Limitations as in the former Leases The Iury find quod Tenementa praedicta cum pertinentiis in Looffield supranominat tempore dict Eliz. nuper Reginae Angl. fuerint dimissa ad redditum 100 l. pro termino 21. Annorum sed dimissio terminus 21 Annorum expirati fuerunt Et dicunt quod eisdem Juratoribus non constabat quod dicta Tenementa in Looffield praedict 22 die Junii 12 Jac. aut per spatium 20 Annorum tunc antea fuerint dimissa Et dicunt ulterius quod 50 l. pro dimidio unius Anni de praedictis Tenementis in Looffield ad Festum Sancti Michaelis Arch-angeli quod fuit Anno Dom. 1653. debit oblatae fuerint Et quod praedicta Anna Roper ante Festum Annunciationis prox sequent intravit They find that Gower and Hillyard claiming the said 5 Messuages 400 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture in Thornbury Shalston Evershaw Oldwick and Westbury As also the said Messuage and other the Premisses in Looffield and the Rectory of Thornbury before the supposed Trespass and Ejectment entred upon the Possession of the Lady Baltinglass and so possessed made a Lease to the Plaintiff by virtue of which he entred and was possessed until outed by the Defendant as by the Declaration But whither the Defendant be culpable they refer to the Court. Vpon this Verdict the Questions are two 1. The first Whither the Defendants entry into the six Tenements leased to Gower and Hillyard for not payment of the Rent reserv'd upon the day of payment were lawful or not And as to that the Court is of opinion that the Defendants Entry was lawful for that the Leases were not deriv'd out of the Estate of Sir Peter Temple who was but Tenant for life and had no Reversion in him but out of the Estate of Sir Arthur Throgmorton by Limitation of the Proviso in the Deed 12 Jac. so as the Leases were not Leases upon Condition to pay the Rent at the day to which any Demand or Re-entry was requisite for Non-payment but were Leases by Limitation and determined absolutely according to the Limitation Littl. f. 235. a. For this Littleton is express that the words quamdiu dum and dummodo are words of Limitation As if a Lease be made to a Woman dum sola fuerit or dum casta vixerit or dummodo solverit talem reditum or quamdiu solverit talem reditum so are many other words there mentioned And if there be not a performance according to the Limitation it determines the Lease But it is otherwise where a Rent is reserv'd upon Condition for there is a Contract between the Lessor and Lessee and the Law evens the Agreement between them as is most agreeable to Reason and the supposition of their Intention But in the present case Sir Peter Temple had no interest in him out of which such Leases could be deriv'd but had a power only to make them by virtue of the Proviso in Sir Arthur Throgmortons Deed and the Lessees must be subject to such Limitations as are thereby made It was agreed by the Council of the Plaintiff That it was not a Condition for payment of the Rent nor could it be but they would call it a Caution A Condition to determine a Lease or a Limitation is a Caution and a material one but such a Caution as hath no more effect than if it were not at all is a thing insignificant in Law and therefore must not supplant that which in proper terms is a Limitation and hath an effect 2. The next Question is upon the Lease of Looffield which arises upon the words of the Proviso That it should be lawful for Sir Peter Temple to demise all or any the Premisses which at any time heretofore have been usually letten or demised for the term of 21 years or under reserving the Rent thereupon now yielded or paid And the Iury finding the Lands in Looffield to have been demised 12th of the Queen for 21 years for 100 l. Rent and that that term was expired and not finding them demis'd by the space of twenty years before at the time of the Indenture 12 Jac. Whither the Lease by Sir Peter Temple of them be warranted by the Proviso there being reserv'd the Rent reserv'd by the Lease in 12. Eliz. viz. 100. l. The Court is of opinion that the Lease of Looffield is not warranted by that Proviso for these Reasons 1. It is clear Sir Arthur Throgmorton intended to exclude some Lands from being demisable by that
Avowry is in liew of an Action and thereto privity is requisite for the same cause he cannot have an Action of Waste nor many other Actions there mentioned and the Authorities cited and so is Littleton himself expresly Litt. Sect. 580. Section 580. Where a man by grant to himself or by descent from his Ancestor hath a Rent-charge and might once lawfully distrain and Avow for such Rent if Arrear by due Attornment made to him or his Ancestor he may still do so whenever the Rent is behind unless by Law that power be some way lost 1. That power may be lost by extinguishment of the Rent by a perpetual union of the tenancy to the rent or rent to the tenancy or in other manner the Grantee having no Heir 2. It may be lost for a time by Suspension as by such union for a time and after restored again 3. It may be lost by a Grant of the Rent upon Condition 7 H. 6.3 Br. Extinguishment p. 17. and upon performance or breach of the Condition restored again but the power of distraining is not in this Case lost by any of these ways 4. It may be principally lost by a sufficient granting over and transferring the Rent to another which way comes nearest to the Case in question And therefore I shall agree the Case so much insisted on which is said to be agreed per Curiam Andrew Ognell's Case 4. Rep. f. 49. in Andrew Ognell's Case in the fourth Rep. That if a man be seized of a Rent-service or Rent-charge in Fee and grant it over by his Deed to another and his Heirs and the Tenant Attorn such Grantor is without remedy for the Rent arrear before his Grant for distrain he cannot and other remedy he hath not because all privity between him and the Tenant is destroyed by the Attornment to the Grantee and he hath no more right than any Stranger to come upon the Land after such transferring over of the Rent I shall likewise agree another Case That if such Grantee should regrant the same Rent back to the Grantor either in fee in tail or for life and the Tenant Attorn as he must to this regrant yet the first Grantor shall never be enabled to distrain for Arrears due to him before he granted over the Rent for now the privity between him and the Tenant begins but from the Attornment to the regrant the former being absolutely destroyed and the Tenant no more distrainable for the ancient Arrears than he was upon the creation of the Rent for Arrears incurred before till first attorn'd If the Case in question prove to be the same in effect with either of these Cases then the reason of Law for these Cases must sway and determine the Case in question And I conceive that there is no likeness or parity between the Case in question and either of those Cases either for the fact of the Cases or the reason of Law I shall therefore begin with comparing this Case with the first of those Cases 1. In the first of those Cases he that is seis'd of the Rent-charge doth intend to transferr his Estate in the Rent to the Grantee and it is accordingly actually transferr'd by the Tenants Attornment to the Grant 2. The Grantee by his Grant and Attornment to it becomes actually seis'd of the Rent and may enjoy the benefit of it by perception of the Rent 3. His Wife becomes dowable of it 4. It is subject to Statutes Recognizances and Debts enter'd into by the Grantee or due from him to the King 5. It is possible to descend to his Heir 6. It may be Arrear and he hath a possibility to distrain and avow for it 1. But in the Case in question the Conizors of the Fine did never intend to transfer their Estate in the Rent to the Conizee nor that any Attornment be made to him What a man intends to pass to another he intends to be without it himself at least for some time which is not in this Case 2. The Conizee never becomes actually seiz'd of the Rent and not only doth not but never can enjoy the perception of it for there is no moment of time wherein the Conizors themselves are not actually in seisin of it and consequently may distrain if it be in Arrear and the Conizee can never have actually seisin or possibility to have Attornment or distrain his seisin being but a meer fiction and an invented form of Conveyance only 3. The Conizee's Wife is never dowable of it 4. It is not subject to any Statutes Recognizances or Debts of the Conizee 5. It is never possible to descend to his Heir for it instantly vests in the Conizors 6. It can never be Arrear to the Conizee nor hath he ever a possibility to distrain for it To this purpose what is agreed in the Lord Cromwell's Case L. Cromwell's Case 2. Rep. f. 77. 2. Rep. is applicable Then it is to be consider'd what seisin Perkins had who was the Conizee of a Fine in that Case and he had but a Seisin for an instant and only to this purpose to make a Render for his Wife shall not be endowed nor the Land subject to his Statutes or Recognizances f. 77. Therefore that first Case cited out of the Report of Andrew Ognell's Case which I admit to be good Law hath no resemblance with the present Case in any circumstance or consequent but had the Fine been to a third persons use the consequents had been the same as in the Case cited out of Ognell's Case not as to the Conizee but as to that third person to whom the rent was intended To conclude then this first part 1. That whereof the Conizors were alwaies actually and separately seiz'd the same was never by them transferr'd to the seisin of another But of this Rent the Conizors were alwaies in actual seisin for there was no moment of time wherein they were not seis'd therefore this Rent was never transferr'd to the seisin of another nor could any other for any moment of time have a separated seisin thereof for what was mine at all times could be anothers at no time 2. It is an impossibility in Law that two men severally shall have several Rights and Fee-simples in possession in one and the same Land Dyer 28 H. 8. f. 12. a. p. 51. simul semel per Fitz-herbert in the Argument of Bokenhams Case and the same impossibility is so to have of a Rent Nor hath this relation to the learning of Instants in Digbie's Case Coke 1. Rep. and Fitz-williams in the sixth Report That an old Use may be revoked and a new rais'd in the same time and an old possession ended and a new begun this is usual in all transmutation of Estates and things also For in nature a new form introduc'd doth in the same moment destroy the old according to that Generatio unius est corruptio alterius but a separate possession can never be
the Grantee for life when his Estate was enlarg'd needing no new Attornment or privity he did not thereby lose the Rent-arrear If two Jointenants in Fee let the Land for life Litt. Sect. 574 reserving a Rent to them and their Heirs if one release to the other and his Heirs this Release is good and he to whom it was made shall have the Rent of Tenant for life only and a Writ of Waste without Attornment to such Release for the privity which once was between the Tenant for life and them in the Reversion So is it if one Jointenant confirms the Land to the other and his Heirs Litt. Sect. 523. The Law must necessarily be the same if a man seis'd of a Rent-service or Rent-charge in Fee grant it to two and their Heirs or to two and the Heirs of one of them and the Tenant attorn if after one Jointenant release to the other or he which hath the Inheritance to him which hath but an Estate for life and to his Heirs the person to whom such Release is made shall thereby have a Fee-simple whereas before he had but for life in the Rent and an Estate absolute which before was joynt without any new Attornment for the reason of the former Case because there was once a privity between the Tenant and them which was never destroyed So is it if there be Lessee for life the Remainder for life he Litt. Sect. 573 in the Reversion releaseth to him in the Remainder and to his Heirs all his right he in the Remainder hath thereby a Fee and shall have a Writ of Waste and likewise the Rent of Tenant for life if any were without any Attornment of the Tenant for life for the former privity between them Enlargement of Estate by descent If a man seiz'd of a Rent-charge in Fee grant it for life to A. and the Tenant attorns after the Grantor grants the Reversion of this Rent to the Father of A. and his Heirs to whom A. attorns as in this Case he may by Sir Edward Coke's Comment and after the Father dies Coke's Litt. Sect. 556. and this Reversion descends upon A. whereby he hath a Fee-simple in the Rent no new Attornment is requisite for this enlargement of Estate Diminishing of Estate A man seis'd of a Rent-charge in Fee grants this Rent for Seven years to commence from the time of his death the Remainder in Fee and the Tenant attorns in the life time of the Grantor 2. Rep. Sir Rowland Hayward's Case as he must by the Resolution in Sir Rowland Hayward's Case 2. Rep. here the Grantor hath diminish't his Estate in the Rent from a Fee-simple to an Estate for life yet it cannot be doubted but he may distrain for his Rent-arrear And so is the Law where a man seis'd in Fee of a Rent for good consideration Covenants to stand seiz'd for life with Remainder over Vpon these grounds upon Littleton If a man seis'd of a Rent-charge in Fee grant it over to a Feme sole for a term of years the Tenant attorns and she take Husband and during the term the Grantor confirm the Rent to the Husband and Wife for their lives or in Fee they become Jointenants for life or in Fee of this Rent and need no new Attornment This Case is proved by a Case in Littleton Sect. Hence it is manifest that where a man hath a Rent for which he may once lawfully distrain by Attornment of the Tenant which gives sufficient privity to avow such Grantee or Possessor of the Rent may enlarge or change his Estate in the Rent to a greater or lesser or different Estate and needs no new Attornment or privity therefore to distrain and avow for such Rent whenever Arrear unless he become dispossess'd of the Rent and the privity to distrain and avow thereby be destroyed by a Right gained by some other to have the Rent and a Right in the Tenant to pay it to some other 9 H. 6. f. 43. Br. Avoury p. 123. To this purpose there is a Case If a man be seis'd of Land in Jure uxoris in Fee and leaseth the Land for years reserving Rent his Wife dies without having had any Issue by him whereby he is no Tenant by the Curtesie but his Estate is determined yet he may avow for the Rent before the Heir hath made his actual Entry This Case is not adjudg'd but it is much the better Opinion of the Book Objections The Conizors are in possession since the Fine of another Estate Obj. 1 than they were before the Fine that is according to the uses of the Fine which they could not be without an Alienation of the Rent to the Conizee by the Fine to enable the raising of that new use out of the Estate transferr'd to the Conizee by the Fine That by such Alienation the former privity between the Conizors and the Tenant which they had as Parceners by Attornment to the first grant of the Rent was destroy'd and therefore they cannot now distrain but for Rent-arrear since the Fine by the possession given them by the Statute of 27 H. 8. to which no Attornment is necessary and not for any Arrears due before upon the old privity As specious as this Reason seems it may be answer'd Answ That the Conizors had alwaies an actual and separate seisin and possession of the Rent and were at no time without it therefore the Conizee could have no several and separate possession of it at any time for it is not possible that two severally can possess the same thing simul semel for the same thing can no more be in two separate possessions at the same time civilly then the same thing can be in two separate places at the same time naturally Is not the Reason then of equal force that the Conizors were at no time out of possession and seisin of this Rent and consequently never lost the power to distrain for it As to say the Conizee had sometime a separate possession of the Rent from the Conizors out of which the new uses were raised and therefore the privity to distrain for the old Arrears was for sometime destroy'd Besides if the old privity be destroy'd the greatest absurdity imaginable in Law follows That a man hath a right to a thing for which the Law gives him no remedy which is in truth as great an absurdity as to say the having of right in law and having no right are in effect the same When as on the other side the loss of the Arrears and the Conizors right to them is a Consequent deduc'd from the destruction of the old privity between the Conizors and the Tenant by an imaginary and not a real possession of the Rent by the Conizee Obj. 2 Ognell's Case 4. Rep. Nor will it serve to say as is insinuated in Ognell's Case that the Conizors have dispens'd with their own right in the Arrears and therefore such
afterwards the said First Day of April 21 Car. 2. at Hooknorton aforesaid demised to the said Thomas Rowe the said Mannor and Tenements Rectory and Vicaridge whereof the said Two hundred Acres are parcel To have and to hold to the said Rowe and his Assigns from the Feast of the Annunciation last past for the term of Seven years then next ensuing That by virtue thereof the said Rowe enter'd and was possessed until the said Robert Huntington the said First of April 21 of the King by Force and Arms by the command of the foresaid Robert late Bishop of Oxford into the said Two hundred Acres upon the Possession of the said Thomas Rowe to him demised by the said Wise as aforesaid for the said term not yet past enter'd and Ejected him But whether upon the whole matter the said Robert be Culpable of the said Trespass and Ejectment they refer to the Court. By this Verdict in the recited Indenture if any such were of 29 H. 8. the Farm of Hooknorton and the Mannor of Hooknorton were the same thing and the Mannor known and demis'd by the name of the Farm as well as the Farm by name of the Mannor The Mannor of Hooknorton being call'd the Farm of Hooknorton because it was lett to Farm and rented out and the Farm called the Mannor because it had the Requisits of a Mannor viz. Demesne Services Therefore where it is recited in the Deed 1 Mar. That the Abbot and Covent of Osney had by their Deed of 29 H. 8. demis'd to John Croker All that their Farm of Hooknorton it was the same as if it had been the Mannor of Hooknorton 1. For that the next words are And all that Mansion Demesne Lands Meadows Leasowes and Pastures to the said Mannor belonging and no Mannor is named before but the Farm which was known to be the Mannor 2. The Habendum of the Premisses demised is To have and to hold the said Farm or Mannor of Hooknorton which also shews they were the same 3. In the render of the Rent it is yielding and paying for the said Mannor and Farm Nine pounds 4. By the Demise of 1. Mar. subsequent the said Mannor or Farm is demis'd And the 200 Acres in question being found to be parcel of the said Mannor consequently they are recited to be demis'd by that Indenture suppos'd of 29 H. 8. But the Jury find not the Mannor and Farm to be the same The next thing to be noted is That by that recited Indenture of 29 H. 8. if any such were several Rents were reserved upon several particulars and not one intire Rent upon the whole namely 9 l. upon the Mannor or Farm Another Rent upon the Parsonage another on the Vicaridge and so upon several other particulars And by the Lease of 1 Mariae it is yielding and paying such and the like Rents in the Plural Number as are reserved by the said first Indenture So as the Rents were several in the first Indenture by the meaning of that of 1 Mar. And yielding and paying such and like Rent as is reserv'd by the latter Indenture for the Premisses therein contain'd Here it is such Rent in the singular number as is reserv'd not as are reserved as in the former Then in the Clause of Re-entry for Non-payment it is that the Re-entry should be into such of the Premisses whereupon such Rent being behind was reserv'd therefore not into all the Premisses Whence it follows That there being several Rents several Demands were respectively to be made before Re-entry as well for those reserv'd in the first Indenture as for that in the second Indenture recited And it being found That the Demand made by the Bishop at the Parsonage-house in Forty three was for the half years Rent reserved of all the Premisses demis'd by the Indenture of 1 Mar. it follows That more Rent was demanded than was payable in any one place consequently the Demand not good nor the Re-entry pursuing it and thus far the Case is clear against the Defendant For the Lease of 1 Mar. could not be avoided by that Re-entry in all nor in part if the Leases of 29 H. 8. and 1 E. 6. were well and sufficiently found by the Jury to have been made Note The Jury finding that the Rent reserved for all the Premisses was behind for half a year ending at Michaelmas 1643. not expressing the Sum of the Rent is no more than to find That no Rent was paid for the said half year And their finding That the Bishop did demand the said half years Rent finding no Sum by him demanded is no more than to find That he demanded such Rent as was due for the said half year So as notwithstanding the Juries finding That no Rent was paid for the said half year and their finding of the Bishop's demanding of what was due for the said half year It doth not therefore follow That they find any Rent to be reserv'd by the said Lease of 1. Mar. or that there was a Demand of any Rent admitted to be so reserv'd But if the Leases of 29 H. 8. and 1 E. 6. be not well and sufficiently found by the Jury to have been made The Consequent then is That in Law there are no such Leases for de non apparentibus non existentibus eadem est ratio ad omnem juris effectum And then it follows That the Lease of 1 Mar. of all the Premisses specified in the Indenture of 29 H. 8. and of all specified in the Indenture of 1 E. 6. for Ninety years Habendum from the respective Expirations of the terms specified and under the respective Rents reserv'd by those Indentures will be void as to the terms intended to be granted and the Rents reserv'd because the beginning of the terms and particulars of the Rents can be known but from the Demises 29 H. 8. and 1 E. 6. when no such Demises are because the Jury hath found no such For this the Case of 3 E. 6. reported by the Lord Brooks in his Title of Leases N. 62. is clear and in several Cases since adjudg'd is admitted for good Law The Case is Br. tit Leases N. 66. 3 E. 6. If a man Leases Land for certain years to J. S. Habendum post dimissionem inde factam to J. N. finitam and J. N. hath no Lease of the Land the Lease to J. S. shall commence immediately for the term of years granted him So in our Case the Lease of 1 Mar. of the Mannor and other the Premisses granted to Croker for Ninety years Habendum as to some particulars from the expiration of a former Lease granted 29 H. 8. And as to other particulars from the expiration of a Lease granted 1 E. 6. when no such Leases were granted because not found to be granted Therefore the Lease of 1 Mar. for Ninety years shall commence immediately from the Sealing and consequently ended about the 21 or 22 of King Charles the First
of that made in 27 H. 8. Therefore it is manifest That the sole Reason why no such lease was admitted to be in 28 H. 8. is no other than because the Jury find no such to have been made but find a suggestion of it only in Rochester's lease And it is the same exactly in our present Case The third thing deducible from the Case is That a Demise by Indenture for a term Habendum from the Expiration of another recited or mentioned term therein 35 H. 6. 34 Br. Tit. Faits p. 4. 12 H. 4. 23 Br. Faits 21. which is not or not found to be which is the same thing is no Estoppel or Conclusion to the Lessee or Lessor but that the Lessee may enter immediately and the Lessor demise or grant in Reversion after such immediate lease There is another Case resolv'd at the same time between the same Persons and concerning the same Land and published in the same Report and specially found by the same Jury Edward Earl of Oxford Son of John the Son of John Earl of Oxford by Indenture between him and Geoffry Morley Dated the Fourteenth of July 15 Elizabethae reciting That John his Father by Indenture the Thirtieth of July 35 H. 8. had demised to Robert Rochester the said Farm or Mannor of Blacon Habendum for Thirty years from the end or determination of the lease made to Anne Seaton the Tenth of February 27 H. 8. which is a false recital for the lease to Rochester was to commence from the end or determination of a lease made to Anne Seaton that is recited to be made the Tenth of February 28 H. 8. and that afterwards the said John Earl of Oxford had granted by Indenture Dated the Six and twentieth of March 35 H. 8. reciting the lease to Anne Seaton the Tenth of February 27 H. 8. to Hamlett Freer the Reversion of the said Mannor of Blacon Habendum the said Mannor and Premisses from such time as the same shall revert or come to the possession of the said Earl or his Heirs by Surrender Forfeiture or otherwise for Sixty years for so is the Case put in one part of the Report but in another part of it it seems to be That the Demise to Freer was when it should revert after the Expiration Surrender or Forfeiture omitting the words or otherwise of the Lease made to Anne Seaton which will nothing vary the Case The said Edward Earl of Oxford 〈…〉 demised the said Mannor or Farm of Blacon to the said Geoffry Morley Habendum from the end of the said Leases for Fifty years The Question was Whether any of these leases made either to Hamlett Freer or Morley be good or were in esse at the time of the lease made by Sir Randolph Crew to the Plaintiff Sir Randolph Crew claiming the Inheritance from the Earl of Oxford and Sir William Norris the Leases from Freer and Morley and under him the Defendant And Iudgment was given in Chester for the Plaintiff And upon a Writ of Error of this Iudgment brought in the Kings Bench wherein the Error assign'd was The giving of Iudgment for the Plaintiff After several Arguments at Barr and at the Bench Seriatim by the Iustices it was unanimously agreed The Iudgment in Chester for the Plaintiff should be affirmed And that neither the Lease to Freer nor that to Morley was good to avoid the Plaintiffs Title As for the lease to Freer it being a grant of a Reversion nominally and by Agreement of Parties there being no Reversion because no lease at the time of the Grant was in esse either of Seatons or Rochesters upon a point of Rasure in Rochester's Demise found in the Case and for that Land in possession could not pass by the name of a Reversion though by the name of Land a Reversion may pass for he who will grant Land in possession cannot be thought not to grant the same if only in Reversion L. Chandoes Case 6. Rep. according to the doctrine of Throgmorton's Case in the Commentaries And for that Morley's lease was to commence after the lease granted to Rochester which was to commence after that granted to Seaton the Tenth of February 27 H. 8. whereas no such lease was granted to Rochester but a lease to commence after one granted to Seaton in 28 H. 8. It was resolv'd None of those leases were in esse and that Morley's lease commenced therefore presently The words of the Resolution are these as to Morley's Lease It was Resolv'd that Morley's Lease was not in esse for that misrecites the former Leases and so hath the same Rule as the former where it recites Leases and there be none such Therefore it shall begin from the Date which being in the Fifteenth of the Queen for Fifty years ended 1623. which was before the Lease made to the Plaintiff for these Reasons Judgment was affirmed The same Conclusions are deducible from this lease to Morley as from the former to Rochester and therefore I will not repeat them But here are two Judgments in the very point of our Case and affirmed in a Writ of Error unanimously in the Kings Bench. And where it is thought material that the Jury have found a half years Rent to have been behind at Michaelmas 1643. and thence inferr'd the Jury have found the leases by which that Rent was ascertain'd namely the leases of 29 H. 8. and 1 E. 6. Surely if a lease be for a term of years to commence from the end of a former term and for such Rent as is reserv'd upon such former Demise that never was as no term can commence from the end of another which never was so no Rent can be behind which cannot appear but by a Demise which was never made that is which is never found to be made Add further That if the Iury had found the Leases of 29 H. 8. and 1 E. 6. to have been made as is mentioned in the lease of 1 Mar. that had not been a sufficient finding of them For a Deed is not found at all nor a last Will when only the Jury find but part of the Deed or Will for the Court cannot Iudge but upon the whole and not upon part It it be found in Assise the Defendant was Tenant and disseis'd the Plaintiff nisi verba contenta in ultima voluntate W. M. give a lawful Estate from W. M. to R. M. and find the words contain'd in the Will but not the Will at large the Court cannot judge upon this Verdict 38. 39 El. B.R. West and Mounsons C. Rolls 696. Tit. Tryal whose Office it is to judge upon the whole Will which is not found 38 39 El. B. R. West and Mounsons Case Rolls 696. Title Tryal So for the same reason finding but part of a recited Deed and not the whole is as if no part were found and it appears by the Deed of 1 Mariae that both Deeds of 29 H. 8. and 1 E. 6. are
the Issue was not found Hill 10 Car. 1. B. R. Wilkinson and Meriams Case Rolls 700. 701. Tit. Tryal If a Jury find that J.S. was seis'd in Fee of Land and posses'd of certain Leases for years of other Land made his Will in writing and thereby devis'd his Leases to J.D. and after devis'd to his Executors the residue of his Estate Mortgages Goods c. his Debts being paid and funeral Expences discharg'd It being referred by the Jury to the Court Whether by this devise the Executor hath an Estate in Fee or not This is no perfect special Verdict because the Jury find not the Debts paid and the Funeral Expences discharg'd which is a Condition precedent to the Executors having an Estate in Fee and without finding which the Court cannot resolve the matter to them referr'd by the Jury Therefore a Venire facias de novo was awarded Judgment was given for the Defendant Trin. 22. Car. II. C. B. Rot. 461. Richard Edgcomb Knight of the Bath Executor of Pierce Edgcomb Esquire his Father is Plaintiff Rowland d ee Administrator of Charles Everard Esquire during the Minority of Charles Everard Son of the Intestate Defendant In an Action of the Case upon an Assumpsit THE Plaintiff declares That the Intestate the Thirteenth of July 1664. at London in the Parish of St. Mary Bow in the Ward of Cheap in consideration that the said Pierce Edgcomb would at his request lend him 500 l. promis'd the said Pierce to repay it within Seven daies after demand with Interest after the rate of 4 l. per Centum That thereupon the said Pierce Edgcomb after at the time and place aforesaid did lend the said Intestate 500 l. That the said Pierce the Testator afterwards the Fourteenth of July 17 Car. 2. at the place aforesaid required the Intestate to pay the said 500 l. with Interest after the rate aforesaid both which amounted to the Sum of 520 l. He lays further That the said Intestate was indebted to Pierce the Testator the Fourteenth day of July 1664. in the Sum of 500 l. for mony before that time to him lent by the said Pierce And in Consideration thereof the said Fourteenth of July 1664. in the said Parish and Ward promis'd to pay when requir'd But that neither the Intestate in his life time nor the Defendant to whom the Administration of his Goods were committed during the Minority of Charles Everard Son of the said Intestate at London in the Parish and Ward aforesaid did pay the said Sums nor either of them amounting to 1020 l. to the said Pierce Edgcomb in his life time nor to the said Richard the Plaintiff after his death Though required by the Intestate afterwards in his life time that is upon the First of August 17 Car. 2. And the said Defendant after the death of the Intestate viz. the Tenth day of March 18 Car. 2. and often after at the said Parish and Ward by the Testator Pierce were requir'd And the said Defendant after the death of the Testator the First day of January 21 Car. 2. was required at the place aforesaid by the Plaintiff to pay the said mony which he did not and still refuses to his damage of 800 l. The Defendant pleads payment after the Plaintiffs Writ purchas'd of several great debts due by Bond and Bills obligatory from the Intestate to several persons at his death in number One and thirty That the Intestate the Two and twentieth of December 16 Car. 2. became bound in a Recognizance in the Chancery to Sir Harbottle Grimstone Baronet Master of the Rolls and to Sir Nathaniel Hobart one of the Masters of the Chancery in 2000 l. And that the said 2000 l. is still due and unpaid and the said Recognizance in its full force unsatisfied or discharg'd He pleads the City of London is an ancient City and that within it time out of mind hath been held a Court of Record of the Kings c. before the Mayor and Aldermen of the said City in Camera Guild-hall ejusdem Civitatis of all personal Actions arising and growing within the said City That the Intestate at the time of his death was indebted apud London praedict in the Parish and Ward praedict to one William Allington in 2670 l. 17 s. 7 d. And who after the purchase of the Plaintiffs Writ the Tenth of March the Eighteenth of the King came to the said Court before Sir Thomas Bludworth then Mayor and the Aldermen in the said Chamber according to the Custome of the said City held us'd and approv'd Et praedictus Willielmus Allington tunc ibidem in eadem Curia secundum consuetudinem praedictae Civitatis affirmabat contra praedictum Rolandum Dee ut Administratorem c. quandam Billam originalem de placito debiti super demand Mille sexcentarum septuaginta librarum decem septem solidorum septem denariorum legalis monetae c. And that it was so proceeded according to the Custome of the said City that the said William Allington had Judgment to recover against the Defendant the said Debt and 85 l. 16 s. for damages c. And that after the Defendant in full satisfaction of the said Judgment paid to the said William Allington the Sum of 2670 l. and 17 s. Then pleads about Four and twenty Recoveries and Judgments thereupon in the Kings Bench in Pleas of Debt without Specialties all satisfied but one of 7000 l. and more due to one Cornwallis Then pleads Plene administravit all the Goods of the Intestate at the time of his death to be administred and that he had not die Impetrationis brevis Originalis praedicti nec unquam postea aliqua bona seu cattalla predict Car. Everard tempore mortis suae in manibus suis administrand praeterquam bona cattalla ad valentiam separalium denariorum summarum per ipsum sic ut praefertur solutarum in exonerationem separalium Judiciorum scriptorum obligatori orum billarum obligatoriarum predict Ac praeter alia bona cattalla ad valentiam decem solidorum quae executioni Recognitionis praedict ac Judicii praedicti per praefatum Carolum Cornwallis versus ipsum ut praefertur recuperat onerabilia onerata existunt Et quod ipse Rolandus modo non habet aliqua bona seu cattalla quae fuerunt praedict Caroli tempore mortis suae administrand praeter praedicta bona catalla ad valentiam praedictorum decem solidorum quae executioni recognitionis praedict ac Judicii praedict per praefatum Carolum Cornwallis recuperat sic ut praefertur onerata onerabilia existunt Et hoc paratus est c. Et petit Judicium Then Averrs the debts so as aforesaid by him paid to be bonâ fide paid pro veris justis debitis owing and unpaid by the Intestate at the time of his death And that the several Iudgments aforesaid against him recover'd were for true and just debts of
