be good Now this being the way of Operation there is no reason why he may not Devise it to one after the death of two as well as after the death of one This would be so in Grants were it not that a certainty is required in them 1 Cro. 155. which is not required in Devises Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Freeman versus Barnes EError to Reverse a Judgment in an Ejectione firmae in the Common Pleas the Case upon a Special Verdict was thus The Marquess of Winchester being seised in Fee of the Lands in Question the 8 of July 9 Jac. Lets them to Sir An. Maynee for 100 years in Trust for the Marquess and his Heirs and to wait upon the Inheritance The Lessee enters afterwards the Marquess enters and Lets it to the Lord Darcy for 7 years and then Le ts to the Spanish Embassador for 7 years which Leases being expired Sir A.M. Demises to Freeman for a Term yet unexpired this Demise is not found to be upon the Land Afterwards the Lord Marquess Demises to Germin for 54 years upon Consideration of Money and Reserves a Rent and Covenants to Levy a Fine for the assurance of the Term which was afterwards done with Proclamation Germin enters and five years passed without any Claim made which Lease by mean Assignment came to Wicherly the Lessor of the Defendant who was Plaintiff in the Common Pleas and there had Iudgment The only Question upon this Special Verdict was Whether the Fine and Non Claim should barr the interest of Sir A. M. the Lessee in Trust This Case having béen argued thrée several times at the Bar The Court did this Term deliver their Opinons and did all agrée that the Iudgment ought to be affirmed It was considered quid operatur by the entry of the Marquess and they all except Moreton held that Prima facie he was Tenant at Will as Littleton Sect. 463. is where the Feoffor enters upon the Feoffée to his use but that the Entry of Germin his Lessée did ouft Freeman the Assignee of Sir A.M. which Assignment though not found to be upon the Land 2 Cro. 660. was good as the Chief Justice held because the two former Leases made by the Marquess were expired so he became Tenant at Will again but them he making of another Lease and the Lessee entring this must work an ouster and so the Fine would bar the Right For they agreed that a Fine regularly shall not work upon an Interest which is not divested though in some Cases it doth as upon the Interest of a Term according to Safins Case 5 Co. which yet cannot be divested but though the first Entry make but a Tenancy at Will yet taking upon him to make Leases that is enough to declare his intent to dispossess his Lessee in Trust Besides he reserves a Rent and Covenants for quiet Enjoyment and to make further assurance which could not stand with the Interest of the Lessee in Trust And for the Cases that were objected as Blunden and Baughs 1 Cro. 220. Where it is adjudged That the Entry of the Lessée for years of Tenant at Will should be no disseisin nolens volens to him that had the Freehold for there was no intention of the Parties to make it so and here the Law shall rather give the Election to him which had the Inheritance to make it a devësting than the Lessee or rather as the Chief Justice said the Law construes such Acts to amount to a divesting or not divesting as is most agreeable to the intention of the Parties and the right of the thing which distinguishes it also from the Case of Powsley and Blackman cited in Blunden and Baughs Case where the Mortgageor held at the Will of the Motrgageē and let for years the Lessee entred and held notwithstanding that the Mortgagee might Devest So Sir Tho. Fishes Case in Latches Rep. Where Tenant for years Le ts at Will and the Lessée makes a Lease for years and then the remainder is granted over This Grant is held to be good which whether by the remainder there be understood the interest of the Lessee or the Fee-simple yet it is no more than my Lord Nottinghams Case and not like the Case in Question For there the Lessee held the interest in his own Right and here but in Trust and for the Case in Noyes Reports 23. Twisden said he wholly rejected that Authority for it was but an Abridgment of Cases by Serjeant Size who when he was a Student borrowed Noyes Reports and abridged them for his own use The Case was this Tenant in Fée makes a Lease for years then Levies a Fine before Entry of the Lessee It is held there though five years pass the Lessée is not barred which is directly against the Resolution of Saffins Case and for Authority in this Case they relied upon the Case of Isham and Morris in 1 Cro. 781. Where upon Evidence it was resolved by the Justices That if the cesty quo Trust of a Lease for years Purchaseth the Inheritance and Occupies the Land and Levies a Fine that this after five years shall bar the Term which is not so strong as this Case because there were no Leases made and Entry thereupon and the Trust must pass inclusively by the Fine as is resolved in divers Books especially in this Case where it is to wait upon the Inheritance which though it arises but out of a Term yet it shall follow the Land and go to the Heir And for the inconveniences which were objected That if any Man purchased Land by Fine that he could not keep on Foot Mortgages and Leases which it is often convenient to do The Chief Justice declared his Opinion That in that Case the Fine should not bar there not being any intention of the Parties to that purpose And as to the other that where the Mortgageor continuing in Possession Levies a Fine this should bar the Mortgagee he denied that also and grounded himself upon Fermours Case in 3 Cro. And Twisden agreed Dighton's Case HE brought a Mandamus to be restored to his place of Town Clerk of Stratford super Avon The Corporation returned Letters Patents whereby they were empowered to chuse one into the Office of Town Clerk Durante bene placito and that they removed him from his Office Jones prayed that he might be restored notwithstanding because no Cause of his removal was returned nor that they had ever Summoned him whereas if they had he might peradventure have shewed such Reasons as would have moved them to have continued him and he cited Warrens Case 2 Cro. 540. who was restored to his Aldermanship where the Return was as here But the Court held that they could not in this Case although they confessed they knew the Merits of the Person help him And the Chief Justice said The Case of the Alderman differed for he is a part of the Corporation which
taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would
Hazard a general Declaration good without setting forth Cross Considerations 175 A Promise to one Part being void cannot stand good as to the other 224 Attorney An Attorney has Priviledge to lay his Action in Middlesex because of his Attendance 47 Averment Whether an Agreement may be pleaded and averr'd to shew the meaning of the Parties and that the Condition of a Bond may be taken accordingly 108 Quarter-days may be averr'd upon these General Words The usual Feasts 141 Authority See Vmpire Where an Authority is once fully Executed the Power is determined Not so where there is a compleat Execution 115 Where a man is vested with a bare Authority his denial or refusal to execute it does not conclude him but that he may execute it afterwards 116 Secus where he is vested with an Interest 117 Award See Arbitrament B Bail See Pleading THe Plaintiff may release his Action after the Sheriff hath taken a Bail-Bond 131 Attachments out of Chancery within the Statute that enables the Sheriff to take Bail-Bonds 238 How far a Bail-Bond may vary from the Writ 238 Bankrupt Trover and Conversion brought by an Assignee of Commissioners of Bankrupts against one possest of Bankrupt's Goods 63 The Commissioners cannot assign Money levied at the Bankrupt's Suit in Execution remaining in the Sheriffs hands or in Court 95 A Bankrupt's Servant shall set forth an Account of the Bankrupts Estate in his Answer to a Bill in Chancery tho' he hath been already Examined before the Commissioners 358 Baron and Feme If a Woman be Warden of the Fleet and one in Prison there marry her he is thereby out of Prison and in the Eye of the Law at large being a Husband cannot be in Custody to his Wife 19 Battery brought for both and found only as to the Wife tho' they cannot joyn for beating both yet good after Verdict 29 That Baron and Feme Executrix devastaverunt converterunt ad usum iplorum good 45 In an Action brought against the Husband for Lodging and Goods had by the Wife after Elopement what Plea shall be good what not 155 Whether the Wife may joyn with her Husband in bringing Trespass Quare Clausum fregit where the Land is the Wives 195 A Supplicavit de bono gestu granted in Chancery against the Husband for ill Usage to his Wife 345 Bond or Bill Penal See Obligation By Law A Corporation cannot make a By-Law to bind those which are not of its Body without Act of Parliament or express Prescription 33 Whether a By-Law of the University of Oxford shall oblige the Townsmen 33 34 A Corporation cannot make a By-Law to have a Forfeiture levied by sale of Goods nor for Forfeiture of Goods 183 C Canons THose of 3 Jac. 1. of force tho' never confirm'd by Act of Parliament 44 What Canons of force what not ibid. Challenge To the Array because the Sheriff in 1687. had not taken the Test the Challenge disallow'd 58 Chancery See Covenant Mortgage Trial Limitations Executor An Infants Answer in Chancery by Guardian no Evidence at Law to affect the Infant 72 There can be no Process of Contempt in Chancery against a Peer 342 Purchaser without Notice of Incumbrance favour'd in Chancery 339. 343 Words of Conveyance passing more than was intended how relievable in Chancery 345 A Trust and Equitable Interest is a Creature of the Chancery and therefore disposable by the Rules of that Court 350 Where a man leaves his Estate under several Incumbrances if the Heir buys in any of the first they shall not by the Course of this Court stand in the Way of Creditors for more than the Heir really paid for them 353 Relieves an Heir against Extortion 359 What shall be admitted to be read in Chancery what not 361 Distribution of Intestates Estate upon the Statute of 22 23 Car. 2. cap. 10. may be sued for in Chancery 362 Where a Bill is Exhibited to examine in prepetuam rei memoriam the Plaintiff must not pray Relief 366 Commitment What Commitment of Justices of the Peace for refusing to find Sureties of Good Behaviour good what not 22 23 24 Condition Condition of a Bond not to give Evidence at the Assizes against Law and the Obligee ought to be prosecuted for taking such a Bond 109 Consideration See Vse Notice Grant Enrolment Marriage Mortgage Conveyance Conveyances at the Common Law not such as work by the Statute of Vses or Surrenders of Copy-holds divest the Estate out of him that makes them immediately and put it in the Party to whom such Conveyance is made tho' in his Absence or without his Notice till he shews his disagreement 201 What Acts are requisite in Conveyances at Common Law 201 202 Atricles to Settle decreed to be executed by the Heir at Law 343 A Voluntary Conveyance defective at Common Law rarely relieved in Chancery 365 Copyhold See Action on the Case In what Cases and when the Lord shall seize the Copyhold Estate of his Tenant for Felony or Treason 38 Lands do not appear to be Copy-hold by saying they were held according to Custom unless it be said at the Will of the Lord 144 A Copyholder in Pleading need not shew admittance where the Title does not come in question as in Avowry for Rent reserved from his Under Tenant 182 Corporation See By-Law A Corporation cannot prescribe in a Que Estate â— sed quere 186 Costs See Nonsuit The Court cannot allow double Costs unless the Judge of Assizes caused the Postea to be mark'd 45 Divers Trespasses assigned the Defendant pleads Not Guilty for some and Justifies for others and the Jury find for the Plaintiff in one Issue and for the Defendant on the other no more Costs than Damages 180 195 What Costs discharged by the General Pardon and what not 210 No Costs to either Party upon a Repleader 196 Full Costs in Trespass given where the Damage was under 40 s 215 Covenant See Grant Trespass An Attorney Covenants on behalf of another Person that the Plaintiff shall quietly Enjoy an Action of Trespass is brought against the Plaintiff Whether this is a Breach of the Covenant 46 61 62 In an Action of Covenant the Defendant cannot plead that the Plaintiff tempore quo nihil habuit in tenementis tho' such Plea in an Action of Debt for Rent is good 99 Where Lessee Covenants to build three Houses upon the Premisses and keep them in Repair he builds four and lets one fall to decay Whether the Covenant extends to the fourth 128 A Covenant which does not consist with the Recital that leads and occasions it shall not oblige 140 A Suit in Chancery to stay Waste no Breach of Covenant for quiet Enjoyment tho' the Bill be dismist with Costs 213 214 A Latter Covenant by a second Indenture cannot be pleaded in Bar to the former but the Defendant must bring his Action on the last Indenture if he will help himself 218 Custom See Fine D Damages See Costs Debt
the Reservation to the Estate Whitlocks Case 8 Co. is very full to this where Tenant for Life the Remainder over so setled by Limitation of uses with power to the Tenant for Life to make Leases who made a Lease reserving Rent to him his Heirs and Assigns Resolved That he in the Remainder might have the Rent upon this Reservation So put the Case That Lessee for a 100 years should let for 50 reserving a Rent to him and his Heirs during the Term I conceive this would go to the Executor 'T is true if the Lessor reserves the Rent to himself 't is held it will neither go to the Heir or Executor But in 27 H. 8. 19. where the Reservation is to him and his Assigns It is said that it will go to the Heir And in the Case at Bar the words Executors and Administrators are void then t is as much as if reserved to him and his Assigns during the Term which are express words declaring the intent and must govern any implied construction which is the true and particular Reason in this Case The Old Books that have been cited have not the words during the Term. Vid. Lane 256. Richmond and Butchers Case indeed is judged contrary in point 3 Cro. 217. but that went upon a mistaken ground which was the Manuscript Report 12 E. 2. Whereas I suppose the Book intended was 12 E. 3. Fitz. Assize 86. for I have appointed the Manuscript of E. 2. which is in Lincolns Inn Library to be searched 6 Co. 62. and there is no such Case in that year of E. 2. The Case in the 12 E. 3. is A Man seized of two Acres let one reserving Rent to him and let the other reserving Rent to him and his Heirs and resolved that the first Reservation should determin with his Life for the Antithesis in the Reservation makes a strong Implication that he intended so In Wotton and Edwins Case 5 Jac. the words of Reservation were Yeilding and Paying to the Lessor and his Assigns And resolved that the Rent determined upon his Death In that case there wanted the effectual and operative Clause during the Term. The Case of Sury and Brown is the same with ours in the words of Reservation and the Assignee of the Reversion brought Debt Lane 255. and did not aver the Life of the Lessor And the Opinion of Jones Croke and Doderidge was for the Plaintiff Latches Rep. 99. The Law will not suffer and Construction to take away the energy of these words during the Term. If a Man reserves a Rent to him or his Heirs 't is void to the Heir 1 Inst 214. a. But in Mallorys Case 5 Co. where an Abbot reserved a Rent during the Term to him or his Successors it was resolved good to the Successor It is said in Brudnels Case 5 Co. that if a Lease be made for years if A. and B. so long live if one of them dies the Lease Determines because not said if either of them so long lives So it is in point of Grant But it is not so in point of Reservation for Pas 4 Jac. in the Common Pleas between Hill and Hill The Case was a Copyholder in Fee where the Custom was for a Widows Estate made a Lease by Licence reserving Rent to him and his Wife during their lives and did not say or either of them and to his Heirs It was resolved First That the Wife might have this Rent tho' not party to the Lease Secondly That tho' the Rent were reserved during their lives yet it should continue for the life of either of them for the Reversion if possible will attract the Rent to it as it were by a kind of Magnetism Hoskins versus Robbins A Replevin for six Sheep The Defendant makes Conusance c. for Damage Fesant The Plaintiff replied That the place where was a great Wast parcel of such a Mannor within which there were time out of mind Copyhold Tenants and that there was a Custom in the Mannor that the said Tenants should have the sole and several Pasture of the Wast as belonging to their Tenements and shews that the Tenants licenced him to put in his Beasts The Defendant Traverses the Custom and found for the Plaintiff The exceptions moved in Arrest of Judgment were now spoken to again First That the Custom to have the sole Pasture and thereby to exclude the Lord is not allowable It hath béen ever held That such a Prescription for Common is not good and why should the same thing in effect be gained by the change of the name That Prescription for Pasture and Prescription for Common is the same thing Vid. 3 Cro. Daniel v. Count de Hertford 542. and Rolls tit Prescription 267. It is held a Man may claim Common for half a year excluding the Lord and that one cannot prescribe to have it always so is not because of the Contradiction of the Term for if the sole Feeding be but for half a year 't is as improper to call it Common but the true reason seems to be because it should in a manner take away the whole profit of the Soil from the Lord and he should by such usage lose his greatest Evidence to prove his Title for it would appear that the Land was always fed by the Beasts of others and it would be very mischievous to Lords who live remote from their Wasts or that seldom put their Beasts there as many times they do not so that by the Tenants solely using to feed it they should lose their Improvements provided for the Lords by the Statute and so come at last for want of Evidence to lose the Soil it self Secondly This Custom is laid To have the sole Feeding belonging to their Tenements and 't is not said for Beasts levant and couchant or averred that the Beasts taken were so 15 E. 4. 32. and Rolls tit Common 398. Fitz. tit Prescription 51. A Man cannot prescribe to take Estovers as belonging to his House unless he Avers them to be spent in his House Noy 145. So 2 Cro. 256. tho' the Prescription was there to take omnes Spinas for it is necessary to apply it to something which agrees in nature to the thing Brownlow 35. Thirdly Here the Plaintiff justifies the putting in his Beasts by a Licence and doth not say it was by Deed whereas it could not be without Deed and so is the 2 Cro. 575. Fourthly Those defects are not aided by the Verdict for they are in the right and of substance But the Court were all of Opinion for the Plaintiff First They held the Prescription to be good and being laid as a Custom in the Mannor it was not needful to express the Copy-hold Estates it doth not take away all the profit of the Land from the Lord for his interest in the Trees Mines Bushes c. continues Co. Inst 122. a. is express that a Prescription may be for sola separalis pastura ' and if
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
of Jane the second Wife is void and it cannot be returning where the Use is not setled in any Person I agree my Lord Pagets Case because there the Estate was vested in William Paget and the other Use returned by operation of Law and the Estate setled could not be divested but here the Limitation to the Heirs Males being void the ancient Use remained yet in Michael for nothing was out of him he having limited a thing which cannot be And as to a returning Use tho' all be done in an instant yet there is a priority of time in the Eye of the Law for it ought to vest first in him in Remainder and then Return but here nothing vests in the Remainder Secondly It hath béen urged That it shall be made good by Implication of Law and so shall amount to a Covenant to stand seized to the Used of the Covenantor for Life c. and the rather as it has béen said by Wild because Uses are guided by Equity But I answer we are here in case of a Deed where an Estate shall not be raised by Implication as it shall by a Will Cro. Car. Seagood ad Hone 366. A Deed differs greatly from a Will for if a Man Surrenders Copyhold Land to two equally to be divided they are joynt-Joynt-tenants but such a Devise would have made them Tenants in Common Admit in some Case an Estate shall be raised by Implication in a Deed yet it shall not be so here for it would be to the disinheriting the Heir As to the case of 13 H. 7. I agree that a Devise to the Eldest Son after the Death of the Wife gives an Estate for Life to the Wife but otherwise it would be upon such a Devise to the Younger Son for there the Eldest Son and not the Wife should have the Estate in the mean time Cro. Jac. Horton and Horton 57. We are not herein Favorabili materiâ and therefore no construction shall be made which does not appear by the words It hath béen strongly urged that this being by way of Use which is a matter of Equity shall be favoured Admit it yet it shall be guided by the Common Law for aequitas sequitur legem There never shall be a Settlement by way of Use to make one capable who is not capable by the Common Law I do not see any difference between a Feoffment to Uses and a Covenant to stand seized for if a Feoffment be made to the use of one for Life the Use shall return which is not disposed of as well as upon a Covenant to stand seized Thirdly It has been urged if these severally cannot support this Limitation yet the intention operating with the Deed will both together make an Estate for Life in Michael But I do not see his intent here to have it for Life the intention even in a Will which is much stronger ought to be collected out of the words of the Will. Cro. Car. Spirt and Bence 368. agreed by the whole Court that words in a Will ought to have an apparent intent to disinherit an Heir and here there is not any apparent intent but rather to the contrary for of some Lands Michael Covenants to stand seised to the Use of himself for Life Remainder c. but of the Lands in question he makes a difference in the Limitation And the words of the Deed are to be considered He Covenants to stand seized to the Uses mentioned declared and limited in the Deed and if Michael shall have an Estate for Life he must have it by operation of Law There was a like case between Flavil and Ventroise in the Common Pleas in which the Court was divided but the same Point came afterwards in question in the Case of Mr. Tape of Norfolk and it was adjudged to be the ancient Use And no Case can be shewn that the Law will create an Estate in the Covenantor where the Use is not vested in any Person but the ancient Use remains in him As to the Cases cited on the other side I have answered my Lord Pagets's Case already And as to my Lord Cokes Case 1 Inst 22. b. I agree the Use returns and the Son is in by discent and so it was adjudged in Fenwick and Mitfords Case there cited But the Paraphrase he makes there I do not understand It is said there when the Limitation is made to his right Heirs and right Heirs he cannot have during his Life the Law doth create an Use in him during his Life Wherefore is this said to make the Heir in by discent No doubt without this he is in by discent and so was the Iudgment in that Case for what Reason then should there be an Estate for Life raised by the Law to be merg'd by the Fee as soon as raised And there 't is said Till the future use come in Esse I do not conceive then where it is so long as the Father lives and what he means by the Future Use I do not know for it always was in Esse and never was out of the Feoffor and this was so adjudg'd in that Case of Fenwick and Mitford and not the construction of my Lord Coke And t is strange that no other Reports should mention his construction Hale Chief Justice for the Defendant If Ralph takes either by Discent from Michael or by Purchase the one way or the other answers the Verdict and the Issue is for the Defendant I shall divide the Case into two Points 1. If he takes by Discent 2. Admitting he does not If he may take by Purchase as this Case is I shall Premise two or three things First It has been agreed if an Estate for Life be raised to Michael the Remainder being to his Heirs Male of the Body of Jane his second Wife the Estate Tail is executed in him be the Estate for Life raised by Implication or express Limitation Secondly It is plain quacunque via It be rais'd that the Estate was long'd in Michael till Ralph the Son be in a capacity to take it either by Discent or Purchase for be it part of the ancient Use or a new Use it ought to be in Michael during his Life for there is nothing to bring it out of him Thirdly In all Cases touching Uses there is a great difference between a Feoffment to Uses a Covenant to stand seized and a conveyance at the Common Law If a Man by Feoffment to uses conveys Land to the use of J.S. for Life he may remit the Use to himself and the Heirs Male of his Body by the same Deed and so alter that wich was before a Fee simple and turn it into another Estate but if A. gives Land to B. for Life Remainder to A. and the Heirs Male of his Body because a Man cannot give to himself the Remainder is void for a Man cannot convey to himself by a Conveyance at the Common Law These things being premised I conceive here is an
much for every Pound breach is a good Prescription to bind the Tenants but naught as to Strangers because as to the Tenants it might have a good beginning by way of Reservation but as to a Stranger it could have no Lawful beginning by way of Grant or Reservation or any way that can be imagined Now if we examine the Prescription in the Case in Question by these Rules we shall find First That the Thing prescribed for does not agree in the nature and quality nor is applicable to the Thing to which it is annexed The Thing prescribed for is an entire determinate Interest and the Thing to which it is annexed is several Estates that have no relation one to another the Usage of one can have no relation to the Usage of another I would put this Case In an Action of Trespass the Defendant Iustifies for Estovers certain or Pasture certain in this Mannor and that he is seised of a Messuage c. in Fee and that J. S. is seised of another Messuage c. in Fee and that he and J. S. and all they whose Estates they have in the said two Messuages have had ten Load of Wood c. or Feeding for 500 Beasts Or if two Lords of several Mannors in Fee joyn in prescribing for a certain Rent under Favour it were absurd and never was known or allowed for the Things to which c. being several the Usage of necessity must be several and the Prescriptions also must be several As for Example For one of them to prescribe for a Moiety c. The Reason why a man cannot prescribe to have Estovers of Wood to Land is because there can be no Usage to annex it for it cannot be used with it and in all Cases Prescription follows the nature of the Usage and therefore in the Case at Bar the Usage being several and the Estates several the Prescription ought to be several also It is impossible to raise such an Interest by a Grant at this day for if such a Grant were now made either the Grantees would be Joyntenants of this Interest and then there would be a Survivorship or else they would be Tenants in Common of it and their several Interests might be annexed to their several Estates by Purparties or Apportionment And so it would be in the nature of several Grants and there must be to several Prescriptions several Men that have had Land time out of mind yet cannot joyn in making Title but must make it severally As for Example If there be Three one of them must say That his Father was seised of a Third part that discended to him and so make a Title against a Stranger tho' there be a joynt Possession And if he be to make a Title against his Companions he may say That he and all those whose Estates they have in the other Two parts they cannot say That their three Fathers were seised of the Lands and shew the several Discents nor That they Two and all whose Estates they have in Two parts in Three to be divided have held in Common For the Title of the one concerns not the other they are upon Lines and Discents and Prescription is making of a Title as was said before and the Law is as strict in it or rather more strict than in making of a Title to Land Therefore several Men that have several Estates and no Relation one to another cannot joyn in making a Prescription for the Prescription of one does not concern the other Rastal's Entries 622. d. en Trespass c. Two Commoners to avoid prolixity and repetition do as near as they can joyn in a Prescription but being considered it is a several Prescription as much as if they had Iustified severally My Lord Coke's Rule on Littleton 197. a. That Tenants in Common may joyn in an Assize for an entire thing as an Hawk or an Horse for the necessity of the case It may be objected that there is the same necessity here I Answer That tho' in that case they joyn in the Demand and the Action yet they must make their Titles severally as they are they must Sue as they may Recover which cannot be half an Hawk or half an Horse but when they come to make their Titles in Pleading they must set them forth distinct there the possession is joynt and cannot be severed but in our case the possessions are several and one hath nothing to do with the other and the thing claimed is in its nature severable either by Moieties Purparties or Apportionment It may be Objected against my Rule That a Prescription must be as a Grant may at this day be made that 11 H. 7. 13 14. a man may prescribe against a great many as Tenants or a Commonalty without naming a party certain and such a Prescription cannot spring out of one Grant no more than this For if a great many may joyn in one Grant yet it is so many several Grants as to their several Interests and so it may be said there ought to be so many several Prescriptions I Answer The Rules are not alike For if 100 Men being a Generality as all the Tenants of the Mannor of Dale make the same king of Grant to J.S. or there be the same kind of Reservation and the thing claimed be annexable to the Estate of J. S. these all unite in the Grantee and his Estate and the Estate continues entire Time knits and unites it and an entire Prescription will serve being it will serve the Case But when a Grant is made from one to many that have several Estates their Estates are carried and discended several ways and Time and Usage makes them distinct and several and cannot be served by the same Prescription But the Prescription at Bar is worse upon my Second Reason for Prescription and Custom are of contrary Natures and incompatible and cannot give being to the same thing Prescription is a Title presuming a Grant to the Freeholders and a Lawful beginning The Copyholders claim by Custom because they are but Tenants at Will and not capable of a Grant their this must be raised from the Lord by parcels ' which being an Entire thing it cannot be For which soever should be raised first the rest must be left in the Lord who cannot have a Right of sole Pasturage in his own Soyl distinct from the Soyl. It may be Objected here That Custom and Prescription are not of such contrary Natures as I make them for in Day and Savage's Case in Hob. 85. the Pleadings were as a Custom of the City and the Court Adjudged it to be a Prescription which shews that Custom and Prescription differ not so much in the nature of the Thing as in the manner of the Pleading For Answer I need but observe the Nature of that Case The Officers of the City of London Iustified for a Duty of Wharfage claimed by the City The Plaintiff sets forth in his Replication That within
Usage in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess 225 234 Blasphemy Blasphemous Words not only an Offence to God and Religion but a Crime against the Laws State and Government and Christianity is parcel of the Laws of England 293 Bond. See Obligation What Bond a Gaoler may not take of his Prisoner 237 The Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part ibid. C. Certiorari PRisoners cannot be removed by Certiorari from a Country Gaol till the Indictment be found below 63 Lies to remove an Indictment of Manslaughter out of Wales to be Tryed in the next English County 93 So of Murder 146 Challenge What is good Cause and where Cause shall be shewn 309 Where the Kings Council shall shew Cause ibid Chancery Tryals directed out of Chancery the Course 66 Answer in a Court of Equity Evidence at Law against the Defendant 212 Churchwardens Bring Account against their Predecessor for a Bell whether it shall be said to be de bonis Ecclesiae or de bonis Parochianorum 89 Whether they may refuse to take the Oath to present and how to proceed 114. 127 General VVords to present Offenders do not extend to the Church-warden himself but relate only to the rest of the Parish 127 May make Rates themselves if the Parishioners are Summoned and refuse to meet 367 Common See Pasture Where Common is claimed for Beasts Levant and Couchant on certain Land no other Beasts ought to be put on the Common but those of the Tenant of the Land to which it is appendant or those which he takes to compester his Land 18 A Man cannot prescribe for Common by a Prescripeion that is unreasonable 21 Common apurtenent for Beasts Levant and Couchant how pleaded 54 Common in another Mans Soyl how to be claimed 383 A Commoner cannot prescribe to exclude his Lord 394 The Comencement of Commons 395 In a Title of Common for Beasts Levant and Couchant the Levancy and Couchancy is not Traversable 385. Nor material among Commoners 397 Condition What Words make a Condition what a Limitation and what Conditional Limitation 202 203 Conspiracy If one be acquitted in an Action of Conspiracy the other cannot be guilty but where one is found guilty and the other comes not in upon Process or Dyes yet Judgment shall be against the other 238 Indictment lies for Conspiring to charge with a Bastard Child and thereby also to bring him to disgrace 305 Constable See Attorney Tenant in Antient Demesne not excused from serving Constable 344 Contingency See Grant Remainder Conveyance Contingent Estates what and how destroyed 215 334 Whether a Descent in Tayl prevents a Contingent Remainder 306 Contract A Verbal Contract cannot create a Penalty to oblige the Heir 76 Conveyance The Modern VVays of Conveyancing to prevent the disappointing Contingent Estates 189 VVhere a Conveyance is good before Inrolment and where not 360 Difference between a Conveyance at Common Law and a Conveyance to Uses 373 378 Copyhold See Pasture Admittance of Tenant for years is an Admittance of him in the Remainder 260 VVether Copyholder for Life in Reversion after an Estate for Life in being can Surrender to a Lord Disseizor 359 Coroner VVhere a Melius Inquirendum shall be granted after a Coroners Inquisition super visum Corporis 182 A Coroners Inquisition that finds a person Felo de se non Compos may be Traversed 278. And quasht 352 Corporation VVhat they can do without a Deed and what not 47 48 Costs See Assault and Battery Treble Costs in an Action on the Stat. 8 H. 6. of Forcible Entry 22 Costs where payable in a VVrit of Error 88 VVhere payable by an Executor 92. and Administrator 110 116 If an Executor be sued and the Plaintiff Non-suit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Non-suit 94 Costs and Damages not to be given in an Action Popular 133 Costs de Incremento 337 362 Covenant VVhat Collateral matters shall be implied upon a Covenant 26 44 45 Thô a Covenant be made only to a Man his Heirs and Assigns yet if a Breach be in his Life time his Executors may bring the Action for Damages 176 VVhere a Covenant shall bind notwithstanding a subsequent Act of Parliament 175 176 Covenant with an Intended VVife whether discharged by subsequent Marriage 344 Courts See Jurisdiction Inferiour Courts cannot make a Continuance ad Proximam Curiam but always to a Day certain 181 Customs See Prescription To maintain a Common Key for the unlading of Goods and therefore every Vessel passing by the said Key to pay a certain Sum a void Custom as to those Vessels which did not unlade at the said Key 71 A Custom that Lands shall descend always to the Heirs Males tho' of the Collateral Line Good 88 D. Damages See Costs NOne but the Courts at Westminster can increase Damages upon View 353 Date See Lease Demurrer The old way of Demurring at the the Bar 240 Devastavit See Executor Return Devise Whether a Termor may Devise in Remainder and limit a Possibility upon a Possibility 79 To Dr. V. during his Exile from his Country what Estate passes 325 Divers parcels of Lands being devised whether these words the said Lands pass all the parcels or only the last mentioned 368 A Devise of Lands to two equally to be divided makes them Tenents in Common 376 Discents The various Kinds of Discents or Hereditary Successions and the Rules whereby they are to be governed 414 The Discent from a Brother to a Brother thô it be a Collateral Discent yet it is an immediate Discent 423. And therefore two Brothers Born in England shall Inherit one the other tho' the Father be an Alien 429. Secus in Cases of Attainder 416 417 If the Son purchase and have no Kindred on his Fathers side but an Alien his Estate shall discend to the Heir on the part of his Mother 426 Distress Whether in Distress for Rent Horses may be severed from a Cart 36 An Information lies not against a Landlord for taking excessive Distress of his Tenents 104 Hindring the Carrying off a Distress a provocation to make killing no more than Homicide 216 Dower The regular proceedings therein 60 Whether a Suit for Dower may be commenced by Plaint in an Inferiour Court without special Custom 267 E. Ecclesiastical Persons PRivilidges from Offices 105 Death of a Parson c. doth not make such a Non-residence as shall avoid a Lease 245 What Leases they may make and what not 245 246 Clergy Men are liable to all publick charges imposed by Act of Parliament in particular for reparation of the Highways 273 Of the Induction of Clerks by whom to be made 309 319 Election Where a thing depends upon Election what course is to be observed 271 Entry Where in Ejectment actual Entry is necessary 332 Error See Executors To reverse a Judgment
redd ' unius anni mediet ' redd ' unius anni per quem talia terrae vel tenementa sic alienat ' tent ' fuer ' in Manerio praed ' nomine finis pro alienatione and lays a Custom to distrain for the said Alienation Fine and then sets forth an alienation of the said Messuage and Premisses by the said Sir John Sabin to one Walter Tyndall in fee and shews that the said Walter Tyndall made another alienation in fee to one Christopher Yates and so sets forth that there were two Fines due upon the said alienations after the rate aforesaid amounting to 18 l 7 s and 7 d ob and that he as Bayliff of the said Dean and Chapter captionem praed ' bene cognoscit in praed ' loco in quo ut in parcell ' tenement ' praed ' To this the Plaintiff demurred and it was spoken to at the Bar the last Term and likewise this Term The main thing was that the Custom as it was laid was not good for the Alienation Fine is set forth to be due upon the Alienation of any parcel of Lands or Tenements held of the said Mannor to have a year and halfs Rent by which the Lands or Tenements so aliened were held so that if the 20th part of an Acre be aliened a Fine is to be paid and that of the whole Rent for every parcel is held at the time of the alienation by the whole Rent and no apportioning thereof can be but subsequent to the Alienation and this the whole Court held an unreasonable Custom and it is set forth it could not be otherwise understood than that a Fine should be due viz. a year and halfs Rent upon the Alienation of any part of the Lands held by such Rent The Court doubted also whether the Custom was good as to the claiming an Alienation Fine upon an Alienation for Life because by that the tenure of the Lands aliened is not altered for the Reversion is still held as before by the same Tenant Judicium pro Quer ' Colley versus Helyar IN an Action of Debt for 34 l the Plaintiff declared against the Defendant an Attorney of this Court praesente hic in Cur. in propria persona sua upon a Bond of 34 l The Defendant pleads in Bar quoad quinque libras sex solid tres denar of the aforesaid 34 l that the Plaintiff post confectionem Scripti Obligat ' praedict ' scilicet vicesimo c. anno c. ê‘ quoddam Scriptum suum acquietantiae cognovisset se accepisse habuisse de praed Defendente 5 l 6 s and 3 d in part solutionis majoris summae and pleaded a frivolous Plea as to the rest of the Mony to which the Plaintiff demurred And it was argued that the Acquittance under the Plaintiffs Hand and Seal for 5 l 6 s and 3 d part of the Mony due might have been pleaded in bar of the whole and that if the Defendant here had relied upon it it would have barred the Plaintiff of the whole Vide for that matter Hollingwoth and Whetston Sty 212. Allen 65. Beaton and Forrest Note there the payment was since the Action brought and pleaded in abatement where it was said that it could not be so pleaded without an Acquittance Vide Kelw. 20. 162. 3 H. 7. 3 B. receipt of parcel pending the Writ 7 Ed. 4. 15. a. But it seems clear by the Book of Edw. 4. 207. Mo. 886. Speak versus Richards That if part be received and an Acquittance given before the Action it is a Bar only of so much but it seems the Action must be brought for the whole Dickman versus Allen. Cantabr ' ss Case brought against the Defendant for not folding his Sheep upon the Plaintiffs Land according to Custom The Colledge of St. Mary and St. Nicholas seized in Fee jâ—re Collegii ABRAHAMUS ALLEN nuê‘ de Grancester in Com' praedicto Yeom ' attach ' fuit ad respondend ' Roberto Dickman Gen ' de placito transgr ' suê‘ Casum c. Et unde idem Robertus per Robertum Drake Attorn ' suum queritur quare cum Praepositus Scholares Collegii Regalis Beatae Mariae Sancti Nicholai in Cantabr ' in Com' praed ' seisit ' fuissent de uno Capitali Messuagio cum pertinen ' in Grancester in Com' praedicto ac de centum sexaginta acris terrae arrabil ' jacen ' in Communibus Campis de Grancester praedicta cum pertinen ' in dominico suo ut de feodo in jure Collegii sui praedicti iidemque Praepositus Scholares omnes ill quorum statum ipsi habuer ' de in tenementis praed ' cum pertinen ' a tempore cujus contrarii memoria hominum non existit habuer ' habere consuever ' ê“ se Firmariis Tenentibus suis eorundem A Custom for all the Tenants to sold their Landlords Land Tenementorum cum pertinen ' libertatem Faldagii Anglicê Foldage omnium Ovium Ovibus suis ê“priis Ovibus tenen ' occupatorum ê“ tempore existen ' quorundam Messuagiorum Terrarum in Villa de Coton in Com' praed ' qui a tempore cujus contrarii memoria hominum non existit respective usi fuer ' Common of Vicinage intercÌ„oiare causa vicinagii in quibusdam Communibus Campis de Grancester praed ' cum Ovibus suis in super praed ' Messuagiis terris suis in Coton praed ' Levant and Couchant levan ' cuban ' except ' suor ' depascen ' infra Communes Campos territoria de Grancester praedicta a vicesimo quinto die Martii usque primum diem Novembris quolibet anno suê‘ praedictas centum sexaginta acras terras arabil percipiend ' From such a day to such a day faldand ' tanquam ad tenementa praedicta cum pertinenciis pertinen ' praedictisque Praeposito Scholaribus Collegii praed ' de Tenementis praedictis cum pertinen ' The Principal and Scholars demise to the Plaintiff by Indenture in forma praedicta seisit ' existen ' Praepositus Scholares postea scilicet decimo nono die Octobris Anno Domini millesimo sexcentesimo octogesimo primo apud Grancester praedictam quodam Johanne Coppleston Sacrae Theologiae Professor ' adtunc Praeposito Collegii praedicti existen ' ê‘ quandam Indenturam inter ipsos Praepositum Scholares ex una parte quendam Johannem Wittewronge Mil Barronet ' ex altera parte factam cujus alteram partem Sigillo cÌ„oi ipsorum Praepositi Scholarium signat ' idem Robertus Dickman hic in Cur ' profert cujus dat' est eisdem die anno dimiser ' ad firmam tradider ' eidem Johanni Wittewronge Tenementa praedicta cum pertinen ' Habendum habend ' occupand ' praefat ' Johanni Assign ' suis a tempore confectionis Indenturae illius usque plenum finem terminum viginti