meaning can be given to his Covenant Accordingly the new Authorities run grounded upon that sound and ancient Reason of Law That the Lessor shall not be charg'd with an Action upon his express Covenant for enjoyment of the term against all men where the Lessee hath his proper Remedy against the wrong doer Against this Truth there is one Book that hath or may be pretended which I will cite in the first place because the Answer to it may be more perspicuous from the Authority I shall after deliver to redargue that Case Dyer 15 16 Eliz. 328. a. pl. 8. It is the Case of Mountford and Catesby in the Lord Dyer Catesby in consideration of a Sum of mony and a Horse made a Lease to Mountford for term of years Et super se assumpsit quod the Plaintiff Mountford pacifice quiete haberet gauderet the Land demis'd durante termino sine evictione interruptione alicujus personae after Catesby's Father entred upon him and so interrupted him whereupon Mountford brought his Action upon this Assumpsit and Catesby pleaded he did not assume and found against him It was moved in Arrest of Judgment for the Defendant That the entry might be wrongful for which the Plaintiff had his Remedy but disallowed and Iudgment affirmed for the Plaintiff because saith the Book it is an express presumption and assumption that the Plaintiff should not be interrupted And this Case is not expresly denied to be Law in Essex and Tisdales Case in the Lord Hobart as being an express Assumption Though the Lord Dyers Case be an Action of the Case upon an Assumpsit and out Case an Action of Covenant yet in the nature of the Obligation there seems no difference but in the form of the Action For to assume that a man shall enjoy his term quietly without interruption and to covenant he shall so enjoy it seems the same undertaking But if the reason of Law differ in an Assumpsit from what it is in a Covenant as seems implyed in Tisdales Case then this Case of the Lord Dyer makes nothing against the Case in question which is upon a Covenant not an Assumpsit Hob. f. 34 35. 1. Elias Tisdale brought an Action of Covenant against Sir William Essex and declared That Sir William convenit promisit agreavit ad cum praedict Elia quod ipse idem Elias haberet occuparet gauderet certain Lands for Seven years into which he entred and that one Elsing had Ejected him and kept him out ever since Resolv'd because no Title is laid in Elsing he shall be taken to enter wrongfully and the Lessee hath his Remedy against him Therefore adjudg'd for the Defendant Essex Here is a Covenant for enjoying during the term the same with enjoying without interruption for if the enjoyment be interrupted he doth not enjoy during the term the same with enjoying without any interruption the same with enjoying without interruption of any person which is the Lord Dyers Case but here adjudg'd the interruption must be legal or an Action of Covenant will not lye because there is remedy against the Interrupter So is there in the Lord Dyer's Case And a Rule of that Book is That the Law shall never judge that a man Covenants against the wrongful acts of strangers unless the words of the Covenant be full and express to that purpose which they are not in our present Case because the Law defends against wrong Brocking brought an Action upon an Assumpsit against one Cham and declared Brocking versus Cham Cr. 15 Jac. f. 4. 5. p. 10. That the Defendant assumed the Plaintiff should enjoy certain Lands according to his Lease without the lett interruption or incumbrance of any person and shews in Fact That this Land was extended for Debt due to the King by process out of the Exchequer and so incumbred After Verdict for the Plaintiff it was moved in Arrest of Iudgment That no good breach was assigned because he did not shew that the Incumbrance was a lawful Incumbrance for else he might have his Remedy elsewhere and Iudgment was given for the Defendant This Case was upon an Assumpsit as the Lord Dyers was and by as ample words for the Land was to be enjoyed without any lett which is equivalent to the words of quiete pacifice in the Lord Dyers Case which is a Case in terminis adjudged contrary to that in the Lord Dyer and upon the same reason of Law in an Assumpsit as if it had been a Covenant viz. because the Plaintiff had his Remedy against the wrong doer Chauntfloure brought an Action of Covenant against one Pristly and Doctor Waterhouse as Executors of John Mountfitchett Cr. 45 El. f. 914. pl. 4. and declared That the Testator had sold him Nine and twenty Tuns of Copras and agreed That if the Testator faild of payment of a certain Sum of mony upon a day certain That the Plaintiff might quietly have and enjoy the said Copras that the money was not paid at the day and that he could not have and enjoy the said Nine and twenty Tuns of Copras Iudgment was given by Nihil dicit against the Defendants and upon a Writ of Enquiry of Damages 260 l. Damages given Vpon motion in Arrest of Iudgment It was resolved by the whole Court That the breach of Covenant was not well assign'd because no lawful disturbance was alledg'd and if he were illegally hindred or disturbed of having the Copras which he had bought he had sufficient remedy against the wrong doers Dod was bound in an Obligation to Hammond conditioned that Hammond and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleaded the Surrender and that the Plaintiff entred and might have enjoyed the Lands To which the Plaintiff replyed That after his Entry one Gay entred upon him and outed him It was adjudg'd the Replication was naught because he did not shew that he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer This was in an Action of Debt upon a Bond condition'd for quiet enjoyment So as neither upon Covenant upon Assumpsit or Bond condition'd for quiet enjoying unless the breach be assign'd for a lawful Entry or Eviction and upon the same reason of Law because the lessee may have his Remedy against the wrong doers an Action of Covenant cannot be maintain'd Cok. 4 Rep. Nokes's Case To these may be added a Resolution in Nokes his Case in the fourth Report where a man was bound by Covenant in Law That his Lessee should enjoy his term and gave Bond for performance of Covenants in an Action of Debt brought upon the Bond the breach was assign'd in that a stranger had recover'd the Land leas'd in an Ejectione firmae and had Execution though this Eviction were by course of law yet for that an elder and sufficient Title was not alledg'd upon which the Recovery was had
it is said The Rent was granted out of the Twenty Acres being the Locus in quo by the Name of all the Grantors Lands and Hereditaments in King's Norton and that a per nomen in that Case is not good The Case of Grey and Chapman was urg'd 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House and Twenty Acres of Land by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were The Court was of Opinion in Arrest of Judgment that the naming of the Vill in the per nomen was not material Another Case to the same purpose was urg'd of Gay against Cay where a Grant in possession was pleaded 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion And upon view of the Record the Grantor had granted Tenementa praedicta per nomen of a Mesuage which A. P. held for life where the per nomen was adjudg'd not to make good the Grant The Court is of Opinion notwithstanding these Cases That in the present Case the per nomen is well enough because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton whereof the locus in quo being Twenty Acres is parcel By reason whereof the Rent being granted out of every parcel of the Two hundred Acres it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton because the Twenty Acres are alledg'd to be parcel of all his Lands there being Two hundred Acres But in Chapman's Case It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen of which the Twenty Acres were to pass As for the second Case of Gay it was not possible that Lands granted as in possession should pass per nomen of Land that was in Reversion The second Exception is Because the Clause of Entry and Distress in the Deed upon Oyer of it differs from the Clause of Entry and Distress alledg'd in the Conizance For in the Conizance it is said It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due that is at any Feast that should first happen after the death of Anne or Thomas Greaves for the Rent did not commence before But by the Deed If the Rent were behind at any the Feasts the Entry and Distress is made to be lawful for it during the joynt Lives of Anne and Thomas Greaves the Uncle and during their joynt lives it could not be behind for it commenc'd not till one of them were dead Scarplus Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected So as the sense must run That if the Rent were behind it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves which was before it could be behind for it could not be behind till the death of one of them Therefore those words during their joynt natural lives being insensible ought to be rejected For words of known signification but so placed in the Context of a Deed that they make it repugnant and sensless are to be rejected equally with words of no known signification Judgment pro Defendent The Chief Justice delivered the Opinion of the Court. Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted That where any person hath or shall have any Child or Children under the Age of One and twenty years and not married at the time of his death It shall and may be lawful to and for the Father of such Child or Children whether born at the time of the decease of the Father or at that time in ventre sa mere or whether such Father be within the Age of One and twenty years or of full Age by his Deed executed in his life time or by his last Will and Testament in writing in the presence of two or more credible Witnesses to dispose of the custody and tuition of such Child or Children for and during such time as he or they shall respectively remain under the Age of One and twenty years or any lesser time to any person or persons in possession or remainder other than Popish Recusants And such disposition of the Custody of such Child or Children made since the Four and twentieth of February 1645. or hereafter to be made shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised as aforesaid shall and may maintain an Action of Ravishment of Ward or Trespass against any person or persons which shall wrongfully take away or detain such Child or Children for the Recovery of such Child or Children and shall and may recover Damages for the same in the said Action for the use and benefit of such Child or Children And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised shall and may take into his or their custody to the use of such Child or Children the profits of all Lands Tenements and Hereditaments of such Child or Children and also the custody tuition and management of the Goods Chattels and personal Estate of such Child or Children till their respective Age of One and twenty years or any lesser time according to such Disposition aforesaid and may bring such Action or Actions in relation thereto as by Law a Guardian in Common Soccage might do By the Will is devised in these words I do bequeath my son Thomas to my Brother Robert Towray of Rickhall to be his Tutor during his Minority Before this Act Tenant in Soccage of Age might have dispos'd his Land by Deed or last Will in trust for his Heir but not the Custody and Tuition of his Heir for the Law gave that to the next of Kinn to whom the Land could not descend But Tenant in Soccage under Age could not dispose the Custody of his Heir nor devise or demise his Land in trust for him in any manner Now by this Statute he may grant the Custody of his Heir but cannot devise or demise his Land in trust for him for any time directly for if he should the devise or demise were as before the Statute as I conceive which is most observable in this Case I say directly he cannot but by a mean and obliquely he may for nominating who shall have the Custody and for what time by a consequent the Land follows as an incident given by the Law to attend the custody not as an Interest devis'd or demis'd
by the party This difference is very material for if the Father could devise the Land in trust for him until his Son came to One and twenty as he can grant the Custody then as in other Cases of Leases for years the Land undoubtedly should go to the Executor or Administrator of him whom the Father named for the tuition and the trust should follow the Land as in other Cases where Lands are convey'd in trust But when he cannot ex directo devise the Land in trust then the Land follows the Custody and not the Custody the Land and the Land must go as the Custody can go and not the Custody as the Land can go Coke Litt. f. 49. a. 1 H. 7. 28. 8 H. 7. 4. As where a House or Land belongs to an Office or a Chamber to a Corody the Office or Corody being granted by Deed the House and Land follows as incident or belonging without Livery because the Office is the principal and the Land but pertaining to it A second Consideration is That by this Act no new custody is instituted but the office of Guardian as to the duty and power of the place is left the same as the Law before had prescrib'd and setled of Guardian in Soccage But the modus habendi of that office is alter'd by this Act in two Circumstances The first 1. It may be held for a longer time viz. to the Age of the Heir of One and twenty where before it was but to Fourteen 2. It may be by other persons held for before it was the next of Kindred not inheritable could have it now who the Father names shall have it So it is as if an Office grantable for life only before should be made grantable for years by Parliament or grantable before to any person should be made grantable but to some kind of persons only The Office as to the Duty of it and its essence is the same it was But the Modus habendi alter'd If therefore this new Guardian is the same in Office and Interest with the former Guardian in Soccage and varies from it only in the Modus habendi then the Ward hath the same legal Remedy against this Guardian as was against the old But if this be a new Office of Guardianship differing in its nature from the other the Heir hath no remedy against him at all in Law For though this new Guardian be enabled to have such Actions as the old might have yet this Act enables not the Heir to have like Actions or any other against him as he might against the Guardian in Soccage The Intent of this Statute is to priviledge the Father against common right to appoint the Guardian of his Heir and the time of his Wardship under One and twenty But leaves the Heirs of all other Ancestors Wards in Soccage as before Therefore I hold 1. That such a Special Guardian cannot transferr the Custody of the Ward by Deed or will to any other 2. That he hath no different Interest from a Guardian in Soccage but for the time of the Wardship 1. When an Act of Parliament alteâ—s the Common Law the meaning shall not be strained beyond the words except in Cases of publick Vtility when the end of the Act appears to be larger than the enacting words But by the words the Father only can appoint the Guardian therefore the Guardian so appointed cannot appoint another Guardian 2. The Mother hath the same concern for her Heir as the Father hath But she cannot by the Act name a Guardian therefore much less can the Guardian named by the Father 3. The Father cannot by the Act give the custody to a Papist but if it may be transferr'd over by him whom the Father names or by Act in Law go to his Executor or Administrator it may come to a Papist against the meaning of the Act. 4. Offices or Acts of personal Trust cannot be assign'd for the Trust is not personal which any man may have Dyer 2 3 Eliz. f. 189. b. 5. At the Common Law none could have the Custody and Marriage of a mans Son and Heir apparent from the Father yet the Father could not grant or sell the Custody and Marriage of his Heir apparent though the marriage was to his own benefit as was resolved by the greater number of the Iudges in the Lord Bray's Case who by Indenture had sold for Eight hundred pounds the Custody and Marriage of his Son and Heir apparent in the time of Henry the Eighth to the Lord Audley Chancellor of England Lord Cromwell Lord Privy Seal Sir William Paulett Treasurer of the Houshold The Marquis of Winchester Lord Treasurer Dyer supra f. 190. b. pl. 19. The Reason given is That the Father hath no Interest to be granted or sold to a Stranger in his eldest Son but it is inseparably annex'd to the person of the Father Two Judges differ'd because an Action of Trespass would lye for taking away a mans Heir apparent and marrying him whence they conclude he might be granted as a Chattel 11 H. 4. f. 23. a. Fitz. N. Br. Tresp f. 90. b. Lett. G. f. 89. Lett. O. But an Action of Trespass will lye for taking away ones Servant For taking away a Monk where he was cloyster'd in Castigationem Pro Uxore abducta cum bonis Viri yet none of these are assignable West 1. c. 48. By the Statute of Westminster the First If the Guardian in Chivalry made a Feoffment of the Wards Lands in his Custody during his Minority the Heir might forthwith have a Writ of Novel Disseisin against the Guardian and Tenant and the Land recover'd should be deliver'd to the next of kinn to the Heir to be kept and accompted for to him at his full Age. This was neither Guardian in Soccage nor Chivalry Coke 2. Inst f. 260. b. By 4 5 P.M. c. 8. No woman child under 16. can be taken against his will whom the Father hath made Guardian by Deed or Will yet this is no Lease of the Custody till 16. nor is it assignable Ratcliffs C. 3. Rep. Shoplands C. 3 Jac. Cr. f. 99. but a special Guardian appointed by the Statute and such a Guardian could not assign over nor should it go to his Executors by the Express Book This Case likewise and common Experience proves That Guardian in Soccage cannot assign nor shall the Custody go to his Executors though some ancient Books make some doubt therein For expresly by the Statute of 52 H. 3. the next of kin is to answer and be accomptable to the Heir in Soccage as this special Guardian is here by Westminster the First These several sorts of Guardians trusted for the Heir could neither assign their Custody nor did it go to their Executors because the Trust was personal and they had no Interest for themselves The Trust is as personal in this new Guardian nor hath he any Interest in it for himself and
the Statute If the Father under Age should make such a Devise it were absolutely void for the same syllables shall never give the Custody of the Heir by the Father under Age which do not give it by the Father which is of Age. But in both Cases a Devise of the Custody is effectual and there is no reason that the Custody devis'd shall operate into a Lease when a Lease devis'd shall not operate into a Custody which it cannot do If a man devise the Custody of his Heir apparent to J. S. and mentions no time either during his Minority or for any other time this is a good devise of the Custody within the Act if the Heir be under Fourteen at the death of the Father because by the Devise the Modus habendi Custodiam is chang'd only as to the person and left the same it was as to the time But if above Fourteen at the Fathers death then the Devise of the Custody is meerly void for the incertainty For the Act did not intend every Heir should be in Custody until One and twenty Non ut tamdiu sed ne diutius therefore he shall be in this Custody but so long as the Father appoints and if he appoint no time there is no Custody If a man have power to make Leases for any term of years not exceeding One hundred and he demises Land but expresseth no time shall this therefore be a Lease for One hundred years There is no Reason it should be a Lease for the greatest term he could grant more than for the least term he could grant or indeed for any other term under One hundred Therefore it is void for incertainty and the Case is the same for the Custody For if the Father might intend as well any time under that no Reason will enforce that he only intended that And to say he intended the Custody for some time therefore since no other can be it must be for that will hold as well in the Lease and in all other Cases of incertainty If a man devises Ten pounds to his Servant but having many none shall have it for the incertainty It may be demanded If the Father appoint the Custody until the Age of One and twenty and the Guardian dye what shall become of this Custody It determines with the death of the Guardian and is a Condition in Law and the same as if a man grant to a man the Stewardship of his Mannor for Ten years or to be his Bailiff It is implyed by way of Condition if he live so long A Copyholder in Fee surrenders to the Lord Dyer 8 Eliz. f. 251. pl. 90. ad intentionem that the Lord should grant it back to him for term of life the Remainder to his Wife till his Son came to One and twenty Remainder to the Son in tayl Remainder to the Wife for life The Husband died The Lord at his Court granted the Land to the Wife till the Sons full age The Remainders ut supra The Wife marries and dies Intestate The Husband held in the Land The Wives Administrator and to whom the Lord had granted the Land during the Minority of the Son enters upon the Husband This Entry was adjudg'd unlawful because it was the Wives term but otherwise it had been if the Wife had been but a Guardian or next Friend of this Land The like Case is in Hobart Balder and Blackburn f. 285. 17 Jac. If it be insisted That this new Guardian hath the Custody not only of the Lands descended or left by the Father but of all Lands and Goods any way acquir'd or purchas'd by the Infant which the Guardian in Soccage had not That alters not the Case for if he were Guardian in Soccage without that particular power given by the Statute he is equally Guardian in Soccage with it and is no more than if the Statute had appointed Guardian in Soccage to have care of all the Estate of the Infant however he came by it Besides that proves directly that this new Guardian doth not derive his interest from the Father but from the Law for the Father could never give him power or interest of or in that which was never his The Court was divided viz. The Chief Justice and Justice Wylde for the Plaintiff Justice Tyrrell and Justice Archer for the Defendant Hill 19 20 Car. II. C. B. Rot. 506. Holden versus Smallbrooke IN Trover and Conversion and not Guilty pleaded Robinson the Iury gave a Special Verdict to this Effect That Doctor Mallory Prebendary of the Prebend of Wolvey founded in the Cathedral of Litchfield seis'd of the said Prebend and one Messuage one Barn and the Glebe appertaining thereto and of the Tithes of Wolvey in right of his Prebend 22 April 13 Car. 2. by Indenture demised to Giles Astly and his Assigns the said Prebend together with all Houses Barns Tenements Glebe Lands and Tithes thereto belonging for three Lives under the ancient Rent of Five pounds ten shillings Astly being one of the Lives died seis'd of the Premisses at whose death one Taverner was Tenant for one year not ended of the Demise of Astly of the Messuage Barn and Glebe Lands and in possession of them whereupon the Plaintiff entred into the Messuage and Glebe and was in the possession of the same and of the Tithes as Occupant And afterwards Frances Astly the Relict of the said Giles Astly enters upon the Messuage and claims the same as Occupant in haec verba Frances Astly Widow of Giles Astly enters upon the House and claims the same with the Glebe and Tithe as Occupant Taverner attorns to Frances Astly and afterwards grants and assigns all his Estate in the Premisses to the Plaintiff afterwards Conquest the Husband of Frances Astly took one Sheaf of Corn in the name of all the Tithes and afterwards demised the Tithes to the Defendant The Tithes are set forth and the Defendant took them whereupon the Plaintiff brought this Action Before I deliver my Opinion concerning the particular Questions before open'd arising upon this Record I shall say somewhat shortly of Natural Occupancy and Civil Occupancy First opening what I mean by those terms then briefly shewing their difference as far only as is material to the Questions now before me I call Natural Occupancy the possession either of such natural things as are immoveable fixt and permanent as Land a Pool River Sea for a Sea is capable of Occupancy and Dominion naturally as well as Land and hath naturally been in Occupancy as is demonstrated in Mr. Selden's Mare Clausum at large which lye unpossess'd and in which no other hath prior right Or of things natural and moveable either animate as a Horse a Cow a Sheep and the like without number or Inanimate as Gold precious Stones Grain Hony Fruit Flesh and the like numberless also wherein no man until the possession thereof by Occupancy had any other right than every man had which is
out of the former Premisses is That the Freehold qua Freehold is not the thing whereof there is an Occupancy for the Freehold is not a natural thing but hath its essence by the positive Municipal Law of the Kingdome it cannot abstract from the Land in this matter of Occupancy he either entred into or possessed The Freehold is an immediate consequent of the possession for when a man hath gotten the possession of Land that was void of a Proprietor or other thing capable of Occupancy the Law forthwith doth cast the Freehold upon the Possessor to make a sufficient Tenant to the Precipe Therefore As to the first Question Whether Holden the Plaintiffs Entry Quest 1 upon the Lessee Taverner's possession into the House Glebe and Barn the First of March 1666. and openly saying I enter and take possession of this House Glebe and Barn and the Ground thereto belonging and the Tithes of Woolney in my own Name and Right as Occupant upon a Lease made to Giles Astly and his Assigns for three Lives by Dr. Mallory Prebend of Woolney did make him Occupant of the House Land and Tithe or either of them the Lessee Taverner not having made any Claim as Occupant to any of them I hold clearly this Entry and Claim did not make Holden Occupant of the House Land or Tithe or of any of them To every Occupant of Land or other thing capable of Occupancy two things are requisite 1. Possession of the Land which was void and without Owner 2. The having of the Freehold to avoid an obeyance which is had as well where the possession is not void as where it is The first that is the possession is acquired by the party and his Act but the Freehold is acquir'd by the Act of Law which casts it upon the possession assoon as there is a Possessor or where it finds a Possessor when the Freehold is in none 1. This Claim and Entry was in Order to gain the first possession of the Land which was void but that was impossible to be had for the Lessee Taverner had the possession before he held it then therefore the Claim was to no end 2. Secondly A man cannot be an Occupant but of a void Possession or of a Possession which himself hath but here was no void Possession when Holden enter'd and claimed as Occupant for the Lessee was in lawful possession of the House and Barn and Land at the time of the entry and claim 3. Thirdly If this Entry and Claim should make Holden a legal Occupant which cannot be without gaining the possession then there would be two plenary legal possessors of the same thing at the same time Holden by his Entry and Claim and Taverner the Lessee by virtue of his lease but that is impossible there should be two plenary possessors of the same thing at the same time Therefore Holden can be no Occupant by such Entry and Claim Skelton Hay 17 Jac. Cr. 554. b. 4. This very Case in every point hath been resolv'd in the Case of Skelton and Hay 17 Jac. where upon an Ejectment brought a Special Verdict found That the Bishop of Worcester made a lease to Sir William Whorehood of certain land for his own and the lives of two of his Sons Sir William did let the land to John Mallett at will rendring Rent and dyed Mallett continued the possession not claiming as Occupant one of Sir William's Sons entred as Occupant and made a lease to the Plaintiff in the Action It was adjudg'd that Mallett the Defendant being in possession the Law cast the Freehold upon him without Claim and had he disclaim'd to hold as Occupant Chamberlayn Ewes C. Rolls 2. part f. 151. Lett. E. keeping the possession he must have been the Occupant for where one entred to the use of another he that entred was adjudg'd the Occupant Which Case proves one may be an Occupant against and besides his own intention and therefore a Claim to denote his intention 5. To be an Occupant is not necessary and Tenant for years as well as at will is Occupant by that Case Besides claiming to be Occupant is to claim to be in possession or to claim the Freehold or both but the Law binds not a man to claim that which he hath already and therefore he that hath possession and doth occupy the land is not to claim possession or to be Occupant of it no more is he to claim a Freehold which he already hath for the Law hath cast it where it finds the possession so having both possession and Freehold the Law binds him not to claim what he hath 6. Claim is never to make a Right which a man hath not but to preserve that which he hath from being lost As Claim to avoid a Descent whereby a man had lost his right to enter so a man makes no Claim to be remitted when by act of law he is in his Remitter As to the second Question Whether Frances Astly the Relict Quest 2 of Giles entring the Five and twentieth of March 1667. upon the Lessee Taverner's possession and claiming the House Glebe and Tithe as Occupant and the Lessee Taverner attorning to her makes her an Occupant of the House Land or Tithe The Question hath nothing in it differing from the former but only the Attornment and it is clear the Attornment of Taverner the Lessee doth not disclaim his possession but affirms it for Attornment is the Act of a Tenant by reason of his being in possession Besides admitting the Tenant a perfect Occupant he might continuing so attorn to whom he pleased as well as Astly might have done in his life time yet still continue the Estate that was in him It follows then that Taverner was the undoubted Occupant after Astly's death of the House Land and Barn but whether he had the Tithe of Woolney by such his Occupancy whereof Astly died seis'd is the difficult Question Another Question will arise when Taverner the Lessee who had by lease the House Barn and Land and so found and was Occupant certainly of those when afterwards Taverner the Lessee 12 June 1667 concessit assignavit totum statum suum de in praemissis to Holden the Plaintiff and gave him Livery and Seifin thereupon what shall be understood to pass by the word praemissis if only what was leas'd and his Estate therein as Occupant and likewise the Tithe if the Tithe accrued to him by reason of being Occupant of the land For if he were Occupant of the Tithe by Act in Law by being Occupant of the land it follows not that if he past all his Estate to Holden in the House and Land and gave him Livery that therefore he past his Estate in the Tithe nor is such passing found to be by Deed. To clear the way then towards resolving the principal Question 1. At the time of Giles Astly's death the Tithes and the House and Lands were sever'd in
Interest for the Lessee Taverner had a Lease of the House Glebe and Barn and the Tithe continued in Astly 2. This severance was equally the same as if the Tithe had been demis'd to Taverner and the House and Land had remained still in Astly's possession 3. Though the Freehold of both remained still in Astly at his death notwithstanding the divided Interest in the Land and Tithe yet the Freehold being a thing quatenus Freehold not capable in it self of Occupancy nor no natural but a legal thing which the Law casts upon him that is Occupant that will not concern the Questions either who was Occupant or of what he was Occupant Cok. Litt. f. 41. b. 4. I take it for clear That a naked Tithe granted by it self pur auter vie and the Grantee dying without assignment living Cestuy que vie is not capable of Occupancy more than a Rent a Common in gross and Advowson in gross a Fair or the like are it being a thing lying in Grant equally as those others do Coke's Littleton There can be no Occupant of any thing which lyeth in Grant and cannot pass without Deed. I cited the place at full before with other Authorities against Occupancy of a Rent 5. If a man dye seis'd of Land which he holds pur auter vie and also dies seis'd of Rent held pur auter vie or of an Advowson or Common in gross held by distinct Grants pur auter vie and the same Cestuy que vie or the several Cestuy vies for that will not differ the Case living Though the Grantee died seis'd of a Freehold in these several things I conceive that he which enters into the Land first after his death will be Occupant of the Land which was capable of Occupancy but neither of the Tithe Advowson nor Common which are not capable of Occupancy and have no more coherence with dependence upon nor relation to the Land than if they had been granted pur auter vie to another who had happen'd to dye in like manner as the Grantee of the Land did And that which hath intricated men in this matter hath been a Conception taken up as if the Occupant had for his object in being Occupant the Freehold which the Tenant died seis'd of which is a mistake for the subject and object of the Occupant are only such things which are capable of Occupancy not things which are not and not the Freehold at all into which he neither doth nor can enter but the Law casts it immediately upon him that hath made himself Occupant of the Land or other real thing whereof he is Occupant that there may be a Tenant to the Precipe But as was well observed by my Brother Wilmott No Precipe lies for setting out Tithe at Common Law and I doubt not by the Statute of 32 H. 8. c. 7. though Sir Edward Coke in his Litt. f. 159. a. seems to be of opinion Coke Litt. 159. a. that a man may at his Election have remedy for witholding Tithe after that Statute by Action or in the Ecclesiastical Court by that Statute doubtless he hath for the title of Tithe as for title of Land or for the taking of them away but not perhaps for not setting them out 6. When a Severance therefore is once made of the Land and Tithe it is as much severance of them though the Tithe remain in Astly's possession as if he had leas'd the Land to Taverner and the Tithe to another if then Taverner becoming Occupant of the Land should have had nothing in the Tithe leas'd to another as the Land was to him no more shall he have the Tithe remaining in Astly himself at his death Still we must remember the ground insisted on That no Occupancy begins with the Freehold but begins by possessing the Land or other real thing which was void and ownerless and that by Act of Law the Freehold is cast upon the Possessor either entring where the possession was void or being in possession when Tenant pur auter vie died either as Lessee for years or at will to Tenant pur auter vie for the Law equally casts the Freehold upon him as was resolved in Chamberleyne and Eures Case reported by Serjeant Rolls and others Second Part. f. 151. Letter E. and in Castle and Dods Case 5 Jac. Cr. f. 200. Therefore after such Severance made by the Tenant pur auter vie the Land and Tithe are as distinct and sunder'd from each other as if Tenant pur auter vie had held them by distinct Grants or leas'd them to distinct persons In the next place I shall agree That the Occupant of a House shall have the Estovers or way pertaining to such House the Occupant of the Demesne of a Mannor or of other Land shall have the Advowson appendant or Villain regardant to the Mannor or Common belonging to the Land and the Services of the Mannor not sever'd from the Demesne before the occupancy For a Possessor of a House Land Demesne of a Mannor as Occupant doth not by such his possession sever any thing belonging to the Land House or Demesne more than the Possessor by any other title than occupancy doth and if they be not sever'd it follows they must remain as before to the Possessor of that to which they pertain So if a Mannor being an intire thing consisting of Demesnes and Services which are parts constituent of the Mannor the possessing and occupancy of the Demesns which is one part can make no severance of the Services from the intire and therefore the Occupant hath all And these things though primarily there can be no occupancy of them being things that lye in Grant and pass not without Deed yet when they are adjuncts or pertaining to Land they do pass by Livery only without Deed. Coke Litt. f. 121. 8. Sect. 183. Whatsoever passeth by Livery of Seisin either in Deed or in Law may pass without Deed and not only the Rent and Services parcel of the Mannor shall with the Demesns as the more principal and worthy pass by Livery without Deed but all things regardant appendant or appurtenant to the Mannor as Incidents or Adjuncts to the same shall together with the Mannor pass without Deed without saying cum pertinentiis And if they pass by Livery which must be of the Land they must likewise pass by any lawful Entry made into the Land and such the Entry of the Occupant is But as by occupancy of the demesn Lands of a Mannor the Services are not sever'd so if they be sever'd at the time when the occupancy happens that shall never of it self unite them again Now in the Case before us The Tithe is neither appendant or appurtenant or any sort of Adjunct to the Glebe or House nor are they to the Tithe nor will a lease and livery of the Glebe simply with the appurtenances pass the Tithe at all nor a Grant of the Tithe pass the Glebe nor are either