much less tell that Satisfaction will ever be acknowledged whereas other particular Estates have a known and determinate Limitation In the other Case it could not be computed within what compass of time a possession should be quieted and so the Statute of Fines in a great measure would be defeated of its end But 3ly and principally It should be in the power of the party that has the Extent in Reversion to protract the time as long as he pleased for till he thinks fit to bring the Scire facias ad computandum he nor no one else can say the Statute is satisfied For that must appear by an account taken in the Scire facias nor none can compel the acknowledging of Satisfaction and so it should be at the pleasure of Strangers to him that is in possession by a Fine to make his Estate liable to a future Claim as long as they pleased and sure this would render the Statute of Fines of little or no effect And this makes an Estate by Extent to differ wholly from an Estate for Life or Years or such other like particular Estate which will end of it self and cannot be protracted longer than the proper limitation of the act of any one whatsoever I will conclude with an Answer to an Objection that has been much insisted upon by those that Argued for the Defendant That an Extent begins by Record and cannot end but by Record viz. either by an account taken upon a Scire facias or Satisfaction acknowledged upon the Record of the Statute or at least he that is in Reversion is bound to take notice of any other determination of the Extent To which I Answer It begins by Record but it may end without Matter of Record for a Release by the Conusee after the Extent determines it to all intents and purposes and undoubtedly in such case he which hath a puisne Statute may enter an Extent upon an Elegit begins by Record yet when satisfied by perception of Profits he in Reversion may enter So that the Scire facias as appears by our Books is to be brought upon another Reason and not because the Extent cannot end but by Record but 't is because of the incertainty of the Expences that must be satisfied And why should not they which have had the right of Burroughs's Extent be bound to take notice of the Fines that have been levied as much as the acknowledging of Satisfaction And a Fine is much more a publick Record than the other especially since the Statute of the 4th of H. 7. has provided for the making of Proclamations upon it Some Remarkable and Curious CASES IN THE COURT OF CHANCERY Termino Sanctae Trinitatis Anno 22 Car. II. In Cancellaria Marsh versus Lee. A Bill in Chancery was brought by Marsh and an Answer put in thereto The Case was thus One English being seised of the Mannor of Wicksall and of the Mannor of Morfield in 1649. Mortgages part of the Mannor of Wicksall to Burrell for 1000 l Afterwards in 1655. he acknowledges a Statute to Burrell of 800 l for the payment of 400 l Afterwards in 1662. English Mortgages both these Mannors to Mrs. Duppa for 7000 l Afterwards in 1665. English Mortgages the Mannor of Wicksall to Lee for 2000 l Lee having no notice of the former Mortgages But afterwards Lee coming to have notice of the Mortgage to Duppa purchases in the two Incumbrances to Burrel Viz. the Mortgage of part of the Mannor of Wicksall and the Statute And now Marsh Executor of Duppa sues Lee who pleads this whole Matter My Lord Keeper assisted with Hale Chief Baron and Justice Rainsford held That Lee might make use of these Incumbrances to protect his own Mortgage For they said that he had both Law and Equity for him First He had Law for that he had a precedent Mortgage in 164â— which indeed was but upon part and also the Statute in 1655. so that while these remained in force Marsh could not come in Next He had Equity for he having a subsequent Mortgage yet it being without Notice he ought to be relieved in this Court. And therefore my Lord Chief Baron put the Case as if the first Mortgage had been of the Mannor of W. to Burrel and afterwards it had been mortgaged to Duppa and afterwards to Lee not having notice if afterwards Lee bought in Burrel's Mortgage he shall hold the Estate against Duppa until he be satisfied for both the Money which he paid Burrel and also his own Money lent upon the last Mortgage And for that he said that it had been so Adjudged in Camera Scaccarij in the Court of Equity since the King came in in one Shelley's Case Next he put the Case of the Statute which English entred in to Burrel in 1655. and was afterwards bought by Lee from Burrel He held that Duppa shall not bring Lee to any Account upon this Statute here in Equity any otherwise than he may do at Common Law Nota It was agreed that the Lands were extended upon the Statute at the third part of the true value Now at Common Law the Conusor or he that claims under him must bring a Scire facias ad computand ' as in the 4 Co. 69. b. But then the Conusee shall not account according to the true value but according to the extended value and also for the whole Statute And if the Conusee is satisfied by the extended value the Conusor shall recover or if the Conusor will pay down the rest of the Money which is behind with Damages he shall also recover But if the Conusor will sue the Conusee in a Court of Equity then he shall bring him to Account for what he hath received of the Profits above the extended value Now then our Case here is somewhat more for Lee has also Equity on his Side and therefore Duppa shall not bring him to Account for what he has received above the extended value unless he has also received enough to satisfie his own Mortgage of 2000 l as well as the Statute and therefore if Marsh will take off this Statute by a Suit in this Court he must be content that Lee doth account upon the extended value for the whole 800 l and Damages Secondly They held that whereas part of the Mannor of W. was mortgaged to Burrel but that now the whole Mannor was mortgaged to Lee that yet the first Mortgage should not extend to protect more than that part of the Mannor which was first mortgaged to Burrell And my Lord Chief Baron Hale put the Case thus If a man is seised of 60 Acres and mortgages 20 to A. and then mortgages the whole to B. and then mortgages the whole to C. and afterwards C. purchases in the first Mortgage that shall not protect more than the 20 Acres but it shall protect those 20 Acres so as B. shall never recover that until he pay C. all the Money upon the first and last Mortgage
he had a way over the place where it is not material to the justification whither it leads it being after a Verdict when the right of the case is tried And it is aided at last by the Statute of Oxford 16 Car. And so Twysden said it was the Opinion of all the Iudges at Serjeants Inn he putting the Case to them at Dinner Norris and Cuffuil IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of six pence paid in hand the 13 of Jan. 17 Car. and that the Plaintiff would pay him 20 s a Month he promised to serve him in his Glass-house after the first Iourny of Glass and sets forth quod primum iter vitrij tunc prox sequens aggreamentum praedictum fuit 21 Feb. 17 Car. which was the year before and that the Defendant did not come to serve him After Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not declared sufficiently of any Iourny of Glass after the Agreement but that alledged appears to be the year before Et Adjornatur This Case being moved again Twysden said he had put it to the Iudges at Serjeants Inn and they were all of Opinion that it was well enough after a Verdict Heath versus Pryn. IN an Ejectione Firmae of the Rectory of Westbourn in Chichester upon Not Guilty pleaded it appeared upon the Evidence that the Plaintiffs Title was as Presentee of the Grantee of the next Avoidance from the Lord Lumly and Letters of Institution under the Seal of the Ordinary were produced but by reason of the times the Ordinary Parson and Patron being Sequestred no Induction followed thereupon until the Kings Restauration this Institution was 1645. Soon after the Defendant was placed in this Church by an Ordinance of Parliament and hath enjoyed it ever since and there was an Act of Parliament made 12 Car. 2. which confirms Ministers in their Possessions of any Benefice with cure tho' they came not in by Admission Institution and Induction but according to a Form used in those times in which Act there is also a Clause of Restitution of sequestred Ministers to such Benefices as they had been seized of by taking the profits It was alledged on the Defendants side that the Plaintiff proving nothing of a Presentation the Institution could not be admitted as Evidence of it especially in this case where the Induction was so long after to which the Court did incline And then the Oath of the Grantee of the next Avoidance was offered which was not admitted altho' his Interest was executed by the Presentment And it was said that an Assignor might be sworn a Witness to the Assignment of a Lease where there were no Covenants It was also said that the Plaintiff was not within the clause of Restitution of the Act of 12 Car. because he was never seized by taking the Profits which cannot be until Induction according to Hare and Bicklers Case in the Commentaries quod suit concessum To which it was replied That neither was the Defendant within the clause of Confirmation because the Rectory in question was not a Benefice with cure for there is belonging to it a perpetual Vicaridge Endowed and the Vicar comes in by Admission Institution and Induction who performs Divine Service pays the Synodals and Procurations repairs the Chancel and therefore it hath been adjudged that such a Vicar shall have Arbores in Coemiterio And it was said that the Statute of 21 Hen. 8. against Pluralities doth not extend to Rectories where there are Vicaridges Endowed And Linwood describes a Benefice without cure cujus cura Vicariis perpetuo exercenda est Otherwise where the Vicar is Temporal and removeable And the difference is inter curam actualem habitualem And 't is the Cure that the Rector hath and so hath every Bishop in his Diocess who when he gives Institution saith accipe curam tuam et meam but the Act only extends to the first It appeared also on the other side That the Parson had come once or twice a year Preached and Administred Sacraments and that without the Vicars leave and also paid First-fruits Vpon all this matter the Opinion of the Court was That the Parson had a concurrent Cure with the Vicar and resembled it to the case where there are two Incumbents in one Church and coming in by Admission Institution and Induction the Vicar could not discharge him of the cure of Souls But Donatives which are conferred by Laymen are sinè cura Note The Plaintiffs Counsel would have denyed the Act of 12 Car. to be an Act of Parliament because the were not Summoned by the Kings Writ but the Iudges would not admit it to be questioned and said That all the Iudges resolved that the Act being made by King Lords and Commons they ought not now to pry into any defects of the Circumstance of calling them together neither would they suffer a point to be stirred wherein the Estates of so many were concerned Vid. Hob. 109. 33 H. 6. 19. Notwithstanding all this the Jury found for the Plaintiff It seemed by the Court in this case that Letters of Institution must be under the Episcopal Seal sed vide Cro. lib. 1. 249. Vid. postea The King against Burford HE was Indicted for that he scandalose contemptuose propalavit publicavit verba squentia viz. That none of the Justices of Peace do understand the Statutes for the Excise unless Mr. A. B. and he understands but little of them no nor many Parliament men do not understand them upon the reading of them And it was moved to quash the Idictment for that a man could not be Indicted for speaking◠of such words and of that Opinion was the Court But they said he might have been bound to his Good Behaviour Stones Case A Writ of Priviledge was prayed for Stone an Attorney of the Court who was Copyholder of a Mannor where the Custom was for the Homage to chuse one of the Tenants to collect the Lords Rents for the year following and they elected him But it was said that this might be taken to be parcel of his Tenure for the Lords use to seize the Land for not executing of it and his Priviledge ought not to deprive the Lord of the Service of his Tenant 1 Cro. 422. In the Book of H. 6. The Archbishop of York being bound by Tenure to Collect the Tenths pleaded the Kings Letters Patents in discharge thereof and they were disallowed and tho' Attorneys have had their priviledge where they have been pressed Souldiers as in Venables Case 1 Cro. 8. Co. Entries 436. Springs Case and 1 Cro. 283. and where by Custom it came to an Attorneys turn to be Constable vid. Rolls 2. part 276. yet these are publick Services to which every one is bound but Priviledges may be allowed to exempt particular persons as the King may grant to one that he shall not be of
a Jury But the Court inclined to grant the Writ for it did not appear that it was parcel of his Tenure but rather imposed upon him by the Custom of the Mannor and if Attorneys shall be discharged of the Service of the Common-wealth à fortiori of any private Service Vid. postea The King versus Webb IN an Action brought against him for imbesiling of the Kings Goods which was laid in the Declaration to be in London it was moved for the King that the County might be changed And the Court held the King might choose his County and might wave that which he had seemed to have elected before as he may wave his Demurrer and joyn Issue contra Perries Case IN an Information of Forgery against him being an Attorney of the Common Pleas it was alledged That he had framed a certain Writing in the Form of a Release at Sherborn and that he published and gave it in Evidence at Dorchester and the Venue came out of Dorchester whereas it was said it ought to have come out of both places To which it was answered That the publishing and not the framing was the Crime But notwithstanding it was held to be a Mis-trial and being in an Information it was not aided by any Statute Postea Anonymus IN Trover and Conversion amongst other things the Plaintiff declared de sex bovibus instead of bobus Vpon Not guilty pleaded and found for the Plaintiff and entire Damages assessed It was moved in Arrest of Judgment That the Jury ought to have given no Damages for bovibus being a word insensible and entire Damages being given it was naught for all To which it was answered That if the word be insensible notwithstanding the Anglice the Jury shall not be intended to have regarded it in the giving of Damages and if it hath a signification then it is well enough And it was said bovibus was an old Latin word and is found in Plautus and 't is bobus only by contraction It was also said That the Plaintiff brought this Action as Executor and the Trover was laid in the Testators time which was not sufficient tho' the Conversion was alledged in his own But the Court held neither of these Exceptions sufficient to Arrest Judgment Rumsey versus Rawson IN Replevin The Defendant Avowed for Damage Feasant The Plaintiff replies That the Parson of such a Parish and all his Predecessors have had time out of mind Common in the place where c. belonging to his Glebe and that the Beasts of the Plaintiff were Levant and Couchant upon the Glebe and he put them into the Common by the Licence of the Parson The Defendant Traverses that they were Levant and Couchant and found for the Plaintiff And it was moved in Arrest of Judgment That the Plaintiff had not alledged matter sufficient to justifie his Beasts going in the Common for no other Beasts ought to be put in the Common but those of the Tenant of the Land to which it is appendant or those which he takes to Compester his Land Fitz. N. Br. 180. b. and that tho' the Common be claimed for a certain number And the Opinion of the Court was That the Defendant might have demurred in this case But after a Verdict the Court shall intend they were Beasts which the Parson procured to Compester his Land and the right of the case is tryed so aided by the Statute of Oxford But they gave further time to shew cause Postea Anonymus AN Action was brought for these words Thou hast received Stoln Goods and knew they were Stoln Alice S. Stole them and thou wert partner with her For the first words the Court held them not Actionable for they might admit for a justifiable construction as if the Goods were waived But the last were holden sufficient for Partner with her must intend Partner in the Felony Skinner versus Gunter al. THe case was moved again by Pomberton and alledged in maintenance of the Action that it was but in the nature of an Action upon the Case for at the Common Law no Writ of conspiracy lay but for indicting one of a capital Crime and that after an acquittal by Verdict But since the Statute of 33 Edw. 1. de Conspiratoribus Actions have been brought for conspiring to Indict one of Trespass or to Sue one maliciously without cause of Action as this case is and so is Br. tit Consp pl. 2. and by F.N.B. 116. Such an Action in the nature of Conspiracy lies against one And the Title of the Action in this Case is In placito transgr super casum and for these Reasons all the Court were of Opinion for the Plaintiff Vid. Ante. Braithwaites Case BRaithwaite brought a Mandamus to the Mayor Bailiffs and Burgesses of the Town of Northampton to be restored to his place of Alderman there They make a Return and in their Return set forth the Letters Patents of 16 Car. by which they were Incorporated and power is given them of holding a Common Council consisting of a Mayor 2 Bailiffs and 48 Burgesses and that the Mayor Bailiffs and such Burgesses as had been Mayors commonly called Aldermen should have power upon just Cause to amove any Common Council Man from his place there and then they set forth how Braithwaite was a Member of the Common Council and had committed divers Offences which they expressed in particular Whereupon the 18 of Dec. 17 Car. the Common Council assembled together summoniri procuraverunt the said Braithwaite and he not coming to answer was the same day amoved ab officio suo loco suo in Communi Concilio per Majorem Burgenses authoritate secundum Chartam praedictam It was also set forth That they had a command from the Kin and Council to amove him Vpon this Return there were four Exceptions taken First That it did not appear that he was summoned for it ought to have been qui quidem Braithwaite postea summonitus fuir and not summoniri procuraverunt Sed non allocatur for it was held clearly to be all one Otherwise if it had been quod procuraverunt J.S. eum summonire A Second Exception was That their proceedings were too quick for they amoved him the same day wherein he was summoned Sed non allocatur for it appearing he lived in the same Town and refused to come to make his defence they might immediately amove him A Third Exception was That they had exceeded their power which was only to amove him from his place in the Common Council and they had amoved him from his Office Sed non allocatur for 't is that wherein his Office consists and indeed it was so averred in the Return But the main Exception was For that they had not as was alledged pursued their Authority for the Mayor and such Burgesses who had been Mayors have power given them to amove And here the Amotion is said to be per Majorem Burgenses so that it might be by