of them constituent parts of the Prebendary or Rectory as the Services are of a Mannor for a total severance of the Services and Demesne destroy the Mannor but a severance of the Tithe or Glebe will not destroy the Rectory more than the severance of a Mannor parcel of the possessions of a Bishoprick will destroy the Bishoprick for the Glebe and the Tithe are but several possessions belonging to the Rectory But it is true that in the Case before us and like Cases a Grant of the Prebendary or of the Rectory una cum terra Glebali decimis de Woolney The Tithe which alone cannot pass without Deed doth pass by Livery of the Rectory Browlow part 2. f. 201. Rowles and Masons Case and so pass that though the Deed mentions the Tithe to be pass'd yet if Livery be not given which must be to pass the Land the Tithe will not pass by the Deed because the intention of the parties is not to pass them severally but una cum and together Therefore the Tithe in such Case must pass in time by the Livery which did not pass without it though granted by the Deed. Yet it is a Question Whether in such Case the Tithe passeth by the Livery or by the Deed For though the passing it by Deed is suspended by reason of the intention to pass the Land and Tithe together and not severally it follows not but that the Tithe passeth by the Deed where Livery is given though not until Livery given If a man be seis'd of a Tenement of Land and likewise of a Tithe and agrees to sell them both and without Deed gives Livery in the Tenement to the Bargainee in name of it and of the Tithe I conceive the Tithe doth not pass by that Livery But a Prebend or Church man cannot now by the Statute of 13 Eliz. cap. 10. make a Lease of the possessions of his Prebendary without Deed. 13 Eliz. c. 10. A Prebendary or Rectory is in truth neither the Glebe nor Tithe nor both for the one or the other may be recover'd and might at Common Law have been aliened the Rectory remaining But the Rectory is the Church Parochial whereof the Incumbent taketh the Cure and Seisin by his Induction after his Institution which is his Charge and without other Seisin then of the Ring or Key of the Church-door by Induction into the Rectory the Parson is seis'd of all the possessions belonging to his Rectory of what kind soever But though by the name of the Rectory the possessions belonging to it of what nature soever actually vest in the Incumbent upon Induction and may pass from the Prebendary by Livery of the Prebend or Rectory to his Lessee according to the parties intention Yet it follows not That therefore an Occupant who can be Occupant but of some natural and permanent thing as Land is should by being Occupant of that whereof occupancy may be have thereby some other thing heterogene to the nature of Land and not capable of occupancy as a Tithe is being neither appendant or appurtenant or necessary part of that whereof he is Occupant nor will it follow that because by giving Seisin of the Rectory the Tithe and Glebe belonging to it will pass that therefore giving Livery of the Glebe will pass the Tithe For it is observable That if a man be Tenant in tayl of a Mannor to which an Advowson is appendant or of a Tenement to which a Common is belonging and discontinue the Issue in tayl shall never have the Advowson or Common until he hath recontinued the Mannor or Tenement But if a man be seis'd in tayl of a Rectory consisting of Glebe and Tithe and discontinue it after the death of Tenant in tayl the Heir in tayl shall have the Tithe which lay in grant but must recover by Formedon the Rectory and Glebe This was agreed in this Court in a Case between Christopher Baker and Searl in Ejectment Cr. 37 El. f. 407. p. 19. Baker and Searls Case upon a Demise by the Earl of Bedford of the Rectory of D. de decimis inde provenientibus for Lives of three other persons and that Case seems to admit an occupancy of the Tithe the Question being concerning the Tithe only Quest 3 The next Question will be That if Taverner being Occupant of the House and Land shall not have the Tithe whereof Astly was in possession at the time of his death what shall become of this Tithe during the lives of the Cestuy que vies which is the hard question And as to this Question If a Rent be granted to A. for the life of B. and A. dies living B I conceive this Rent to be determined upon the death of A. equally as if granted to him for his own life I say determined because it is not properly extinguish'd nor is it suspended For Extinguishment of a Rent is properly when the Rent is absolutely conveyed to him who hath the Land out of which the Rent issues or the Land is convey'd to him to whom the Rent is granted And Suspension of a Rent is when either the Rent or Land are so convey'd not absolutely and finally but for a certain time after which the Rent will be again reviv'd The Reasons why it is determined are because a thing so granted as none can take by the Grant is a void Grant that is as if no such Grant had been Therefore a Grant to the Bishop of L. and his Successors when there is no Bishop in being at the time or to the Dean and Chapter of Pauls or to the Mayor and Commonalty of such a place when there is no Dean or Mayor living at the time of the Grant is a void Grant that is as if it had not been though such a Grant by way of Remainder may be good By the same Reason it follows That when any thing is so granted that upon some contingent hapning none can take by the Grant nor possibly have the thing granted both the Grant and thing granted must necessarily determine for what difference is there between saying that Rent can no longer be had when it is determined by his death for whose life it was granted and saying none can longer have this Rent when it determines by the death of the Grantee pur auter vie For there is no Assignee Occupant or any other can possibly have it and it is therefore determined In an Action of Trover and Conversion brought by Salter against Boteler Salter versus Boteler 44 El. Cr. 901. the Defendant justifies for that one Robert Bash was seis'd in Fee of Twenty Acres in Stansted and granted a Rent-charge to another Robert Bash his Executors and Assigns during the life of Frances the Grantees Wife of Sixteen pounds per Annum The Grantee dies and Frances his wife takes Letters of Administration and the Defendant as her Servant and by her command took a Distress in the said Twenty Acres for Rent
arrear and impounded them And Traverseth the Conversion and taking in other manner Vpon Demurrer to this Plea all the Court held the Plea to be bad and gave Iudgment for the Plaintiff 1. Because the Rent was determined by the death of the Grantee because no Occupant could be of it 2. Because the Feme was no Assignee by her taking of Administration 3. None can make title to a Rent to have it against the terr Tenant unless he be party to the Deed or make sufficient title under it Moore 664. p. 907. Salter vers Boteler The same Case is in Moore reported to be so adjudg'd because the Rent was determined by the death of the Grantee and Popham said That if a Rent be granted pur auter vie the Remainder over to another and the Grantee dies living Cestuy que vie the Remainder shall commence forthwith because the Rent for life determined by the death of the Grantee which last Case is good Law For the particular Estate in the Rent must determine when none could have it and when the particular Estate was determined the Remainder took place And as the Law is of a Rent so must it be of any thing which lies in Grant as a several Tithe doth whereof there can be no Occupant when it is granted pur auter vie and the Grantee dies in the life of Cestuy que vie 20 H. 6. f. 7 8. This is further cleared by a Case in 20 H. 6. A man purchas'd of an Abbot certain Land in Fee-farm rendring to the Abbot and his Successors Twenty pounds yearly Rent If all the Monks dye this Rent determined because there is none that can have it It lies not in Tenure and therefore cannot Escheat and though new Monks may be made it must be by a new Creation wholly In vacancy of a Parson or Vicar the Ordinary ex officio shall cite to pay the Tithes Fitz. N. Br. Consultation Lett. G. This Case agrees exactly with the Grant of a Rent or other thing which lies in Grant pur auter vie the Grantee dying the Rent determines though it were a good Grant and enjoyed at first yet when after none can have it it is determined So was the Rent to the Abbot and his Successors a good Rent and well enjoyed But when after all the Covent died so as none could have the Rent for the Body Politique was destroyed the Rent determined absolutely By this I hold it clear That if a man demise Land to another and his Heirs habendum pur auter vie or grant a Rent to a man and his Heirs pur auter vie though the Heir shall have this Land or Rent after the Grantees death yet he hath it not as a special Occupant as the common expression is for if so such Heir were an Occupant which he is not for a special Occupant must be an Occupant but he takes it as Heir not of a Fee but of a descendible Freehold and not by way of limitation as a Purchase to the Heir but by descent though some Opinions are that the Heir takes it by special limitation as when an Estate for life is made the Remainder to the right Heirs of J. S. the Heir takes it by special limitation if there be an Heir when the particular Estate ends But I see not how when Land or Rent is granted to a man and his Heirs pur auter vie the Heir should take by special limitation after the Grantees death when the whole Estate was so in the first Grantee that he might assign it to whom he pleas'd and so he who was intended to take by special limitation after the Grantees death should take nothing at all But to inherit as Heir a descendible Freehold when the Father or other Ancestor had not dispos'd it agrees with the ancient Law as appears by Bracton which obiter in Argument is denied in Walsinghams Case Si autem fiat donatio sic Bract. l. 2. de acquirendo rerum dominico c. 9. Ad vitam donatoris donatorio haeredibus suis si donatorius praemoriatur haeredes ei succedent tenendum ad vitam donatoris per Assisam mortis Antecessoris recuperabunt qui obiit ut de feodo Here it is evident That Land granted to a man and his Heirs for the life of the Grantor the Grantee dying in the life of the Grantor the Heirs of the Grantee were to succeed him and should recover by a Writ of Mordancester in case of Abatement which infallibly proves the Heir takes by descent who died seis'd as of a Fee but not died seis'd in Fee 1. Hence I conclude That if a man dye seis'd pur auter vie of a Rent a Tithe an Advowson in gross Common in gross or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee in all these Cases the Grant is determined and the Interest stands as before any Grant made 2. If any man dye seis'd of Land pur auter vie as also of many of these things in gross pur auter vie by distinct Grant from the Land The Occupant of the Land shall have none of these things but they are in the same state and the Grants determine as if the Grantee had died seis'd of nothing whereof there could be any occupancy But I must remember you that in this last part of my Discourse where I said That if a Rent a Tithe a Common or Advowson in gross or the like lying in Grant were granted pur auter vie and the Grantee died living Cestuy que vie that these Grants were determin'd my meaning was and is where such Rent Tithe or other things are singly granted and not where they are granted together with Land or any other thing out of which Rent may issue with Reservation of a Rent out of the whole For although a Rent cannot issue out of things which lye in Grant as not distrainable in their nature yet being granted together with Land with reservation of a Rent though the Rent issue properly and only out of the Land and not out of those things lying in Grant as appears by Littleton yet those are part of the Consideration for payment of the Rent Cok. Litt. f. 142. a. 144. a. as well as the Land is In such case when the Rent remains still payable by the Occupant it is unreasonable that the Grant should determine as to the Tithe or as to any other thing lying in Grant which passed with the Land as part of the Consideration for which the Rent was payable and remain to the Lessor as before they were granted for so the Lessor gives a Consideration for paying a Rent which he enjoys and hath notwithstanding the Consideration given back again And this is the present Case being stript and singled from such things as intricate it That Doctor Mallory Prebend of the Prebendary of Woolney consisting of Glebe-land
not the Land devis'd to him when the son and the two daughters dye without Issue of their respective bodies by way of Remainder which cannot be but by way of Executory devise which well may be 5. That by such Executory devise no perpetuity is consequent to it or if it were such a perpetuity is no way repugnant or contrary to Law To manifest the difference taken between an implication in a Will that is necessary and implication that is only possible the first Case I shall cite is that known Case 13 H. 7. which I shall exactly put as it is in the Book at large 13 H. 7. f. 17. Br. Devise pl. 52. A man devis'd his Goods to his wife and that after the decease of his wife his son and heir shall have the House where his Goods are The son shall not have the House during the wives life for though it be not expresly devis'd to the wife yet his intent appears the son shall not have it during her life and therefore it is a good devise to the wife for life by implication and the Devisors intent Quod omnes Justitiarii concesserunt Here I observe 1. That this was a devise of the House to the wife by necessary implication for it appears by the Will that the Testators son and heir was not to have it until after the death of the wife and then it must either be devis'd to the wife for life by necessary implication or none was to have it during the wives life which could not be 2. I observe upon this Case That though the Goods were by particular devise given to the wife and expresly that was no hindrance to the wives having the House devis'd to her also by her husband by implication necessary which I the rather note because men of great name have conceiv'd That where the devisee takes any thing by express devise of the Testator such devisee shall not have any other thing by that Will devis'd only by implication Which difference if it were according to Law it makes clearly against the Plaintiff because his Lessor being one of the Daughters of the Testator had devis'd to her expresly for a Portion and therefore she should not have any Estate in the Land by the same Will by a Devise by Implication as is pretended But the truth is that is a vain difference that hath been taken by many as I shall anon evince and therefore I shall not insist upon any Aid from it to my conclusion 3. I note that this Devise being before the Statute of 32 H. 8. of Wills the House devis'd must be conceiv'd devisable by Custome at the Common Law Before I proceed further I must take notice that Brook in abridging the Case of 13 H. 7. in the same numero saith Devise Br. n. 52. It was agreed tempore H. 8. per omnes That if a man will that J. S. shall have his Land in Dale after the death of his wife the wife shall have the House for her life by his apparent intent I note first That this Case is imperfectly put in Brook for it mentions a devise of the Land in Dale to J. S. after the death of his wife and then concludes that the wife shall have the House for her life by his apparent intent whereas no mention is made of a House but of the Land in Dale in the devise And this Case seems to be only a memory of another Case Br. Devise 29 H. 8. n. 48. not abridg'd by Brook out of any other Year-book but reported in his Abridgment in the Title Devise as a Case happened in 29 H. 8. which is That if a man will that J. S. shall have his Land after the death of his wife and dies the wife of the Devisor shall have those Lands for term of her life by those words ratione intentionis voluntatis Which Cases being in truth but one and the same Case seem to go further than the Case of 13 H. 7. for there as I observ'd before the wife was to take by necessary implication because the Heir was excluded expresly by the Will during the life of the wife But by this Case in Br. Title Devise n. 48. 52. there is no excluding of the Heir and yet it is said the wife shall have the Land during her life by implication which is no necessary implication as in the Case of 13 H. 7. but only a possible implication and seems to cross that difference I have taken before But this Case of Br. hath many times been denied to be Law and several Iudgments have been given against it I shall give you some of them to justifie the difference I have taken exactly as I shall press the Cases Trinity 3 E. 6. A man seis'd of a Mannor part in Demesne 3 E. 6. Moore Rep. f. 7. n. 24. and part in Services devis'd all the demesne Lands expresly to his wife during her life and devis'd to her also all the Services and chief Rents for Fifteen years and then devis'd the whole Mannor to a stranger after the death of his wife It was resolved by all the Justices That the last devise should not take effect for any part of the Mannor but after the wives death but yet the wife should not have the whole Mannor by implication during her life but should have only the demesnes for her life and the Rent and Services for Fifteen years and that after the Fifteen years ended the Heir should have the Rents and Services as long as the wife liv'd Here being no necessary Implication that the wife should have all the Mannor during her life with an exclusion of the Heir she had no more than was explicity given her by the Will viz. the Demesnes for life and the Rents and Services for Fifteen years but after the Fifteen years the Heir had the Rents and Services for it could be no more at most but a possible Implication that the wife should have the whole Mannor during her life But with a small variance of this Case if the demesnes had been devis'd to the wife for life and the Services and Rents for Fifteen years and the whole Mannor after the wives life to J. S. and that after the wives life and the life of J. S. his Heir should have had the Demesnes and Services and Rents in that Case it had been exactly the same with the Case of 13 H. 7. because the Devisors intent had been then apparent that the Son was not to have the Mannor or any part until the wife and stranger were both dead and as it was adjudg'd the stranger had nothing in the Mannor until the wifes death therefore in that case by necessary implication the wife must have had both Demesnes and Services during her life notwithstanding the explicit devise to her of the Rents and Services for Fifteen years otherwise none should have had the Rents and Services after the Fifteen years
during the wives life which was not to be intended 15 El. Moore f. 123. n. 265. Another Case I shall make use of is a Case Paschae 15 El. A man seis'd of a Messuage and of divers Lands occupied with it time out of mind leased part of it to a stranger for years and after made his last Will in these words I will and bequeath to my wife my Messuage with all the Lands thereto belonging in the occupation of the Lessee and after the decease of my Wife I will that it with all the rest of my Lands shall remain to my younger Son The Question in that Case was Whether the wife should have the Land not leased by implication for her life because it was clear the younger Son was to have no part until the death of the wife And the Lord Anderson at first grounding himself upon that Case in Brook as it seems of 29 H. 8. twice by Brook remembred in his Title Devise n. 28. and after n. 52. was of opinion That the wife should have the Land not leased by implication But Mead was of a contrary opinion for that it was expresly devis'd That the wife should have the Land leas'd and therefore no more should be intended to be given her but the Heir should have the Land not in lease during the wives life To which Anderson mutata opinione agreed Hence perhaps many have collected That a person shall not take Land by Implication of a Will if he takes some other Land expresly by the same Will but that is no warrantable difference For vary this Case but a little as the former case was varied That the Land in lease was devis'd to the wife for life and after the death of the wife all the Devisors land was devis'd to the youngest Son as this Case was and that after the death of the wife and the youngest son the Devisors Heir should have the Land both leas'd and not leas'd it had been clear that the Heir exactly according to the Case of 13 H. 7. should have been excluded from all the Land leas'd and not leas'd until after the death of the wife and the younger son And therefore in such case the wife by necessary implication should have had the Land not leas'd as she had the Land leas'd by express devise and that notwithstanding she had the leas'd Land by express devise for else none could have the Land not leas'd during the wives life Horton vers Horton 2 Jac. Cr. f. 74. 75. Wadham made a Lease for years upon condition the Lessee should not alien to any besides his Children The Lessee deviseth the term to Humphrey his son after the death of his wife and made one Marshall and another his Executors and died The Lessor entred as for breach of the Condition supposing this a devise to the wife of the term by implication The opinion of the Judges was It was no devise by implication but the Executors should have the term until the wives death but it was said If it had been devis'd to his Executors after the death of his wife there the wife must have it by implication or none could have had it But Popham denied that Case because if the devise had been to the Executors after the wives death the Executors should when the wife died have had the term as Legatees but until her death they should have it as Executors generally which by all opinions fully confirms the difference taken That a devise shall not be good by implication when the implication is not necessary and in this Case all agreed the Case in 13 H. 7. to be good Law because the implication there was necessary Edward Clatch being seis'd of two Messuages in Soccage tenure Dyer 15 16 El. 4. 330. b. and having Issue a Son and two Daughters by three several Venters His Son being dead in his life time and leaving two Daughters who were Heirs at Law to the Father devis'd one of the Messuages to Alice his Daughter and her Heirs for ever and the other to Thomazine his Daughter and her Heirs for ever with limitation That if Alice died without Issue living Thomazine Thomazine should then have Alice's part to her and her Heirs and if Thomazine died before the Age of Sixteen years Alice should have her part in Fee also And if both his said Daughters died without Issue of their bodies then the Daughters of his Son should have the Messuages The youngest daughter of the Testator died without Issue having past her Age of sixteen years It was resolv'd That the words in the Will If his two Daughters died without Issue of their Bodies did not create by implication cross remainders in tayl to the Devisors Daughters whereby the eldest should take the part of the youngest but her part should go to the Heirs at Law according to the Limitation of the Will and those words were but a designation of the time when the Heirs at Law should have the Messuages Note That one of the Daughters dying without Issue the Heirs at Law by the Will had her part without staying until the other Daughter died without Issue 1. From these Cases I first conclude That only possible implication by a Will shall not give the Land from the right Heir but a necessary implication which excludes the right Heir shall give it 2. That the difference taken is not sound That one shall not take by implication of a Will any Land where the same person hath other Land or Goods expresly devis'd by the same Will for if the implication be necessary the having of Land or any other thing by express devise will not hinder another taking also by implication as appears in the three Cases by me made use of viz. 13 H. 7. 3 E. 6. 15 Eliz. cited out of Moore 3. Whether any thing be given expresly by Will or not a possible Implication only shall not disinherit the Heir where it may as well be intended that nothing was devis'd by implication as that it was But if any man think that to be material in this Case the Daughters had respective Portions expresty devis'd them viz. Six hundred pounds to each of them and therefore shall not have the Land also by implication only possible to disinherit the right Heir Quest 2 For the second point These words My Will is if it happen my Son George Mary and Katharine my Daughters to dye without Issue of their Bodies lawfully begotten then all my Free-lands shall remain and be to my said Nephew William Rose and his Heirs for ever are so far from importing a devise of the Land to the Son and Daughters for their lives with respective Inheritances in tayl by any necessary implication that both Grammatically and to common intendment they import only a designation and appointment of the time when the Land shall come to the Nephew namely when George Mary and Katherine happen to dye Issuless and not before And where
no such Case in 38 E. 3. f. 26. but the Case intended is 38 E. 3. f. 21. and he quotes the folio truly in his Littleton But the Case is not That an Assignee may rebutt or have benefit of a warranty made to a man and his Heirs only but that a warranty being made to a man his Heirs and Assigns the Assignee of the Heir or the Assignee of the Assignee though neither be Assignee of the first Grantee of the warranty shall have like benefit of the warranty as if he were Assignee of the first Grantee which hath been often resolv'd in the old Books To the same purpose he cites a Case out of 7 E. 3. f. 34. 46 E. 3. f. 4. which doth but remember that of 7. as adjudg'd That the Assignee of Tenant in tayl might rebutt the Donor whence he infers as before that the Tenant in possession might rebutt without any right to the warranty But the Inference holds not from that Case The Case of 7 E. 3. was That Land was given in tayl and the Donor warranted the Land generally to the Donee his Heirs and Assigns the Donee made a Feoffment in Fee and died without Issue and the Donor impleading the Feoffee was rebutted because he had warranted the Land to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee of the Donee and therefore rebutted not because he had a bare possession But this Judgment of 7 E. 3. Sir Edward Coke denies and perhaps justly to be Law now because the Estate tayl being determin'd to which the warranty was first annex'd the whole warranty determin'd with it But however the Case no way proves what it is alledg'd for in Lincoln Colledge Case That a man may rebutt without ever shewing the warranty extended to him for the Feoffee did in that Case shew it So in the Case 45 E. 3. f. 18. the Feme who rebutted shew'd she was Grantee of the warranty To this may be added That what is delivered as before in Lincoln Colledge Case is neither conducing to the Judgment given in that Case nor is it any Opinion of the Judges but is Sir Edward Coke's single Opinion emergently given as appears most clearly in the Case To conclude When the Feoffees were seis'd to the use of William Vescy for his life and after to the use of the Defendant his wife for her life and after to the use of the right Heirs of William Vescy And when by Operation of the Statute of 27 H. 8. the possession is brought to these uses the warranty made by William Vescy to the Feoffees and their Heirs is wholly destroy'd For if before the Statute the Feoffees had executed an Estate to William for life the Remainder to his wife for life the Remainder to his right Heirs The warranty had been extinguish'd by such Execution of Estate and releas'd in Law for it could be in none but in William and his Heirs who could not warrant to himself or themselves By Littleton Sect. 743. for his Heirs in such Case take not by Purchase but Limitation because the Freehold was in him with a Remainder over to his right Heirs and so hath as great an Estate in the Land as the Feoffees had and then the warranty is gone by Littleton Litt. Sect. 744. And now the Statute executes the possession in the same manner and the warranty is in none for the time present or future but extinct If the warranty had been to the Feoffees their Heirs and Assigns it might have been more colourably question'd Whether the mean Remainder were not an Assignee of the Feoffees and so to have benefit of the warranty but the warranty being to the Feoffees and their Heirs only no Estate remaining in them no Assignee can pretend to the warranty 2. William Vescy could by no possibility ever warrant this Estate to the Defendant during his life and where the warranty cannot possibly attach the Ancestor it shall never attach the Heir as by Littleton's Case If a man deviseth Lands in Fee to another with warranty for him and his Heirs his Heirs shall not be bound to the warranty because himself could never be And though in that Case the Estate to be warranted commenc'd after the death of the Warranter and here the Remainder to the wife is in being before his death yet the reason differs not for himself could no more warrant this by any possibility than that and his Heir might as equally warrant the Estate devis'd as this Next Justice Jones in Spirt and Bences Case cites a Case 7 Eliz. the same with this Resolution resolved in the Common Pleas That the mediate Remainder could not be warranted In this Case if the Feoffees before the Statute had either voluntarily or by coercion of the Chancery after the death of the first Cestuy que use for life executed the Estate of the mean Remainder such person in Remainder could have no benefit of the warranty being but an Assignee of the Feoffees because the warranty was only to them and their Heirs No more can the person in Remainder here whose Estate is executed by the Statute be warranted more than if such Estate had been executed by the Common Law There are another sort of persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees to the Garrantee but have the Estate warranted dispositione instituto Legis which I conceive not to differ materially whether they have such Estate warranted by the Common Law or by Act of Parliament The first of this kind I shall name Ass p. 9. 35 is Tenant by the Courtesie who as was adjudg'd 35 Ass might rebutt the warranty made to his wives Ancestor yet was neither Heir nor formal Assignee to any to whom the warranty was granted nothing is said in the Book concerning his vouching but certainly the wives Heir may be receiv'd to defend his estate if impleaded by a stranger who may vouch according to the warranty or may rebutt as the Case of 45 E. 3. f. 18. is But this difference is observable also where such a Tenant rebutts it appears what claim he makes to the warranty and so the Inconveniences avoided which follow a Rebutter made upon no other reason than because he who rebutts is in possession of the Land warranted A second Tenant of this kind is the Lord of a Villain 22 Ass p. 37. and therefore the Case is 22 Ass That Tenant in Dower made a Lease for life to a Villain which in truth was a forfeiture for making a greater Estate of Freehold than she had power to make and bound her and her Heirs to warranty the Lord of the Villain entred upon the Land in her life time and before the warranty attach'd the Heir who had right to enter for the forfeiture the Mother died and the Heir entred upon the L. of the Villain who re-entred and the Heir brought an Assise The L. of the Villain
ratione be tryed in the County next adjoyning whereof there is no Vestigium for the one or the other nor sorts it any way with the rule of the Law 2. This Ordinance of Parliament extended not to all Wales but only to the Lordships Marchers there nor any way comprehended the ancient Shires of Wales or Body of the Principality to which the Ordinance of the Statute of Rutland only extended For Lordships Marchers were out of the Shires as appears by Statute 27 H. 8. 3. It appears by the Case that Gower was not within any County at that time Another Case to the same purpose is in Fitz herbert Fitz. Jurisdiction 13 E. 3. pl. 23. Title Jurisdiction and not in any other Reports 13 E. 3. in a Writ of Cosenage the Demand was of Castle of K. and Commot of J. the Defendant pleaded the Castle and Commot were in Wales where the King 's Writ runs not and it was said that the word was not intelligible in the Courts of England and Judgment was prayed if the Court would take Conizance To give the Court Jurisdiction it was urged pressingly 1. That they had given the Court Jurisdiction by alledging the Court knew not what was meant by Commot which the Court was to determine whether it did or not Therefore Jurisdiction was admitted therein 2. Parning pressed they had demanded the view which gave the Court Jurisdiction 3. For that the Original was directed to the Sheriff of Hereford who by his Retorn had testified the Summons and the Tenant had appeared and so affirmed the Summons 4. For that the view was had Notwithstanding all which to give the Court Jurisdiction it was said to Parning He must say more before the Court would have Jurisdiction Which evidently proves that the Court had no Jurisdiction generally of Land in Wales as I observed from the former Case And no act of the party gives Jurisdiction to the Court by elapsing his time to plead to the Jurisdiction if it appear by the Record the Court hath no Jurisdiction as in this Case it did Then Woodstock said Though the Castle and Commot were in Wales the Court ought not to be outed of Jurisdiction for by Commot a great Signiory was demanded consisting of Lands Rents and Services and that the Castle and Commot were held in Capite of the King as of his Crown and said those so held were to be impleaded here and not elsewhere 7 H. 6. f. 36. b. so is 7 H. 6. f. 36. b. And said the King by his Charter had granted the Castle and Commot to the Tenant in tayl and thereupon pray'd aid of the King and it was granted hereupon But before this was shew'd and that it was a great Signiory and held of the King in Capite by which it was no part of the Principality nor held under it the Court would own no Jurisdiction but when that appeared the Case was the same with the former in 18 E. 2. and the Defendant had no remedy but in the Kings Courts This Case was cited by Sir Edward Coke in the Case before cited 11 Jacobi concerning the Sheriff of Radnor but the difference not observ'd of its being a Lordship in Wales held immediately of the King in Capite nor that the Court owned no Jurisdictions generally concerning Lands in Wales by the Summons and view of the next adjoyning Sheriff William de Cosington and Elizabeth his Wife brought a Writ of Dower of the third part of the Land in Gower against the Earl of Warwick as Tenant and the Writ was Quod reddat ei rationabilem dotem de libero tenemento quod fuit Jo. Moubray quondam viri sui in terra de Gowre in Wallia It appears not in the Case to what Sheriff the Writ was directed though this Case be in the Book at large but it appears that those of the Chancery and the Judges of the Kings Bench had been consulted with concerning the Writ in bringing it for Dower in terra de Gower in Wallia therefore it must issue from the High Court of Chancery and must be directed consequently to the Sheriff of Glocester as the Assise was in 18 E. 2. Br. abridging this Case saith The Action was against the Earl of Warwick as being Lord of the intire Signiory of Gower and then he was to be impleaded by Writ out of the Chancery here equally and upon the same reason for a third part of the Signiory as for the whole according to the Case of 18 E. 2. first cited for the Lord could no more make a Precipe to summon himself to his own Minister or to make Execution against himself for a third part of the Royalty than for the whole And therefore the Ordinance of Parliament then mentioned equally extended to this Case as to that of 18 E. 2. This is not strange that Acts of Parliament are lost sometimes Note the Act of 3 E. 1. by which old Customes were granted not extant but clear proofs of it remain These three last Cases therefore wherein the Tenants were impleaded in the Courts here for Land in Wales and Summons and Execution made by the Sheriff of the next adjoyning County are well warranted by an Act of Parliament not extant being for either the Lordships Marchers themselves or some part of them and against the Lord himself as that Case of 18 E. 2. expresly resolves All these were real Actions The first an Assise of Novel Disseisin the second a Writ of Cosenage the third a Writ of Dower The like Case is cited 19 H. 6. 19 H. 6. f. 12. A. That when the Mannor of Abergavenny was demanded the Writ was directed to the Sheriff of Hereford as Newton urged for this was a Lordship Marcher and held of the King in Capite as appears by Moore 's Reports in Cornwals Case in that the Barony of Abergavenny was held by the Lord Hastings of the King in Capite to defend it at his charge ad utilitatem Domini Regis Exactly agreeing with this Doctrine is the Book of 21 H. 7. f. 33. b. if a Signiory in Wales be to be tryed 21 H. 7. f. 33. B. it shall be tryed here by the Course of the Common Law but if Lands be held of a Signiory in Wales it shall be tryed within the Mannor and not elsewhere As for that expression by the Course of the Common Law 19 H. 6. f. 12. A. it is also in the Book 19 H. 6. that Deeds and all other things alledged in Wales shall be tryed in the adjoyning Countries at the Common Law otherwise there would be a failer of Right And of this opinion seemed most of the Iustices arguendo obiter the Case before them not concerning Wales but the County Palatine of Lancaster Of Churches in Wales a Quare Impedit shall be brought in England yet the Land and other things in Wales 30 H. 6. f. 6. B. shall be determined before the Stewards of