the Mayor and Burgesses which never had been Mayors and if in regard it was indefinite it should be intended that all the Burgesses were there and it may be the Amotion was by the Vote of such Burgesses as have not been Mayors they being the greater number and the others might dissent as if the Mayor and Court of Aldermen in London were impowered to do a thing and this is done per Cives Londini it cannot be good Sed non allocatur For First it shall be intended That all the Burgesses were there and that they all agreed in the amoving of Braithwaite And if the truth were that the Burgesses which were qualified dissented which must not be presumed they might bring an Action upon the Case for the false Return And further to enforce the intendment as before it is said to be per Majorem Burgenses secundum Chartam If it had been returned that he was amoved secundum Chartam generally that had not been good for there must be the manner returned That the Court may adjudge whether the Authority be pursued Nota hoc It was further declared by Keeling Rainsford and Moreton That the King and Council might Disfranchise any Member of a Corporation And it was said by Rainsford that the Walls of Northampton were ordered to be pulled down by the King and Council à fortiori an Alderman might be displaced upon just Cause and here was no Exception to the Causes returned But to this Twisden said nothing Anonymus Vid. 5 Co. 32. UPon a Fieri facias to Levy a Debt recovered against an Executor the Sheriff returned nulla bona whereupon after a Testatum c. a Writ was awarded to the Sheriff to enquire c. who returned that Goods to the value of the Debt came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit And Issue was taken by the Party who came in upon a Scire facias quod non elongavit c. and the Iury found for the Plaintiff And it was moved by Saunders in Arrest of Judgment That there was no proper Issue neither did it appear that there was any Devastavit for the Executor may eloigne and sell the Goods therefore the Return and Issue ought to have been quod Devastavit Sed non allocatur for this tantamounts and the Presidents are so as 't is a good Warrant for a Capias in Withernam when the Sheriff returns that the Defendant in Replevin hath eloigned the Beasts so the Executor ought to be charged de bonis propriis upon his Return Wharton and Brooke IN an Action for Words the Plaintiff declared That she was and had been a long time a Midwife and got divers Gains and that the Defendant to scandalize her in her Profession said of her She is an Ignorant Woman and of small Practice and very unfortunate in her way There are few that she goes to but lye desperately Ill or die under her hands The Court held the Action maintainable But Twisden said this hath been Adjudged Where one brought an Action declaring she was a Schoolmistress and taught Children to Write and Read by which she got her Livelyhood and that the Defendant said of her She was a Whore and that J. S. kept her as his Whore That to slander one in such a Profession was not maintainable without special Damage Sir Thomas Player Chamberlain of London and Jones REsolved by the Judges That the By-Law in London whereby the Number of Carts were restrained was a good By-Law Walter and Chauner IN Trespass the Defendant Iustifies for Damage feasant The Plaintiff in his Replication prescribes for Common in the place where c. in this manner Until the Field was sown with Corn and after it was sown post blada illa messa until it was sown again To which the Defendant Demurs And it was said That this Prescription was unreasonable viz. To have Common in Land sown To which it was Answered and Resolved by the Court That as the Prescription was laid the Common was not claimed until after the Corn was reaped Nota Vpon a Fieri facias the Sheriff Returned That he had taken Goods and that they were rescued from him by certain Persons And it was held to be no Return and that he was to be Amerced Anonymus ONe recovers Debt and then brings a new Action of Debt upon the Judgment The Defendant pleads Tender of the Money before the Action brought uncore prist and the Plaintiff could have no Costs If the Defendant plead in Abatement of the Writ and the Plaintiff Demurs and 't is Adjudged against the Defendant it shall be only quod respondeat ulterius But if he alledge any thing in Abatement whereupon Issue is joyned and tryed and found against the Defendant there the Plaintiff shall have his Judgment to recover his Debt Skier and Atkinson IN an Action upon the Statute of 8 H. 6. of Forcible Entry the Secondary craved the direction of the Court before he could tax Costs and they were doubtful in it and rather inclined that the Plaintiff was to have no Costs But upon the view of Pilford's Case in 10 Co. and the Books there cited they resolved that he should have Treble Costs Crosse and Winter IN an Action for these Words Thou art of Thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Defendant Iustified for that he did steal the Colledge Plate The Plaintiff Replied De injuria sua propria The Words were alledged to be spoken in London and thither the Venire facias was awarded and there was a Verdict for the Plaintiff It was moved in Arrest of Judgment That there was a Mis-Trial for the Iury ought to have come out of Oxford for the Issue is joyned upon the Matter in the Justification and the Words are confessed Hob. 76. And with this agrees Ford and Brooke's Case in 3 Cro. 361. expresly But it was Resolved by the Court That this was aided by the late Statute made at Oxford being tried by a Jury of the proper County where the Action is laid tho' the Issue upon pleading may arise out of another place and County Note An Act of Parliament was made to continue for Three years and from thence until the end of the next Session of Parliament Vid. Hob. 78. and no longer And it was Resolved that this must be intended a Session which commences after the Three years expired For if a Session should be within the Three years and continue for many years after the Act would continue Note It cannot be called a Session of Parliament unless the King passes an Act. The King and Serjeant UPon a Certiorari to remove a Conviction of Forcible Detainer by the View of two Iustices upon the Statute of 15 R. 2. The Record Returned was Questa est nobis Jana Wood Vid ' quod quidem pacis Domini Regis perturbatores in domum mansional '
B. for causing to be framed printed and published a Scandalous Libel Entituled c. thereby scandilizing of one C. D. Vpon Not guilty pleaded It appeared upon the Evidence that after the discovery of the Libel there were Warrants from the Lord Arlington Principal Secretary of State to search the Lodgings of the Defendant who was suspected to be the contriver of it where were found two of these Libels printed The Opinion of the Court was That this was no Crime within the Information though he gave no account how they came there 5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate was only punishable in the Sarchamber unless the Party maliciously published it Anonymus Hob. 192 300 301. IF the Jury upon an Issue joyned in a Prohibition upon a Modus Decimandi find a different Modus yet the Defendant shall not have a Consultation for it appears he ought not to Sue for Tythes in Specie there being a Modus found Termino Sanctae Trinitatis Anno 21 Car. II. In Banco Regis Jurado versus Gregory THe Case was this There was a Contract of Malaga concerning the Lading of a Ship and for breach of this which was laid to upon be the Sea viz. That he would not receive 40 Butts of Wine into the Ship according to the Agreement there was a Libel in a Foreign Admiralty and Sentence that the Wine should be received into the Ship which being refused another Libel was commenced in the Admiralty here in England Reciting the former Sentence and charging the Defendant with the breach of it and a Prohibition was prayed because it appears the Contract was made upon the Land Vid. Latch 234. Against which it was objected by Finch Solicitor that where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here because all the Courts of Admiralty in Europe are governed by the Civil Law and are to be assistant one to another though the matter were not Originally determinable in our Court of Admiralty and for this he cited a Judgment 5 Jac. Rolls Tit. Courts Sect admiralty And this the Court agreed But here was no compleat Sentence in the Foreign Admiralty but only an Award that the Wine should be received and now for breach thereof he Sues here which is in the nature of an Original Suit and to have Execution of the Sentence and this ought not to be though the breach were at Sea it being of a Contract made upon the Land wherefore they granted a Prohibition The King Grants bona catalla felonum the Grantée shall not have Felons Debts nor bona catalla Felonum de se Anonymus A Conviction was certified of one for carrying of a Gun not being qualified according to the Statute where the words in the Statute are Upon due Examination and proof before a Justice of the Peace The Court resolved That that was not intended by Jury but by Witnesses and no Writ of Error lies upon such Conviction And an Exception was taken because it was before such an one Iustice of the Peace without adding Nec non ad diversas Felonias Transgressiones c. audiend assign ' And the Court agreed so it ought to be in Returns upon Certiorari's to remove Indictments taken at Sessions But otherwise of Convictions of this nature for 't is known to the Court that the Statute gives them Authority in this Case The King versus Benson IN an Information against him for Extortion an Issue was joyned the day the Jury were returned and the King sent a Writing under his Sign manual to Sir Thomas Fanshaw Clerk of the Crown to enter a Cesser of Prosecution And Palmer Attorney General affirmed that the King might stay proceedings yet notwithstanding the Court proceeded to swear the Jury and said they were not to delay for the great or little Seal whereupon the Attorney entred a Noli prosequi Anonymus TRover against Baron and Feme and laid quod ad usum proprium converterunt and it was alledged proprium might be applied only to the Husband so also if it had been ad usum suum But the Court held neither had been good so it was prayed that Judgment might be entred quod Querens nihil capiat per billam For if it had been quod Defendens eat inde sine die the Plaintiff could not have brought an Action de novo Note A man is Outlawed in Middlesex A Capias utlagatum may be sued out against him into any other County without a Testatum Anonymus IN Trespass the Defendant justifies by reason of Common in the place where for Cattel Levant and Couchant upon his Land and doth not aver the Beasts were Levant and Couchant This is aided after a Verdict A Judgment in Debt is had in the Kings Bench and a Writ of Error is brought it still remains a Record of the Kings Bench and an Action of Debt may be brought upon the Judgment In a Writ of Error if the Defendant dyed the Writ is not abated Otherwise if the Plaintiff die And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie where a Scire facias ad audiend Errores went against the Executors when the Defendant in the Writ of Error dyed Note The Exchequer Chamber doth not award a Scire facias ad audiend Errores but notice is given to the Parties concerned Skirr and Sikes IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment It was moved whether a Writ of Error would lie of this into the Exchequer Chamber For though Trespass be one of the seven Cases where the Statute gives it yet it might intend Common Trespasses only and not where the Action is founded upon a Statute as Actio de Scandalis Magnatum is not within the Statute And the Court would advise Cabell and Vaughan 5 Co. Whelphdales Case He cannot plead non est factum IN an Action of Debt upon a Bond against one and it appears another was joyntly bound with him wherefore the Defendant Demurrs But it was adjuged for the Plaintiff for the Defendant cannot Demurr in such case unless the other Obligor be averred to be living and also that he sealed and delivered the Bond 3 Cro. 494 544. Ascue and Hollingworth's Case 28 H. 6. 3. And if one be bound to two one Obligee cannot Sue unless he Averrs the other is dead In B.R. 1651 1068. Levit Staneforth Perries Case IN an Information of Forgery against him there was a Mis-trial And it was moved That this was aided by the Statute of 21 Jac. the general Purview whereof is extended to any Action Suit Bill or Plaint Then there is a Proviso which excepts Indictments and Informations upon Penal Statutes and this being an Information at Common Law was not within the Proviso and it may be taken within the word Suit for it is Secta Domini Regis But the Court held it not
it would be yet here there was a precedent act of the Plaintiffs necessary viz. To choose an Arbitrator which he ought to have shewn before any Fault could be assigned in the Defendant in not bringing in of his Bill And to this the Court did not incline Sed Adjornatur Nota It was said Tho' every Innkeeper may detain an Horse until he is paid for his Meat yet he cannot sell him for that was good only by the Custom of London Anonymus A Custom was alledged in the City of Norwich That in regard they maintained a Common Key for the Unlading of such Goods as were brought up the River in Vessels to the said City that every Vessel passing through the same River by the said Key should pay a certain Sum. It was held a void Custom as to those Vessels which did not unlade at the said Key nor any other place in the City there being no benefit redounding to them from the Maintenance of the Key they only passing by and were bound for another place and therefore could have no Imposition upon them But if they had Received their Fraight at the said Key it might extend to them And Coleman said The last Session of Parliament there was Complaint made against the Governour of Gravesend who would have prescribed to have Two shillings and Six pence of every Boat that passed by the Fort there And it was held to be Vnreasonable Anonymus TRover and Conversion for a pair of Curtains and Vallence was held Insufficient for the uncertainty of what was meant by a Pair in this case Bernard versus Bernard ERror to Reverse a Judgment in the Court of Hull upon an Assumpsit where the Plaintiff declared upon two Promises the first was upon an Indebitatus infra Jurisdictionem Curiae for Money lent The Error assigned was That the Loan did not appear to be within the Jurisdiction but upon view of the Record it was adtunc ibidem The other Promise was That there being Communication between the Plaintiff and Defendant concerning a House which was said to be at Hull-Bridge which the Plaintiff sold him the Money being unpaid and the Defendant unable in Consideration that the Plaintiff would release to him the said Debt he Promised to deliver him up the Possession of the House by a certain Day Then he Avers That tho' he Released him yet the Defendant had not delivered him up the Possession licet saepius requisitus It was assigned for Error That the House was not expressed to be within the Jurisdiction for the performance of the Promise must be as well within the Jurisdiction as the Promise it self But it is not material tho' there be other foreign Circumstances in the Case as Assumpsit upon a Promise to Re-deliver an Horse at Hull which the Plaintiff lent the Defendant at Hull to Ride to Beverly This that Court had Conusans of tho' Beverly was out of the Jurisdiction And tho' the House were alledged to be at Hull-bridge that shall be intended a Vill by it self and no part of Hull And of that Opinion was Twisden but Keeling otherwise Another Error was assigned That there was no Request laid which ought to have been being a Collateral thing viz To deliver up Possession of an House Sed non allocatur For being to be done at a time certain there was no need of Request but if no time had been set he would have had time during his Life unless hastned by Request Another Error assigned was That the Style of Court was Placita coram Majore c. virture Literarum Patentium H. 6. yet the issuing out Process and filing Bail was Entred secund ' consuetud ' Cur ' And for this 1 Cro. 143. Long and Nethercote's Case was cited where the same Matter was held to be Error for the Court being Erected within time of Memory could have no Custom to warrant their proceedings Sed non allocatur For it is according to Law and the just Course of their Court. But Twisden said If it had been secund ' consuerud ' Cur ' de temps d'ont memorie ne court it had been Ist Girling versus Alders IN a Prohibition to the Court of the Honour of Eye the Case was One Contracted with another for divers parcels of Malt the Money to be paid for each parcel being under Forty Shillings and he levied divers Plaints thereupon in the said Court Wherefore the Court here granted a Prohibition because tho' they be several Contracts yet forasmuch as the Plaintiff might have joyned them all in one Action he ought so to have done and Sued here and not put the Defendant to an unnecessary Vexation no more than he can split an entire Debt into divers to give the Inferious Court Jurisdiction in fraudem Legis Heskett versus Lee. PAsch 21 Car. 2. Rot. 408. Error to Reverse a Common Recovery had in the County Palatine of Lancaster against an Infant The first Error was assigned in a Variance between the Writ and the Count the Writ was of Lands in Bikerstaffe and the Count was Bickerstaffe 5 Rep. 46. Isfeild for Iffeild but there the Court suffered it to be amended being the default of the Clerk Sed non allocatur quia idem sonant Another Error was assigned in the Entry of the Admission of the Guardian Which was thus Concess ' est per Cur ' quod Johannes Molineaux Armig ' sequarur pro Thoma Heskett Armig ' ut Guardian ' praedict ' Thomae in plito terrae versus Lee Whereas it was said it should have been ad comparendum defendendum and this is ad sequendum which is a Form proper only for the Demandant and so is the 2d Cor. 641. And the Reason why Infants are bound by Recoveries when Guardians are assigned them is Because if they suffer any Wrong they have an Action against the Guardian in whose default it was Whereas if the Infant should bring an Action in this Case and declare against Molineux That he was admitted as Guardian to defend for him if Issue were taken upon it by this Record the Tryal would be against him Again It is sequatur pro Thoma ut Guardians and ut is but similitudinary Another Error was assigned in the Entry of the Appearance which was praedict ' Thomas Heskett per praed ' Johannem Molineux qui specialiter admissus est per Cur ' ad sequend ' pro praedict ' Tho' venit in propria persona defendit jus suum Where it was said It must be taken that the Tenant appeared in Person and not the Guardian and a Recovery suffered by an Infant where he appears by Attorney or in proper Person is Erroneous Rolls 731. But notwithstanding these Errors the Court affirmed the Recovery For the Admission of the Guardian ad sequend ' is proper enough for it signifies no more than to follow the Cause And in many Cases the Tenant or Defendant doth Prosecute as in Voucher praying Tales carrying down Trials by Proviso
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
is where it is imposed for such things as are of common Right incident to its Jurisdiction as for Contempts or the like Yet where Custom only enables them to set a Fine it cannot be Distrained for without Custom also 11 Co. Godfrey's Case And to this Opinion did the Court incline Sed Adjornatur Anonymus TWo Actions of Account were removed into this Court by Habeas Corpus and Special Bail put in And it was moved that the Bail might be discharged and Common Bail filed because in an Account Special Bail is not to be put in But it was said the Plaintiff had declared in one in an Action upon the Case and so prayed that the Bail might stand quoad that But it was Ruled That the Bail should be discharged and if the Plaintiff would have Special Bail he must Arrest the Defendant again in an Action upon the Case Doctor Lee's Case DOctor Lee having Lands within the Level was made an Expenditor by the Commissioners of Sewers whereupon he prayed his Writ of Priviledge in this Court and it was granted For the Register is Vir militans Deo non implicetur saecularibus negotiis and the ancient Law is Quod Clerici non ponantur in Officia F.N.B. Clergy-men are not to serve in the Wars Jemey versus Norris ERror to Reverse a Judgment in an Assumpsit upon a Quantum meruit for divers things sold It was assigned for Error that the Declaration amongst the rest was for unum par Chirothecarum and did not express what sort of Gloves they were which are of much different prices according to the different Leather they are made of And Playter's Case 5 Co. was cited where Trespass for taking of his Fishes was held not good because not ascertainedb of what kind Sed non allocatur Another of the things declared for was una parcella fili which as it was said was utterly uncertain and that was held to be naught Tho' it was said an Action was brought for taking away unum cumulum Foeni Anglicè a Rick of Hay and not alledged how much it contained yet held good But in Webb and Washburn's Case an Action was brought for a pair of Hangings and it was Adjudged against the Plaintiff for the Incertainty Jones contra and cited a Case in this Court 24 Car. 1. Green and Green in Trover for six parcels of Lead and notwithstanding the Incertainty the Plaintiff had Judgment So in Trover for a Trunk de diversis Vestimentis and did not say what Garments and yet held good But admitting it should not be good in Trover yet it is well in this Action 'T is the Common course to declare sur Indebitatus pro mercimoniis and never express what they are And the Court were of Opinion that the Plaintiff was to have Judgment for it is an Action much of the same nature with an Indebitatus And Twisden said Where the Promise is to pay Quantum meruit he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum and that he might prove the value upon the Evidence and if such a Case came to be tried before him he would have a Special Verdict found in it The Court said Such an uncertain Declaration would hardly be good in Trover or Replevin and held the Case of the six Parcels to be strange and for the Trunk that an Action lies for that the things contained in it were alledged but as matter of aggravation of Damages Vid. the Case of Taylour and Wells ante Trover de decem paribus velorum tegularum Anglicè Ten pair of Curtains and Vallance Wilson versus Armorer IN Debt against the Heir and Reins per discent pleaded the Case upon Special Verdict was thus The Ancestor made a Feoffment of a Mannor to divers uses excepting two Closes for the Life of the Feoffor only and whether those two Closes did discend was the Point referred to the Iudgment of the Court. And it was Adjudged That they did discend either for that the Exception was good tho' the latter part of the Sentence viz. for the Life of the Feoffor only was void and therefore to be rejected or if the whole Exception were void because one intire Sentence Yet they all agreed that there was no Vse limited of those two Closes which were intended to be excepted for the Vse was limited of the Mannor exceptis praeexceptis which excluded the two Acres For altho' there were not sufficient words to except them yet there was enough to declare the intention of the Feoffor to be so Anonymus AN Indictment for Erecting of a Cottage for Habitation contra Statut ' 31 Eliz. cap. 7. was quashed because it was not said that any had inhabited in it for 't is no Offence before per Rainsford Moreton caeteris absentibus Termino Sancti Hillarij Anno 22 23 Car. II. In Banco Regis Robson's Case A Prohibition was prayed to a Suit for Tythes by the Parson upon a Suggestion of a Modus paid to the Vicar and that the Vicaridge had time out of mind been Endowed Coleman moved for a Consultation because the Endowment of the Vicaridge was not proved by two Witnesses within six Months according to the Statute But it was denyed for that part of the Suggestion is not to be proved by Witnesses but only the payment of the Modus And it was said If the Suggestion consisted of two parts it was sufficient to produce one Witness to the one and another to the other Dacon's Case DAcon was presented in the Court Leet for refusing the Office of Constable and Fined It was moved to quash it because it expressed the Court to be held infra unum mensem Sancti Michael ' viz. 12 November and so the Day shewn above a Month after Michaelmas And it is necessary to set down the precise Day for it may else be upon a Sunday and yet within a Month after Michaelmas and for this cause the Court held that it must be quashed Error AN Outlawry was Reversed for that the Proclamations were Returned to be ad comitat ' meum tent ' apud such a place in Com' praedict ' and not said pro Comitatu For anciently one Sheriff had two or three Counties and might hold the Court in one County for another Calthorpe versus .... IN Debt for Rent the Plaintiff declared that he let the Defendant such Land anno 16 of the King quamdiu ambabus partibus placeret and that anno 16 the Defendant entred and occupied it pro uno anno tunc proximê sequent ' and because the Rent was behind pro praedict ' anno finit ' 18 he brought the Action Vpon which it was Demurred Because the Rent is demanded for the Year ending 18 and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will Occupation of the Tenant must be averred To which it was Answered That it is said
Defendant pleaded that the place Where was the Freehold of Sir Thomas Hooke and that by his Command he entred The Plaintiff traverseth That it was the Freehold of Sir T.H. And thereupon this Special Verdict was found That Nicholas Heale was seised in Fee and that 16 Dec. 1640. he made a Deed to Jane Heale Enrolled within six Months by which the said Nicholas did for and in Consideration of Natural Love augmentation of her Portion and preferment of her in Marriage and other good and valuable Considerations give grant bargain sell alien enfeoff and confirm unto the said Jane Heale and her Heirs Then they found there was a Covenant that the said Jane Heale should after due Execution c. quietly enjoy c. and also a special Clause of Warranty And that the Deed was Enrolled within six Months and that there was no other Consideration of making the Indenture than what was expressed And if it were sufficient to convey the Premisses to the said Jane they found for the Plaintiff if not for the Defendant And it was Argued by Winnington for the Plaintiff He agreed that it could not take the effect as a Bargain and Sale because no Money was paid but Argued that the Deed should enure as a Covenant to stand seized It is a Ground in the Law that the intention of the parties ought to guide the raising of Uses and the Construction how they shall enure Co. Lit. 49. Rolls 2d part 789. and to give the effect the words shall be disposed to other Construction than what otherwise they would import As if a man demises grants and to Farm-lets certain Lands in Consideration of Money and the Deed is Enrolled this is a good Bargain and Sale So if a man Covenants in Consideration of Money to stand seised to the use of his Son 8 Co. 93. Foxes Case 2 Rolls 789. it is said Nota per Cur ' if it appears that it was the Intent of him that made the Deed to pass the Estate according to Rules of Law it shall pass though there be not formal Words Again the Consideration expressed in this Deed is purely applicable to a Covenant to stand seised and a Deed shall enure upon the Consideration expressed rather than upon one that is implied As in Bedell's Case 7 Co. 40. If the Father in Consideration of 100 l paid Covenants to stand seised to the use of his Son and the Deed is not Enrolled nothing shall pass But where there are two Considerations expressed there the Vse may arise upon either As if the Father in Consideration of Blood and 100 l paid by the Son Covenants to stand seised c. and the Deed is not Enrolled yet the Vse shall arise as upon a Covenant to stand seised Pl. Com. 305. And so it was Adjudged between Watson and Dicks in the Common Pleas 1656. The Father by Deed in Consideration of Love and 100 l paid by the Son conveyed Land to him with a Letter of Attorney in the Deed to make Livery in that case the Son hath his election to take by the Enrolment or Livery which shall be first Executed 2 Rolls 787. pl. 25. But it hath been Objected here that there is a Clause of Warranty in the Deed which shews that the parties intended a Conveyance at the Common Law for if it enure by way of Covenant to stand seised the Warranty can have no effect but to Rebut Also there is a Covenant for quiet Enjoyment after Sealing and Delivery of the Deed and due Execution of the same which shews the parties had a prospect of Executing it by Livery c. To which he Answered That such remote Implications as those shall never make a Deed void against an express Consideration upon the which an Use may arise 'T is true if there had been a Letter of Attorney in the Deed it might have been void unless Livery had followed As if the Father by Deed grants Land to the Son and a Letter of Attorney in it to make Livery if none be made nothing passes Co. Lit. 49. a. The Authorities which have been cited on the other side are first Pitfields and Pierce's Case 2 Roll. 789. where the Father by Deed Poll in Consideration of Blood did give grant c. as in our Case to his Son Habend ' after his decease and a Proviso in it That the Son should pay a Rent during the Father's Life It was Adjudged That the Lands should not pass in that Case by way of Covenant to stand seised But in that Case the Conveyance was repugnant to the Rules of Law for that it was Habend ' the Land after the death of the Grantor and also repugnant in it self For notwithstanding that it reserves the Land to the Father during his Life yet it provides for a payment of Rent to him wherefore the Law would not help out a Deed so contradictory and repugnant by way of raising an Vse The other Case relied upon is between Foster and Foster Hill 13. of this King in this Court in Ejectment The Case was The Mother for divers good Considerations and 20 l paid did by a Deed which was Entituled Articles of Agreement demise grant bargain sell assign and set over to the Son and his Heirs for ever certain Lands the said Margery the Mother quietly enjoying the Premisses during her Life The Court Resolved that it should not amount to a Covenant to stand seised for they were but intended as Articles of Agreement and preparatory for a further Conveyance So the Case differs very much from ours as also that it reserves the Land to the Mother during her Life The Case also of Osborn and Bradshaw in 2 Cro. 127. hath been cited Where the Father in Consideration of Love which he hears to his Son and for Natural affection to him bargained and sold gave granted and confirmed Land to him and his Heirs the Deed was Enrolled It was held the Land should not pass unless Money had been paid or the Estate executed This Case cannot be urged as any great Authority for it appears that the Son was in possession Therefore the Court Adjudged that the Deed should be a Confirmation and it being clear that way they had not much occasion to insist upon or debate the other Point And he relied upon Debb and Peplewell's Case as an Authority in the Point 2 Rolls 78. 6. where there was a Clause of Warranty in the Deed and an Enrolment within six Months as in the Case at Bar But they Resolved there If a Letter of Attorney had been in the Deed it should not have been construed a Covenant to stand seised and therefore he prayed Judgment for the Plaintiff Finch Attorney General contra The Lands here cannot pass by Bargain and Sale there being no Money paid which I find is admitted by the other side neither shall it amount to a Covenant to stand seised There are Five things necessary to raise an Use by way of Covenant
First A Sufficient Consideration Secondly A Deed as in Callard and Callard's Case in 3 Cro. and in Popham's Reports and hath been often Resoved since Thirdly A Seisin in the Covenantor of the Lands at the time of the Deed For a man cannot Covenant to stand seised to an Vse of Lands which he shall after purchase Fourthly A Clear and apparent Intent Fifthly Apt and proper Words And the two last things are wanting in our Case I agree the word Covenant is not necessary so there be other Words sufficient in Law and to declare the parties Intent for all Words will not serve A man Covenanted upon good Consideration that his Feoffees should stand seised It was Resolved that no Use should anise upon it 1 Cro. 856. So Sir Thomas Seymor's Case Where a Covenant was upon good Consideration to levy a Fine to certain Vses and no Fine was after levied It was Resolved that the Covenant did not raise any Vse Dyer 96. Therefore 't is usual to express in such Deeds of Covenant that if the Conveyances therein contained be not executed that then the party shall from henceforth stand seised And where it is said in Vivian's Case Dyer 302. One having given granted and released to his Brother and his Heirs certain Mannors and no Livery made that Plowden would have averred that the Deed was made pro Fraterno amore and so should raise an Use Vnder the Favour of the Court I deny that Opinion of Plowden to be Law And in Debb and Peplewell's Case it is said That the Land was enjoyed against the Release And in Moor pl. 267. One Covenanted in Consideration of Marriage to let his Land discend remain or come to his Daughter It was Resolved no Use did arise thereupon In this Conveyance there are not any Words that sound in Covenant the only word that looks towards an Use is the word Bargain and Sell. and in Ward and Lambert's Case in 3 Cro. 394. it is held That if one gives or bargains and sells Land to his Son it shall not amount to a Covenant to stand seised for want of apt words Now the other are all words of Common Law Give Crant Alien Enfeoff and Confirm There is also a clause of Special Warranty in the Deed and a Covenant to make further assurance by Fine Recovery c. as great a preparation at Common Law as could be And if the Parties intend the Land shall pass at the Common Law by Transmutation of Possession there shall no use arise Co. Lit. 49. Charter of Feoffment to the Son it shall raise no use if no Livery be made The word Dedi in this Deed imports a General Warranty which is not qualified by the Special Warranty after yet if the Land pass by way of use there can be only a Rebutter and so no use of the General Warranty The Authorities since have not béen concurrent with Debb and Poplewells Case but contrary to it And I rely upon the Cases of Pitfeild and Pierce and Forster and Forster in this Court which have been remembred on the other side but no answered And whereas it is said That the Habend is after the Death of them which conveyed the Land they are in that respect stronger than the Case at Bar for by that it appears they could not intend a Conveyance at the Common Law which doth not allow such kind of Limitations therefore it must be by way of use or no way Yet it was resolved they should not pass so It would introduce universal ignorance and carelesness in such as draw Conveyances if the Court should apply their Art to give them effect however they were penned and it is a Rule Politia legibus non leges Politiis adaptantur The Court after heaving the Case twice argued were all of Opinion That the Land should pass by way of Covenant to stand seized and Hale cited Hob. 277. who doth there commend the Judges who are curious and almost subtil to invent reasons and means to make Acts effectual according to the just intent of the parties They all held clearly That words proper for a Conveyance at Common Law would raise an Use as Demise and Grant have béen adjudged to amount to a Bargain and Sale without other words And they said Pitfields and Pierces Case was adjudged upon the absurd contrivance of the Conveyance and so Foster and Fosters Case in this Court and for that in that case the Deed was Articles of Agreement preparatory to what the party intended after and the case in Moor Pl. 267. where there was a Covenant in Consideration of Marriage to suffer the Land to remain descend or come to the Daughter no Use did arise there for the incertainty how it was intended the Daughter should take And they said That if they should not construe an Use to arise by such Conveyance as in the case at Bar it would overthrow all Conveyances by Lease and Release And for the Objection of the Warranty in the Deed it is well known there is so in most Conveyances to Uses Wherefore they gave Iudgment for the Plaintiff Note This Iudgment was afterwards affirmed upon Error brought in the Exchequer Chamber Anonymus AN Indictment was brought for using of a Trade to which he had not béen bound an Apprentice It was moved to quash it because it was not alledged that he did not use the Trade 5 Eliz. for if he did he is excepted out of the Statute But the Court did not much regard that exception Tho' they said it had béen often allowed but it cannot here be intended it being so long since the Statute was made Secondly It was for using the Trade Aromatarij without an Anglicè so it could not be known what Trade was meant and tho' that word is often used for a Grocer yet it must be so Englished or else it shall not be taken for that Trade more than another And for this Cause the Court quashed the Indictment Note If a Man be taken upon a Warrant de securitate pacis or any criminal cause he is not to be charged with Actions unless the Court gives leave which they will rarely do The Case of the Heirs of the Earl of Southampton KIng James by his Leters Petents Enrolled in this Court granted to the E. of Southampton all Deodands within the Mannor of Ditchfield An Inquisition was certified here that a Deodand was forfeited within the said Mannor and Process went out thereupon The Court were moved in behalf of the Daughters and Heirs of the Earl whether they should be driven to set forth their Title in pleading for if so the charges would far exceed the value of the Deodand and it would be very inconvenient that every new Heir should be forced to plead upon every Deodand that happens But the Court said in regard the Letters Patents are here Enrolled and that it appeared by the Inquisition that this Deodand was forfeited within the Mannor it should suffice without pleading
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
the first Man for he is only to compound the business if he can Twisden The discharge being set forth in an Order we must intend it duly made 't is the common practice to go to the Sessions first It was moved at first that it did not appear that the Plaintiff had Notice but that Point was waided for being in a judicial proceeding it shall be intended Et Adjurnatur Lucy versus Levington PAsch ult Rot. 96. Covenant by the Plaintiff as Executor of J. S. for that the Defendant covenanted with J.S. his Heirs and Assigns to levy a Fine c. and that they should enjoy the Lands against all persons claiming under Sir Peter Vanlore and then he says that Sir Robert Crooke and Peter Vandebendy in the Testators life time did enter claiming under Sir P. Vanlore c. The Defendant pleads That he had a good and indefeasible Title in the Lands at the time of the Covenant by vertue of certain Fines from Sir Ed. Powel and his Wife but that in 13 Regis nunc there was an Act of Parliament by which these Fines were made and declared to be void and that Sir R. C. and P. Vandebendy had Title and entred by reason of the Act and not otherwise The Act which was pleaded in haec verba recites that certain Men came with armed force and thereby extorted and took the Fines c. And to this the Plaintiff demurred It was urged for the Defendant That this Title was by matter subsequent to the Covenant and not any thing which was in being then as 9 Co. 106. Sir T. Gresham conveys Land to certain uses with power of Revocation and then does revoke and Aliens and dies the Revocation was not warranted by his power but was after made good by Act of Parliament and then Process went out against his Widow for a Fine for the Alienation of Sir T. G. the Lands being of capite tenure but she was discharged because the Alienation had its effectt by an Act of Parliament which can do no wrong Twisden 'T is hard this should be a breach for the Defendant cannot be intended to Covenant against an Act of Parliament a thing out of his power Baron and Feme levied a Fine J. S. Covenants that the Conusee shall enjoy it against all lawfully claiming from B. and F. brings Dower after the Death of B. the Conusee does not plead the Fine but suffers Judgment and brings Covenant against J.S. and adjudged against him for the Covenant shall not extend to a Right which is barred and besides she did not claim lawfully There is an Old Book which says that if an Attainder be reversed by Parliament the person shall have Trespass against him which took the profits of his Land in the interim Hale My Lady Greshams Case is not like this for there the party was in by the Queens consent to the Alienation by the Act she passed but here the Covenant is broken as much as if a Man recover Land and then sell and Covenant thus and then it be evicted in a Writ of Right for this is in the nature of a Judgment Tho' it be by the Legislative power it may be the prospect of this Act was the reason of the Covenant nor has the Defendant reason to complain for the Act was made because of his own fraud and force Every Man is so farr party to a private Act of Parliament as not to gainsay it but not so as to give up his Interest 't is the great question in Barringtons Case 8 Co. the matter of the Act there directs it to be between the Forresters and the Proprietors of the Soil and therefore it shall not extend to the Commoners to take away their Common Suppose an Act says Whereas there is a Controversie concerning Land between A. and B. 'T is Enacted That A. shall enjoy it This does not bind others tho' there be no saving because it was only intended to end the difference between them two Whereupon Iudgment was given for the Plaintiff It was agreed by all the Justices that tho' the Covenant were made only to J. S. his Heirs and Assigns and it were an Estate of Inheritance yet the Breach being in the Testators Life time the Executor had well brought the Action for the Damages Peter versus Opie IN an Assumpsit the Plaintiff declares That there was an Agreement between him and the Defendant that be the Plaintiff should pull down two Walls and build an House c. for the Defendant and that the Defendant should pay him pro labore suo in circa divulsionem c. 8 l and that in consideration that the Plaintiff assumed to perform his part the Defendant assumed to perform his and the Plaintiff avers that he was paratus to perform all on his part but that Defendant had not paid him the Money And after a Verdict for the Plaintiff it was moved in Arrest of Judgment That he did not aver that he had done the work Hale Pro labore here makes a Condition precedent and therefore the performance of the work ought to have been averred for tho' in case of a Reciprocal Promise performance need not be averred yet if the Promise refers to an Agreement which contains a Condition precedent the performance of that must be averred as if I should promise one to go to York and in consideration of that he promise to pay me 10 l there needs no averment of my going to York otherwise if the Counter promise were to pay 10 l for my going to York So if the Counter promise were to do a thing after a time ascertained or to be ascertained it must be averred that the time is past Therefore that it is said by way of Reciprocal promise will not concern much for every Agreement is a Reciprocal promise but the matter is what the Agreement is Here tho' the Reciprocal promise be the foundation of the Consideration yet 't is to be considered that it refers to a Conditional promise or an Agreement and the Promise obliges not the Defendant to do it otherwise than according to the Agreement Now to shew this pro labore makes a Condition precedent Suppose the Agreement to be in writing thus Memorand that J.S. agrees and promises to build and J. N. promises to pay him so much for his pains it cannot be taken but that the building must be precedent to the payment 'T is the common way of Bargaining and in common dealing men do not use to pay before the work be done it would be inconvenient to give cross Actions in such cases especially since 't is likely that the Workman is a poor Man 'T is true if there be a time limited for the payment which time may fall out before the work or thing be done there the doing it is not a precedent Condition Vivian and Shipping 3 Cro. An Award that one should pay 10 l and in Consideration thereof the other should become bound