said William Paul dyed at Oxford That after his death the Defendant was elected Bishop of Oxford and after and before the Writ purchased viz. the 27. of November 1665. Gilbert now Archbishop of Canterbury and Primate of all England by his Letters of Dispensation according to the said Act and directed to the said Walter the Defendant now Bishop under his Seal then elect and upon the Bishops petition of the means of his Bishoprick Graciously dispensed with him together with his Bishoprick the Rectory of Whitney in the Diocess and County of Oxford which he then enjoyed and the Rectory of Chymer aforesaid which he by the Kings favour hoped shortly to have to receive hold retain and possess in Commendam as long as he lived and continued Bishop of Oxford with or without Institution and Induction or other solemnity Canonical and to take and receive the profits to his own use without Residence Quantum in eodem Archiepiscopo fuit jura regni paterentur The Letters of Dispensation not to be effectual without the Kings Confirmation That the King after the 28 of Novemb. 17. of his Reign under the great Seal to the said Church so void by Cession presented the Defendant then as aforesaid Bishop Elect and after that is the 28. of Novemb. 17. Car. 2. the King by his Letters Patents under the great Seal dated the same day and year and duly inrolled in the Chancery according to 25 H. 8. did confirm the Letters of Dispensation and that the said Bishop might enjoy all things contained in them according to the form and effect thereof with clauses of non obstante aliquo Statuto or other matter Then averrs that the cause of Dispensation was not contrary to the word of God and that the Pope in H. 8. time did use to grant the like Dispensations to the Kings Subjects which he is ready to averr c. The Plaintiff replys That true it is William Paul Praedict was elected Bishop of Oxford being Incumbent of Chymer but that after his election and before his creation he 2 Decemb. 1663. obtained Letters of the Archbishop under his seal of Faculties for causes therein mentioned of Dispensation to hold the Church of Brightwell and the Rectory of Chymer both which he then lawfully had and to retain the same with his Bishoprick after his consecration c. durant vita sua natural Incumbentiâ suâ in Episcopatu praedict quamdiu eidem Episcopatui praeesset The King 9. Decemb. 15. of his reign confirmed the Letters Patents under the great Seal with non obstante according to the Ordinary form 30. Decemb. 15. Car. 2. was created Bishop Vpon this Replication the Defendant demurs and the Plaintiff joyns in Demurrer Note the Defendant doth not shew to whom he was presented He doth not say that he enter'd by vertue of the Presentation of the King in Chymer In discussing the Case as it appears upon this Record I take it granted 1. If a person Incumbent of one or more Benefices with Cure be consecrated Bishop all his benefices are ipso facto void 2. Vpon such voidance the King and not the Patron is to present to the benefices so void by Cession 3. That any Dispensation after the Consecration comes too late to prevent the Voidance 4. That the Pope could formerly and the Arch-bishop now can sufficiently dispense for a Plurality by 25 H. 8. I shall therefore first make one general Question upon the Case as it appears Whither William Paul Rector of Chymer and elected Bishop of Oxford and before his Consecration dispensed with by the Archbishop to retain his said Rectory with the Bishoprick and having the said Letters of Dispensation confirmed by the King and inroll'd Modo forma prout by the Record did not by virtue of the said Dispensation and Confirmation prevent the voidance of his said Rectory by Cession upon his Consecration For if he did the Rectory became not void until his death and by his death the Plaintiff being Patron hath right to present To determine the General Question I shall make these Questions as arising out of it 1. Whether any Dispensation as this Case is be effectual to prevent an avoidance after Consecration 2. Whether the Archbishop hath power with the King's Confirmation to grant such a Dispensation 3. Whether this Dispensation in particular be sufficient to prevent a voidance of Chymer after Consecration of the late William Paul 1. This Case differs from the Bishop of Ossory's Case in Sir J. Davies's Reports who had a faculty accipere in Commendam with odd power and executed it by collating himself into a Living void by Lapse 2. It varies from the Case of Colt and Glover in the Lord Hobarts Reports and the Dispensation there to the Bishop elect of Lichfield and Coventry which was to retain one Benefice which he had and propria authoritate capere apprendere as many as he could under a certain value The defects of that Dispensation are numerous and excellently handled by the Lord Hobart in that Case of Colt and Glover But in our Case there is no affinity with the defects of those Dispensations but is barely to retain what legally was had before Obj. 1 Per Thyrning The Bp. of St. Davids Case 11 H. 4. f. 37. b. 38. a. Rolls f. 358. ob 1. 11 H. 4. f. 60. B. per Hill An Incumbent of a Church with cure being consecrated Bishop his Living was void by the Law of the Land therefore the Pope could not prevent the voidance after consecration for then the Pope could change the Law of the Land and if the Pope could not the Archbishop cannot The better opinion of that Book 11 H. 4. is contrary and Answ 1 so agreed to be in the Irish Case of Commendams and Rolls his opinion is grounded only upon 11 H. 4. If an Incumbent with cure take another Benefice with cure the first is void by the Law of the Land and the Patron hath right to present therefore the Pope could not grant a Dispensation nor the Arch-bishop now can to hold a Plurality for that were to alter the Law of the Land and to prejudice the Patron But the Law was and is otherwise therefore that reason concludes not in the case of a Bishop A second reason in that case of 11 H. 4. is that such a Dispensation Obj. 2 cannot prevent the avoidance 11 H. 4. f. 59. bi per Skreen because there is no use of it until Consecration for before the Incumbent retains his Living without any Dispensation and when consecrated his Benefices are void and then it is too late to dispense as is agreed This reason is as effectual against a Dispensation for a Plurality Answ 2 for before a man takes a second Living there can be no use of it and after by this reason it comes too late for the Patron hath right to present It was in that great Case endeavoured to avoid the pressure of
this Argument by saying the Dispensations in cases of Plurality were not alike with that of retaining the former Benefice when the Incumbent was created Bishop because in the case of Plurality there was no actual voidance and consequently no title to the Patron to present before Deprivation and that the Dispensation prevented the Deprivation which was a Spiritual Act wherewith the Patron had not to do and by a Consequent only prevented the voidance It is resolv'd in Holland's Case Digby's Case Hollands Case 4. Rep. Digby's Case 4. Rep. and many others that the Patron may present assoon as the Incumbent is Instituted in a second Living without deprivation and that the Law was anciently so therefore that evasion is not material Another answer hath been likewise offered and passeth in the New Books for current that in the case of Pluralities the voidance is by the Canon Law and therefore may be dispensed with by the same Law but in the case of a Bishop made the voidance is by the Common Law If Canon Law be made part of the Law of this Land then is it as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land And if it be not made the Law of the Land then hath it no more effect than a Law of Utopia therefore the Canon Law in force here is Law of the Land Besides their meaning is to be learn'd who say an Incumbents Benefice made a Bishop is void by the Common Law and not by the Canon Law The words of Thyrning in that case 11 H. 4. are who was then Chief Iustice 11 H. 4. f. 60. b. Da. Rep. f. 81. a. f. 68. b. I suppose that when a man Benefic'd is made a Bishop it is by the Law of holy Church that his Benefice becomes void and the same Law which gives the voidance may cause that it shall not be void and that concerns the power of the Apostle The Common Law doth not prohibit Pluralities nor make a voidance of his Benefice when the Incumbent is Bishop but the ancient Ecclesiastical Law of England Obj. 3 11 H. 4. f. 77. a. per Hill It is a Contradiction that the Incumbent being the Bishops Subject and the Bishop his Soveraign should be united the Servant qua Servant may as well be Master the Tenant qua Tenant Lord the Deputy the Deputor the Delegator the Delagated which is impossible Answ It is a Contradiction that a person Subject being so should not be Subject but no contradiction that a person Subject should cease to be so the subjection of the Incumbent ceaseth when the Rectory is in the Bishop the Deputy is not when the principal Officer executes the office in person and relation of Lord and Tenant destroy'd when the Lord occupies the Land himself If an Act of Parliament should enable every Bishop to hold his former Benefices no contradiction would follow nor doth now by the Dispensation And note all these Reasons deny the Popes power formerly the Arch-bishops now and the King 's also for they are not Reasons against the power of the party dispensing but that the Subject matter is capable of no dispensation There is no inconsistence for a Bishop to be an Incumbent for he is a Spiritual Corporation and being Patron of a Living might and may have it appropriate that is to be for him and his Successors perpetual Incumbents Da. Rep. f. 80. b. The Rectories of Eastmeane and Hambleden are appropriate ad Mensam of the Bishop of Winchester and many others in England and Ireland so appropriated Selden Hist of Tithes â— 6. par 3. f. 8â— b. c. 9. par 2. f. 253. Every Bishop many hundreds of years after Christ was universal Incumbent of his Diocess received all the profits which were but Offerings of Devotion out of which he paid the Salaries of such as officiated under him as Deacons or Curates in places appointed Quest 2 Second Question Whether the Pope formerly used to dispense in such a case and consequently the Arch-bishop now can by the Stat. of 25 H. 8. c. 21 1. Bishop of St. Davies Case The particular dispensation granted to the Bishop of St. Davies in 11 H. 4. is a full instance nor was it in the Argument of that case insisted that the Pope could not dispense with a Bishop to retain or receive a Benefice But the sole Question was Whether in that particular case because the Benefice to be retain'd belong'd to the presentation of a Church-man viz. the Bishop of Salisbury the Dispensation did not amount to a provision and so was within the Statute of Provisions 25 E. 3. 2. By the Statute of 28 H. 8. it appears the Bishop of Rome did grant Faculties and Dispensations to the King's Subjects 28 H. 8. c. 16. as Pluralities Unions Tryalities Appropriations Commendams Exemptions where Commendams are enumerated and by that Act all granted by the Pope are made void but to be renew'd in the Chancery 3. Procuring Commendams were so frequent in Ireland 7 E. 4. c. 2. that a special Act of Parliament was there made 7 E. 4. against all such as should purchase Bulls for any Commendam to put them out of the Kings protection 4. A Bastard instituted and inducted before Deprivation 11 H. 4. f. 78. a. f. 60. a. 11 H. 4. f. 76. b. a Secular Priest before he became regular whereof many were in England and Thyrning saith he knew that Edmond Monk of Berry who was with Edward the Third held many Benefices though a Monk and Pluralities were ordinarily dispensed with by the Pope 5. 11 H. 4. f. 38. a. Hankford saith he hath seen that the same man was Abbot of Glastenbury and Bishop of another Church simul semel Horton 11 H. 4. f. 76. a. The Pope may grant that one man may hold three Bishopricks at a time which Hankford agreed if with consent of the Patrons For if without their consent it was not dispensing to hold them but granting away the property of the Patrons which a Dispensation could not Henry Beaufort Vncle to Henry the Sixth Da. Rep. f. 80. 77. b. had a Dispensation to retain the Bishoprick of Winchester being Cardinal but it was ineffectual because obtained after he was Cardinal Cardinal Woolsey obtained before he was Cardinal a Dispensation to hold the Arch-bishoprick of York and the Abbey of St. Albans together with his Cardinalship Lindwood Titulo de Praebendis cap. Audistis Lindwood f. 100. b. Potestas quae secundum antiqua jura dabatur Episcopis ad dispensandum super pluralitate Beneficiorum restricta est saltem in dignitatibus Beneficiis curatis sed circa beneficia simplicia bene poterunt Episcopi dispensare And in the same Gloss In dignitatibus curatis solus Papa dispensat Authority in the point that a Rector of a Church dispens'd with according to 25 H.
is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
Land cum pertinentiis in Sandridge aforesaid That long before the Caption Ralph Rowlett Knight was seis'd of the Mannor of Sandridge in the said County whereof the said place is and was parcel time out of mind Grant of the Rent June 26 8 Eliz. That the said Sir Ralph 26. June 8 Eliz. at Sandridge aforesaid by his Deed in writing under his Seal produc'd in Court thereby granted and confirmed to Henry Goodyeare then Esquire and after Knight and to the Heirs of his Body a yearly Rent of 30 l. out of all his said Mannor and other his Lands in Sandridge aforesaid payable at the Feasts of St. Michael the Arch-angel and the Annunciation The first payment at such of the said Feasts which should happen after the expiration surrender or forfeiture to be made after Sir Ralph Rowlett's death of certain terms of years of parcel of the Premisses made to one William Sherwood and Ralph Dean severally With Clause of Entry and Distress to Henry and the Heirs of his Body if the Rent were unpaid And that Sir Ralph gave the said Henry seisin of the said Rent by payment of a peny as appears by the Deed. Rowletts death 1 Sept. 33 Eliz. Sir Ralph Rowlett after the First day of September 33 Eliz at Sandridge aforesaid died That after the Second day of September Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired whereby the said Henry became seis'd of the said Rent in tail That Henry had Issue the said Elizabeth and Mary Hen. Good-year died 1. Octob. 33 Eliz. and one Anne his Daughters and Coheirs and died 1. Octob. 33 Eliz so seis'd That the said Coheirs being seis'd of the said Rent Mary married Samuel 1. May 1634. and Anne the same time married John Kingston to them and the Heirs of their Bodies the First of May 1634. Mary married the said Samuel Hildersham and Anne married one John Kingston whereby the said Elizabeth and Samuel and Mary in right of the said Mary and John and Anne in right of Anne were seis'd of the Rent December 25. 1635. Anne had Issue by John her Husband Anne had Issue Frances and Theodofia she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia and John her Husband and Anne died 1. Januarii 1635. That thereby Elizabeth Samuel and Mary in right of Mary Frances and Theodosia became seis'd of the Rent April the 10th 1647. Frances married the said Biddulph and Theodosia the said Humphrey Holden whereby Elizabeth Samuel and Mary in right of Mary Biddulph and Frances in right of Frances and Holden and Theodosia in right of Theodosia became seis'd of the Rent And for 120 l. for four years arrear after the death of John and Anne ending at the Feast of St. Michael 1655. being unpaid at the time and place c. the Defendant as their Bailiff entred and distrained the said Cows The Plaintiff demands Oyer of the Deed of Grant and hath it in these words c. And then the Plaintiff replies that before the time of the Caption that is A die Paschae in quindecim dies a Fine was levied in the Court of Common Pleas in the One and twentieth of the King before the Iustices there c. between Richard Harrison Esquire and the Avowants of the said Rent with Warranty to the said Richard and his Heirs And that this Fine was to the use of the Conizors and their Heirs and demands Iudgment The Defendant thereupon demurrs WHERE the Law is known and clear though it be unequitable and inconvenient the Iudges must determine as the Law is without regarding the unequitableness or inconveniency Those defects if they happen in the Law can only be remedied by Parliament therefore we find many Statutes repealed and Laws abrogated by Parliament as inconvenient which before such repeal or abrogation were in the Courts of Law to be strictly observed But where the Law is doubtful and not clear the Iudges ought to interpret the Law to be as is most consonant to equity and least inconvenient And for this reason Littleton in many of his Cases resolves the Law not to be that way which is inconvenient which Sir Edward-Cook in his Comment upon him often observes and cites the places Sect. 87. In the present Case there are several Coparceners whereof some have Husbands seis'd of a Rent Charge in tail the Rent is behind and they all levy a Fine of the Rent to the use of them and their Heirs If after the Fine levied they are barr'd from distraining for the Rent arrear before the Fine is the Question It being agreed they can have no other remedy because the Rent is in the reality and still continuing If they cannot distrain the Consequents are 1. That there is a manifest duty to them of a Rent for which the Law gives no remedy which makes in such case the having of right to a thing and having none not to differ for where there is no right no relief by Law can be expected and here where there is right the relief is as little which is as great an absurdity as is possible 2. It was neither the Intention of the Conizors to remit this Arrear of Rent to the Tenant nor the Tenants to expect it nor could the Conizors remit it but by their words or intentions or both nor did they do it by either 3. It is both equitable in it self and of publick convenience that the Law should assist men to recover their due when detain'd from them 4. Men in time of Contagion of Dearth of War may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives or others and consequently not seasonably distrain them and it would be a general inconvenience in such case to lose all their Rents in Arrear So as both in Equity and Conveniency the Law should be with the Avowants In the next place we must examine Whether the Avowants that is the Conizors of the Fine be clearly barr'd by Law to distrain for the Rent arreare before the Fine For it must be agreed they have no other remedy by the Common Law or otherwise to which purpose I shall open some Premises that my Conclusion may be better apprehended 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained that the Tenant may know to whom the Rent or other Duty ought to be paid and likewise know a lawful distress from a tortious taking of his Cattel 2. This privity is created by Attornment either in Fact or in Law by the Tenant to the Lord to the Reversioner to the Grantee of a Remainder or of a Rent by Deed or by Fine Litt. Sect. 579. For this Sir Edward Cooe upon the 579th Section of Littleton and in many other of his Sections The Conizee of a Fine before Attornment cannot distrain because an
Arrears in strictness of Law when the Fine is levied are not due at all but remitted and so no absurdity to have no remedy for a thing not due 1. By this reason a Law should be equally good that provides no remedy for performance of Contracts as that which doth because all Contracts for performance of which the Law gives no remedy shall in Iudgment of Law be dispens'd with releas'd discharg'd 2. By this reason a Rent-seck before seisin had of it shall be no duty because the Law gives no Remedy before seisin And consequently such Rent or such Arrears as in the present Case being paid by the Tenant may be recover'd again as the proper mony of the Tenant deliver'd to the Grantee of the Rent without any consideration upon an indebitatus Assumpsit the Law creating a promise So might a Debt paid after six years elaps'd for which by the Statute of Limitations there was no remedy yet that doth not cease to be a Debt as if it had been released By like reason if a man hath by accident had his Bonds burn'd or destroy'd whereby he had no remedy to recover the Debt by Law it should cease to be a Debt at all 32 H. 8. c. 37. To this the words of the Statute of 32 H. 8. c. 37. may be added which gives remedy for recovery of such Debts by Executors as were due to the Testators and for which there was no remedy before viz. That the Tenants did retain in their hands such Arrearages of Rents whereby the Executors could not therewith pay the Debts and perform the will of the Testator c. and surely no Arrearages could be of Rent if they were remitted in Law nor was it fit the Executors should pay the Debts or perform the Testators Will with that which was no part of the Testators Estate either in possession or as a credit If a common Recovery had been to uses of Lordships and Mannors before the Statute of 27. the Recoverors had no remedy to make the Tenants attorn for a quid Juris clamat would not lye upon a Recovery before the Statute of 7 H. 8. 7 H. 8. c. 4. c. 4. which did give remedy and which saith That such refusal of Attornment was to the great offence of their Conscience refusing and not only to the disinheritance of the Recoverors but often to the breaking of the last Wills of the Recoverees and also to the disinheritance of Husbands Wives and others to whose use the Recovery was had By which it is plain that duties for which there is no remedy often in Law are not therefore dispenced with and discharged by the party as is superficially said in Ognell's Case That the Conizee of a Rent granted by Fine to uses cannot have any actual seisin or be in possession of such Rent since the Statute of 27 H. 8. cap. 10. Before the Statute of 27 H. 8 If a Feoffment had been to uses and no Livery given or given by one Attorney when it ought to have been by two the uses in such Deed of Feoffment could never rise so if a Reversion had been granted to uses and no Attornment to the Grantee no use could rise because there was no sufficient Estate in possession And when the Statute of Vses came it could have no operation when the Estates in possession were not sufficient So if an Estate for life had been granted to the use of a man and his Heirs an Estate in Fee could not rise out of it by the Statute of 27 H. 8. c. 10. And if before the Statute a Reversion had been granted by Fine to Vses and no quid Juris clamat brought though the Land pass'd by the Fine yet the Tenant could not be distrain'd nor a Writ of Waste brought against him until he attorn'd and when the Statute came to transferr the use into the possession it could be but into such a possession as the Conizee had by the Fine without power to distrain or bring Waste for the words of the Statute are That the Estate Title Right and Possession that was in such person or persons that were or hereafter shall be seis'd of any Lands or Hereditaments to the use confidence or trust of any person or persons be from henceforth adjudged to be in him or them that have or hereafter shall have such use confidence or trust c. And therefore if before the Statute of 27. a Fine had been levied of a Rent-charge to uses as this Case is if before Attornment to or seisin had by the Conizee the Statute had come and brought the possession of the Rent to the use the Cestuy que use could have had the Rent but as a Rent-seck for which he could not distrain for want of Attornment nor have an Assise for want of seisin for the Conizee had no other possession of the Rent but after Attornment and seisin to or by Cestuy que use his possession perhaps became perfected But since the Statute if a Fine be levied of a Reversion of Lands to uses or of a Rent because the use and possession by the Statute come instantly together and the Conizee of the Fine hath no time possible to bring either a quid Juris clamat or a quem redditum reddit Sir Moyl Finch's Case Coke 6. f. 68. a for or to receive an Attornment to perfect his possession It was resolv'd in Sir Moyl Finch's Case that the Cestuy use should notwithstanding distrain and have the same advantage as if the Conizees possession had been perfected by Attornment and seisin The intent of the Statute of 27. which was to bring together the possession and the use when the use was to one or more persons and the possession in one or more other separate persons was soon after the Statute wholly declined upon what good construction or inference I know not For now the use by the name of trust which were one and the same before the Statute remains separately in some persons and the possession separately in others as it did before the Statute and are not brought together but by Decree in Chancery or the voluntary Conveyance of the possessor of the Land to Cestuy que trust So as now the principal use of the Statute of 27. especially upon Fines levied to uses is not to bring together a possession and use which at no time were separate the one from the other but to introduce a general form of Conveyance by which the Conizors of the Fine who are as Donors in the Case may execute their intents and purposes at pleasure either by transferring their Estates to Strangers by enlarging diminishing or altering them to and among themselves at their pleasure without observing that rigour and strictness of Law for the possession of the Conizee as was requisite before the Statute Which I have sufficiently evidenc'd by shewing that the Attornment of the Lessee to the Conizee or Reversioner or of the Tenant to him as
f. 33. Letter H. if he cannot alledge a Presentation in himself or in his Ancestor or in another person through whom he claims the Advowson and that in his Count unless it be in a special Case Then puts that special Case As if a man at this day by the Kings Licence makes a Parochial Church or other Chantry which shall be presentable if he be disturbed to present to it he shall have a Quare Impedit without alledging any presentment in any person and shall Count upon the special Matter And the Law in this is the same in Case of the King with a Common Person by all the Books and Presidents in the Books of Entry To this add the Lord Hobarts Judgment which is alwaies accurate for the true reason of the Law Know that though it be true that a Presentation may make a Fee without more as a Presentation by Vsurpation doth that you never have a Declaration in a Quare Impedit L. Hobart Digby's Case f. 101. that the Plaintiff did present the last Incumbent without more but you declare that the Plaintiff was seis'd in Fee and presented or else lay the Fee-simple in some other and then bring down the Advowson to the Plaintiff either in Fee or some other estate The reason is That the Presentment alone is militant and indifferent and may be in such a Title as may prove that this new Avoidance is the Defendants and therefore you must lay the Case so as by the Title you make the Presentation past joyn'd to your Title shall prove that this Presentation is likewise yours as well as the last Whence it follows That to Count of an Estate and Seisin without a Presentation or of a Presentation without an Estate are equally vicious and naught be it in the Case of the King or of a Common Person and was never in Example or President 2. A second necessary Premise is this and is both natural and manifest When you will recover any thing from me it is not enough for you to destroy my Title but you must prove your own better than mine For it is not rational to conclude you have no right to this and therefore I have for without a better right melior est conditio possident is regularly Hobar 1. f. 162. Colt Glovers Case ad sinem paginae 3. Every Defendant may plead in a Quare Impedit the General Issue which is ne disturba pas because that Plea doth but defend the wrong wherewith he stands charg'd and leaves the Plaintiffs Title not only uncontroverted but in effect confess'd and the Plaintiff may upon that Plea presently pray a Writ to the Bishop or at his choice maintain the Disturbance for damages Hob. Digby versus Fitzherbert f. 103. 104. But if a man will leave the General Issue and controvert the Plaintiffs Title he must then enable himself by some Title of his own to do it but yet that is not the principal part of his Plea but a formal Inducement only And therefore there is no sense if you will quarrel my possession and I to avoid your Title effectually do induce that with a Title of my own that you shall fly upon my Title and forsake your own for you must recover by your own strength and not by my weakness The Lord Hobart goes further in giving the reason of this course of Pleading in Colt and Glovers Case in the place before cited of this form of pleading in Law there is one reason common to other Actions wherein Title is contain'd to the Land in question specially which is that the Tenant shall never be receiv'd to Counter-plead but he must make to himself by his Plea a Title to the Land and so avoid the Plaintiffs Title alledg'd by Traverse or confessing and avoiding But in the Quare Impedit there is a further reason of it for therein both Plaintiff and Defendant are Actors one against another and therefore the Defendant may have a Writ to the Bishop as well as the Plaintiff which he cannot have without a Title appearing to the Court And so are the Presidents Rastal L. Intratio f. 484. a.b. when a Quare Impedit is brought against the Patron for disturbance of his Clerk not being in possession The Case in brief and the Question upon it Vpon the Record as it hath been open'd and the pleading therein between the King and the Patron upon which all the Question ariseth first I shall not make the Question to be Whether there may be a Traverse taken upon a Traverse though that Question be in truth in the Case for that is a Question rather upon terms of Art than a Questio Forensis and rising upon the naked fact of a Case depending in Iudgment I shall therefore make the Question upon this Case such as nakedly it is without involving it in any difficulty of terms The King brings a Quare Impedit and declares That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield in gross as of Fee and presented and derives the Advowson to himself and the Church became void by the death of the Queens Presentee and he is disturbed to present by the Defendant Jervis The Defendant saith That before the Queen presented R. Jervis his Ancestor was seis'd in Fee of the Mannor of Norfield to which the Advowson of this Church is appendant that it became void by the death of one Squire and continued so for two years and that the Queen then presented White her Clerk by lapse That the Mannor and Advowson descended from Richard to Thomas Jervis from Thomas to Sir Thomas Jervis who granted the next avoidance to one Phineas White who presented upon the death of James White one Timothy White who was instituted and inducted and then derives the Mannor and Advowson to himself and that the Church becoming void upon the death of the said Timothy he presented the other Defendant Hunckley and Traverseth the Queens Seisin of the Advowson in gross The Law in Case of a Common Person If a Common Person brings a Quare Impedit and counts his Title to present and that he is disturbed The Defendant to counter-plead the Plaintiffs Title makes as he must a Title to himself to present and confesses and avoids or Traverseth the Plaintiffs Title 1. The Plaintiff shall never desert his own Title and by falling upon and controverting the weakness only of the Defendants Title ever recover or obtain a Writ to the Bishop though the Defendants Title do not appear to the Court to be sufficient for the unanswerable Reasons given by the Lord Hobart in the first place 2. If you will recover any thing from another man it is not enough for you to destroy his Title but you must prove your own better than his 3. There is no sense if you will quarrel my Possession or Right and I to avoid your Title effectually either by Traversing it which is denying or confessing and avoiding
all Lands Tenements Meadows Tithe Corn and Grain Hay and Wool and all Profits to the said Parsonage belonging And also the Vicaridge of Hooknorton aforesaid with the Appurtenances And all Lands Tithes Profits to the said Vicaridge belonging And also a Pasture called Prestfield with the Appurtenances in Hooknorton aforesaid And all Commons of Sheep call'd by the name of their Founders Flock And the Hay of a Meadow call'd Brown-mead with the customary works thereto pertaining And the Tithe and Duty of a Mead call'd Hay-mead in Hooknorton aforesaid Except and reserved to the said Abbot and Covent and their Successors All Tenants and Tenantries then or after to be set by Copy of Court-Roll All Fines Reliefs Escheats Herriots Amerciaments Pains Forfeits and all Perquisites of Courts Barons and Leets To have and to hold the said Farm or Mannor and all other the Premisses with the Appurtenances Except before excepted to the said Croker his Executors and Assigns from the Feast of the Annunciation of our Lady last past before the Date of the said Deed Indented for the term of Eighty years rendring to the said Abbot Covent and their Successors yearly during the said term For the said Mannor and Farm 9 l. For the said Parsonage 22 l. 2 s. For the Common of Sheep Hay and Custom-works of Brown-Mead 5 l. For the Wool 12 l. For Prest-field 6 l. 13 s. 4 d. For the Vicaridge 6 l. 13 s. 4 d. of lawful mony c. at the Feasts of St. Michael the Arch-angel the Annunciation of our Lady by equal portions As by the same Deed Indented amongst divers other Covenants and Grants more plainly appeareth And where also as the said Bishop by his other Deed Indented Dated 8. October 1 Edw. 6. hath demis'd and to farm lett unto the said John Croker all that his Mannor of Hooknorton aforesaid with all Messuages Tofts Cottages Orchards Curtilages Lands Tenements Meadows Leasowes Pastures Feedings Commons waste Grounds Woods Underwoods Waters Mills Courts-Leets Fines Herriots Amerciaments Franchises Liberties Rents Reversions Services and all other Hereditaments whatsoever they be set lying and being in Hooknorton aforesaid in the said County with the Appurtenances Except certain Lands and Tenements in the said Town in the Tenure of the said John Croker for certain years then enduring To have and to hold All the said Mannor of Hooknorton and all other the Premisses with the Appurtenances Except before excepted to the said John Croker and his Assigns from the Feast of St. Michael the Arch-angel last past before the Date of the said latter Deed Indented to the full end of the term of Ninety years from thence next ensuing Rendring to the said Bishop and his Successors yearly during the said term Eleven pounds four shillings and nine pence at the Feasts of the Annunciation and St. Michael the Arch-angel by equal portions as by the said latter Deed among other Covenants and Grants more plainly appears The Reversion of all which Premisses are in the said Bishop and to him and his Successors do belong as in Right of his Church Now witnesseth That the said Bishop hath demis'd Ind. 1 Mar. and to Farm lett and by these Presents doth demise c. to the said John Croker All the said Mannor and Farm of Hooknorton together with all Messuages c. And all and singular other the Premisses with the Appurtenances in the said several Indentures specified and contain'd To have and to hold the said Premisses contain'd in the said first Indenture to the said John Croker his Executors and Assigns from the end expiration and determination of the said term specified in the said first Indenture unto the end and term of Ninety years next ensuing yielding therefore yearly to the said Bishop and his Successors for the said Premisses specified in the said first Indenture such and like Rents as in the said first Indenture are reserv'd at the same daies and times and To have and to hold All the Premisses specified in the said latter Indenture from the end expiration and determination of the said term specified in the said latter Indenture until the end and term of Ninety years then next ensuing Rendring yearly for the Premisses in the said latter Indenture specified such and like Rent as is reserv'd by the said latter Indenture and at the same days and times Then follows a Clause of Distress if the Rent be behind for a Month. And if the said several yearly Rents reserved by these Indentures or any of them be unpaid in part or in all by the space of one quarter of a year after any the said Feasts at which the same ought to be paid and be lawfully demanded and no sufficient Distress upon the Premisses whereupon the same is reserved to be found Then to be lawful for the said Bishop and his Successors into such of the Premisses whereupon such Rents being behind is or are reserved to re-enter and to have as in their former estate And the said Jurors further say That the aforesaid Indenture of Demise afterwards the Tenth of May Anno 1 Mar. aforesaid by the then Dean and Chapter of Oxford under their Common Seal was confirm'd and find the tenor of the Confirmation in haec verba They further find That the said Two hundred Acres of Pasture at the time of making the said Indenture and at the time of the Trespass and Ejectment were and yet are parcel of the said Mannor of Hooknorton They further find That the Rent for all the said demis'd Premisses reserv'd by the said Indenture for one whole half year ended at the Feast of Saint Michael the Arch-angel 1643. was behind and unpaid and that Robert late Bishop of Oxford the Nine and twentieth and Thirtieth Day of December 1643. into the Parsonage House then and by the Space of Forty or Fifty years before reputed and call'd the Mannor-house And that he then at the said Parsonage-house by the space of One hour next before the Sun-setting of both the said two daies remain'd and continued until and by the space of One hour after Sun-setting of both daies demanding and then did demand the Rent for the half of the year aforesaid They further say That there was no sufficient Distress upon the Premisses at the time of the demand of the said Rent thereupon And that the said Bishop the said Thirtieth Day of December 1643. aforesaid into the said Premisses enter'd They further say That all the Right State and Title term of Years and Interest of and in the Mannor Tenements Rectory and other the said Premisses by virtue of the said Indenture of Demise by the said late Bishop as aforesaid granted to the said John Croker by mean Assignments came to the said Thomas Wise That by virtue of the said several Assignments the said Thomas Wise afterwards the Fourth of January 1667. into the Premisses enter'd and was possessed for the Residue of the term of years prout Lex postulat That he so possessed