of Kin was upon the Presumption That the Intestate intended to prefer him But now the Presumption is here taken away the Residuum being disposed of to another and to what purpose should the next of Kin have it when no benefit can accrue to him by it and 't is reasonable that he should have the management of the Estate who is to have what remains of it after the Debts and Legacies paid And the Averment That there is no Residuum is not material for being once out of the Statute upon Construction of the Words of the Will there is nothing ex post facto can bring it within it And there are certain Administrations which have been always Ruled to be out of the Statute as Administrations during Minority pendente lite which need not be granted to the next of Kin and granting it to the Husband comes not within the Words of the Statute But because in this case Administration had been granted so long before the Residuary Legatee came in and the Administrators by Decrees in Chancery had got in great part of the Estate and still there were Suits depending there for obtaining of the rest which were near their Effect which would be abated and set aside if the Administration were now Repealed The Court proposed an Accommodation as most useful to either of the Parties and advantagious to the Estate which was accepted The Civilians said That a Legatee that had got Administration tho' it were after Repealed upon a Citation should yet retain for his Legacy Otherwise upon an Appeal for there the Administration is avoided ab initio Vid. Blackman's Case 6 Co. Bedniff Ux ' versus Pople Ux ' A Prohibition was prayed to stay a Suit for Defamation in the Ecclesiastical Court for Words spoken to the Servant of the Plaintiff viz. Go tell thy Mistress Whore she is a Whore and I will prove it It was said they were common Words of Brabling and not importing any such Slander for which Suit could be there 3 Cro. 393. Dimmock versus Fawcet 3 Cro. 456. Pewe and his Wife versus Jeffryes Hale These cannot be said to be Words of Heat as if spoken when the Parties are Scolding together but were uttered deliberately in the Parties absence to her Servant Formerly they would Prohibit unless the Words implied some Act to have been done Vid. Eaton versus Ayloff 3 Cro. 110. But 't is Reason the Suit should proceed in this Case seeing it is for matter of Slander which is punished by publick Pennance Therefore Suit lies in London for calling Whore because by the Custom there Whores are to be Carted Wherefore the Court denied a Prohibition Road versus Wilmott IN False Imprisonment the Defendant Iustified by a Capias directed to him upon a Suit commenced against the Plaintiff in an Inferiour Court. To which the Plaintiff Demurred because it was not shewn that a Summons was issued first and Inferiour Courts can Award no Capias but upon a Summons first Returned To which it was Answered That this being admitted yet it is but an Erroneous Process in the Execution of which the Officer is excused who is not to be punished when the Court proceeds inverso ordine Hale said It was a great Abuse in those Courts their ordinary Practice being to grant a Capias without any Summons so that the Party is driven to Bail in every trivial Action and that tho' upon a Writ of Error this Matter is not assignable because a Fault in the Process is aided by Appearance c. yet False Imprisonment lies upon it and the Officer cannot Iustifie here as upon Process out of the Courts of Westminster For suppose an Attachment should go out of the County Court without a Plaint could he that executes it Iustifie Yet a Sheriff may Iustifie an Arrest upon a Capias out of the Common Pleas 10 Co. 76. 3 Cro. 446. tho' there were no Original But Ministers to the Courts below must see that things be duly done Wherefore the Plaintiff must have Judgment Monk's Case A Debt was recovered against him in this Court and the Money levied by the Sheriff which he did not deliver but was ordered to bring it into Court until a difference that arose about it was determined Monk being indebted to the King a Writ was issued out to enquire what Goods and Chattels he had The Kings Attorney moved that they might have leave to find this Money the Court conceived that the Money being but as a Depositum there they might find it and that the Court did not protect it from the Inquisition as when Goods are under an Attachment they cannot be distrained but they would not make any direction for the finding of it Blackamore versus Mercer IN Judgment against an Executor a Fieri facias issued out to the Sheriff with a Scire fieri inquiry and a Devastavit was found according to the common course the return whereof was quod diversa bona quae fuerunt restatoris c. habuit quae elongavit in usum suum proprium convertit It was objected against this Return That it was not said Devastavit for in some Cases an Executor may justly convert the Goods to his own use Hale said antiently when the Sheriff returned a Devastavit which was not found by any Inquisition and to which there was no answer it was necessary to insert the word Devastavit But otherwise in a return upon this Special Writ for if the case be that he hath not wasted the Goods but only eloigned then so as the Sheriff cannot come at them the Executor is chargeable upon this Writ de bonis propriis and this Return answers the Writ Perrot versus Bridges IN Trespass quare clausum fregit and threw down his Fences The Defendant pleaded Not guilty to all but the breaking of the Fences and for that he justifies for that he was possessed of certain Corn in the place where as of his proper Goods and made a breach in the Fence as was necessary for the carrying of it away The Plaintiff Demurrs Specially because he did not shew by what Title he was possessed of the Corn. And the Court were of Opinion that for that cause the Plea was insufficient for if a Man enters upon anothers Land and sows it 't is his Corn while he that hath right re-enters so if Tenant at Will sows the Ground and then determins his own Will he cannot break the Hedges to carry the Corn away And Twisden said if the Sheriff sells Corn growing by a Fieri facias the Vendee cannot justifie an entry upon the Land to Reap it until such time as the Corn is Ripe Anonymus IF an Administrator brings an Action the declaring hic in Curia prolat ' of the Letters of Administration is but matter of Form tho' it hath béen held otherwise For Hale said 't is not part of the Declaration as a Specialty is upon which Debt Covenant c. is brought but
But since H. 8. time it had béen for the most part administred by the Dean and Chapter and the Verdict was here for the Dean and Chapter King versus Melling IN an Ejectment upon a Special Verdict the case was this R. Melling seized in Fee having Issue four Sons William Robert Bernard and John devised the Land in question in this manner I give my Land to my Son Bernard for his natural Life and after his decease I give the same to the Issue of his Body lawfully begotten on a second Wife and for want of such Issue to John Melling and his Heirs for ever Provided that Bernard may make a Joynture of all the Premisses to such second Wife which she may enjoy during her Life R.M. dies Bernard in the life of his first Wife suffered a Recovery to the use of himself in Fee and after her decease Marries a second Wife and then by Indenture covenants to stand seized to the use of himself for Life and after to the use of his Wife for her Life for her Joynture and dies J.M. Enters and makes a Lease to the Plaintiff And this Term after Arguments at the Bar the Court gave their Opinions Rainsford for the Plaintiff First I hold in this Case that B. M. takes but an Estate for Life with a Contingent Remainder to the Issue by his second Wife for the Devise is by express words for Life as in Archers Case 1 Co. a Devise to R. A. for Life and after to the next Heir Male of R. and the Heirs Males of that Heir Male Resolved to create but an Estate for Life to R. A. I rely mainly upon Wilds Case 6 Co. which was brought before all the Judges of England where the Devise was to a Man and his Wife and after their decease to the Children and resolved to be but an Estate for Life 't is true there were Children at the time of the Devise but in the end of the Case 't is said that in such Case if there were no Children the Children born after might take by remainder and the first Estate to be but for Life Clerk v. Day 1 Cro. 313. the Devise was to Rose his Daughter for Life and that if she married after his Death and had Heir of her Body then that the Heir after his Daughter's Death should have the Land and to the Heirs of their Body begotten and if his Daughter died without Issue then to a Stranger It was held by Gawdy and Fenner that Rose had but an Estate for Life in this Case 1 Rolls 837. Devise to his eldest Son for Life and after his decease to the Sons of his Body lawfully begotten the Son resolved to have but an Estate for Life The Second point Whether the power to make a Joynture be destroyed by the Common Recovery these powers to make Estates are of two sorts either Collateral as when Executors have power by a Will to sell Land and such a power cannot be destroyed as appears in Diggs's Case 1 Co. or powers appendant to Estates as to make Leases which shall continue after the Estates to which the power is annexed determins and the power in the Case at Bar to make a Joynture are of this second sort and are destroyed by the alteration of the Estate to which it is annexed in privity as 1 Co. Albany's Case is so that the Common Recovery being a Forfeiture of the Estate for Life by consequence 't is an extinguishment of the power Thirdly But admitting the power continues whether it be well executed and I hold that it is not for being seized in Fee at the time of the Covenant to stand seized to the use of his Wife for her Joynture and this without any reference to his power the use shall arise out of his Interest and not be executed by vertue of his power according to the resolution in Sir Ed. Cleeres Case 6 Co. Twisden of the same Opinion As to the first Point it must be agreed that these words Issue of the Body ex vi termini make not an Entail if they were in a Conveyance by Act executed no more than Children as the words were in Wilds Case 'T is true in a VVill a Devise of Land to a Man and his Issue creates an Entail if the Devisee had no Issue at that time for otherwise those words would be void for in regard they are limited to take presently the Issue born after cannot take as by Remainder there being none to take in praesenti they must be intended to be words of Limitation as a Devise to a Man and his Heirs Males makes an Entail or otherwise the word Males must be rejected then seeing the words in themselves are not proper to make an Entail the next thing to be considered is the intention which is to be known by the expressions in the VVill and not any averment dehors the words are J will give my Land to my Son for Life and after his decease I will give the same to the Issue c. so that the Land is given to him expresly for Life Devise of Land in perpetuum makes Fee but if Land be given by Deèd in perpetuum there an Estate only for Life will pass 15 H. 7. A Devise to one paying 10 l this is a Fee 6 Co. Coliers Case But a Devise to one for Life paying 10 l makes but an Estate for Life the Case of Furse and VVinter was Mich. or Trin. 13 Regis Caroli Rot. 1339. A Devise to his two Daughters equally to be divided between them and to the Survivor of them and to the Heirs of the Body of the Survivor This was so expresly to the Surviror that it was resolved to be a Joynt Estate and not in Common The words here are after the decease of Bernard I give the same to the Issue of the Body c. implying that the Issue should take by Purchase as a Gift and not by Descent Again The power given to Bernard to make a Joynture shews that he could not do it by Virtue of his Estate and therefore needed a power to be annexed And tho' such powers are usually affixed to Estates Tail yet when the construction is doubtful what Estate shall pass the giving such a power is an argument that 't is such an Estate that cannot make a Joynture or the like by any other means The words go further and for want of such Issue then to J.M. 'T is true if Land be devised to a Man and if he dies without Issue then to remain over the Devisee shall have an Entail Owen 29. But it shall not be so in this Case because that Clause is crowded in with other Clauses directly to the contrary I rely mainly upon VVilds Case 6 Co. and the Case quoted out of Bendlowes in the end of that Case A Devise to Baron and Feme and to the Men Children of their Bodies begotten because it did not appear that there were any more Children at
that time this made an Estate Tail But if it had béen and after their decease to their Children then the Children should take by Purchase tho' born after 'T is true that case is variously reported in the Books but I adhere to my Lord Coke presuming that being brought before all the Judges in the Argument of VVilds Case it was a true Report As for the second Point 't is plain that the power is extinguished for by the Recovery the Estate for Life to which it was annexed in privity is gone and forfeited so that 't is not necessary to dispute the third Point whether well executed or no But upon the whole I agree with my Brother Rainsford that the Plaintiff ought to have Judgment Hale I differ from my two Brothers and tho' I was of their Opinion at the finding of the Special Verdict yet upon very great Consideration of the Case I am of Opinion for the Defendant I shall proceed in a different method from my Brothers and begin with that Point which they made last and I agree with them admitting that Bernard had but an Estate for Life that the power was destroyed also here the Recovery does not only bar the Estate but all powers annexed to it for the recompence in value is of such strong Consideration that it serves as well for Rents Possibilities c. going out of and depending upon the Land as for the Land it self So Fines and Feoffments do ransack the whole Estate and pass or extinguish c. all Rights Conditions Powers c. belonging to the Land as well as the Land it self Secondly I agree with my Brother Rainsford that if Bernard had but an Estate for Life by the Devise the power was not well executed Where Tenant for Life has a power to make Leases 't is not always necessary to recite his power when he makes a Lease but if he makes a Lease which will not have an effectual continuance if it be directed out of his interest there it shall be as made by virtue of his power and so it was resolved in one Roger's Case in which I was Counsel Again Tho' it be here by Covenant to stand seized an improper way to execute his power yet it might be construed an Execution of it Mich. 51. In this Court Stapleton's Case where a Devise was to A. for Life Remainder to B. for Life Remainder to C. in Fee with power to B. to make his Wife a Joynture B. covenanted to stand seized for the Joynture of his Wife reciting his power tho' this could not make a legal Joynture yet it was resolved to enure by virtue of his power quando non valet quod ago ut ago valeat quantum valere potest But in this Case Bernard has got a new Fee which tho' it be defeasible by him in Remainder yet the Covenant to stand seized shall enure thereupon and the use shall arise out of the Fee Thirdly I was at the first opening of the Case of Opinion that Bernard had but an Estate for Life but upon deep Examination of the Will and of the Authority and Considerations of the Consequences of the Case I hold it to be an Estate Tail And first to ease that Point of all difficulties if cannot be denied but a Devise to a Man and the Heirs of his Body by a second Wife makes an Estate Tail executed tho' the Devisee had a Wife at the time As the Case often cited Land given to a Married Man and a Married Woman and the Heirs of their Bodies We are here in case of the Creation of an Estate-Tail where intention has some influence voluntas Donatoris c. and may help words which are not exactly according to legal form 39 Ass 20. Land given to a Man and his Wife haeredi de corpore uni haeredi tantum this judged an Entail Again we are in case of an Estate Tail to be created by a Will and the intention of the Testator is the Law to expound the Testament therefore a Devise to a Man and his Heirs Males or a Devise to a Man and if he dies without Issue c. are always construed to make an Entail It must be admitted that if the Devise were to B. and the Issue of his Body having no Issue at that time it would be an Estate Tail for the Law will carry over the word Issue not only to his immediate Issue but to all that shall descend from him I agree it would be otherwise if there were Issue at the time Tayler and Sayer 41 Eliz. rot 541. a Devise to his Wife for Life 1 Cro. 742. Remainder to his Issue having two Children it was held the Remainder was void being to the Issue in the singular number for incertainy which should take But that was a little too rank for Issue is nomen collectivum Again I agree if a Devise be made to a man and after his death to his Issue or Children having Issue at that time they take by way of Remainder And that was the only Point adjudged in Wild's Case and there also against the Opinion of Popham and Gawdy This way being made I come to the Case it self and shall briefly give my Reasons why I hold Bernard has an Estate Tail First Because the word Issue is nomen collectivum and takes in the whole Generation ex vi termini and so the Case is stronger than if it were Children And where 't is said to the Issue that he shall have of the Body of the second Wife that is all that shall come of the second Wife For so 't is understood in common Parlance Secondly In all Acts of Parliament Exitus is as comprehensive as Heirs of the Body In Westm 2. de donis Issue is made a term of equivalence to Heirs of the Body for where it speaks of the Alienation of the Donee 't is said quo minus ad exitum discenderet So in 34 H. 8. of Entails setled by the Crown 'T is true in Conveyances c. the wisdom of the Law has appropriated the word Heirs as a Term of Art In Clerke's Case A Lease was made to commence after the death of his Son without Issue the Son had a Son and died and then that Son died without Issue It was Resolved both in the Kings Bench and the Exchequer that the Lease should commence for Issue being nomen collectivum whenever the Issue of the Son failed the term of Commencement did happen But now to see the difference Tyler's Case Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life and after her death to B. his Son in Tail and if he dies without Issue then to his Children A. had Issue a Son and died and B. died without Issue Resolved that the Son of A. should not take as one of the Children of the Testator Which Case I cite to shew the odds between the word Issue and the
word Children My second Reason is from the manner of the Limitation which is to his Issue and of his Body lawfully begotten upon the second Wife Phrases agreeable to an Estate Tail and the meaning of a Testator is to be spelled out by little Hints It is admitted in Wild's Case in the 6 Co. 17. that if the Devise had been to the Children of their Bodies it would have been an Entail Thirdly It appears by the Devise that the Testator knew there could be no Children at that time and shall not be supposed to intend a contingent Remainder Fourthly It appears that the Testator did not intend to prefer the Children of the first Wife of Bernard but did the Children of the second and therefore cannot be thought to mean that John the younger Brother of Bernard should take before failure of the Issue which Bernard should have by his second Wife And to this purpose is Spalding's Case 3 Cro. 185. A Devise to his eldest Son and the Heirs of his Body after the death of his Wife and if he died living the Wife then to his Son N. And devised other Lands to another Son and the Heirs of his Body and if he died without Issue then to remain c. The first Son died living the Wife It was strongly urged that his Estate should cease for being said If he died living the Wife this was a Corrective of what went before But 't was Ruled by all the Court that it was an absolute Estate Tail in the first Son as if the words had been If he died without Issue living the Wife for he could not be thought to intend to prefer a younger Son before the Issue of his eldest Fifthly The words are further and for want of such Issue then to John which words in a Will do often make an Estate Tail by Implication As 4 Jac. Robinson's Case A Devise to A. for Life and if he died without Issue then to remain A. took an Entail So Burley's Case 43 Eliz. A Devise to A. for Life Remainder to the next Heir Male and for default of such Heir Male then to remain Adjudged an Estate Tail 'T is true Dyer 171. is where Lands were Devised to a man and the Heirs Males of his Body and if he died without Issue c. these last words did not make a Tail General to the Devisee For an Implication of an Estate of Inheritance shall never ride over an express limitation of an Inheritance before being 't is said here for want of such Issue the Land should remain 't is plainly meant that it should not before the Issue failed and then the Issue must have it so long for none else can and so 't is an Estate Tail I come now to Authorities 6 Eliz. Anderson num 86. Moor pl. 397. A Devise to his Son for Life and after his decease to the Men Children of his Body said to be an Estate Tail and so cited by Coke in that Book and so contrary to his Report of it in Wild's Case Bendloes num 124. But that Case is not so strong as this for Children is not so operative a word as Issue Rolls 839. A Devise to his eldest Son for Life non aliter for so were the words tho' not printed in the Book and after his decease to the Sons of his Body it was but an Estate for Life by reason of the words Non aliter Hill 13 Car. 2. Rot. 121. Wedgward's Case A Devise to his Son Thomas for Life and after his decease if he died without Issue living at his death then to the Daughter c. it was held to be an Estate for Life But were it an Estate Tail or no it was not necessary to be Resolved the Case depending upon the destruction or continuance of a Contingent Remainder which would have been gone had the Devise made an Estate Tail again there being an express Devise for Life they would not raise a larger Estate by Implication Again Wild's Case where Lands were Devised to A. for Life Remainder to B. and the Heirs of his Body Remainder to Wild and his Wife and after their decease to their Children And the Court of Kings-Bench were at first divided Indeed it was afterwards adjudged an Estate for Life to Wild and his Wife First Because having limited a Remainder in Tail to B. by express and the usual words if he had meant the same Estate in the second Remainder 't is like he would have used the same words Secondly It was not after their decease to the Children of their Bodies for then there would be an Eye of an Estate Tail Thirdly The main Reason was because there were Children at the time of the Devise and that was the only Reason the Resolution went upon in the Exchequer Chamber And tho' it be said in the latter end of the Case That if there were no Children at that time every Child born after might take by Remainder 't is not said positively that they should take And it seems to be in opposition to their taking presently but however that be it comes not to this Case For tho' the word Children may be made nomen collectivum the word Issue is nomen collectivum of it self Hill 42. and 43 Eliz. Bifield's Case A Devise to A. and if he dies not having a Son then to remain to the Heirs of the Testator Son was there taken to be used as nomen collectivum and held an Entail I come now to answer Objections First 'T is objected that in this Case the Limitation is expresly for Life and in that respect stronger than Wild's Case And this is the great difficulty But I Answer That tho' these words do weigh the Intention that way yet they are ballanced by an apparent Intention that weighs as much on the other side which is That as long as Bernard should have Children that the Land should never go over to John for there was as much reason to provide for the Issue of the Issue as the first Issue Again A Tenant in Tail has to many purposes but an Estate for Life Again 'T is possible that he did intend him but an Estate for Life and 't is by consequence and operation of Law only that it becomes an Estate Tail 1651. Hansy and Lowther The Case was A Copyholder surrendred to the use of his Will and Devised to his first Son for Life and after his decease to the Heir Male of his Body c. This was Ruled to be an Estate Tail and this differs from Archer's Case in the 1st of Co. for that the Devise there was for Life and after to the Heir Male and the Heirs of the Body of that Heir Male There the words of Limitation being grafted upon the word Heir it shews that the word Heir was used as Designatio personae and not for Limitation of the Estate So is the Case of Clerk and Day 1 Cro. 313. Another Objection was That there being a Power appointed