in Indentura praedict mentionat shall be as is contended an absolute and positive finding of a former Demise made to whose expiration the Indenture 1 Mariae referrs it must be either the demise 29 H. 8. or that of 1 E. 6. for no other are mentioned in the Indenture 1 Mar. and it can be but a finding of one of them for the words à fine prioris dimissionis in Indentur praedict mentionat cannot possibly extend to both Be it then understood the Demise 1 E. 6. for in that the Mannor is clearly named the Consequence must be That the Deed of 1 Mar. which is an intire lease as well of the Mannor as of the Vicaridge Parsonage and of other things under several Rents for Ninety years commencing as to the Mannor from the Expiration of the suppos'd Demise 1 E. 6. shall be a good lease for Ninety years thence forwards because that recited Demise is also suppos'd to be positively found by the Jury by those words of their Verdict But as to the Vicaridge Parsonage and other things and the Rents thereupon reserv'd which are demis'd by the Indenture of 1 Mar. for Ninety years to commence from the Expiration of the other recited Demise suppos'd in 29 H. 8. the lease of 1 Mar. must commence immediately from the Date because the Jury have not found that recited Demise positively but only as recited and therefore not found it to be a real Demise and consequently the lease of 1 Mariae as to those particulars referring the term to commence from the Expiration of a term granted 29 H. 8. not in esse because not found must begin from 1. Mar. which doubtless the Jury never intended But now for Authority I will resume the Case formerly cited of 3 E. 6. in the Lord Brook If A. makes a Lease to B. Habendum for Forty years from the expiration of a former Lease made of the Premises to J. N. and this be found occasionally by special Verdict as our Case is but the Jury in no other manner find any Lease to be made to J. N. then as mentioned in the Lease to B. By the Resolution of that Book the Lease to B for Forty years shall begin presently And who will say in this Case That because the Jury find a Lease made to B. for Forty years Habendum from the Expiration of a former Lease made to J. N. that therefore they find a Lease made formerly to J. N. when in truth J. N. had no such Lease for they only find what the Habendum in the Lease to B. is which makes a false mention of a former Lease to J. N. but had no Evidence to find a Lease which was not Exactly parallel to this is our present Case the Jury find the Bishop of Oxford by a Lease dated the Fourteenth of October 1 Mariae demised to Groker the Mannor of Hooknorton Habendum to him and his Assigns for Ninety years from the Expiration of a former Demise mentioned in the said Indenture of Lease 1 Mariae But do not affirm or find explicitly or implicitly any former demise made when they only find summarily the Habendum of the Lease 1 Mariae which mentions such a former Demise Cr. 10 Car. 1. f. 397. Another Case I shall make use of is the Case of Miller and Jones versus Manwaring in an Ejectment brought in Chester upon the Demise of Sir Randolph Crew The Jury in a Special Verdict found That John Earl of Oxford and Elizabeth his Wife were seis'd in Fee in Right of Elizabeth of the Mannor of Blacon whereof the Land in question was parcel and had Issue John the said John Earl of Oxford by Indenture dated the Tenth of February 27 H. 8. demis'd the Mannor to Anne Seaton for Four and Thirty years Elizabeth died 29 H. 8. And the said Earl of Oxford died March 31. H. 8. Afterwards John the Son then Earl of Oxford the Thirtieth of July 35 H. 8. by Indenture reciting the Demise to Anne Seaton to be dated the Tenth of February 28 H. 8. demis'd the said Mannor to Robert Rochester Habendum after the End Surrender or Forfeiture of the said Lease to Anne Seaton for Thirty years It was adjudged first in Chester and after upon Error brought in the Kings Bench It was resolv'd by all the Iudges who affirmed unanimously the first Iudgment That the Lease to Rochester began presently at the time of the Sealing for several Reasons 1. Which is directly to our purpose because there was no such Lease made to Anne Seaton having such beginning and ending as was recited in Rochester's lease 2. Because the lease made by John first Earl of Oxford was determined by his death Three years before Rochester's lease and consequently no lease in esse when the lease was made to Rochester which Reasons are in effect the same viz. That a lease made to commence from the end of any lease suppos'd to be in esse which indeed is not the lease shall commence presently From this Case these Conclusions are with clearness deducible 1. That if a lease be found specially by a Jury in which one or more other leases are recited the finding of such lease is not a finding of any the recited leases Therefore the finding of the lease made to Rochester was not a finding of the lease therein recited to be made to Anne Seaton in any respect 2. The second thing clearly deducible out of this Case is That although the Jury by their Special Verdict did find that John the Son Earl of Oxford did by his Indenture demise to Rochester for Thirty years the Mannor of Blacon Habendum from the End Surrender or Forfeiture of a former lease thereof made to Anne Seaton dated the Tenth of February 28 H. 8. yet this was not a finding of any such lease made to Anne Seaton but only a finding of the Habendum as it was in the lease made to Rochester which mentioned such a lease to be made to Anne Seaton So in our present Case the Jury finding that the Bishop of Oxford 1 Mariae did demise the Mannor of Hooknorton to John Croker Habendum for Ninety years from the Expiration of a former Demise mentioned in the Indenture of 1 Mar. is not a finding of any such former Demise to be made but a finding that in the Indenture 1 Mariae it is suggested there was such a former Demise and no more And if any man shall object That in Rochester's Case the Reason why no such lease is found to be made to Anne Seaton in 28 H. 8. to be because it is found that the lease made to Anne Seaton was in 27 H. 8. that is not to the purpose because the Jury might find and truly that a lease was made to her Dated the Tenth of February 27 H. 8. but that was no hindrance but that another lease was made to her in 28 H. 8. as is mentioned in Rochester's lease which had been a Surrender in Law
the Trespass suppos'd that is the First of August 1606. King James was seis'd in right of the Crown of the said Pool and three Gardens with the Appurtenances in St. Margarets aforesaid in his Demesue as of Fee They find again That the same First Day of August 1606. A Water-work was built in the said Gardens and the said Pool was thence us'd with the said Water-work until the Twelfth Day of March in the Eleventh year of King James That King James so seis'd the said Twelfth of March by his Letters Patents under the Great Seal of England bearing Date the said Twelfth of May 11 Jac. in consideration of 70 l. 10 s. of lawful mony of England paid by Richard Prudde and for other considerations him moving at the nomination and request of the said Richard Et de gratia sua speciali ex certa scientia mero motu for him his Heirs and Successors granted to the said Richard Prudde and one Toby Mathews Gent. and to their Heirs and Assigns among other things the said Three Gardens and Water-work thereupon erected to convey water from the River of Thames to divers houses and places in Westminster and elsewhere with all and singular the Rights Members and Appurtenances of what nature and kind soever They further find That the said King James by his said Letters Patents for the consideration aforesaid for him his Heirs and Successors granted to the said Richard Prudde and Toby Mathew their Heirs and Assigns inter alia Omnia singula stagna gurgites aquas aquarum cursus aquaeductus to the said Premisses granted by the said Letters Patents or to any of them or to any parcel of them quoquo modo spectantia pertinentia incidentia vel appendentia or being as member part or parcel thereof at any time thentofore had known accepted occupied used or reputed or being together with the same or as part parcel or member thereof in accompt or charge with any of his Officers as fully and amply as the same were formerly held by any Grant or Charter Ac adeo plene libere integre ac in tam amplis modo forma prout idem nuper Rex aut aliquis progenitorum sive predecessorum fuorum premissa praedict per easdem Litteras Patent prae-concess quamlibet seu aliquam inde partem sive parcellam habuerunt habuissent vel gavisi fuissent habuissent vel habere uti gaudere debuiffent aut debuit They further find That the said Pool was necessary for the Water-work aforesaid and that it could not work without the said Pool They further find That the King who now is by his Letters Patents dated at Westminster the Fifteenth of February the Eighteenth of his Reign inroll'd in the Exchequer in consideration that Henry Alderidge Gent. a piece of Laud and other the Premisses granted by the said Letters Patents cover'd with water and hurtful mudd would fill up at his proper charges and perform the Covenants and Agreements in the Letters Patents contain'd for him his Heirs and Successors granted the aforesaid piece of Land containing as aforesaid in length and breadth by the name of All that piece of Land or broad Ditch lying and being in the Parish of St. Margarets Westminster with particular Boundaries thereto expressed To have and to hold from the Feast of the Annunciation last past for the term of One and twenty years thence next ensuing They find That the said Henry Alderidge entred into the Premisses then in the possession of the Defendants and so possess'd made the Lease to the Plaintiff Habendum to him and his Assigns as in the Declaration That the Plaintiff entred by virtue thereof into the said piece of Land and was possess'd till the Defendants Ejected him And if upon the whole matter the Defendants be Culpable they assess damages to 12 d. and costs to 40 s. And if they be not they find them not culpable The first Question is What can pass by the name of Stagnum or Gurges for if only the water and not the soyl passeth thereby the Question is determined for the piece of Land containing such length and breadth cannot then pass Fitzh N. Br. 191. b. Lett. H. By the name of Gurges water and soyl may be demanded in a precipe 34 Ass pl. 11. Coke Litt. f. 5 6. ad finem By the name of Stagnum the soyl and water is intended 1. Where a man had granted to an Abbot totam partem piscariae suae from such a Limit to such a Limit reservato mihi Stagno molendini mei And the Abbot for a long time after the grant had enjoyed the fishing of the Pool It was adjudg'd the Reservation extended to the water and soyl but the Abbot had the fishing by reason of long usage after the Grant which shewed the Intent 1606. 4 Jac. The next Question is When the soyl may pass by the word Stagnum whether it may as belonging and pertaining to the Water-work erected 6 Jac. and granted away with the Pool as pertaining to it in 11 Jac. as it is found or to the Gardens which seems a short time especially in the Case of the King to gain a Reputation as belonging and appertaining As to this Question things may be said pertaining in Relation only to the extent of the Grant As an antient Messuage being granted with the Lands thereto appertaining and if some Land newly occupied and not antiently with that Messuage shall pass as appertaining is a proper Question but that is a Question only of the extent of the Grant and what was intended to pass and not of the nature of the Grant Four Closes of Land part of the possessions of the Priory of Lanceston came to King Henry the Eighth and after to Queen Elizabeth usually call'd by the Name of Drocumbs or Northdrocumbs A House was built 21 Eliz. as the Book is by the Farmers and Occupiers of these Closes upon part In 24 Eliz. she granted Totum illud Messuagium vocat Drocumbs ac omnia terras tenementa dicto messuagio spectantia in Lanceston After King James made a Lease of the Four Closes call'd Northdrocumbs or Drocumbs Gennings versus Lake 5 Car. 1. Crook 168. and upon question between the Queens Patentee and the Kings Iudgment was given for the Queens Patentee Because though the House was newly erected before the Queens Grant yet the Land shall be said belonging to it and it shall pass by such name as it was known at the time of the Patent and that was a stronger Case than this there being but Three or Four years to give Reputation of belonging or appertaining Another meaning of the words belonging or appertaining is when they relate not to the extent or largeness of the Grant but to the nature of the thing granted As if a man newly erect a Mill in structure and hath no Water-course to it if he grants his Mill with the Appurtenances nothing passes but the structure
Covenant for enjoyment against all men for A. B. and C. and all others are all men Therefore that difference that this is not a general Covenant is Differentia soni non ponderis and hath no reason of Law to diversitie it from a general Covenant Objections It was smartly objected by my Brother Broome If the Lessor shall not be charg'd upon his Covenant for the tortious Entry of his Assignee by this express Covenant then is the Covenant useless for by a Covenant in Law upon the Lease it self he was to be charg'd for a legal Entry made by his Assignee if this Covenant had not been at all I Answer It is not necessary the Lessor and Lessee should understand what are Covenants in Law and therefore they might impertinently make an express Covenant which they understood which was already supplyed by an implyed Covenant which they understood not As where a Feoffment is made by Dedi concessi which is a warranty in Law it is not rare to have an express warranty of the same extent with the warranty in Law But there is a more close and solid reason why they are named in the Covenant for if they had not been express'd the Demise it self had been a Covenant in Law against the legal Interruptions both of them and all men else But by expressing a Covenant against them the general Covenant against all men is thereby restrain'd and not inlarg'd against them for now the Lessor hath covenanted for enjoyment against the legal Evictions of himself his Executors Administrators and Assigns and of no other This was clearly resolv'd in Nokes his Case where a man by his Deed granted and demis'd certain Lands for years which Demise imported in it self a Covenant in Law and he further expresly Covenanted for Enjoyment against himself and all others claiming from or under him which express Covenant was narrower than his Covenant in Law and gave Bond for performance of Covenants Two points were resolv'd 1. That this Bond extended to the Covenant in Law 2. That by the express Covenant the Covenant in Law was restrain'd by Popham's Opinion and all the Court. 3. It was agreed that the same had been resolv'd before about 14 El. in the Case of one Hamond And Sir Ed. Coke in the close of the Case saith Much inconvenience would else happen against the intention of parties The express Covenants in Deeds being different from the Covenants in Law usually 4. It is there agreed That it is not so in real Warranties as in Covenants but it is at choice to take the Warranty in law or the express Warranty Another Objection is upon the Case in 46 E. 3. 46 E. 3. f. 4. where the Lessor outed his Lessee for years and infeoffed another of the Land who held him out It is agreed That the Lessee may have a quare ejecit infra terminum against the Feoffee yet his Action was good against his Lessor But this Case makes nothing to the present Case For at the Common Law the Lessee had no Action but of Covenant against his Lessor or an Ejectione firmae at his choice The Quare Ejecit infra terminum is given by the Statute of Westminster 2. cap. 24. for recovery of his term against the Feoffee for an Ejectione firmae lies not against him because he came to the Land by Title of Feoffment and not by tort And this new Remedy by Statute takes not away the ancient at Common Law but the Common Law gives not two Satisfactions for the same Injury as it would if the Covenantor and the Trespassor were both charg'd to answer the Lessee and so the Book resolves The Book of 2 E. 4. f. 15. may be objected A man infeoffed another and entred into Bond to warrant and defend the Land for twelve years Two Iudges the Court rising seemed to doubt whether the word defend might not extend to defend from Entries c. The difference some take of a Covenant to enjoy against one or more particular men and to enjoy against all men as if in the first Case the Covenantor were to be charg'd for the tortious Entries of particular men but not where the Covenant is against all men I understand not As if all particular men could they be enumerated were not the same with all men and as if some particular men were not a part of all particular men and the reason of Law is the same for one as for all the party hath his Remedy against the wrong doer and the Covenant meaning no more whether against one or all than that the Lessee should have an indefeasible Title in Law and being but in nature of a Warranty The Case which gave colour to this Opinion That if a man covenants for enjoyment against a particular person or persons that he covenants as well against their tortious Entries as legal The Case of Wilson and Foster against Leonard Mapes 32 El. remembred in Tisdels Case in the L. Hob. and reported by Crook Hob. f. 35. Cro. 32 El. f. 212. pl. 4. Mapes made a Lease of the Parsonage of Brankister to Wilson and Foster for a year and covenanted to save them harmless for that years profits against one Blunt then Parson of Brankister who entred upon them and took the Tithes In an Action of Covenant brought against Mapes by Wilson and Foster though they did not set forth any good Title in Mr. Blunt for that years profits it was judg'd for the Plaintiffs because saith the Lord Hobert the Covenant was to save them harmless for that years profits against such a man particularly Which imported they should not be damnified in that years profits by Blunt which was more than to warrant the Title for Blunt might go beyond the Seas dye insolvent and so prevent them of their Remedy for the profits So in Crook it is said That the Covenant being against a particular man it extends to his tortious Entries arguendo but there it appearing that Blunt was Parson of the Rectory the Court was of Opinion that his Entry was legal and good and therefore the Covenantor in that Case was charg'd for a legal Entry and not a wrongful So is the Book express in the end of the Case If a man upon sale of Land refuses to give a general Warranty against all men but narrows his Warranty and gives only against him and his Heirs this alters not the nature of the Warranty as to make him any way answer for tortious Entries or to subject him to any thing more than his Warranty against all men subjected him So in a Covenant upon a Lease for Enjoyment against him and his Assigns which is in the nature of a Warranty for a Chattel he shall not otherwise be charg'd by his Covenant than if he had covenanted that is warranted against all men Hill 22 23 Car. II. C. B. Rot. 680. William Shute Plaintiff John Higden Defendant In Trespass and Ejectment THE Plaintiff declares
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
as much as to say wherein no man had right for that which is equally every mans right is no mans right Whence it follows for I shall not speak of the usage or extent of such a possession by natural Occupancy it being a subject too large and not necessary for my present purpose 1. That there can be no Occupancy natural of any thing wherein another than the Occupant hath right For by the definition made natural Occupancy is the first right 2. A Claim without actual possession cannot make a man a natural Occupant For 1. When a Claim is cannot be possibly known to all concern'd in the Occupancy of a natural thing and what cannot be known is as to all effect of right as if it had not been nor is there any Character of a natural Claim but the possession and use of the thing but civilly there may either by word or other sign agreed on 2. The end of a natural Right to any natural thing is the separate use of the thing to a part of Mankind which cannot be used by all Mankind but if Claim only would give a Right to the things of nature they might still remain as much without use after the Claim as before which agrees not with the end of Nature in giving a Right to natural things 3. If Claim could give a Natural Right one might claim all things in the Universe not already appropriated and might have done so in the beginning of time when nothing almost was appropriated 4. A natural Occupant hath no Estate of Fee Freehold or the like which are Estates formed and raised by municipal Laws but hath only a bare possession to keep or forsake 5. That Land possessed by a natural Occupant must be without any sort of Vassallage of Service Rent Condition or other Charge whatsoever for those servitudes upon the Land cannot be conceiv'd without a former right in him that laid them but natural Occupancy of things wherein none had any former right or having any have deserted it for naturally a man can have nothing against his own will 6. Two or more cannot at the same time have severally plenary possession that is Occupancy of the same thing therefore none can have right to that by reason of possession whereof another is already possess'd for then there would be two plenary Possessors severally of the same thing at the same time which is impossible And although every Nation hath by Consent and Agreement among the people of it its proper Laws to guide and determine mens Properties to all things capable of property and ownership yet the ancientest Nations of the World have no other right against each other to their own Countries and Territories than this original and natural occupancy and that Nation that will not admit a right by occupancy to another Nation in the Land so possess'd by it must at the same time confess they have no right to their own which they hold but in like manner They who would be further satisfied concerning this kind of occupancy may resort for exactness above other Books upon this Subject to Mr. Selden's Mare Clausum Seldeni Mare Clausum l. 1. Grotius de Jure Belli l. 1. c. 3 4. lib. 1. and to Hugo Grotius his first Book de Jure Belli Pacis c. 3. de acquisitione originaria rerum c. 4. de derelictione praesumpta eam secuta occupatione c. 1. By Civil Occupancy I mean such an occupancy either of things immoveable as Lands or of things moveable as is according to institution and the law of the place and particularly according to the Law of England as to the decision of the Question before us 2. By the Law of England there is no occupancy by any person of any thing which another hath a present right to possess wherein the Law of the Land agrees with that of natural occupancy Occupancy by the Law must be of things which have natural existence as of Land or of other natural things not of things which have their being and creation from Laws and Agreements of men for there is no direct and immediate occupancy of a Rent a Common an Advowson a Fair a Market a Remainder a Dignity and the like Cok. Litt. f. 41. b. Cr. 41 El. f. 721. Crauleys C. p. 50. no Occupancy of a Rent There can be no Occupant of any thing that lieth in grant and cannot pass without Deed because every Occupant must claim by a que estate and averr the life of Cestuy que vie And in this the Civil Occupancy with us of Land agrees with Natural Occupancy which must be of a thing that hath natural existence and not only legal But although the Occupancy be always of a natural thing yet the Occupant doth thereby by the Law enjoy several things many times that have their being by Law only as an Occupant of Land may thereby enjoy a Common Occupant of a House Estovers of the demesne Lands of a Mannor the Services and Advowsons appendant which are not themselves natural things but things created by Law nor are they immediately and by themselves capable of Occupancy but with reference to and as adjuncts of the Land and herein the civil Occupany differs from the natural And the reason is clear because the occupancy of the Land which ought not to lye void doth not sever or separate any thing from the Land which the Law hath joyned with it and if it doth not separate from it that which is joyn'd with it by Law though that be not capable of Occupancy in it self as an Advowson or Common it must follow that such things continue joyn'd or belonging to the Land as before notwithstanding the occupancy of the Land Cok. Litt. f. 41. b. In civil occupancy the Land in occupancy is charg'd with all the servitude impos'd by the first Lessor or by the Law As 1. to the payment of Rent 2. to be subject to waste 3. to forfeiture 4. to other Conditions wherein it differs from Land whereof a man is a natural occupant As to the civil occupancy of moveable things which are commonly termed personal things or goods there are few of those in our Law that have not a Proprietor and consequently no Occupant can be of them those which fall under occupancy of that kind are for the most part found in things ferae naturae whose acquisition is either per piscationem Bract. l. 2. c. 1. as in Fish or per aucupium as in Fowl or per venationem by hunting These do cedere occupanti communi Jure 1. Hence it follows by way of Inference and Corollary That there can be no primary and immediate Occupancy of a Tithe for it is not in its own nature capable of Occupancy more than a Rent or Common is and is in truth in its nature but a Rent it cannot pass by it self but by Deed and as other things which lye in grant A second thing that follows
the words of a Will are of ambiguous and doubtful construction they shall not be interpreted to the disinheriting of the right Heir as is already shew'd This being clear That there is no devise by this Will of the Land by implication in any kind to the Son and Daughters it follows that Katherine the surviving Daughter of the Testator and Lessor of the Plaintiff had no Title to enter and make the Lease to the Plaintiff Gardner and then as to the Case in question before us which is only Whether the Defendants be culpable of Ejecting the Plaintiff It will not be material whether The devise to the Nephew William Rose be void or not and if not void how and when he shall take by the devise which may come in question perhaps hereafter But to that point ex abundante and to make the Will not ineffectual in that point of the devise to the Nephew if no Estate for lives or other Estate be created by this Will by Implication to the Son and Daughters it follows That the Nephew can take nothing by way of Remainder for the Remainder must depend upon some particular Estate and be created the same time with the particular Estate Cok. Litt. f. 49. a. The Remainder is the residue of an Estate in Land depending upon a particular Estate and created together with the same and the Will creating no particular Estate the consequent must be That the Land was left to descend in Fee-simple to the heir at law without creating either particular Estate or Remainder upon it Sir Edward Coke hath a Case Cok. Litt. f. 18. a. but quotes no Authority for it If Land be given to H. and his heirs as long as B. hath heirs of his body the Remainder over in Fee the Remainder is void being a Remainder after a Fee-simple though that Fee-simple determines when no heirs are left of the body of B. whether that case be law or not I shall not now discuss in regard that when such a base Fee determines for want of Issue of the body of B. the Land returns to the Grantor and his heirs as a kind of Reversion and if there can be a Reversion of such Estate I know not why a Remainder may not be granted of it but for the former reason this can be no Remainder because no particular Estate is upon which it depends and if the Lord Coke's Case be law it is the stronger Cok. Litt. f. 18. a. Sect. 11. that no Remainder is in this Case But without question a Remainder cannot depend upon an absolute Fee-simple by necessary reason For when all a man hath of Estate or any thing else is given or gone away nothing remains but an absolute Fee-simple being given or gone out of a man that being all no other or further Estate can remain to be given or dispos'd and therefore no Remainder can be of a pure Fee-simple To this purpose is the Case of Hearne and Allen in this Court 2 Car. 1. Cr. f. 57. Richard Keen seis'd of a Messuage and Lands in Cheping-Norton having Issue Thomas his Son and Anne a Daughter by the same Venter devis'd his Land to Thomas his Son and his heirs for ever and for want of heirs of Thomas to Anne and her heirs and died It became a Question Whether Thomas had an Estate in Fee or in Tayl by this Will for he could not dye without heir if his Sister outlived him who was to take according to the intent of the Devisor Two Judges held it and with reason to be an Estate tayl in Thomas and the Remainder to the Daughter who might be his heir shew'd That the Devise to him and his heirs could be intended only to be to him and the heirs of his body But three other Judges held it to be a devise in Fee but all agreed if the Remainder had been to a Stranger it had been void for then Thomas which is only to my purpose had had an absolute Estate in Fee after which there could be no Remainder which is undoubted law The Case out of Coke's Littleton and this Case are the same to this purpose That a Remainder cannot depend upon a Fee-simple yet in another respect they much differ For in this last Case after an Estate in Fee devis'd to Thomas and if he died without heir the Remainder to a Stranger or Sister of the half blood not only the Remainder was void as a Remainder but no future devise could have been made of the land by the Devisor for if Thomas died without heir the land escheated and the Lords Title would precede any future devise But in that Case of Sir Edward Coke which he puts by way of Grant if it be put by way of devise That if land be devised to H. and his heirs as long as B. hath heirs of his body the Remainder over such later devise will be good though not as a Remainder yet as an Executory devise because somewhat remain'd to be devis'd when the Estate in Fee determin'd upon B. his having no Issue of his Body And as an Executory Devise and not as a Remainder I conceive the Nephew shall well take in the present Case And the intention of the Testator by his Will will run as if he had said I leave my Land to descend to my Son and his Heirs according to the Common Law until he and both my Daughters shall happen to dye without Issue And then I devise my Land to my Nephew William Rose and his Heirs Or as if he had said my Son shall have all my Land To have and to hold to him and his Heirs in Fee-simple as long as any Heirs of the bodies of A.B. and c. shall be living and for want of such Heirs I devise my Land to my Nephew William Rose and his Heirs The Nephew shall take as by a future and Executory Devise And there is no difference whether such devise be limited upon the contingent of three Strangers dying without Heirs of their bodies or upon the contingent of three of the Devisors own Children dying without Heirs of their Bodies for if a future devise may be upon any contingent after a Fee-simple it may as well be upon any other contingent if it appear by the Will the Testator intended his Son and Heir should have his Land in Fee-simple This way of Executory devise after a Fee-simple of any nature was in former Ages unknown as appears by a Case in the Lord Dyer 29 H. 8. f. 33. concerning a Devise to the Prior of St. Bartholomew in West-Smithfield by the clear Opinion of Baldwin and Fitz herbert the greatest Lawyers of the Age. But now nothing more ordinary The Cases are for the most part remembred in Pell and Browns Case that is Dyer f. 124. Ed. Clatch his Case f. 330. b. 354. Wellock Hamonds Case cited in Borastons Case 3. Rep. Fulmerston Stewards Case c. I shall instance two Cases
The first is Haynsworths and Prettyes Case Where a man seis'd of Land in Soccage having Issue two Sons and a Daughter devis'd to his youngest Son and Daughter Twenty pounds apiece to be paid by his eldest Son and devis'd his Lands to his eldest Son and his Heirs upon Condition if he paid not those Legacies that his Land should be to his second Son and Daughter and their Heirs The eldest Son fail'd of payment After Argument upon a Special Verdict It was resolv'd by the Court clearly That the second Son and Daughter should have the Land 1. For that the devise to his Son and his Heir in Fee Hill 41. El. Cr. 833. a. being no other then what the Law gave him was void 2. That it was a future devise to the second Son and Daughter upon the contingent of the eldest Sons default of payment 3. That it was no more in effect than if he had devis'd That if his eldest Son did not pay all Legacies that his land should be to the Legatories and there was no doubt in that Case but the land in default of payment should vest in them Which Case in the reason of law differs not from the present Case where the land is devis'd by devise future and executory to the Nephew upon a contingent to happen by the Testators Son and Daughters having no issue 18 Jac. Pell Browns C. Cro. f. 590. The second Case is that of Pell and Brown the Father being seis'd of certain land having Issue William his eldest Son Thomas and Richard Brown devis'd the land to Thomas and his Heirs for ever and if Thomas died without Issue living William then William should have the lands to him his Heirs and Assigns 1. This was adjudg'd an Estate in Fee-simple in Thomas 2. That William by way of Executory devise had an Estate in Fee-simple in possibility if Thomas died without Issue before him And it being once clear That the Estate of Thomas was a Fee-simple determinable upon a contingent and not an Estate tayl and so in the present case it being clear'd that George the Testators Son had the land descended to him in Fee from the Testator and took no Estate tayl expresly or by implication from the Will it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee or from another or partly from him and partly from another as in Haynsworth's Case the Son determined his Fee-simple by not paying the Legacies in Pell and Brown's Case Thomas his Fee-simple determined by his dying without Issue living William the Fee-simple vested in George the Son by descent determines when he and his two Sisters dye without Issue and upon such determination in every of these Cases the future and executory devise must take effect But the great Objection is That if this should be an executory devise to the Nephew upon the contingent of George the Son and both his Sisters dying without Issue It will be dangerous to introduce a new way of perpetuity for if a man have several Children and shall permit his Estate to descend or by his Will devise it to his Heir so as he may therein have an unquestionable Fee-simple which is the same with permitting it to descend he may then devise it futurely when all his Children shall dye without Issue of their bodies to J. S. and his Heirs as long as A. B. and C. strangers shall have any Heirs of their bodies living and then to a third person by like future devise For if he should devise it futurely to J. S. and his Heirs as long as J. S. had any Heirs of his body it were a clear Estate tayl in J. S. upon which no future devise could be but it would be a Remainder to be docked This Objection was in some measure made by Doderidge in Pell and Browns Case and the Iudges said there was no danger Vid. Stiles Rep. Gay Gaps Case 258 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally but by dying without Issue living William for if the land had been given to Thomas and his Heirs for ever and if he died without Heirs of his body then to William and his Heirs Thomas his Estate had been judg'd an Estate tayl with the Remainder to William and not a Fee upon which no future or executory devise can be So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. 6. and anciently 37 Ass p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities But in Pell and Browns Case the Iudges said it was more dangerous to destroy future devises than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples which is true for a Fee simple determinable upon a contingent is a Fee-simple to all intents but not so durable as absolute Fee-simples And all Fee-simples are unequally durable for one will escheat sooner than another by the failer of Heirs An Estate of Fee-simple will determine in a Bastard with his life if he want Issue An Estate to a man and his Heirs as long as John Stiles hath any Heir which is no absolute Fee-simple is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs which is an absolute Fee-simple Nor do I know any Law simply against a Perpetuity but against Intails of Perpetuity for every Fee-simple is a perpetuity but in the accident of Alienation and Alienation is an incident to a Fee-simple determinable upon a contingent as to any more absolute or more perdurable Fee-simple The Chief Justice Justice Archer and Justice Wylde for the Defendant Justice Tyrrell for the Plaintiff Judgment for the Defendant Hill 21 22 Car. II. C. B. Craw versus Ramsey Philip Craw is Plaintiff and John Ramsey Defendant In an Action of Trespass and Ejectment THE Plaintiff declares That Lionel Tolmach Baronet and Humphrey Weld Esquire January the Twentieth the Sixteenth of the King demis'd to the Plaintiff the Mannor of Kingston with the appurtenances in the County of Surrey one Messuage two Barns one Dove-house two Gardens eighty Acres of Land and ten Acres of Meadow with the appurtenances in Kingston aforesaid and other places and also the Rectory of Kingston aforesaid To have and to hold to the said Philip and his Assignes from the Feast of the Nativity last past for five years next ensuing By virtue whereof he entred into the Premisses and was possessed until the Defendant the said Twentieth of January in the Sixteenth year of the King entred upon him and Ejected him with force to his Damage of Forty pounds To this the Defendant pleads he is not Culpable Vpon a Special Verdict it appear'd That Robert Ramsey Alien Antenatus had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos
Robert the son had Issue Margaret Isabel Jane Antenatas living the First of Octob. 14 Car. 1. and now have Issue at Kingston John naturalized 9. Maii 1 Jac. John the third son by the name of Sir John Ramsey was naturalized by Act of Parliament holden at Westminster May the Ninth 1. Jac. and after made Earl of Holdernes George Ramsey the fourth Son George naturalized 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster begun by Prorogation 19 Febr. 17 Jac. and after had Issue John primogenitum filium Quodque idem Johannes had Issue John the now Defendant primogenitum suum filium but finds not where either of these were born nor the death of George Nicholas the second Son had Issue Patrick his only Son Nicholas had Issue Patrick a Native 15 Jac. born at Kingston after the Union 1 Maii 1618. about 15 Jac. John the third Son Earl of Holdernes seiz'd of the Mannors Rectory and Premisses in the Declaration mentioned with other the Mannors of Zouch and Taylboys John covenanted to levy a Fine de Premissis 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee by Indenture Tripartite between him on the first part Sir William Cockayne and Martha his Daughter of the second part c. Dated the First of July 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands To the use of himself for life then to the use of Martha his intended Wife for life with Remainder to the Heirs Males of his body begotten on her Remainder to such his Heirs Females Remainder to his right Heirs The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael 22 Jac. John died 1 Car. 1. Jan. 24. The Fine accordingly levied in the Common Pleas Octabis Michaelis 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned The Earl so seiz'd as aforesaid with the Remainder over at Kingston aforesaid died the Four and twentieth of January 1 Car. 1. His Countess entred into the Premisses in the Declaration mentioned and receiv'd the Profits during her life After the Earls death a Commission issued Inquisition after his death capt 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February 7 Car. 1. By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys and divers Land thereto belonging in Com. Lincoln and of the Mannor of Westdeerham and other Lands in Com. Norfolk and of the Rectory of Kingston and of the Advowson of the Vicaridge of Kingston in Com. Surrey but no other the Lands in the Declaration are found in that Office And then the Tenures of those Mannors are found and that the Earl died without Heir But it finds that the Earl so seiz'd levied a Fine of the Premisses to Sir William Cockayne per nomina Maneriorum de Zouches Taylboys Rectoriae de Kingston cum omnibus Decimis dictae Rectoriae pertinentibus and finds the uses ut supra and so finds his dying without Heir c. It finds the Fine levied in terminis Michaelis 22 Jac. but not in Octabis Michaelis as the Special Verdict finds but between the same persons The Irish Act to naturalize all Scots 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland was made in the Parliament there begun at the Castle of Dublin the Fourth of July 10 Car. 1. Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September 10 Car. 1. Leaving Issue Patrick Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First by his Letters Patents dated the Five and twentieth of October the Tenth of his Reign under the Great Seal granted to William Murrey his Heirs and Assigns in Fee-farm All the said Mannors Lands and Rectory mentioned in the Declaration with the Reversion depending upon any life lives or years Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds and bargained and sold the Premisses in the Declaration to them and their Heirs and covenanted at the Earls charge to levy a Fine with proclamation Patrick Uxor levy a Fine à die Paschae in fifteen days to the use of the Earl and his Heirs of the Premisses before the end of Easter Term next and accordingly did levy it with warranty against them and the Heirs of Patrick by force whereof and of the Statute of Uses the said Earl and Sydenham were seiz'd c. The Earl and Sydenham convey to the Countess Dowager 10 Mar. 1652. The Earl of Elkin and Sydenham by Indenture of Lease dated the Tenth of March 1652. and by Deed of Release and Confirmation conveys the Premisses to Amabel Dowager of Kent and the Lady Jane Hart viz. the Eleventh of March 1652. by way of Bargain and Sale to them and their Heirs who entred by the Lease and were in quiet possession at the time of the Release The Dowager conveys to Pullayne and Neale The Dowager and Lady Hart by like Conveyance of Lease and Release bargained and sold to Pullayne and Simon Neale dated the First and Second of November 1655. who entred and were in possession as aforesaid John Ramsey the now Defendant entred in 15 Car. 2. and kept possession Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale 20 Jan. 16 Car. 2. John Pullayne and Symon Neale by Deed of Bargain and Sale duly inrolled convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred and being in possession by Indenture dated the Twentieth of January 16 Car. 2. John then in possession and John re-entred upon the Plaintiff and Ejected him The Questions upon this Record will be three 1. Whether a Naturalization in Ireland will naturalize the person in England If it will not all other Questions are out of the Case 2. If it will then whether by that Act for naturalizing the Antenati of Scotland any his brothers had title to inherit the Earl of Holdernes in the lands in question By reason of the Clause in the Act of Naturalization That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments which have already been found and accrewed to his Majesty or to King James for want of naturalization of any such person and which shall and doth appear by Office already found and return'd and remaining of Record or by any other matter of Record An Office was found as appears
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
taking from another which the word Stealing imports to be lawful unlawful Swearing which Perjury imports to be lawful an unlawful Entry upon a mans House or Land which the word Trespass imports to be lawful and so of the rest So the same thing at the same time would be both lawful and unlawful which is impossible For the same reason a Law making Murther Stealing Perjury Trespass or any the rest of the mala instanc'd in lawful would be a void Law in it self For a Law which a man cannot obey nor act according to it is void and no Law And it is impossible to obey contradictions or act according to them Therefore I may conclude those things to be mala in se which can never be made lawful The instances in that Book of 11 H. 7. are none of these but near them the words are But malum in se the King nor any other can dispense And instanceth Si Come si le Roy voyloit pardon de occider un homme ou de faire nusance in le haut chemin ceo est void Where by the way pardon is mis-printed for pocar done for the King may pardon killing a man but if the King will give power to kill a man or to make a nusance in the High-way it is void And upon the same reason a licence to imprison a man to take his Land his Horse or any thing that is his from him is void For in life liberty and estate every man who hath not forfeited them hath a property and right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and to punish the wrong-doer Therefore a dispensation that is to make lawful the taking from a man any thing which he may lawfully defend from being taken or lawfully punish if it be must be void For it is a contradiction to make it lawful to take what may be lawfully hindred from being taken or lawfully punished if it be And that were to make two men have several plenary rights in the same thing at the same time which no Law can effect Therefore to do a thing which no Law can make lawful must be malum in se But these instances differ from the former for killing a man or taking from him his Lands or Goods do not import ex vi termini that which is unlawful as Murther and Stealing do for in many Cases killing a man or taking his liberty or goods from him is lawful and where it is not may by a Law be made so which the other can never be As every new capital punishment ordained by Law makes killing a man lawful where it was not before every new aid granted out of mens estate makes a taking from men lawful that was not before But this is because a Law can alter change or transferr a mans property in life liberty estate or any interest as it will which cannot be done without a Law and thereby nothing unlawful is made lawful But the property which a man had and was the subject matter of the unlawful doing or taking before is alter'd or transferred to another either in toto or in tanto So as to violate mens properties is never lawful but a malum per se as that Book is of 11 H. 7. and according to that of Bracton Bract. l. 3. f. 132 Rex non poterit gratiam facere cum injuria damno aliorum quod autem alienum est dare non potest per suam gratiam But to alter or transferr mens properties to others is no malum per se it is daily done by the owners express consent and by a Law without their express consent And as the Law is the Lord of a Villain may transferr his Villains property in Lands or Goods to himself by entry or seisure And it is the signal difference between a Freeman and Villain that it cannot be done to a Freeman nor yet to a Villain to the use of any but his Lord. The Learned and Judicious Grotius in his excellent Work de Jure belli ac pacis is most apposit upon this subject Grot. de Jure belli ac pacis l. 1. c. 1. Sect. 5 6. Sicut ergo ut bis duo non sint quatuor ne à Deo quidem potest effici ita ne hoc quidem ut quod intrinseca ratione malum est malum non sit And then follows after some further explanation of his notion Ita si quem Deus occidi praecipiat aut res alicujus auferri non licitum fiet Homicidium aut furtum quae voces vitium involvunt sed non erit Homicidium aut furtum quod vitae rerum supremo Domino auctore fit And it is the same to say Si quem Lex occidi praecipiat aut res alicujus auferri non licitum fiet homicidium aut furtum quae voces vitium involvunt sed non erit homicidium aut furtum quod a lege vitae rerum potestatem habente auctore fit If any need further satisfaction concerning what hath been said on this occasion he may resort with success to the place quoted of that great Lawyer But it is to be observed That altering or changing property is no subject matter for a dispensation A man is not dispens'd with to do an act which he cannot do but to do an act which simply he can do but the Law prohibits his doing it penally But altering or changing property is an act simply out of his power to do which should be dispens'd with in that behalf And thus we see violation of property is a malum per se by that Book of 11 H. 7. and the reason why it is so and cannot be dispens'd with A third kind of malum per se by that Case of 11 H. 7. 11 H. 7. is that which the Law of the Land admits to be specially prohibited Jure Divino Et Isint le Roy ne nul Evesque ou Presbiter poit doner licence a un de faire Lechery Quia est malum in se saith the Book that is Coition without wedlock which offence when by mutual consent injures no property having two husbands or two wives at the same time but that is also against the property of the first husband or wife marriage within the Levitical degrees 32 H. 8. c. 38. All which are admitted by the Law of the Land to be prohibited Jure Divino and cannot be dispenc'd with For no Human authority can make lawful what Divine authority hath made unlawful without Gods leave and then it is by his authority Many more particulars fall under this head which I shall not now mention Hence I infer mala in se to be only such as imply a contradiction to be made lawful and consequently what may be made lawful by Human Law to be no malum in se as not differing from other things which may be permitted or prohibited occasionally at the
communitatem aliquam quae sit pars majoris communitatis sicut uni Religioni Ecclesiae aut Civitati conceditur privilegium per quod excipitur à Lege Communi Potest etiam concedi toti communitati pro uno Actu vel pro certo tempore per modum suspensionis This last must be understood where the Dispensator is the intire Law-maker And accordingly Dispensations are as frequently granted by the Pope from whom the use of Dispensations was principally derived to us to Bodies Corporate that is to religious Orders as to private persons Laertius Cherubinus his Bullarium as is apparent in the Bullaries if any will consult them but I forbear citing them because they are Forreign Authorities 2 R. 3. f. 11 12. 1 H. 7. f. 2 3. E. 3. licens'd the Citizens of Waterford in Ireland their Heirs and Successors to carry their Staple Merchandise to what parts they pleased beyond the Seas being bound under great penalties by Act of Parliament to bring them to the Staple And the Iudges twice assembled 2 R. 3. 1 H. 7. made no question of the Kings Dispensation but the Question was because later Laws of Henry the Sixth's time had enacted the bringing of Irish Merchandise to the Staple at Calice Regist ad quod damnum f. 252. b. The King may licence an Aggregate Body Corporate and their Successors to damm up an ancient Current of the Sea through their Land for carriage by water to a Vill and that such passage and carriage shall be by a new Current as commodious as appears by a Writ of Ad quod damnum in the Register in the Case of the Prior and Covent of Christ-Church in Canterbury which is a Body Corporate The like licence may be to such Body Corporate and their Successors Regist f. 254. b to bring the Water-course of a Well for the use of that Community as by like Writ of Ad quod damnum appears in the Case of the Prior and Covent of K. for diverting such a Water-course for the use of their House And by another like Writ Regist f. 255. a in the Case of the Fraternity of Fryers Minors for diverting of a Water-course or part of it to serve the House of the Fraternity And so a Licence may be to a Corporation to stop up a High-way through their Land a more commodious being by them set out in place of it as is common in the Cases of particular persons And in all these Cases the benefit of the Licence is to every particular person of the Corporation more than to the Body Politique And these are not Licences where the King hath an Inheritance unless all High-ways and Water-courses be accounted the Kings Inheritance The like Dispensation or Exemption the King may grant to a Corporation that they shall be Toll-free which extends to every man and not to the Corporation only in their Corporate Capacity And a Dispensation and Exemption differ in sound only for a Dispensation is properly to licence a person to do a thing which he can do but is by a Law penally prohibited from doing it An Exemption is properly to licence a man or men not to do a thing which they are penally by a Law precepted to do Edward the Third granted to the Bailiffs Mayor 4 H. 6. f. 6. and Burgesses of Oxford that none of them should be sworn in Iuries with Forreigners that were not of the Town The like Grant was made to the Commonalty and Citizens of Norwich by Edward the Fourth 21 E. 4. f. 56. that they should not be put in Iuries out of the Town of Norfolk These are Dispensations or Exemptions to a Corporation and their Successors that none of them should serve in Iuries but within their Corporation which otherwise by the Law they must have done And the like we meet with daily to other Towns in the Circuits Now if it shall be said That High-ways the Water-streams Tolls of Markets Fines of Jurors and the like are the Kings Inheritance as well as his Customes are and therefore the King as to them may dispense with Corporations Then It is clear That penal Laws the breach of which enables no man to an Action for his damage thereby and the forfeiture and punishment for breaking them are much more the Kings Inheritance Therefore ex concesso the King may dispense with Corporations as to them Pl. Com. f. 487 Nicholls C. 2. The King cannot dispense in any Case but with his own Right and not with the Right of any other And every Right of the Crown is its Inheritance or Interest Therefore where the King can dispense at all he hath an Inheritance or Interest and consequently where he can dispense at all he may dispense to a Corporation If the Laws of 7 E. 6. and 12 Car. 2. had been penn'd thus Every man that sells Wine contrary to this Act shall pay the King Two pence for every pint so sold this Two pence had been a Duty and Inheritance to the King as his Customes are without difference and as the Duty of Six pence lately was upon every quart of French Wine retail'd Why then the greater or less the Duty be alters not the nature of the King's Inheritance in the Duty Therefore if the Acts had been That every seller of Wine contrary to the Act should pay the King Five pounds for every pint sold there Five pounds had equally been the King's Duty and Inheritance as the Two pence before and there had been no restraint to sell but what was made by payment of so great a Duty to the King Secondly The Acts so penn'd had equally hindred the selling of Wine as now they do by words prohibiting sale upon forfeiture of Five pounds for in both Cases the payment of Five pounds whether by Forfeiture or Duty is that which only prevents the selling Therefore the Laws were the same in effect either way penn'd and consequently the Forfeiture of Five pounds given as the Acts stand penn'd is equally the King's Inheritance as if it had been given by way of Duty In the next place I will shew what Dispensations or Licences are as I conceive unquestionably good to Corporations and their Successors 1. A Licence to purchase in Mortmain which none can have but a Corporation or single Body Politique 2. A Licence to make a Park Chase or Warren in their own Ground which the Law prohibits to be done without licence 3. A Licence to convert some quantity of their ancient Arable Land into Pasture which was prohibited by the Acts of 4 H. 7. 5 Eliz. and divers other Laws 4 H. 7. c. 19. most of which were repeal'd in 21 Jac. which is not material as to the Question in hand And that is an Offence also at the Common Law and I remember it proceeded against as such tempore Caâ—â—â— 1. in the Star-Chamber after the Repeal of most of the Statutes prohibiting it 4. A Licence to
the said William to be begotten of her the said Anne Infeoffed James Lane and John Lane Gentlemen of the said Premisses Habendum to them their heirs and assigns for ever To the use of the said William Vescy the Feoffer and his assigns for term of his life without impeachment of Waste and after to the use of the said Anne the Tenant if the Marriage succeeded between them for term of her life for her Joynture and after her decease to the use of the heirs males of his body on her body begotten forever and for want of such issue to the use of the heirs females of him the said William Vescy upon her body begotten and for want of such issue to the use of the right heirs of him the said William Vescy And bound him and his heirs to warrant the premisses as aforesaid to the said Feoffees and their Heirs to the uses aforesaid By vertue whereof and of the Statute of Uses the said William was seis'd for term of his life with the Remainder over as aforesaid And after the said marriage was had and solemnized between him and the Tenant Arine That William died so seis'd without any issue of his body and Anne surviv'd him and entred and by vertue of the said Feoffment and the Statute of Uses is seis'd in her Demesne as of Freehold for term of her life And that the said warranty of the said William descended from him to the said Elizabeth and Sarah as Cosins and Coheirs of him the said William the Son that is to say Daughters and Coheirs of John Vescy Brother and Heir of the said William the Son and demands Iudgment if against the said Warranty the Demandants shall be received to demand and avers her self and Anne Hewett named in the Feoffment to be the same person The Replication The Demandants reply and confess the Feoffment to uses of William as is pleaded in Barr to Lane and Lane and their heirs with warranty But further say That the said William Vescy the Son after that is the Four and twentieth of December 14 Car. 2. at Tickhill aforesaid died without any issue of his body which they are ready to aver and demand Iudgment if they shall be barred of their Action against the said Anne by the said Feoffment and warranty The Rejoynder Anne the Tenant rejoyns that the Replication is insufficient and demurs thereupon The matter of the Replication is all set forth in the Defendants Plea in Barr but only the time of William Vescy's death which was not material upon which the Demandants ought to have demur'd and not to have replyed impertinently The Case upon the Pleading William Vescy seis'd of the Land in question in his Demesne as of Fee held of King Charles the First in free Soccage as of his Honour of Tickhill by his last Will and Testament devis'd the same to John Vescy his eldest Son and the heirs males of his body and for default of such to Robert Vescy and the heirs males of his body and for default of such to William Vescy his Son and the heirs males of his body and for default of such to Matthew Vescy and the heirs males of his body and died Then John entred and died seis'd without issue male leaving two daughters Elizabeth and Sarah now Demandants together with their Husbands After his death Robert entred and died seis'd without issue male Then William entred and was seis'd and Matthew in the life of William died without issue male William by his Deed Indented in Consideration of an intended marriage with Anne the now Tenant and for other Considerations infeoffed James Lane and John Lane Habendum to them and their Heirs to the use of William the Feoffor for term of his life and after to the use of Anne Hewet now the Tenant for her life then to the use of the heirs males of his body upon her begotten and for default of such to the use of the heirs females of his body on her begotten and for default of such to the use of his right Heirs And bound him and his Heirs to warrant to the said Feoffees and their Heirs William by vertue of the said Feoffment and of the Statute of Uses was possessed and after he married the now Tenant and died seis'd as of his Freehold without any issue of his body After his death Anne his wife now Tenant by vertue of the said Feoffment and Statute of Uses entred and was posssessed Against whom Elizabeth and Sarah Daughters and Coheirs of John Vescy and Cosins and Coheirs of William the Devisor bring their Formedon in the Reverter Anne the Tenant in possession would rebutt and barr them by the said warranty of William Vescy the Son whose Cosins and Coheirs they are videlicet the Daughters and Coheirs of John eldest Brother of the said William And whether the said Anne Tenant by the said Feoffment and Statute of Uses can rebutt them by the said warranty is the general Question For Resolution of which I must make these previous Questions The first is If before the Statute of 27 H. 8. to Vses Tenant in tayl had made a Feoffment in Fee to uses with warranty to the Feoffees and their Heirs such Feoffees in a Formedon in the Reverter brought against them by the Heirs of the Donor could have rebutted and barr'd them by the warranty of the Tenant in tayl For if the Feoffees to use in such case could not have barr'd the Heirs of the Donor before the Statute by the warranty it is evident the Cestuy que use since the Statute cannot barr them for he can have no more power since the Statute than the Feoffees to use had before the Statute by the warranty I put the Case before the Statute for clearness sake only for though since the Statute there are Feoffees to use as before yet no question can be made upon their rebutter by a warranty because the Estate is out of them by the Statute as soon as it is in them And as to this the Case in effect is no more than Whether the warranty of Tenant in tayl which must be admitted to be a Collateral warranty descending upon the Donor or his Heirs will barr him or them of the Reversion The second Question I make admitting the Heirs of the Donor to be barr'd by the warranty of Tenant in tayl descending upon them is Whether after the Statute of Uses the Cestuy que use can have any benefit of the warranty granted to the Feoffees to use either by way of Voucher or Rebutter Because the Cestuy que use is not in possession in the per by the Feoffees but by the Statute of Uses The third Question is admitting generally that the Cestuy que use shall have benefit of the warranty made to the Feoffees to use Whether yet in this Case Anne the Tenant being a Cestuy que use shall have benefit of the warranty made to the Feoffees Because neither William
the Remainder because it is a Collateral warranty but because the Statute de Donis doth not restrain his warranty from barring him in the Remainder as hath been clear'd but leaves it as at Common Law but it doth restrain his warranty from barring him in the Reversion as shall appear There is one Case in Littleton remarkable for many Reasons where the warranty of Tenant in tayl is lineal and not collateral to the person in Remainder and therefore binds not if the Case be Law as may be justly doubted as Littleton is commonly understood Litt. Sect. 719. Land is given to a man and the heirs males of his body the Remainder to the heirs females of his body and the Donee in tayl makes a Feoffment in Fee with warranty and hath Issue a Son and a Daughter and dieth this warranty is but a lineal warranty to the Son to demand by a Writ of Formedon in the Descender and also it is but lineal to the Daughter to demand the same Land by a Writ of Formedon in the Remainder unless the Brother dieth without Issue male because she claimeth as Heir female of the body of her Father engendred But if her Brother release to the Discontinuee with warranty and after dye without Issue this is a collateral warranty to the daughter because she cannot conveigh the right which she hath to the Remainder by any means of descent by her brother 1. Here the warranty of the Father Donee in tayl is but lineal to the Daughter in Remainder in tayl But she claims saith the Book her Remainder as heir female of the body of the Donee in tayl which differs the Case from other persons in Remainder of an Estate tayl But of this more hereafter 2. And by the way in this Case Sir Edward Coke though he hath commented upon it hath committed an over-sight of some moment by using a Copy that wanted a critical emendation For where it is said That the warranty of the Father is but lineal to the Daughter to demand the Land by a Formedon in the Remainder unless the Brother dye without Issue-male because she claims as Heir female of the body of her Father By which reading and context the sense must be That if the Son dye without Issue male of his body then the warranty of the Father is not lineal to the Daughter cujus contrarium est verum for she can claim her Remainder as heir female of the body of her Father and thereby make the Fathers warranty lineal to her but only because her Brother died without Issue male That which deceived Sir Edward Coke to admit this Case as he hath printed it was a deprav'd French Copy thus Si non frere devyast sans Issue male which truly read should be Si son frere devyast and the Translation should be Not unless the Brother dye without Issue male but If her Brother dye without Issue male Another reason is that his French Copy was deprav'd Because the French of it is Si non frere devyast sans Issue male which is no Language for that rendred in English is Vnless Brother dye For it cannot be rendred as he hath done it unless the Brother dye without the French had been Si non le frere devyast and not Si non frere devyast Sir Edward Coke's first Edition of his Littleton and all the following Editions are alike false in this Section I have an Edition of Littleton in 1604. so deprav'd which was long before Sir Edward Coke publisht his but I have a right Edition in 1581. which it seems Sir Edward Coke saw not where the Reading is right Si son frere devyast sans Issue male Therefore you may mend all your Littletons if you please and in perusing the Case you will find the grossness of the false Copies more clearly than you can by this my Discourse of it And after all I much doubt whether this Case as Littleton is commonly understood that is That this lineal warranty doth not bind the Daughter without Assets descending be Law my Reason is for that no Issue in tayl is defended from the warranty of the Donee or Tenant in tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such as had been Fee-simples Conditional at the Common Law And no Estate in Remainder of an Estate tayl that is of a Fee Conditional could be at Common Law All Issues in tayl within that Statute are to claim by the Writ there purposely formed for them which is a Formedon in the Descender not in Remainder 3. A third thing to be cleared is That the Statute de Donis did not intend to preserve the Estate tayl for the Issue or the Reversion for the Donor absolutely against all warranties that might barr them but only against the Alienation with or without warranty of the Donee and Tenant in tayl only for if it had intended otherwise it had restrain'd all Collateral warranties of any other Ancestor from binding the Issue in tayl which it neither did nor intended though well it might such warranters having no title 4. The Statute de Donis did not intend to restrain the Alienation of any Estates but Estates of Inheritance upon Condition expressed or implyed such as were Fee-simples Conditional at Common Law And therefore if Tenant for life aliened with warranty which descended upon the Reversioner such Alienation or Warranty were not restrained by this Statute but left at Common Law 1. Because the Estate aliened was not of Inheritance upon Condition within that Statute 2. He in the Reversion had his remedy by entring for the forfeiture upon the Alienation if he pleas'd which the Donors of Fee-simples Conditional could not do These things cleared I think it will be most manifest by the Statute de Donis and all ancient Authority That the warranty of Tenant in tayl though it be a Collateral warranty will not barr the Donor or his Heir of the Reversion After the Inconvenience before recited That the Donees disinherited their Issue against the form of the Gift then follows Et praeterea cum deficienti exitu de hujusmodi Feoffatis Tenementum sic datum ad donatorem vel ad ejus haeredes reverti debuit per formam in Charta de dono hujusmodi expressam licet exitus si quis fuerit obiisset per factum tamen Feoffamentum eorum quibus Tenementum sic datum fuit sub conditione exclusi fuerunt hucúsque de Reversione eorundem Tenementorum quod manifeste fuit contra formam doni Hitherto the Inconveniences and Mischiefs which followed the Issue of the Donees and to the Donor when they fail'd by the Donees power of Alienation are only recited in the Statute without a word of restraint or remedy The follows the remedy and restraint in these words only and no other Propter quod Dominus Rex perpendens quod necessarium utile est in praedictis casibus which
then Vous saves bien que de ley cestuy que demand per Formedon in Reverter ne serra barr per le garranty cestuy à que les Tenements fuerunt done in tayl sil ne eyt per descent tout soit il heire à luy le quel Roy ad per descent ou non ne poiomus enquire And on this Case Sir Edward Coke makes an Observation That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl no more is any other Donor by that Case So as Sir William Herle's Iudgment who was then Chief Justice of the Common Pleas in three several years and several Cases was directly contrary to what Finchden 41 E. 3. said it was upon Report Besides the contrary of what my Brother Ellis urg'd from this Case may be thus inferr'd out of it This Case admits that the Statute restrains the warranty of the Donee from barring some Donor viz. a Donor stranger in blood as was said for it restrains Alienation without warranty against all Donors but the Statute did not restrain the Donees warranty from barring such a Donor for his warranty could never descend upon a stranger and the Statute did not restrain a thing which could not be Therefore ex concesso the Statute restrained the Donees warranty from barring the Donor of blood to the Donee 7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee and died issuless and the Feoffee rebutted the Donor by the warranty This Case rightly understood is not to the purpose for the Donor was not rebutted by the warranty of Tenant in tayl which is the present question but by the Donors own warranty The Case was That A. gave Land to W. and E. his wife Habendum praedictis W. E. haeredibus inter se legitime procreatis and warranted those Tenements to the said W. E. haeredibus eorum seu assignatis The Heir in tayl made a Feoffment in Fee and died leaving no Issue inheritable and the Donor was rebutted in his Formedon in Reverter by his own warranty having warranted to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee And it was adjudg'd against the Donor after in the same year as appears 46 E. 3. f. 4. b. and there admitted good Law 46 E. 3. f. 4. b. But Sir Edward Coke denies this Case to be Law now saying That the warranty determined with the Estate tayl to which it was first annexed and doubtless it did so as to Voucher but whether as to Rebutter of the Donor the party rebutting having the Land though another Estate in it and deriving the warranty to himself as Assignee is not clear 6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl Ancestor to the Demandant shewed forth but the Book mentions no warranty but it is like it was a Deed with warranty and the Plaintiff durst not demurr but traversed the Deed as any would avoid demurring upon the validity of an Ancestor's Deed when he was secure there was no such Deed of the Ancestor 7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty and the warranty descended upon him in the Remainder in tayl which barr'd him which is a Case agreed as before For the Statute of Westminster the second provides not at all for hâ—m in Remainder but as to him Tenant in tayls warranty is left as at Common Law In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl and the Release of his elder Brother 4 E. 3. f. 28. pl. 57. with warranty was pleaded by the Tenant Stoner who gave the Rule in the Case Le statute restraynes le power del Issue in tayl to alien in prejudice of him in the Reversion by express words and à Fortiori the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl Whereupon the Tenant was rul'd to answer and pleaded Assets descended Here it was admitted 10 E. 3. f. 14 pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner And in 10 E. 3. soon after a Formedon in Reverter being brought and the warranty of Tenant in tayl pleaded in barr Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl The same Stoner demanding if the Ancestor's Deed was acknowledg'd and answered it was His Rule was That the Iudgment must be the same for the Reversioner as for the Issue in these words Ore est tout sur un Judgment which can have no other meaning considering Scot's words immediately before that the Law was the same for the Reversioner as for the Issue in tayl and Stoner's Opinion in the Case before to the same effect 4 E. 3. Objections from Modern Reports Moore f. 96. pl. 239. In Moore 's Reports this Case is A man seis'd of Land having Issue two Sons devis'd it to his youngest Son in tayl and the eldest Son died leaving Issue a Son the youngest aliened in Fee with warranty and died without Issue the Son of the eldest being within age If this Collateral warranty shall bind the Son within age without Assets notwithstanding the Statute of Westminster the second was the question And the Opinions of Plowden Bromley Solicitor Manwood and Lovelace Serjeants and of the Lord Dyer and Catlin Chief Iustice were clear That it is a Collateral warranty and without Assets did barr notwithstanding his Nonage for that his Entry was taken away And this was the Case of one Evans 12 13 of the Queen as it was reported to me This Opinion makes against me I confess but give it this Answer 1. This Case is not reported by Sir Francis Moore but reported to him non constat in what manner nor by whom 2. It was no Judicial Opinion for Plowden Bromley Solicitor two Serjeants Manwood and Lovelace are named for it as well as Dyer and Catlin who were then Chief Iustices of the several Courts which proves the Opinion not only extra-judicial but not given in any Court 3. The motive of their Opinion was because the warranty was Collateral which is no true reason of the binding or not of any warranty 4. An extra-judicial Opinion given in or out of Court is no more than the Prolatum or saying of him who gives it nor can be taken for his Opinion unless every thing spoken at pleasure must pass as the speakers Opinion 5. An Opinion given in Court if not necessary to the Judgment given of Record but that it might have been as well given if no such or a contrary Opinion had