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
cannot tender an Oath to the party sued nisi in causis Matrimonialibus Testamentariis But the Court after hearing divers Arguments denied the Prohibition for they said It was no more than the Chancery did to make Defendants answer upon Oath in such like Cases Termino Sanctae Trinitatis Anno 31 Car. II. In Banco Regis How versus Whitfield ante in ult ' Term. IN Repl the Plaintiff declares of the taking of his Cattle in a Close containing five Acres The Defendant avows and sets forth a Fine to the use of A. in Tail which discended to him Virtute cujus he was seised in Dominico ut de feodo talliato c. The Plaintiff Replies that the Fine was first to the use of J. S. for Life the Remainder to his Executors Administrators and Assigns for 80 years with Power to him and his Assigns to lett the five Acres in Possession or Reversion for 21 years determinable upon three Lives reserving the ancient Rent and that J. S. Devised this Term to J. N. and died his Executors assented and after it came to the Executors of J. N. who assigned it and that the Assignee made a Lease of the said five Acres inter alia reserving proinde the Rent of 6 s per annum and avers that the ancient Rent was 6 s per annum The Avowant Rejoyns setting forth his former Title And the Plaintiff Demurrs It was Objected First That the Plaintiff ought to have traversed the Seisin in Tail alledged by the Avowant seeing in his Replication he sets forth and intitles himself under an Estate inconsistent with it To this it was Answered and the Court agreed that there ought to be no Traverse for the Avowant doth not say it was his Freehold or that he was Seised in Tail but only under a Virtute cujus c. And the Plaintiff in his Replication sets forth a Title consistent with all that the Avowant alledges and so confesses and avoids and all depends upon the execution of the Power And for that Secondly It was Objected That he which made this Lease was not Assignee of J. S. for Executors were not within the Power and consequently not their Assignee This is a Power collateral to the Estate and shall not run with the Land for then Assignees of Commissioners of Bankrupcy the Vendee of the Term by the Sheriff upon an Execution c. should execute this Power It is like Covenants annexed to Leases which the Assignee could not take advantage of till 32 H. 8. Again Here appears to be no good Reservation for the Lease is of the five Acres inter al' reserving proinde so that the Rent issues out of other Lands as well as the five Acres and therefore cannot be said to be the ancient Rent reserved upon that The Court were all of Opinion that the Assignee in this case might execute the Power and conceived that Assignees might include Assignees in Law Vid. Mo. 855. as well as Fact but however the Tenant for Life devising this Term the Devisee was an Assignee and the Power in the greatest strictness of acceptation was in him and consequently must go to his Executors and by the same Reason to their Assignee As to the Reserving the Rent proinde the Court said it might be intended that the inter al' might comprehend nothing but such things out of which a Rent could not be reserved and then the six Shillings was reserved only for the five Acres However the proinde might reasonably be referred only to the five Acres and not to the inter al and that a distinct Reservation of Six shillings might be for five Acres And so Judgment was given for the Plaintiff Ante. Steed versus Berrier ERror upon a Judgment given in the Court of Common Pleas upon a Special Verdict the Case was to this effect J.S. made his Will in Writing and devised Lands to his Son J.S. and his Heirs and in the same Will gave a Legacy of 100 l to his Grandson The Son died afterwards in his Life time after whose decease J. S. the Grandfather made a Codicil wherein he gave away part of the Lands devised as aforesaid to a Stranger and afterwards declared by Parol that his Intention was that his Grandson J. S. should have the Lands which his Son J. S. should have had The Question upon this Special Verdict was Whether this were sufficient to carry the Lands to the Grandson And Judgment was given in the Common Pleas by three Judges against one that it was Whereupon a Writ of Error was brought in this Court Finch Solicitor Argued that this Will was sufficient to carry it to the Grandson He agreed Brett and Ridgen's Case in Pl. Com. that a Devise to a man and his Heirs who dies in the Life of the Devisor a new Publication will not be enough to make the Heir take by the Will because named in the Will by way of Limitation of the Estate and not Designation of the Person that should take But in Fuller's Case in the 1 Cro. 423. and in Mo. 2. where the Devise was to his Son Richard and the Heirs of his Body which Richard afterwards died in his Life time and then the Devisor said My Will is That the Sons of Richard my Son deceased shall have the Land devised to their Father as they should have had if their Father had lived and died after me There Popham and Fenner held that this new Publication would carry the Land to Richard's Son Gawdy and Clench contra But our Case is much stronger for there Heirs of the Body were used only for Limitation but in the Will here where the words are I Devise to my Son J. with this new Publication the Grandson J. may take because a Grandson is a Son and when a Will is new Published it is all one as if it were wrote at the time of such Publication Beckford and Parncot's Case in the 1 Cro. 493. Mo. 404. Devise of all his Lands and after the Will the Devisor purchaseth other Lands and then publishes it again it will carry the new purchased Lands Dyer 149. Trevanian's Case Cestuy que use before the 27th of H. 8. Devised the Lands a new Publication will pass the Lands executed in him by the Statute The Opinion of the Court inclined to Reverse the Judgment they held it to be the same with Fuller's Case in the 1 Cro. that no Parol averment can carry Lands to one person when the words of the Will plainly intended them to another They agreed If a man having no Son but a Grandson deviseth his Lands to his Son the Grandson may take But here is an opposition contained in the new Publication viz. Those Lands which my Son J. should have had my meaning is my Grandson J. shall have And in the Will it self there is a Legacy devised to the Grandson by that Name so where they are so distinguished 't is impossible to take the Grandson to be
meant by the name of Son As to Beckford's Case the Words are full to carry all and therefore it had been impertinent to have wrote over the Will again So where a man has two Sons named John it may be well averred that he meant the younger Son for nothing in the Will is inconsistent with such meaning The Court took time to deliver their Opinions And afterwards the Chief Justice delivered the Opinion of the Court That neither the Republication nor Parol Declaration could operate as a Devise to R. c. the Grandson Pepis's Case A Mandamus to restore him to his Place of Recorder of the Town of Cambridge The Return was That they were Incorporated by the Name of Mayor Aldermen c. with a Power to chuse a Recorder Habend ' pro termino vitae aut ad voluntat ' eligentium That Mr. Pepis was Chosen Recorder ad voluntat ' eligentium and that afterwards by the Votes of the greater number of the Electors he was removed and the Lord Allington constituted a Recorder under their Common Seal c. Vpon this Return it was moved for Mr. Pepis that altho' they had alledged a Power to Chuse a Recorder at Will yet they should have shewn Cause for his Removal being a Judicial Office which the Court takes notice of and that none had such a Power but the King to remove Judges ad libitum Again A Corporation aggregate cannot determine their Will but under their Common Seal and that is not shewn here Curia Where a Recorder is at Will they may remove him at pleasure as it is in Blagrave's Case and several other Cases As to the other Point it does not appear that he was Constituted under their Common Seal perhaps then they must have determined their Will under their Common Seal but now 't is well enough my Lord Allington is Constituted under their Common Seal which Act removes the other so it was adjudged against Mr. Pepis Termino Sancti Michaelis Anno 31 Car. II. In Banco Regis A Prohibition was prayed to the Court of Admiralty upon a Suggestion that the Suit was there upon a Contract made upon the Land The Case was thus A Bargain was made upon the Land with severl Seamen to bring up a Ship from a Port in England to London for a certain Sum to them to be paid And for the Prohibiton 't was alledged that this being upon the Land and a Contract with divers joyntly for a Sum in Gross it could not be within the ordinary Rule of Mariners Wages which is permitted to be Sued for in the Court of Admiralty in favour of the Mariners because they may all joyn in that Court and not be put to the inconvenience of Suing severally as they must at Law but as this Contract is they are to sue joyntly at Common Law But the Prohibition was denied for this must be taken as Mariners Wages And therefore tho' the Contract were upon the Land yet they have Jurisdiction Besides the Party comes after Sentence and therefore in the Courts discretion whether they will then grant a Prohibition Note A Rump Act was made to enable Mariners to Sue for Wages in the Admiralty but yet the Law was taken to be so before Vid. 3 Cro. Anonymus A Prohibition was prayed to the Ecclesiastical Court where the Libel was for these words You are a Whore and Ply in Moorfields And the Suggestion was that the words were spoken in London where an Action lies for such words and for that Cause a Prohibition was granted otherwise Suits might have been in the Court Christian for such words tho' not singly for the word Whore being a common word of brabling otherwise where joyned with words which shew the intent to Defame in that kind Anonymus AN Indebitat ' Assumpsit was brought for Goods sold and delivered The Action was laid in London and a Motion was made to change the Venue upon an Affidavit that the Sale was in Kent But on the other side it was said the delivery was in London and that were the Matter consists of two parts in several Counties the Plaintiff shall have his Election to which the Court agreed Anonymus A Man Covenants with his intended Wife to give her leave to dispose of so much by her Will and then they Intermarry the Husband having given Bond to a third person for the performance of these Covenants after the death of the Wife the Husband is Sued upon the Bond for not permitting her Will to be performed And upon Oyer of the Condition it was insisted on for the Defendant that these Covenants were discharged by the Marriage and so the Bond likewise loseth its force Vid. Hob. 216. Et Adjornatur Anonymus A Motion was made to quash an Inquisition of forcible Entry it was Inquisitio capta per Juratores super Sacramentum suum coram T. S. J. N. Justiciariis c. qui dicunt super Sacramentum praed ' And it was objected That qui dicunt c. referring to the last antecedent it was that the Justices say Sed non allocatur for super Sacramentum praedict ' makes it certain Note The Caption of an Indictment may be amended the same Term it comes into Court Anonymus AN Indictment for not taking upon him and executing the Office of a Constable to which he was chosen by the Leer The question was Whether a Tenant in antient Demesne were obliged to that Office And the Court held that he was Termino Sancti Hillarij Anno 31 32 Car. II. In Banco Regis Anonymus IN Ejectment upon a Special Verdict the case was thus A Lease was made A. and B. for their Lives Remainder to the first Son of A. c. Remainder to the Heirs of A. B. conveys his part to A. The question was Whether the Contingent Remainder to the first Son were destroyed Holt argued that it was For a Contingent Remainder must have some particular Estate of Freehold to support it and by the Release of B. his Estate was gone and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion it does not enure by Grant of the Estate but by Release as Eustace and Scawens Case 2 Cro. 696. A. and B. Joynt tenants for Life A. Levy's a Fine to B. B. dies there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels 11 Co. is not to be objected where an Estate for Life was made to B. and F. the Remainder to their first Son that they should have in Tail Remainder to B. and F. in Tail here tho' an Estate in Tail is executed in B. and F. until a Son Born yet after upon the Birth of the Son the Contingent Remainder shall vest and split and divide the former Estate 2 Co. 60.61 but here the Fee becomes executed by several Conveyances but there the Estate
could not be digged up there might be an Indictment Exhibited to the Grand Jury who might Enquire thereupon Termino Sancti Hillarij Anno 32 33 Car. II. In Banco Regis Anonymus A Motion was made against a Judge of an Inferiour Court of Record for increasing upon a View the Damages in an Action of Trespass and Battery to so much more than was given by the Jury Curia The proper way is to Reform it by a Writ of Error for none but the Courts at Westminster can increase Damages upon View Anonymus IF a Writ of Error in Ejectment c. abates by the Act of God a second Writ will be a Supersedeas Otherwise where it abates by the Act of the Party Anonymus IN a Writ of Error to Reverse a Fine the Proclamations were pleaded in the same Fine and Five â—ears quiet possession and this in barr of a Writ of Error The Court Inclined that the Error being in the Fine Five years possession could not be pleaded Sed Adjornatur Mo. Rep. 8. Termino Paschae Anno 33 Car. II. In Banco Regis NOte This Term Sir Francis Pemberton was made Lord Chief Justice of the Kings-Bench in the room of Sir William Scroggs who was displaced Page versus Denton HIll 32 33. Car. 2. Rot. 45. In Debt upon a Bond against an Executor who pleads that the Testator was Indebted to him by an Obligation the Condition whereof was to pay Rent and that at the time of his Decease there was 300 l due for Rent and that he had not more than 60 l Assets to pay it c. The Plaintiff Replied That there was but 30 l due for Rent at the time of the Testator's death Which the Court held to be a good Replication altho' the Penalty of the Bond was forfeited at the time of the Testator's death For if a Bond due to a Stranger be forfeited and this be pleaded by an Executor and that he hath not Assets ultra 't is a good Replication to say That the Obligee would have taken part of his Money in full and it shall be a Bar for no more and here the Defendant ought to take but his due Debt And the Court said that if men would plead their Case Specially it would save many a Suit in Chancery Fitzharris's Case EDward Fitzharris was Indicted of High Treason upon which being Arâ—aigned and demanded to plead he delivered in a Paper containing a Plea to the Jurisdiction of the Court which could not be received as the Court said not being under Counsel's Hand Whereupon he prayed to have Counsel assigned and Named divers whereof the Court assigned Four And he was taken from the Bar three of four days being given him to advise with his Counsel to prepare his Plea as they would stand by him The Counsel prayed that they might have a Copy of the Indictment But the Court denied it and said that it was not permitted in Treason or any other Capital Crimes But Justice Dolben said that sometimes it had been allowed to take Notes out of the Indictment Vid. Mirror 304. Abusion est que Justices ne monstre l'Indictment à les Indictes s'ils demandront Sect. 115. Termino Sanctae Trinitatis Anno 33 Car. II. In Banco Regis Anonymus IN an Action of Debt against an Executor in the Debet and Detinet upon a Surmize of a Devastavit the Defendant was held to Special Bail And so Ruled upon Motion Anonymus IT was said by the Court That if a Corporation that hath been by Prescription accept a New Charter wherein some alteration is of their Name and likewise of the Method in the Governing part yet their Power to remove and other Franchises which they had de temps d'ont c. do continue And if the Power to Remove be at their Will and Pleasure this Will must be expressed under their Common Seal but in Return to a Mandamus debito modo amotus may suffice Note No Writ of Error lies upon an Indictment of Recusancy and Conviction by Proclamation Note In an Ejectment where there are divers Defendants which are to Confess Lease Entry and Ouster if one does not appear at the Trial the Plaintiff cannot proceed against the rest but must be Nonsuit Termino Sancti Michaelis Anno 33 Car. II. In Banco Regis Anonymus IN Covenant the Plaintiff Declared upon several Breaches one whereof was for not paying of 7 l according to the Covenant It was moved for the Defendant that he might be admitted to bring 7 l into Court to pay to the Plaintiff together with his Costs hitherto c. as is usual in Cases of Debt or Assumpsit for Money and that the Plaintiff might proceed for the rest if he thought fit But the Motion was denied because the Plaintiff had Declared of other Breaches and the Matter lay in Damages Anonymus ERror upon a Judgment in the Common Pleas where the Plaintiff Declared in an Action upon the Case that he had Common in the Defendants Lands habere debuit c. The Defendant Demurred because not set out how the Plaintiff was Intituled to the Common whether by Prescription or otherwise Notwithstanding which Judgment in the Common Bench was for the Plaintiff and now the same Matter insisted on for Error here and the Court doubted To make the Declaration good there was quoted the Case of Sands and Trefuses in the 3 Cro. in an Action for Stopping of a Watercourse to his Mill which was held good without saying an Ancient Mill or that he was Intituled to the Watercourse by Prescription or otherwise 2 Cro. 43.122 Dent and Oliver an Action for disturbing of him to take Toll and no Title set forth Sed Adjornatur Vid. Co. Entr. 9. 11. Day versus Copleston IN an Assumpsit for Money the Defendant pleaded the Statute for the Discharge of poor Prisoners and that he had been Discharged by that Act which provides that there shall be no after Prosecution by a Creditor in such case so as to subject the Body to Execution and says that he can say nothing further in Bar of the Action Vpon which the Plaintiff Demurred and the Defendant joyned in the Demurrer and Judgment was Entred up for the Plaintiff but with a Cesset executio quoad Corpus c. And the Court approved of this way of pleading the Statute for otherwise they said if the Matter had not been disclosed in pleading they doubted whether the could have given the Defendant the benefit of the Act but he would be driven to his Audita Querela Anonymus ERror of a Judgment in the King's Bench in Ireland it was suggested that the Plaintiff was in Execution upon the Judgment in Ireland And the Court seemed to be of Opinion that a Habeas Corpus might be sent thither to remove him as Writs Mandatory had been awarded to Calais and now to Jersey Guernsey c. Anonymus THe Case was A. Tenant in Tail Remainder to B. in Tail c. A.