been breach'd is no Judicial Opinion nor more than a gratis dictum But an Opinion though Erroneous concluding to the Iudgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer Yet if a Court give Judgment judicially another Court is not bound to give like Judgment unless it think that Judgment first given was according to Law For any Court may err else Errors in Judgment would not be admitted nor a Reversal of them Therefore if a Judge conceives a Judgment given in another Court to be erroneous he being sworn to judge according to Law that is in his own conscience ought not to give the like Judgment for that were to wrong every man having a like cause because another was wrong'd before much less to follow extra-judicial Opinions unless he believes those Opinions are right The other Case is in Coke 5 Car. Salvin versus Clerk in Ejectment upon a special Verdict Alexander Sidenham Tenant in tayl to him and the Heirs males of his body the Reversion to John his eldest Brother made a Lease for three Lives warranted by the Statute of 32 H. 8. c. 28. with warranty And after 16 Eliz. levies a Fine with warranty and proclamations to Taylor and dies without Issue male leaving Issue Elizabeth his Daughter Mother to the Plaintiffs Lessor In 18 Eliz. the Lease for Lives expir'd In 30 Eliz. John the elder Brother died without Issue the said Elizabeth being his Neece and Heir The Defendant entred claiming by a Lease from Taylor and Points entred upon him as Heir to Elizabeth A question was mov'd upon a suppos'd Case and not in fact within the Case Whether if the Fine had not been with proclamation as it was and no Non-claim had been in the Case as there was this warranty should make a discontinuance in Fee and barr Elizabeth it not descending upon John after Alexanders death but upon Elizabeth who is now also John's Heir or determined by Alexander's death The Judges were of opinion as the Reporter saith That the warranty did barr Elizabeth and consequently her Heir because the Reversion was discontinued by the Estate for Lives and a new Fee thereby gain'd and the Reversion displac'd thereby and the warranty was annex'd to that new Fee But this Case is all false and mis-reported 1. For that it saith the Lease for Lives was a discontinuance of the Reversion thereby a new Fee gain'd to Tenant in tayl which he passed away by the Fine with warranty which could not be for in the Case it appears the Lease was warranted by the Stat. of 32 H. 8 and then it could make no discontinuance nor no new Fee of a Reversion could be gain'd 40 Eliz. Keen Copes C. 602. pl. 13. and then no Estate to which the warranty was annex'd and so was it resolv'd 40 El. Keen Copes Case 2. That Opinion was extra-judicial it being concerning a point not in the Case but suppos'd 3. That Case was resolv'd upon the point of Non-claim and not upon this of the warranty which was not a point in the Case 4. Some of the Judges therefore spoke not to that point as appears in the Case As to the second Question Admitting the warranty of Tenant in tayl doth bind the Donor and his Heirs yet in regard the Defendant Tenant in possession cannot derive the warranty to her self from the Feoffees as Assignee or otherwise Whether she may rebutt the Demandants or not by her possession only is the question and I conceive she may not as this Case is I shall begin with those Authorities that make and are most press'd against me which is the Authority of Sir Edward Coke in Lincoln Colledge Case in the third Report and from thence brought over to his Littleton f. 385. a. His words in Lincoln Colledge Case f. 63. a. are He which hath the possession of the Land shall rebutt the Demandant himself without shewing how he came to the possession of it for it sufficeth him to defend his possession and barr the Demandant and the Demandant cannot recover the Land against his own warranty And there he cites several Cases as making good this his Assertion In the same place he saith it is adjudg'd 38 E. 3. f. 26. That an Assignee shall rebutt by force of a warranty made to one and his Heirs only This Doctrine is transferred to his Littleton in these words If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or any Tenant of the Land may rebutt And albeit no man shall vouch or have a Warrantia Chartae either as party Heir or Assignee but in privity of Estate yet any one that is in of another Estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annex'd to the Land which sometimes was doubted in our Books when as in the Cases aforesaid he that rebutteth claimeth under and not above the warranty I shall clearly agree no man shall vouch or have a warrantia Chartae who is not in in privity of Estate that is who hath not the same Estate as well as the same Land to which the warranty was annexed And the reason is evident because the Tenant must recover if the Land be not defended to him by the warranter such Estate as was first warranted and no other unless a Fee be granted with warranty only for the life of the Grantee or Grantor in which Case the Grantee upon voucher recovers a Fee though the warranty were but for life I shall likewise agree the Law to be as Sir Edward Coke saith in both places if his meaning be that the Tenant in possession when he is impleaded may rebutt the Demandant without shewing how he came to the possession which he then hath when impleaded be it by dissism abatement intrusion or any other tortious way And for the reason given in Lincoln Colledge Case That it sufficeth that the Tenant defend his possession But if his meaning be that the Tenant in possession need not shew that the warranty ever extended to him or that he hath any right to it then I must deny his Doctrine in Lincoln Colledge Case or in Littleton which is but the former there repeated to be Law For as it is not reasonable a man should recover that Land which he hath once warranted to me from me what title soever I have in it at the time when he impleads me So on the other side it is against reason I should warrant Land to one who never had any right in my warranty And the same reason is if a man will be warranted by Rebutter he should make it appear how the warranty extends to him as if he will be warranted by Voucher for the difference is no other than that in the case of Voucher a stranger impleads him in
case of Rebutter the Warranter himself impleads him and in a Voucher he must make his title appear to be warranted Ergo in a Rebutter But he needs not have like Estate in the Land upon a Rebutter as upon Voucher which is for the reason given of recovering in value And the only reason why the person who is to warrant impleading the Tenant of the Land shall not recover but be rebutted by the warranty is because if he should recover the Land the Tenant who is intitled to the warranty must recover in value from him again and therefore to avoid Circuit of Action he shall not recover but be rebutted and barr'd as is most reasonable I shall therefore first make it appear by all ancient Authorities That the Tenant in possession shall not rebutt the Demandant by the warranty without he first make it appear that the warranty did extend to him as Heir or Assignee To prove this are full in the point Hill 8 E. 3. f. 10. tit garranty pl. 48. New Edit f. 283. b. num 28 The Book of 8 E. 3. f. 10. of the Old Edition Hillary Term tit Garranty pl. 48. where upon a great Debate it was rul'd That the Tenant must shew how he was entitled to the warranty and how it extended to him and accordingly did so before his Plea was admitted by way of Rebutter 10. E. 3. f. 42. b. New Edit f. 391. b. num 42 Another Book full in the point is 10 E. 3. f. 42. b. of the Old Edition where in like manner the Tenant was forc'd to shew how the warranty extended to him upon Debate and it is remarkable in that Case That his shewing the Deed of warranty to him whose Assignee he was and the Deed of Assignment to himself was not enough but he was compell'd to plead orally as the manner then was That William who had the warranty assign'd to him by his Deed there shew'd forth and the reason given that the Deed of Assignment could not speak and make his Plea and was but Evidence of the truth of his Plea But in that very Case when it was replyed That he was not Tenant by the Assignment of William but by disseisin of the Plaintiff it was not permitted without traversing the Assignment of William For if he were once intitled to the warranty what Estate soever he had when impleaded he might rebutt though he could not vouch Which Case proves fully both my Positions That a man cannot rebutt without shewing how the warranty extends to him 2. That so doing he may whatever Seisin he hath at that time be it by Disseisin or Abatement c. or otherwise 22 Ass pl. 88. A third Case is when the Tenant being impleaded pleaded the warranty of the Demandants Father to one A. and bound him and his Heirs to warrant to A. his Heirs and Assigns and that he was Assignee of A. and demanded Judgment In that Case because he did not plead that he was Assignee of A. by Deed the Plea was disallow'd which since hath been thought not necessary but à fortiori if he had pleaded no Assignment at all from A. by Deed or without Deed to intitle him to the warranty his Plea had been necessarily disallowed My next Assertion is That the Tenant in possession setting forth how the warranty extends to him needs not set forth by what Estate or Title he is in possession To this I shall cite three Books full in the point 6 E. 3. f. 7. old Edit new Edit 6 E. 3. f. 187 Num. 16. 10 F. 3. f. 42. cited before old Book 45 E. 3. But in all these Cases it is to be noted That the Tenant rebutting though he was in possession of another Estate than that to which the warranty was annex'd yet constantly shew'd how the warranty was deriv'd to him which Sir Edward Coke observ'd not either in Lincoln Colledge Case or his Littleton but cites in Lincoln Colledge Case the Case of 45 E. 3. 45 E. 3. f. 18. and some others I shall mention after to shew a man may rebutt being in of another Estate than that which was warranted which is true but not without intitling himself to the warranty That the Law of rebutting stands upon the difference I have taken besides the Authorities urg'd will be evident for these Reasons As a warranty may be created so may it be determin'd or extinguish'd various ways 1. It may be releas'd as Littleton himself is Sect. 748. 2. It may be defeasanc'd as Sir Edward Coke upon that Sect. 748. 3. It may be lost by Attainder Sect. 745. 4. It may be extinguish'd by Re-feoffment of the warranter or his Heirs by the Garrantee or his Heir In all these Cases if the warranty be destroy'd it cannot be rebutted for there cannot be an accident to a thing which is not and rebutting is an accident incident to a warranty And therefore if the warranty have no being there can be no rebutter Why then admit A. warrants Land to B. and his Assigns during the life of B. after B. releases this warranty to A. and then Assigns to C. C. is impleaded by A. and pleads generally that A. warranted to B. for his life and that B. is still living if C. could rebutt A. by this manner of pleading without shewing when B. assigned to him so to derive the benefit of the warranty to himself A. could never have benefit of the Release of the warranty because it could not appear whether the warranty were releas'd before or after the assignment if before then the warranty is gone and cannot be rebutted but if after it may So if A. binds him and his Heirs to warrant to B. his Heirs and Assigns B. dyes his Heir releases the warranty and dies and then the Heir of the Heir assigns The Tenant is impleaded by A. If he may rebutt by his bare possession without shewing how the warranty extended to him A. can have no benefit of his Release before any assignment was made for the Demandant cannot be suppos'd to know the time of the assignment and consequently cannot know how to plead the Release until the time of the assignment appear which is most consonant in reason with the Authorities before urg'd Another reason is That constantly in elder times when the Tenant pleaded a warranty to rebutt he concluded his Plea that if he were impleaded by a stranger the Demandant was to warrant him which could not be without shewing how the warranty extended to him for he was not to warrant him if impleaded by a stranger because he had possession of the Land only Sir Edward Coke in Lincoln Colledge Case cites the Book of 38 E. 3. f. 26. as adjudg'd to prove that the bare possession of the Land is sufficient for the Tenant to rebutt for that the Assignee may rebutt a warranty made only to a man and his Heirs If that were so it were to his purpose but there is
pleaded the warranty and that the Heir if a stranger had impleaded him was bound to warrant the Estate and therefore demanded Judgment if the Heir himself should implead him 1. It is there agreed if the warranty had attach'd the Heir before the Lords entry the Heir had been bound but quaere 2. By that Book it seems the Lord impleaded by a Stranger might have vouch'd the Heir if the warranty had attach'd him before the Lords entry But in this Case it appears the Lord was no formal Assignee of the Villains for this warranty must be as to an Assignee for the Estate warranted was but for life and the Lords Estate was only by order of the Law A third Case of this nature is Where the Ancestor granted Lands to a Bastard with warranty but how far the warranty extended as to the Heirs or Heirs and Assigns of the Bastard appears not in the Case the Bastard died without Issue and consequently without Heir the L. by Escheat entred upon whom the Heir entred the warranty of his Ancestor having not attach'd him before the Bastards death for it seems this was in a Case where the Heir might have entred in his Ancestors life time so avoided his warranty as in the former case of the L. of a Villain by the Book the warranty having not attach'd him during the Bastards life the Lord by Escheat could have no benefit of it but if it had attach'd him he might ut videtur In this Case if the warranty were to the Bastard and his Heirs only it determined he dying without Issue and then there could be no Rebutter or Voucher by the Lord by Escheat if the warranty had attach'd the Heir but if it were to him his Heirs and Assigns then the Lord whose title is by the Act and Disposition of the Law and not as Assignee in the per had notwithstanding the benefit of this warranty quod nota These Cases are mentioned in Lincoln Colledge Case and in Spirt and Bences Case in Cr. 1. and in both places admitted for Law Nor seems this very unreasonable That the warranty being an incident to the Estate warranted should accompany it where the Law dispos'd the Estate and Land warranted to all intents 2. In many Cases the Law disposing the Estate if the warranty attended it not the disposition made by the Law were in vain for without the warranty the Estate may be necessarily avoided Such persons who come to the Estate dispositione Legis are not properly in in the post but they modally have the Estate by consent both of the Warranter and Garrantee because they have it by the Act of Law Statute or Common to whose dispose every man is as much consenting and more solemnly than he is to his own private Deed. And after this way if the two last Cases be Law the Cestuy que use having his Estate by operation and appointment of the Statute of Uses of 27 H. 8. may have the benefit of the warranty attending the Estate though he be no formal Assignee or Heir to the Feoffees to use Many other Estates are of this kind as Tenant in Dower if endowed of all the Land warranted An Occupant Tenants by the Statute of 6 R. 2. c. 6. where the Feme consents to the Ravisher Tenant by 4 5 P. M. because the ward consented to her taking away without the Guardians consent Lands warranted which after become forfeited to the King or other Lords c. Quaere in the Cases of 22 Ass p. 37. 29 Ass p. 34. Whether notwithstanding the warranty had descended upon the Heir while the Lands were in the possession of the Villain in the first Case and of the Bastard in the second Case before any entry made by either Lord the Lands could have rebutted or vouched by reason of those warranties being in truth strangers to the warranty and not able to derive it to themselves any way But if after the warranty descended upon the Villain or Bastard the Villain or Bastard had been impleaded by the Heir and had pleaded the warranty against the Heir and had Judgment thereupon by way of Rebutter then the Lords might have pleaded this Judgment as conclusive and making the Villains Title or Bastard good against the Heir and the Heir should never have recover'd against the Lords And this seems the meaning of the Book 22 Ass p. 37. if well consider'd Though in Spirt and Bences Case no such difference is observ'd Caetera desiderantur The Court was in this Case divided viz. The Chief Justice and Justice Archer for the Demandant and Justice Wylde and Justice Atkins for the Tenant CONCERNING PROCESS Out of the COURTS at WESTMINSTER INTO WALES Of late times and how anciently Memorandum These Notes following were all wrote with the proper hand of the Chief Justice Sir John Vaughan and intended to be methodised by him in order to be delivered in Court A Man taken upon a Latitat in England 10 Jac. Bolstrode part 2. f. 54 55. Hall and Rotherams Case puts in two Welch men for his Bayl Judgment passing against him it was a Question Whether after a Capias ad Satisfaciendum issued against the Principal who was not to be found Process might issue into Wales which must be by Scire Facias first against the Bayl whereupon Mann the Secondary of the Kings Bench informed the Court that it had been so done in like Cases many times But the Court was likewise informed that Brownloe Chief Pronotary of the Common Pleas affirmed they did not then use to send such Process into Wales but only Process of Outlawry But Mann affirming that their Course was otherwise in the Kings Bench the Court awarded Process into Wales against the Bayl and said If the parties were grieved they might bring their Writ of Error 1. This Award of the Kings Bench hath no other Foundation to justifie it than Mann 's the Secondaries Information That the like had been often done which was his own doing possibly and never fell under the Consideration of the Court. 2. The Court weighed it no more than to say The parties grieved might have a Writ of Error which by the way must be into the Parliament for it concerned the Jurisdiction of the Court which the Act of 27 Eliz. for Errors in the Exchequer Chamber excepts and upon that ground any injustice might be done because the party wronged may have a Writ of Error 3. Brownloe the Chief Pronotary of the Common Pleas and a most knowing man affirm'd no such Process issued thence into Wales and but only Process of Outlawry So as this awarding of Process into Wales upon the usage of that Court affirmed by Mann is counter'd by the contrary usage of the Common Pleas affirmed by Brownloe Therefore that Book and Authority is of no moment to justifie the issuing of a Scire facias into Wales 11 Jac. Bolstrode part 2. f. 156 157. Bedo v. Piper The next Case
in time is 11 Jac. in Debt upon a Bond the Action was laid in the County of Hereford upon Nil debet pleaded the Plaintiff had Judgment and Execution and a Writ to the Sheriff of the County of Radnor to levy Execution who did not but made his Retorn That breve Domini Regis non currit there Qu. How an Action of Debt could be laid in Hereford which must be by Original unless the party were in Custodia Mariscal and declared upon a Bond in the County of Hereford Coke the Chief Justice said before the Statute of 27 H. 8. c. 26. which annexed Wales and England doubt might have been in that Case but since the Statute 27 H. 8. it was clear and grounded himself upon a Case in 13 E. 3. of which more anon In this Case the Court did agree That the Writ of Execution did well go into Wales and amerced the Sheriff 10 l. for his had Retorn In this Case Dodridge agreed with Coke and said If the Law should be otherwise all the Executions in England would be defeated This was a Resolution upon some Debate among the Judges of the Court but upon no Argument at Barr for any thing appearing Per Doderidge If Debt be brought against one in London 16 Jac. B.R. Croke 484. and after the Defendant removes and inhabits in Wales a Capias ad satisfaciendum may be awarded against him into Wales or into any County Palatine and this was his Opinion exactly in the former Case But as the course of the Common Pleas was alledged to be contrary to what Mann said was used in the King Bench in the Case of Hall Rotheram 10 Jac. before cited so It was in the same year 11 Jac. wherein the Kings Bench resolved That Execution did well issue to the Sheriff of the County of Radnor of a Recovery in Debt in the Kings Bench and fin'd the Sheriff for his Retorn that breve Domini Regis non currit in Wallia Resolved otherwise in the Common Pleas 11 Jac. Godbolt f. 214. and that by the whole Court That a Fieri facias Capias ad Satisfaciendum or other Judicial Process did not run into Wales but that a Capias utlagatum did go into Wales and as Brownloe Pronotary then said that an Extent hath gone into Wales And it is undoubtedly true as to the Capias utlagatum and Extent but as to all other Judicial Process into Wales upon Judgments obtained here between party and party hitherto there is nothing to turn the Scale The Judgment of the Court of Common Pleas being directly contrary to that of the Kings Bench in the same age and time Vpon occasion of a Procedendo moved for to the Council of the Marches who had made a Decree Bendloes Rep. 2 Car. 1. Term. Mich. f. 192. Beatons Case That some persons living in the English Counties where they at least exercised Jurisdiction should pay monies recovered against him at a great Sessions in Wales he having neither Lands or Goods nor inhabiting in Wales having obtained a Prohibition to the Council of the Marches the Court of the Kings Bench was against the Procedendo No time is mentioned when this Resolution cited by Jones was so as i◠probably preceded the Resolutions of the Judges in Crooke And Justice Jones cited a Case where Judgment was given in the great Sessions of Cardigan against a Citizen of London who then inhabited there and after removed his Goods and Person thence that upon great deliberation it was resolved A Certiorari should issue out of the Chancery to remove the Record out of Wales and that then it should be sent by Mittimus into the Kings Bench and so Execution should be awarded in England of the Judgment had in Wales If this were so for which there is no other Authority but that Justice Jones cited such a Case not mentioning the time I agree it would seem strange that a Judgment obtained in Wales should by Law be executed in England and that a Judgment obtained in England could not be executed in Wales Cr. 2 Car. 1. f. 346. But in the same year in Easter Term before at an Assembly of all the Iustices and Barons it was resolved where Judgment was given in Debt at the great Sessions in Wales against a Defendant inhabiting there and the Defendant dying intestate one who inhabited in London taking Administration This Case is in the point for a Scire facias to have Lands in Wales must be against the Heir inhabiting in England but having Lands in Wales that Execution could not be in Wales because the Administrator inhabited not there nor a Certiorari granted out of the Chancery to remove the Record that so by Mittimus it might be sent to the Kings Bench or Common Pleas to take forth a Scire facias upon it to have Lands out of Wales or Goods in the Administrators hands liable to it there This was the Resolution of all the Justices and Barons for these Reasons First by this way all Judgments given in London or other inferior Jurisdictions would be removed and executed at large which would be of great inconvenience to make Lands or Goods liable to Execution in other manner than they were at the time of the Judgment given which was but within the Jurisdiction Secondly It would extend the Execution of Judgments given in private and limited Jurisdictions as amply as of Iudgment given at the Kings Courts at Westminster By this Resolution a Judgment given in Wales shall not be executed in England out of their Jurisdiction of Wales and à pari a Judgment given in England ought not to be executed in Wales which is out of the Jurisdiction of the English Courts more than a Judgment given in the Kings Bench or Common Pleas ought to be executed in Ireland or the Islands which are out of their Jurisdiction equally and upon the same grounds for any thing deducible from these Cases which was never pretended that it could be done And by that Case of Coke Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment Nor is it material to say the Judgments then given are of no effect no more than to say Judgments given in the Kings Courts are of no effect against an Irish-man Dutch-man or Scotch-man that hath no Lands or Goods in England liable to Execution by that Judgment For the Plaintiff commencing his Suit ought to be conuzant what benefit he might have from it Nor are Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas in such Cases to be regarded For Processes issue out of the Offices regularly to the Sheriffs of the County whereupon the Testator the Person Goods or Lands are said to be without distinction of places within or without the Jurisdiction
the Lords of Wales if it be not of Lands between the Lords themselves There is an ancient Book remarkable to the same purpose 8 E. 3. Term. Mich. 59. speaking of the Common Pleas This Court hath more Conuzance of Pleas of the Welch Shires than it hath of Pleas of the County of Chester for the Pleas of Quare Impedits and of Lands and Tenements held of the King in chief in Wales shall be pleaded here and they shall not be so of the County of Chester Fitz. Jurisdiction p. 34. 6 H. 5. Land in Wales immediately held of the King is pleadable in England per Haukford 6 H. 5. no such Book at large The Law and doubtless the Ordinance made by Parliament mentioned in 18 E. 2. concerning Lordships Marchers was the same concerning Land held in chief of the King and are mentioned in the Books as synonimous and were so for all Lordships Marchers were held from the Crown in chief nor could the King probably have other Lands in chief in Wales beside the Lordships Marchers for all was either of Lordships Marchers or Lands belonging to the Principality and held from it and not from the Crown in chief To this purpose there is an ancient Statute 28 E. 3. very convincing 28 E. 3. c. 2. All the Lords of the Marches of Wales shall be perpetually Attendants and annexed to the Crown of England as they and their Ancestors have been at all times before this in whose hands soever the same principality be or shall come And they being no part of the Principality and consequently not under the Statute and Ordinance of Wales 12 E. 1. It was provided by a Law That they should be impleaded in England and the Summons and Tryal to be by the Sheriff of and in the next adjoyning County Accordingly you find the practice was by many ancient Cases remembred but the Year-Books of E. 2 being never printed wherein only that Statute is mentioned otherwise than in Fitz-herbert's Abridgment and the Statute it self not extant gave occasion to men obiter in the time of H. 6. H. 7. long after to say that such impleading for matters arising in Wales in the Courts of England and the Tryals to be in the adjacent Counties because they knew not it came to pass by Act of Parliament was by the Common Law on which had they reflected with seriousness they had found it impossible For that Tryals concerning Lands in Wales quatenus particularly Wales after it became of the Dominion of England should by the Common Law be differing from other Tryals in England and in the adjacent Counties could not possibly be for Wales was made of the Dominion of England within time of memory viz. 12 E. 1. and whatever Tryal was at Common Law must be beyond all memory Therefore no such Tryal for Land in Wales particularly could be by the Common Law It remains then That if such were at Common Law it must be for Lands in all Dominions of the Acquisition of England consequently for Ireland Garnsey and Jersey Gascoign Guyen Calais Tournay as well as Wales but it was never in practice or pretence that any such Tryals should be for any Land in these places Therefore it is evident That it was and it could be no otherwise than by Act of Parliament that Wales differed from the other Dominions belonging to England in these Tryals Nor was it by any new Law made by E. 1. or any his Successors by the Clause in the end of the Statute of Rutland which hath nevâ—r been pretended For by that Clause power was given to change Laws simply for Wales but this way of Tryals changes the Law of England in order to Tryals for Land in Wales which that Clause neither doth nor could warrant Besides this new way of Tryals concerning Lordships Marchers held in chief from the King the Books are full that in Quare Impedits for disturbance to Churches in Wales the Summons and Tryal must be by the Sheriff of and in the adjacent Counties which is often affirmed and agitated in the Books but with as much confusion and as little clearness as the other concerning Land To this purpose is the Case before 8 E. 3. the Pleas of Quare Impedits 8 E. 3. 59. and of Land and Tenements held in chief of the King in Wales shall be pleaded there A Quare Impedit brought by the King against an Abbot 15 E. 3. Fitz. Jurisdiction p. 24. exception taken that the Church was in Wales where the Kings Writ runs not non allocatur for the King was party by the Book as a reason A Quare impedit cannot be brought in Wales 11 H. 6. f. 3. A B. because a Writ to the Bishop cannot be awarded for they will not obey it and so was the Opinion in that Case of Danby Morton and Newton that Quare Impedits for Churches in Wales must be brought only in the Kings Courts and the Opinion is there that the Prince could not direct a Writ to the Bishops in Wales upon Quare Impedits there brought So is the Book of 30 H. 6. of Churches in Wales 30 H. 6. f. 6. B. a Quare Impedit shall be brought in England the Case was cited before concerning Tryals of Lands in Wales A Quare Impedit was brought in the County of Hereford of a disturbance in Wales to present to a Church 35 H. 6. f. 30. A B. exception was taken by Littleton only to this that the Plaintiff did not shew in his Count or Writ that Hereford was the next adjoyning County but by the Book it was well enough for if Hereford were not the next adjoyning County the Defendant might shew it but no exception was taken to the bringing of the Writ into the County of Hereford if it were the next County 36 H 6. f. 33. A B. Quare Impedits shall be brought here of Churches in Wales and shall be sued in the Counties adjoyning for that the Justices read it Bishops will not obey any man there If a Quare Impedit be brought here of a Church in Wales it shall be tryed in the County adjoyning The reason there given is the same as in many other Books Car nous avomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer It is manifestly mis-printed Car nous navomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer which is not sense By these Books and many other it is clear Quare Impedits were formerly brought in England for Churches in Wales as real Writs were for Land and the Tryal was in the next adjoyning English County But as those Tryals for Land were only for Lordships Marchers held of the King in chief or part of them and that by special Act of Parliament as hath been opened So the Quare Impedits brought in England and Tryals there had upon them were not for all Churches in Wales
wants a Tryal See for this 32 H. 6 25. B. 8 Ass pl. 27. d. Dowdales Case Co. l. 6. Thus bringing Actions in England and trying them in Counties adjoyning to Wales without knowing the true reason of it also bringing Quare Impedits in like manner for Churches in Wales without distinguishing they were for Lands of Lordships Marchers held of the King and for Churches within such Lordships Marchers hath occasioned that great diversity and contrariety of Opinions in our Book and at length that common Error That matters in Wales of what nature soever are impleadable in England and to be tryed in the next adjoyning County When no such Law was ever pretended to be concerning other the Kings Dominions out of the Realm belonging to the English Crown of the same nature with Wales as Ireland the Isles of Garnsey and Jersey Calais Gascoign Guyen anciently Nor could it be pretended of Scotland if it should become a Dominion of the Crown of England it being at present but of the King of England though it was otherwise when the King came to the Crown And to say that Dominions contiguous with the Realm of England as Wales was and Scotland would be is a thing so simple to make a difference as it is not worth the answering for no such difference was assignable before Wales became of the Dominions of England and since the Common Law cannot make the difference as is observed before It remains to examine what other Alterations have been by Act of Parliament whereby Jurisdiction hath been given to the Courts of England in Wales without which it seems clear they could have none 1. And first by Parliament 26 H. 8. power was given to the Kings President and Council in the Marches of Wales in several Cases 2. Power was given to indict outlaw and proceed against Traytors Clippers of Mony Murtherers and other Felons within the Lordships Marchers of Wales so indicted in the adjoyning Counties by the same Statute but not against such Offenders within the Principality of Wales which was not Lordships Marchers 3. Some other Laws are of this nature about the same time to punish the perjury of Jurors in Wales generally before the Council of the Marchers 1 E 6. c. 10. â—1 Eliz. c. 3. That Proclamations upon Exigents should issue into Wales was ordained by the Statute of 1 E. 6. for by a Statute before in 6 H. 8. c. 4. such Proclamations went but to the adjoyning Counties Rastall Exigent but the Capias utlagatum went always as I take it being a Mandatory Writ for the King but by 1 E. 6. c. 10. That if any persons dwelling in Wales shall after the time limited by the Act be outlawed that then Writs of special Capias utlagatum single Capias utlagatum Non molestando and all other Process for or against any person outlawed shall issue to the Sheriffs of Wales as immediate Officers of the King's Bench and Common Pleas. Capias Utlagâ—tum So as the issuing of a Capias utlagatum into Wales is clear by Parliament 34 H. 8. Persons having Lands in Wales and bound in Statute Staples or Recognizances in England Process to be made against them out of the Chancery in England to the Sheriffs of Wales and for Recognizances acknowledged before either of the Chief Justices by them Process to be immediately pursued from the said Justices 34 H. 8. c. 26. All Process for urgent Causes to be directed into Wales by command of the Chancellor of England or any of the King's Council as hath been used The next is the Alteration made by the Statute of 27 H. 8. which was very great and by which it is commonly taken that Wales was to all purposes united with England and that since all Process may issue out of the Courts here to Wales It is said that the Dominion and Principality of Wales is and always hath been incorporated to the Realm of England that is ut per Stat. Walliae 12 E. 1. jure feodali non proprietatis and so it is expounded in Calvin's Case Cal. C. 7 Rep. f. 21. B. But there it is said by 12 E. 1. which is there taken for an Act of Parliament Wales was united and incorporated unto England and made parcel of England in possession and the Case of 7 H. 4. f. 14. there cited but this is clearly otherwise for unless that Stat. Walliae were an Act of Parliament it could not make Wales part of England which is much questioned for no such Parliament is found summoned nor Law made in it nor is it likely at that time a Parliament of England should be summoned there for Rutland is doubtless in Wales which had it been part of England then made all Laws made or to be made in England without naming Wales had extended to it which they did not before 27 H. 8. The Incorporation of Wales with England by that Act consists in these particulars generally 1. That all persons in Wales should enjoy all Liberties Priviledges and Laws in England as the natural born Subjects of England 2. That all persons inheritable to Land should inherit the same according to the Laws of England thereby inheriting in Gavel kind was abrogated 3. That Laws and Statutes of England and no other should for ever be practised and executed in Wales as they have been and shall be in England And as by this Act hereafter shall be further ordained By this Clause not only all the present Laws of England were induced into Wales but all future Statutes of England to be made were also for the future in like manner induced into Wales which was more than ever was done in Ireland though Ireland before and by Parning's Act had the present Laws then and Statutes of England introduced into Ireland but not the future Laws and Statutes to be made as in this Case was for Wales But this gave no Jurisdiction in general to the Courts of England over Wales more than before nor otherwise than if a Law were made in England That the Laws and Statutes of England now and for the future always to be made should be Laws in Ireland the Courts in England would not thereby have other Jurisdiction in Ireland than they already have in any respect The Vniting of Wales to England and Incorporating Note doth not thereby make the Laws used in England to extend to Wales without more express words Pl. Com. 129. B. 130. A. By this Act it appears That the Lordships Marchers in the Dominions of Wales did lye between the Shires of England and the Shires of Wales and were not in any Shire most of which Lordships were then in the King's possession and some in the possession of other Lords And that divers of them are by the Act united and joyned to the County of Glocester others to the County of Hereford and others to the County of Salop others respectively to the Shires of Glamorgan Carmarthen Pembrook
than a local Subject ibid. 286 5. He must be otherwise a Subject than any Grant or Letters Patents can make him ibid. 6. The Natives of Jersey Garnsey Ireland and the English Plantations c. are not Aliens 268 in loco 278 279 7. Those which are born in the Kings Forreign Plantations are born his Natural Subjects and shall inherit in England 279 8. A Natural Subject is correlative to a Natural Prince and a man cannot have two natural Soveraigns no more than two Fathers or two Mothers 280 273 in loco 283 9. The several ways by which men born out of England may inherit in England 281 10. An Antenatus in Scotland shall not inherit without an Act of Parliament because he is an Alien 274 in loco 284 287 11. Who are the Antenati Postnati and the difference between them 273 in loco 283 12. An Act of Parliament in Ireland shall never Naturalize an Alien to England to make him inheritable there 274 in loco 284 13. No Tenure by Homage c. in any of the Kings Dominions acquired by Conquest or by Grant or Letters Patents can make a man inheritable in England 279 14. No Laws made in any Dominion acquired by Conquest or new Plantation by the Kings Governor or people there by virtue of the Kings Letters Patents can make an Alien inheritable in England 279 15. One Naturalized in Scotland since the Union cannot inherit in England 268 in loco 278 279 280 285 16. A man born a Subject to one that is King of another Country and who afterwards comes to be King of England is an Alien and shall not inherit in England ibid. 285 286 17. An act of Law making a man as if he had been born a Subject shall not work the same effect as his being born a Subject which is an effect of Law 280 18. An Alien hath issue a Son and afterwards is Denizen'd and he afterwards hath another Son here the youngest Son shall inherit 285 Allegiance 1. All Allegiance and Subjection are acts and obligations of Law the subjection begins with the birth of the Subject at which time the Kings protection of him likewise begins 279 Appendant 1. Whatsoever is appendant to the Land goes to the Occupier thereof naturally 190 2. An Advowson may be appendant to a Mannor 12 Apprentice 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred from the exercise of their Trades in any Town or part of the Kingdom 356 Arch-bishop See Ordinary Dispensation 1. The Arch-bishop may dispense for a Plurality 20 Assets 1. The manner of pleading Assets ultra 104 Assignee and Assignment 1. Offices or acts of personal Trust cannot be assigned for that Trust which any man may have is not personal 180 181 2. An Occupant becomes an Assignee in Law to the first Lessee 204 3. If a man Covenants against himself his Executors Administrators and Assigns yet if his Assigns do a tortious act it is no breach of the Covenant because he may have remedy by Action for the tort 118 to 128 Assise 1. An Assise will not lye for a Rent issuing out of Tythes barely 204 Attaint See Title Statutes 3 11. 1. An Attaint lies only in Civil not Criminal Causes 145 146 2. Jurors are not finable for a false Verdict an Attaint only lies against them 145 Attorney 1. An Attorney cannot bring Debt for Soliciting but Case only 99 2. The Defendant cannot wage his Law for Attorneys Fees ibid. Attornment 1. By the Common Law an Attornment was requisite to entitle the Lord the Reversioner the Grantee of a Remainder or of a Rent by Deed or Fine to distrain for Rent in arrear 39 2. By a Grant and Attornment the Grantee becomes actually seised of the Rent 40 3. Attornment and power to distrain follows the possession and not the use 43 4. An Attornment cannot be for a time 27 5. An Attornment of the Tenant doth not disclaim but affirm his possession For it is the act of the Tenant by reason of his being in possession 193 6. A mans Estate in a Rent-charge may be enlarged diminished or altered and no new attornment or privity requisite to such alteration 44 7. Attornment is requisite to the Grant of an Estate for life but to a Confirmation to enlarge an Estate it is not 44 45 46 8. A Rent-charge is granted to Commence Seven years after the death of the Grantor Remainder in Fee Attornment must be made in the life time of the Grantor 46 9. If a Fine is levied of the Reversion of Land or of a Rent to uses the Cestuy que use may distrain without Attornment 50 51 10. Where a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain without Attornment 51 11. Where a man is seised of a Rent-charge and grants it over to which the Tenant attorns and he afterwards retakes that Estate here must be a new Attornment for the former privity is wholly destroyed 44 12. Where an Attornment shall be good to a contingent use 52 Bargain and Sale See Intollment 1. WHere a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain for the Rent without Attornment 51 Baron and Feme 1. The man after the marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him 306 2. The Interdicts of carnal knowledg in the Levitical Law were directed to the men not to the women who are interdicted but by a consequent for the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 Bishop See Ordinary Archbishop 1. What Bishops were originally 22 2. A Parson is chosen Bishop his Benefices are all void and the King shall present 19 20 3. It is not at all inconsistent for a Bishop to be an Incumbent 22 4. A Bishop may be an Incumbent after Consecration 24 5. How many Benefices a Bishop may retain by a Dispensation 25 6. No Canon Ecclesiastical can be made and executed without the Kings Royal assent 329 7. Bishops in Wales were originally of the foundation of the Prince of Wales 411 Canons Ecclesiastical See Title Ecclesiastical Court 1. WHat Canons are good and binding and what not 327 328 Capias ad Satisfaciendum See Execution Certiorari 1. A Certior lies out of the Chancery to Ireland to certifie an Act of Parliament but it doth not lye to Scotland 287 2. A Certiorari doth not lye to Wales to certifie a Record to the Courts at Westminster to the intent that Execution may issue out here upon it 398 Certificate 1. There are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari 288 Chancery 1. The Chancery may grant a Habeas Corpus and discharge a Prisoner thereupon as well
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
108 Stagnum ibid. Appertaining 108 109 Reputation 109 Without any lett 121 Quiete pacifice ibid. Lawfully enjoy 124 Dedi Concessi 126 Wreck 168 Derelict ibid. Imported or brought 171 172 Per Nomen 174 175 Claim 188 193 Una cum 197 Nature what it is 221 224 Unnatural 221 222 224 Uncle 241 Communia 255 Remainder 269 in loco 279 Naturalization 280 Antenati Postnati 273 Neer of kin 306 307 308 309 310 Malum prohibitum malum in se 332 333 334 c. 358 359 Dispensation 333 336 349 Exemption 349 Commot 405 Exposition of Sentences 1. Words which are insensible ought to be rejected so also words of known signification so placed in the Deed that they make it repugnant and sensless are to be rejected equally with words of no signification 176 2. In things necessary there are no degrees of more or less necessary 344 3. What appears not to be must be taken in Law to be as if it were not 169 4. Lands usually letten shall be intended Lands twice letten 33 5. Lands which have at any time before been usually letten how expounded 34 6. How long time will gain a Reputation to pass a thing as appertaining 109 Extinguishment 1. Extinguishment of a Rent is when it is absolutely conveyed to him who hath the Land out of which it issues or the Land is conveyed to him to whom the Rent is granted 199 2. A perpetual union of the Tenancy to the Rent or Rent to the Tenancy is an extinguishment of the Rent 39 3. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereunto here the Grantor hath absolutely lost his arrears and cannot after distrain 40 Extent 1. An Extent is sueable into Wales but a Ca. Sa. or Fi. Fa. is not 397 Fee-simple 1. A Fee-simple determinable upon a Contingent is a Fee to all intents but not so durable as an absolute Fee-simple 273 2. A. had issue W. T. and R. and devised to T. and his heirs for ever and if T. died without issue living W. then W. should have the Land this is a good Fee in T. And W. hath a Fee in possibility by Executory Devise if T. dyed without issue before him 272 Fieri Facias See Execution  Fine Fines 1. A Fine levied without consideration or use expressed is to the use of the Conizor 43 2. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 42 3. The wife in that case shall not be endowed neither shall it descend to his Heir 41 Formedon 1. The Statute de Donis formed a Writ of Formedon in the Descender for the new Estate Tayl created by that Statute but makes no mention of a Formedon in the Reverter as already known in the Chancery 367 Franchise 1. Franchises Inferiour and Counties Palatine are derived out of the Counties by the Kings Grants where the Kings Writ did run 418 Fraud 1. Wheresoever an Action of Debt upon Bond or Contract is brought against an Executor he may confess the Action if there be no fraud in the case although he have notice of a former Suit depending 95 Gardian in Soccage See Title Statutes 26. 1. WHO is Gardian in Soccage at the Common Law 178 244 2. What a Gardian may do in his own name 182 3. Who were Legitimi tutores or Gardians by the Civil Law 244 4. The Exposition of the Statute made 12 Car. 2. 183 184 5. The Gardian by the Statute of 12 Car. 2. doth not derive his authority from the Father but from the Law 186 6. The Lands follow the Gardianship and not the Gardianship the Lands 178 7. The Gardianship now by the Statute may be till One and twenty years 179 8. Such a special Gardian cannot transfer the custody of the Ward by Deed or Will to any other 179 181 9. The trust is only personal and not assignable neither shall it go to the Executors or Administrators 180 181 10. If the father appoint the custody until One and twenty and the Gardian dies it determines with the death of the Gardian and is a Condition in Law if he live so long 185 Grants Grantor Grantee 1. The Law doth not in the Conveyances of Estates admit Estates regularly to pass by implication But in Devises they are allowed with due restrictions 261 262 c. 2. A thing so granted as none can take by the Grant is a void Grant 199 3. In Grants words which are insensible ought to be rejected so likewise words of known signification when they are so placed in the Deed that they are Repugnant are to be rejected equally with words of no known signification 176 4. The meaning of the word appertaining in a Grant and how far it will extend and what it will pass 108 109 5. Land in possession cannot pass by the Grant of a Reversion but by the grant of Land a Reversion will pass 83 6. By the Grant of Stagnum Gurgitem aquarum the Soyl of the Pond passes 107 108 109 7. Where by the Deuise of the Farm of H. the Mannor of H. will well pass 71 8. To a Grant of a Rent by the Common Law an Attornment is requisite 39 9. A Lease is made habendum for 40 years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for 40 years shall commence presently 73 74 80 81 83 84 10. To give or grant that to a man which he had before is no gift at all 42 Grants by the King See Non Obstante Pardon Prerogative 1. Where the Kings Grant is void although there be a saving in an Act of Parliament of all the Right of such Grantee yet that shall not aid it 332 2. If a Patent is not void in its creation it remains good after the death of the King that granted it 332 Habendum 1. A Lease is made habendum for Forty years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for Forty years shall commence presently 73 74 80 81 2. A Rent is granted habendum for Seven years after the death of the Grantor Remainder in Fee 46 Habeas Corpus 1. The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his liberty if against Law he hath been deprived of it 136 2. The Cause of the imprisonment ought as specifically and certainly appear to the Judges upon the Return as it did appear to the Court or person authorized to commit 137 138 139 140 3. A prisoner committed per mandatum of the Lord Chancellor by vertue of a Contempt in Chancery was presently bailed because the Return was generally for Contempts to the Court but no particular Contempt exprest 139 140 4. The Court of Common Pleas or Exchequer upon Habeas Corpus may discharge Prisoners imprisoned by other
matter of the Law 239 14. A man hath no Right to any thing for which the Law gives no remedy 253 15. The effect of Law can do more than an act of Law 280 16. How things become natural by custome 224 17. What natural Laws are 226 227 18. Of transgressing Natural Laws and in what sense that is to be understood 226 227 228 19. It is not safe in case of a publick Law as between the Spiritual and Temporal Jurisdiction to change the Received Law 220 20. The Law of the Land cannot be altered by the Pope 20 21 132 21. Many Laws made in the time of the Saxon Kings are now received as Common Law 358 Lease Lessor Lessee See Title Statute 23. 1. A Demise having no certain commencement is void 85 2. In what cases the Lessee shall bring an Action against his Lessor for breach of Covenant upon a Covenant of Quiet Enjoyment without the lawful disturbance of himself c it being a full exposition of that Covenant when it is either by Law or Express and general or particular from 118 to 128 3. A Demise of Tythe with Land is good within the 13 El. but a Demise of Tythe barely is not good 203 204 4. A man leases Lands for certain years habendum post dimissionem inde factum to J. N. and J. N. hath no Lease in esse the Lease shall commence immediately from the Sealing 73 74 80 81 83 84 5. A power is granted to Demise Lands usually letten Lands which have been twice letten are within this Proviso 38 6. Which at any time before have been usually letten that which was not in lease at the time of the Proviso nor twenty years before is not within the Proviso 34 35 by the Demise of the Farm of H. the Mannor of H. will pass 71 7. Proviso that the Plaintiff may lease for One and twenty years reserving the ancient Rents so long as the Lessees shall pay the Rents these are words of limitation and the Non-payment of the Rent determines the term without a Demand 32 License See Title King Dispensation  Limitation 1. A Limitation determines a Lease without demand of the Rent 32 2. What words shall be taken to be a Limitation and no Condition 32 Livery and Seisin 1. Where a Rectory is granted Una cum Decimis de D the Tythe which alone cannot pass without Deed doth pass by the Livery of the Rectory and without Livery the Tythe will not pass because it was intended to pass with the Rectory by Livery 197 198 London 1. The Customes of London are confirmed by Act of Parliament 93 2. How Declarations are in London according to their Custome ibid. Marriages See Title Statute 16. 1. Incest was formerly of Spiritual Conizance 212 2. The Judges of the Temporal Courts have by several Acts of Parliament full conizance of Marriages within or without the Levitical Degrees 207 209 210 3. They have full conizance of what Marriages are Incestuous and what not according to the Law of the Kingdom and may prohibit the Spiritual Courts from questioning of them 207 209 210 305 4. The Interdicts of Marriage and carnal Knowledge in the Levitical Law were directed to the men not to the women who are interdicted by a consequent For the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 5. A man married his Grand-fathers Brothers wife by the Mothers side and held lawful 206 207 6. A man married his first Wives sisters daughter and held unlawful and after a Prohibition a Consultation granted 247 321 322 7. For a man to marry his wives sister is a Marriage expresly prohibited within the Eighteenth of Leviticus 305 8. What Marriages are lawful and what not 210 218 219 305 306 307 308 309 9. How the words No Marriages shall be impeached Gods Law except shall be understood 211 10. What Marriages are prohibited within the Levitical Degrees 214 215 306 307 308 11. What Marriages are by Gods Law otherwise prohibited 220 221 12. Marriages contrary thereunto ought not to be dispensed with 214 216 13. Marriages with Cosen Germans lawful 218 219 14. All Marriages are lawful which are not prohibited within the Levitical Degrees or otherwise by Gods Law 219 240 242 305 15. In what sense any Marriages and Copulations of man with woman may be said to be natural and in what not 221 16. Marriages forbidden in Leviticus lawful before 222 17. Marriages lawful after restoring the world in Noah ibid. 18. Concerning Universal Obligation to the Levitical Prohibitions in cases of Matrimony and Incest 230 19. What Marriages were usual in old times 237 20. How simple Fornication was satisfied in the time of Moses ibid. 21. Who shall be said to be the near of kin which are prohibited Marriage 307 308 309 310 311 22. What Marriages are by the Matrimonial Table of England interdicted 315 316 317 318 23. Marriages within the Levitical Prohibitions were always unlawful but Marriages within the Levitical Degrees were not always unlawful 319 320 321 24. How the Levitical Degrees are to be reckoned 320 25. All Marriages prohibited by the Table are declared to be within the Degrees prohibited by Gods Law 328 26. In what the Parochial Matrimonial Table used in England agrees with the Karait Rabbins 311 312 27. The primitive Christian Church could punish Incestuous Marriages no otherwise than by forbidding them the Communion 313 28. By what Law the primitive Christian Churches conceived themselves obliged in the matter of Marriage to observe the Levitical prohibitions strictly and indispensibly 314 29. Amongst the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried 313 Master and Servant 1. Although there is no Master or Servant originally in Nature but only parity yet after Laws have constituted those Relations 242 2. A Father cannot be Servant to his Son 243 Metropolitan See Arch-bishop Ordinary  Misrecital See Lease 1. Where a Lease is misrecited in the date and the habendum is to be from the date which is misrecited there the Lease shall commence from the Sealing 73 Monopoly 1. If Exportation or Importation of a Commodity or Exercise of a Trade is prohibited generally by Act of Parliament and no cause thereof expressed a license may be granted to one or more persons with a Non obstante for by such general Restraint the Law intended to limit the over-numerous Importers and Traders and such general Licenses shall not be accounted Monopolies 345 2. To avoid a Monopoly the Kings Dispensation upon all prohibitory Laws must generally be limited by Law 346 Naturalization See Title Alien  Non obstante 1. IT is a license to do a thing which at the Common Law might be done without it but now being restrained by some Act of Parliament cannot be done without it 345 356 2. Where a
usually letten Lands which have been twice letten are within this proviso 33 2. Of Lands which have at any time before been usually letten that which was not in Lease at the time of the proviso nor twenty years before is out of the power 34 Possession 1. He that is out of possession if he brings his Action must make a good Title 8 2. Where one man would recover any thing from another it is not sufficient to destroy the Title of him in possession but you must prove your own to be better than his 58 60 3. When a man hath gotten the possession of Land that was void of a Proprietor the Law casts the Freehold upon him to make a sufficient Tenant to the Precipe 191 4. Prior possession is a good Title against him who hath no Title at all 299 5. A separate possession of one and the same Land can never be in two persons at one and the same time 42 47 6. By a Fine the Estate may be changed although the possession is not changed 42 43 7. The Conuzee of a Rent granted by Fine to Uses cannot have any actual Seisin nor be in possession since the 27 H. 8. 49 Quare Impedit 1. WHere in a Quare Impedit the Plaintiff and Defendant are both actors 6 7 8 58 2. The Plaintiff in his Count must alledge a presentation in himself or in those from whom he claims 7 8 17 57 3. So likewise must the Defendant because they are both Actors 7 8 57 60 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 5. Where the King or a common person in a Quare Impedit sets forth a Title which is no more than a bare Suggestion he shall not then forsake his own and endeavour to destroy the Defendants Title 61 6. In all Quare Impedits the Defendants may traverse the presentation alledged by the Plaintiff if the matter of Fact will bear it 16 17 7. But the Defendant must not deny the presentation alledged where there was a presentation 17 8. Where the Presentation and not the Seisin in gross of the Advowson or Appendancy is traversable 10 11 12 13 9. When the Seisin in gross or appendancy is traversable 12 10. An Incumbent is elected Bishop and before Consecration he obtains a Dispensation in Commendam Retinere he is afterwards consecrated and dyes the Patron shall present and not the King 18 19 20 21 22 23 24 25 26 27 11. If a man who hath a Benefice with Cure accepts of another without Dispensation or Qualification the first Benefice is void and the Patron may present and his Clerk who is admitted instituted and inducted may bring his Action of Trespass or Ejectment 129 130 131 12. All Quare Impedits for disturbance to Churches within the Lordships Marchers of Wales shall be brought in England in the next adjoyning County 409 410 13. Judgment with a Cessat Executio upon the Bishops Disclaimer 6 14. Where the Parson Patron and Ordinary are sued in a Quare Impedit and the Ordinary disclaims and the Parson looseth by default the Plaintiff shall have Judgment to recover his presentation and a Writ to the Bishop to remove him with a Cessat Executio until the plea is determined between the Plaintiff and Patron ibid. Rebutter See Title Warranty 1. WWO may Rebut 384 2. The difference between a Rebutter and Voucher 385 386 387 3. Whether the Tenant in possession may Rebut without shewing how he came to the possession 385 4. Whether a Rebutter may be when the warranty is determined 387 5. How many several sorts of persons may Rebut and how those that come in ex institutione dispositione legis may Rebut 390 391 392 Recital 1. The Recital of one Lease in another is not a sufficient proof that there was such a Lease as is recited 74 75 Recognizance See Title Statutes 8. 1. The Chancery and all the Courts at Westminster had before the Statute of Acton Burnel and still have power to take Recognizances 102 2. So likewise may every Judge take a Recognizance in any part of England as well out of Term as in Term 103 3. Where a Recognizance taken before the Chief Justice of the Common Pleas is in the nature of a Statute Staple 102 4. Execution upon such Recognizances are not as upon Statutes but by Elegit ibid. Record 1. How a Record is to be pleaded 92 Recovery and Common Recovery See Title Statutes 13. See Voucher Warranty 1. Where a Recovery against its nature shall be a Forfeiture because it is taken as a common Conveyance 51 2. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to have risen out of the Estate of the Recoverer 51 Release 1. Joyntenants may release and confirm to each other 45 Remainder See Title Warranty 1. A Remainder must depend upon some particular Estate and be created at the same time with the particular Estate 269 2. A Remainder cannot depend upon an absolute Fee simple 269 367 3. If Land is devised to A. and his Heirs as long as B. hath Heirs of his body the Remainder over this is good in a Devise not as a Remainder but as an Executory Devise 270 4. A Remainder in Fee upon a Lease for years 46 5. The Statute de Donis restrains not the warranty of Tenant in Tayl from barring him in the Remainder in Tayl by his warranty descending upon him 367 377 Rent 1. By the Common Law there ought to be an Attornment to enable the Distrainor to make a good Avowry upon a Distress for Rent 39 2. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost ibid. 3. An Estate in a Rent-charge may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 4. The power to distrain may be lost by a perpetual Union Suspension pro tempore Dying without Heir Granting of it upon Condition and by a granting over 39 5. The several things that a Rent is subject to 40 6. Rent is granted pur auter vie the Grantee dies the Rent is thereby determined 200 201 7. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereupon here the Grantor hath lost his arrears and cannot afterwards distrain 40 8. A Rent may arise out of the Estate of Cestuy que use upon a Recovery 52 9. There can be no Occupancy of a Rent 200 Reversion See Title Warranty 1. By the grant of a Reversion Lands in possession will not pass but by the grant of Lands a Reversion will pass 83 2. If Tenant for life alien with warranty which descends upon the Reversioner such alienation with warranty is not restrained by the Statute de Donis 370 3. An alienation with warranty which shall hinder the Land from reverting to the Donor or his
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would
recover any thing from me it is not sufficient for you to destroy my Title but you must prove your own to be better than mine 58 60 2. In a Quare Impedit if the Defendant will leave the general Issue and controvert the Plaintiffs Title he must do it by his own Title 58 3. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 4. Priority of possession is a good Title against him who hath no Title at all 299 5. No man can Traverse an Office except he can make himself a good Title 64 Trade 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades in any Town or part of the Kingdom 356 Traverse 1. No person shall Traverse an Office unless he can make himself a good Title 64 2. When in a Quare Impedit the Defendant Traverseth any part of the Plaintiffs Count it ought to be such part as is inconsistent with his Title and being found against the Plaintiff destroys his Title 8 9 10 3. Where the presentation and not the seisin of the Advowson is to be traversed 9 10 11 12 4. Where the Presentation and not the Appendancy is traversable 10 11 15 5. Where the Seisin in Gross or Appendancy is Traversable 12 13 6. The Appendancy is well Traversed when it is all the Plaintiffs Title to present and inconsistent with the Defendants 13 15 7. Where either the Appendancy or Presentation may be Traversed 15 8. Where neither the Seisin in Gross nor Appendancy shall be Traversed but only the Vacancy 16 9. Where the King may take a Traverse upon a Traverse which regularly a common person cannot do but where the first Traverse tendred by the Defendant is not material to the Action brought 62 10. Where the King may refuse to maintain his own Title which is Traversed by the Defendant and take a Traverse to the Title made by the Defendant 62 64 Trespass 1. By the ancient Law it was adjudged in Parliament no man ought to be condemned in a Trespass de praecepto or auxilio if no man were convicted of the Fact done 115 116 2. Action of Trespass against Officers within the Statute as Constables c. and their Assistants must be laid in the proper County 111 112 113 114 115 116 117 Tryal 1. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be brought 413 2. How Dominions Leagues and Truces are to be tryed 288 3. An Issue arising out of the Jurisdiction of the Courts of England although it arise within the Dominions of England out of the Realm shall not be tryed in England 404 4. If a Signiory in Wales that is not part of the Principality be to be tryed it must be tryed by the Common Law but if Land within the Signiory is to be tryed it must be tryed within the Mannor there 407 5. A person naturalized in Ireland commits Treason beyond the Seas where no local Allegiance is due to the King how and where he shall be tryed 291 292 Tythes 1. Though Tythes pass by Deed only yet where a Rectory and the Tythes de D. are granted if there is not Livery neither the Rectory nor Tythes will pass because they were intended to be granted together 197 2. There can be no primary and immediate Occupancy of Tythes 191 194 3. A Rent cannot be reserved out of a bare Tythe only to make the Lease good within the 13 Eliz. cap. 10. because neither a Distress nor Assise can be brought thereof 204 Verdict See Evidence Issue 1. THE Jury may find a Deed or a Will the Contents thereof being proved by witnesses 77 2. But if they will collect the Contents of the Deed and by the same Verdict find the Deed in haec Verba the Court is not to adjudge upon their Collection but the Deed it self ibid. 3. A Deed or Will must not be found in part because the Court cannot but adjudge upon the whole matter and not upon part only 84 4. The legal Verdict of the Jury is finding for the Plaintiff or the Defendant and what they answer if asked concerning some particular Fact is no part of their Verdict 150 5. In a general Verdict finding the point in Issue by way of Argument although never so concluding is not good 75 187 6. In a Special Verdict the Case in Fact must be found clear to a common intent without Equivocation 75 78 87 7. The Issue was Whether a Copyhold was grantable to three for the lives of two The Jury find that it is grantable for Three Lives this was argumentative only and therefore a void Verdict 87 8. Where a man by Lease reciting a former Lease to have been made doth Demise for Forty years after the Expiration of that Lease paying the same Rent as is mentioned in the recited Lease and only the Lease for Forty years and not the recited Lease is found in the Verdict This Verdict is a void Verdict and findeth neither the one or other Lease 74 75 76 81 82 Vintners See Title Statute 21. 1. The King could not better answer the end of the Act of 7 E. 6. than to restrain the Sellers of Wine to Freemen of London 2. To the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it 355 3. And that such should be licensed without restraint is most agreeable to the Law of the Kingdom which permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades 356 Voucher Vouchee 1. No man shall Vouch who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 2. When a man will be warranted by Voucher he must make it appear how the warranty extends to him 385 Vse See Title Statutes 19. 1. The Statute brings the new Uses raised out of a feigned possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their Intents to change their Estates but not possessions 42 2. By the Statue of 27 H. 8. the Use and Possession come instantly together 50 3. The principal use of the Statute of Uses is to introduce a general form of Conveyance by which the Conizors of the Fine may execute their purposes at pleasure 50 4. An old Use may be revoked and a new Use raised at the same time 42 5. Uses declared by Indenture made a year after the Recovery 51 6. If a Fine be levied of the Reversion of Land or of a Rent to Uses the Cestuy que use may Distrain without Attornment 50 51 7. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Recoverers Estate 52 Vsurpation 1. A void
in two at the same time not out of the one and yet in the other more than the same Body can be in two several places at the same time 3. If a Feoffee to use of me and my Heirs make a Feoffment to another without consideration to the use of me and my Heirs notwithstanding there is a new Feoffment the words of a use to me and my Heirs Dyer 28 H. 8. f. 12. 6. per Baldwin Chief Justice yet the use being the former use viz. to me and my Heirs this latter is no new use given to me for I cannot have that use given which I had before for to give what I had before is no gift as is well press'd by that Book And by the same necessity where I have the possession before a new possession cannot be really given me by the Statute of 27 H. 8. whose operation is properly to give to him which had not the possession but only an use the possession which he wanted before to the use which he had before in such manner as he hath the use But here the Statute cannot give the possession to the Conizors which they never wanted nor the Conizee never had ad aliquem Juris effectum though perhaps fictitiously and in order only to a form of Conveyance which was not the end or intention of the Statute of Vses but an use invented after that might be made of the Statute in order to a general form of Conveyance by which the parties might execute their Intentions wherein the Conizee is but an Instrument or Property to execute their purpose as in Cromwells Case is said L. Cromwells c. 2. Rep. but the Statute brings the new uses rais'd out of a feign'd possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their intent to change their Estate but not their possession Besides it hath been admitted at the Bar that if the Fine had been levied without consideration and no uses express'd the Conizors might then have distrained for the Arrear because the uses were the same as before which if granted it resolves the Question for the Attornment and power to distrain follows the possession and not the use And if after the supposed possession of the Conisee and his being seis'd to the old uses when the Statute gives the possession back to the old uses the Conizors might distrain for the Arrears before the Fine as well as for those after what hinders their distraining for them still For the possession which the Statute gives to the old uses is as new a possession as that it gives to the new uses and the privity is the same in both Cases in regard of the Tenant And it is common experience that a Fine levied without consideration or use expressed Sir Moyle Finch's Case 6th Rep. f. 68. b. is to the use of the Conizor and his Heirs who may have an action of waste after the Fine for waste committed before as well as he could before the Fine The instant possession of the Conizee notwithstanding which differs not from this Case The next enquiry is What affinity this Case hath with the second Case propos'd viz. That if one seiz'd of a Rent in Fee grants it over to a Stranger and his Heirs and the Tenant attorns if such Grantee regrants the Rent back to the Grantor and his Heirs there must be a new Attorment of the Tenant to the Regrant for the privity by the first Attornment was totally destroyed and all Arrears of Rent lost when the Tenant attorn'd to the Grantee which Case I take to be clear Law for by the Regrant a total new Estate is gain'd in the Rent and thereby he who hath the Rent as if he never had any former Estate in it And in the present Case the Estates after the Fine are wholly new and other Estates in the Conizors to which the Tenant never attorn'd than the Conizors had before the Fine in these Respects 1. Before the Fine the Husbands had but Estates in right of their Wives and now they are Jointenants with their Wives 2. The Wives before the Fine had Estates of Inheritance absolute and now they are Iointenants with their Husbands and among themselves where Survivorship obtains 3. The Women were Coparceners before and the Husbands in right of their Wives and they are now all Jointenants 4. Two of the Coparceners had the Inheritance of entire third parts and the two other of one intire third part and now the four Women and three Husbands are equally Iointenants which are Estates much differing from the Estates they had before the Fine I must agree That where persons seiz'd of a Rent-charge by granting it over with Attornment of the Tenant have totally departed from their Estate and after retake either such an Estate as they had before or a differing Estate in the Rent they must have a new Attornment and the former privity is wholly destroyed and consequently no Arrears can be distrain'd for by reason of the first privity which is not But in this Case the Conizors never were for any moment of time out of possession of their first Estate nor destroyed the first privity by any new Attornment which either was or possibly could be but only some have enlarg'd their Estate some diminish't it others alter'd it without destroying the old privity which may stand well with the Rules of Law and consequently they may distrain for Rent arrears and avow lawfully by reason of the first privity still continuing And I must observe in this Cases that the Avowants after the Fine are the same persons avowing as before 2. That after the Fine there is but one common Avowry as before 3. That there is no new person after the Fine between whom and the Tenant there was not a privity before the Fine That a mans Estate in a Rent-charge may be enlarg'd diminish'd or otherwise alter'd and no new Attornment or privity requisite to such alteration of Estate Litt. Sect. 549. A man seiz'd of a Rent-service or Rent-charge in Fee grants the Rent to another for life and the Tenant attorns after the Grantor confirms the Estate of the Grantee in Fee-tail or Fee-simple this Confirmation is good to enlarge his Estate according to the words of the Confirmation Here no new Attornment to this new Estate which now is Fee-tail or Fee-simple in the Rent which was before but an Estate for life is requisite else the Confirmation were not good but by Littleton it is good to enlarge the Estate 2. Sir Edward Cook in his Comment upon this Case saith It is to be observ'd that to the grant of the Estate for life Littleton doth put an Attornment because it is requisite but to the Confirmation to enlarge the Grantees Estate there is none necessary and therefore he puts none No man can doubt in this Case that if Rent had been in Arrear to