versus Bowes IN an Ejectment upon a Special Verdict the Case appeared to be this Commissioners of Bankrupt had assigned by Indenture the Lands in question to the Lessor of the Plaintiff which Indenture was afterwards Enrolled But the Declaration was upon a Demise made after the Indenture and before the Enrolment and whether that Demise were sufficient to Entile the Lessor of the Plaintiff was the general question It was first insisted on that Enrollment of the Deed of Assignment tho' to pass Lands was not necessary 2 Co. 26. But that the Court overruled saying that Enrolment is not requisite upon an Assignment of Goods but of Lands it is But then it was said that after the Deed was Enrolled it shall relate to the Delivery and it was compared to a Bargain and Sale where by the Statute of H. 8. of Enrolments nothing passeth till the Deed be Enrolled but then it relates 2 Instit 675 Bargainee sells before Enrolment the subsequent Enrolment makes it good so if the Bargainee suffers a Recovery before Enrolment he is a good Tenant to the Praecipe by relation ibidem And this is confirmed by the common practice So if at Common Law a Recognizance be acknowledged before a Judge as any Judge of the Courts at Westminster may take a Recognizance and afterwards he causeth it to be Recorded it binds the Land from the time of the Caption Hob. 196. If Land be conveyed to the King by Deed Enrolled it binds from the time of the executing of the Deed altho' the Enrolment be sometime after Sanders contra Here the Commissioners are under a Power given to them by the Statute of Bankrupts and they must execute that Power in all Circumstances before it become effectual In the case of Enrolment of a Bargain and Sale the Deed it self passeth the use and the Statute of Enrolments obstructs the operation of it till Enrolment but when that is done it passeth by the Deed. Again here needs no relation to avoid the mischeif of mean Assignments from the Bankrupt because he is restrained from the time of his first Act of Bankruptcy And on the other side the mischeif would be very great if there should be a relation from the Enrolment in regard the Statute limits no time for the doing of it so that it may be seaven years after and if this should relate to punish Mesne Trespasses the inconvenience would be very great for such Trespassers are until the Enrolment exposed to the Actions of the Bankrupt As to the Case of the Recognizance the Caption is a judicial Act and the principal and so binds from the time And in the case of granting to the King by Deed enrolled the reason is because the King shall not receive any prejudice by the Laches of his Officer in neglecting to Enrol the Deed. But generally in Cases at Common Law there is no relation as in Case of Feoffment and Livery but stronger in Case of a Grant of Reversion where the Attornment is but the assent of the Tenant yet it shall not relate to the Grant It would be hard if a Relation should be admitted to make a Man liable to Trespass It has been much doubted whether a Bargainee before an actual Entry can maintain an Action of Trespass Curia The Case of Bellingham and Alsop altho' it was said to be reversed and the authority is stirred in Iseham and Morrices Case 3 Cro. Yet it has been since taken for good Law in the main point where Executors sell by an authority given by Will the Vendee is in the per from the Devisor but here in Post the and by the Statute It were very inconvenient to admit of Relation because no time prefixed for the Enrolment Sed Adjornatur Afterwards Judgment was given for the Defendant Anonymus UPon a Writ of Error out of an inferiour Court in an Action upon the Case upon an Agreement to Assign over a Term which the Defendant had in him for four years Vpon Non Assumpsit a Special Verdict was found that the Agreement was made but not put into Writing and they found the Clause in the Act of 29 Car. 2. of Frauds and Perjuries viz. No Action to be brought upon any Contract or Sale of Lands c. or any Interest in or concerning them c. Vpon which Special Verdict found it was adjudged for the Plaintiff and now Error was assigned in the Matin Law that this Contract was within the Act to be put in Writing But it was objected that the Statute extended only to Interests created de novo out of an Estate and not to an Assignment Curia contra And held the Case to be plain within the words of the Act and so the Judgment was reversed Anonymus IN Error to Reverse a Judgment given in an inferiour Court First Because 't is said Cur ' tent ' apud Guildhalld ' Burgi c. and not said that the Guildhal was within the Jurisdiction of the Court Sed non allocatur for that shall be intended Secondly The Damages given by the Jury were 3 l 19 s and Costs 6 d and so much for Costs de incremento adjud ' and nothing said of the 6 d Sed non allocatur because damna per Jurator ' assess ' includes all and the other is but miscomputation and the Costs awarded de incremento necessarily implies the 6 d Costs before included Vid. Ante Paschae 31 Car. 2. Anonymus IN an Action upon the Case the Plaintiff declared That the Defendant did take out a Latitat 21 Januarij 32 Regni ac etiam Billae c. whereas he owed him nothing Vpon Not guilty pleaded a Special Verdict was found that the Latitat was Teste 28 Novembris 32 Car. Regis but was really taken out 21 Januarij 32 Regis Et si pro Quaere c. Holt argued upon this that by Law it must be said to be taken out the 28 of November when the Teste is Yelv. 130. Debt upon a Bond bearing date the 30 of December The Defendant demands Oyer of the Condition which was to perform Covenants and says tho' it were dated the 30 of December yet it was deliberat ' primo die Feb ' and no breach since If the Plaintiff replies and agrees with the Defendant 't is a Departure because he had declared of a precedent Date which implies the Delivery But it is objected That the Jury are not estopped to find the Truth I answer Where the Parties impleading have agreed a Point certain the Jury is estopped to find the contrary Pemberton Chief Justice we know the course of the Court is to Teste Latitats taken out in Vacation of the Term preceding and the course of a Court is the Law of the Court He might have declared That the Defendant Sued out a Latitat the 21 of January Teste the 28 of November preceding and if he be not estopped to declare fo surely the Jury may find the whole matter And so Judgment was
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
for if a Man Covenants to stand seized to a Contingent Use and afterwards is attainted of Treason before the Contingency happen the Contingency shall never rise for the King has the Estate discharged and the Use is to rise out of the Estate of the Covenantor so is Moor Sir Tho Palmers Case 815 In Moors Rep. of my Lord Pagets Case 194. It s said that W. Paget had an Amoveas manus for the Estate of the Queen leased by the Death of my Lord Paget In Sir Francis Englefeilds Case Popham 18. n. 7. It s resolved that no Use rises because t is that it shall Discend Remain or Come which is uncertain but if he had Covenanted that after his Death he and his Heirs would have stood seized to the Use of John an Use would have resulted to Sir Francis Second Point I conceive if it be impossible for Ralph to take by Discent this would be a Contingent Use in him by Purchase The great Objection against this is that the Limitation is to an Heir and an Heir which ought to take by Purchase ought not to be only Heir of the Body c. but Heir general Of this I am not well satisfied I conceive the Remainder being limited to the Heirs of the Body of Jane begotten by Michael such a Limitation will make a special Heir to serve the turn and t is not to be resembled to Shelley's Case My Reasons are First Because at the Common Law before the Statute de Donis notice was taken that this was a special Heir and therefore 't is no wrong done to make him here a qualified Heir In the Statute de Donis 't is said When Lands are given to Man and his Wife and the Heirs of their two Bodies begotten Secondly Vpon the special penning of the Deed it is apparent that Michael took notice that he had an Heir at Common Law therefore it can't be intended that he meant here such an Heir that should be Heir general to him this would be Contradictio in Adjecto Litt. Sect. 352. puts this Case If a Feoffment be made upon Condition that the Feoffee shall give the Land to the Feoffor and his Wife and the Heirs of their two Bodies begotten In this Case if the Husband dye living his Wife before the Estate Tail is granted to them the Feoffee ought to make the Estate as near the Condition and as near the intent of the Condition as may be viz. To let the Land to the Wife for her Life without impeachment of Wast the Remainder to the Heirs of the Body of the Husband on her begotten If the Husband and Wife dye before the Gift made then the Feoffee ought to make it to the Issue and to the Heirs of the Body of his Father and Mother begotten Suppose that this had been to a second Wife and there had been Issue by a former the Book of 12 H. 4. 3. says that there it shall be in another manner but Litt. says it shall be as near vid. Litt. Sect. 22. Morevils Case Fitzh Tail 23. 2 Ed. 3. 1. 4. Ed. 3. 50. by all these Cases it appears that no regard is had whether the Son be Heir of the Husband if he be Heir of their two Bodies Therefore it seems that by this Limitation Ralph shall take by way of Contingent Remainder For Heirs of the Body of the second Wife is a good name of Purchase I have not read any Case against this Hill 16. or 26 Eliz. there was this Case A Man taking notice in his Will that his Brother who was dead had a Son and that he himself had three Daughters who were his right and immediate Heirs he gave them 2000 l and gave his Land to the Son of his Brother by the name of his Heir Male. Provided If his Daughters troubled his Heir then the Devise of the 2000 l to them should be void And it was resolved that the Devisor taking notice that others were his Heirs the Limitation to his Brothers Son by the name of Heir Male was a good name of Purchase and this agrees with Cownden and Clarks Case in Hob. Wild Justice said he was of the same Opinion with Hale in this last Point And Iudgment was given for the Defendant Three Learned ARGUMENTS One in the Court of Kings-Bench BY Sir FRANCIS NORTH Attorny General And Two in the Court of Exchequer BY Sir MATTHEW HALE Chief Baron there The Argument of Sir Francis North. In Banco Regis Potter and Sir Henry North. IN a Replevin for taking of an Horse in a certain place called the Fenn at Milden-Hall in the County of Suffolk the Defendant makes Cognizance as Bayliff to Sir Henry North and saith That the place Where c. containeth Ten thousand Acres of Pasture in Milden-Hall whereof a certain place called Delfe is parcel and that it is Sir Henry North's Freehold and the Horse was Damage feasant there c. The Plaintiff Replies Confessing the Soyl to be the Freehold of Sir Henry Norths but says That time whereof c. the place Where hath been parcel of the Fenn and parcel of the Mannor of Milden-Hall of which Sir Henry North is seised in Fee and that the Plaintiff was at the time c. seised of an Ancient Messuage one of the Freeholds holden of the Mannor by Rents and Services and parcel of the said Mannor and that Time out of Mind there were divers ancient Freehold Messuages holden of the said Mannor by Rents and Services and divers Copyhold Messuages parcel of the said Mannor by Custom of the said Mannor demised and demisable by Copy of Court Rolls of the said Mannor And the several Tenants of the said Freehold Tenements being seised in their Demesn as of Fee and they whose Estate they have in the same Time out of mind have had together with the Customary Tenants of the said Customary Tenements the sole and several Feeding of 100 Acres of Pasture for all Beasts except Hogs Sheep and Northern Steers levant and couchant upon their several Freeholds every year at all times of the year as to their several Freeholds belonging And that within the said Mannor there is and Temps d'ont c. hath been such a Custom that the several Tenants of the Customary Messuages together with the Freeholders aforesaid have used and accustomed to have the sole and several Feeding of the said 100 Acres of Pasture for all their Beasts except Sheep Hogs and Northern Steers levant and couchant upon their several Copy-holds every year at all times in the year tanquam ad seperal ' Tenementa customar ' spectant ' pertinent ' and the Plaintiff being seised put in his Horse c. and so Iustifies Vpon this the Defendant demurs generally This Prescription is naught in substance and Judgment ought to be given for the Defendant upon these Four Exceptions First That several Freeholders cannot joyn or be joyned in a Prescription to claim an entire Interest in another mans Soyl as
annexed to their several Estates Secondly The Interest of sola seperalis Pastura is an entire Interest and cannot be claimed both by Prescription and Custom Thirdly That the Owner of the Soyl cannot be wholly excluded out of the Soyl at all times as this Prescription and Custom import Fourthly This is a new Invention in Pleading framed to overthrow a Maxim in Law and is of mischievous Consequence Tho' but one man pleads yet 't is a Joynt Prescription that he Iustifies by and he involves all their Estates in his Prescription and prescribes for the whole thing belonging to all their Estates so that 't is the same thing in substance as if they had joyned in Pleading If he had pleaded That he together with all the Freeholders and Copyholders c. he had prescribed alone and only for himself but that would have been naught because the sole Pasture cannot by any Title or Prescription be annexed to their several Estates as shall be shewn afterwards First I shall consider the Nature of the thing Secondly The Rules of Prescription Thirdly Examine the Case by those Rules First I admit that there is a sole and several Pasture and that it lies in Prescription Cases are frequent where one man hath the first Crop and the Soyl and another man hath the Pasturage or sole Feeding till the Sowing again c. I conceive it to be in its Nature a certain and determinate Interest or Profit I mean in distinction to an incertain Profit a prender To have Common or Pasturage for Beasts levant and couchant upon such Land or to have Estovers to be spent in such an House without any determinate quantity or number I call incertain for it is to be measured only by Vse and Occasions But to have Pasture or Common for 100 Sheep or Estovers of a certain quantity as ten Load of Wood is certain every year and differs very much in its Nature from an incertain profit a prender As for Example The Levancy and Couchancy is not traversable nor the employment of Estovers certain because that no Surcharge can be to the Owner Yelv. 188 189. It may be granted from the Land a que 2 Cro. 15. Drury and Kent for the same Reason in case of sole Pasturage the party that claims it having a general Interest and the Owner being wholly excluded it is not material with what Cattel it be taken tho' they prescribe with an Exception of some for if there be an Overplus the Owner cannot have it Now as there may be such an Interest so I admit that several persons may have it but it must be as Joyntenants or Tenants in Common where they have several Rights by Moieties and Purparties But several men cannot claim the Entiertie of this profit by Prescription as I shall after shew If such a Profit a prender as this be annexed to Land 't is appurtenant by Prescription or Grant and if part of the Land a que c. is aliened the Entiertie cannot belong to both their Estates but there shall be an apportionment scilt the Alienee shall have the same proportion for the sole Pasturage that he has of the Land a que c. in the same manner as it would be in a Case of Common appurtenant certain for which there will be an apportionment in such cases as was Adjudged 7 Jac. inter Moreton Woods 1 Rolls 235. Having said this concerning the Nature of the Interest demanded I will now speak concerning the Nature and Rules of Prescription A Prescription that is to claim a real Interest of Profit in solo alieno is a Title and as a Title must be strictly and curiously pleaded and is not like Prescriptions that are by way of Discharge and for Easments or for Matters of personal Exemption or Priviledge A man may lay a Prescription in a great many where it tends but to claim an Easment or Discharge and not Matter of Interest and Profit 15 E. 4. 29. 18 E. 4. 3. to say That all the Inhabitants have had such an Easment c. or to have been Discharged c. will be well And for Matters of Priviledges a Prescription may be in General for it is but a Matter of Exemption and Personal and is called a Prescription in distinction to a Custom because Custom is meerly local and this is to persons yet having respect to such a place as All the Citizens c as in Day and Savage's Case in Hob. Rep. Or having respect to such a Condition as All Serjeants at Law or All Attorneys of such a Court such Prescription must be in generalty to express the extent and nature of the Priviledge and so always have been allowed But a Prescription to claim a Profit or an Interest in alieno solo is a Title and as in setting forth Titles the Law is curious in pleading and lays down strict Rules which must be observed so in pleading such Prescriptions the Rules taught in our Books and the Course of Pleading hitherto used must be followed One Rule of such Prescriptions is That the Thing prescribed for by a que Estate not in gross but appendant or appurtenant must agree in the Nature and Quality of the thing to which it is annexed or appurtenant Corporeal things cannot be appurtenant to Corporeal because they are distinct and can have no relation one to another Estovers of Wood cannot be appurtenant to Land because they cannot be used for it 1 Inst 121. b. 122. a. If a man would plead That he and all those whose Estate c. in Black-Acre c. Time out of mind have had Ten Load every year to be taken c. tanquam spectant ' c. upon Demurrer this would be naught because it does not agree with the Rules of Law And Usage may be objected in that case but Usage alone makes but a Title in gross which will serve when it has Time out of mind continued in the same Hereditary line Usage cannot annex a Thing that cannot in nature be used with the Thing to which it should be annexed One other Rule of Prescription for Matters of Interest is That nothing can be prescribed for that cannot at this day be raised by Grant For the Law allows Prescriptions but in supply of the loss of a Grant Ancient Grants happen to be lost many times and it would be hard that no Title could be made to things that lye in Grant but by shewing of a Grant Therefore upon Usage temps d'ont c. the Law presumes a Grant and a Lawful beginning and allows such Usage for a good Title but still it is but in supply of the loss of a Grant And therefore for such things as can have no Lawful beginning nor be Created at this day by any manner of Grant or Reservation or Deed that can be supposed no Prescription is good 11 H. 7. 13 14. 13 H. 7. 16. per Keble 21 H. 7. 40. Prescription for a Lord to have so
looks upon as the Medium that derives the one Discent from the other then the Attainder of the Father would hinder the Discent between the Brothers But the Attainder of the Father doth not hinder the Discent between the Brothers Therefore the Father is not such a Medium or Nexus as is look'd upon by Law as the means deriving such Discent between the two Brothers Both the former Propositions and indeed the Illustration and Enforcement of the whole reason will be evidenced by the comparison of three Cases the two former of the Cases evincing the truth of the first Proposition and the later proving the second Proposition The First is Gravers's Case 10 Eliz. Dyer 274. The younger Brother hath Issue and is attaint of Treason and dies the elder Brother having a Title to a Petition of Right dies without Issue without a Restitution the other Brothers Son hath lost that Title for though that Title were in an Ancestor that was not attainted yet his Father that is the Medium whereby he must convey that Title was Attainted and so the Discent is obstructed On the other side the Case of Courtney in Cro. Car. 241. Henry Courtney had Issue Edward and is attaint of Treason and dies Edward purchaseth Lands and dies without Issue the Sisters and Sisters Children of Henry are disabled to inherit Edward yet neither Edward nor his Aunts were attainted nor their Blood corrupted as is before manifested but only Henry tho' the Land could not discend immediately from Edward yet because he who nevertheless was the Medium whereby the Aunts must derive their Pedigree and Consanguinity to Edward was attainted the Discent was obstructed till a restitution in Blood But suppose that the Grandfather of Edward was attainted and not Henry this could not have hindred the Discent from Edward to his Aunts because the Attainder had been paramount that Consanguinity which was between Henry and his Sisters as Brothers and Sisters and that is proved by the third Case In 40 41 Eliz. in the Exchequer Hobbies Case William Hobby had Issue Philip and Mary and is attainted of Treason and dies Philip purchaseth Lands and dies without Issue Ruled that notwithstanding the Attainder Mary shall inherit because the Discent between Philip and Mary was immediate and the Law regards not the disability of the Father and in that Case all the Reasons that have been objected against the Discent in the Case at Bar were objected If it be objected that in that Case the Mother was not attainted which might preserve the Legal Blood between Philip and Mary I Answer That that would not serve admitting the disability of the Parents were not at all considerable for if it disable the Blood of the Father which is derived to the Son it would infallibly destroy the Discent to Mary the Sister for she could not inherit her Brother in the capacity of Heir to the part of the Mother if by the Attainder she had been disabled to take as Heir by the Fathers Blood 49 E. 3. 12. If the Heir on the part of the Father be attainted the Land shall escheat and shall never discend to the Heir of the Mother because notwithstanding the Attainder the Law looks upon it as in esse but otherwise it is in case of an Alien as hath been before shewn for if the Son purchase Land and have no Kindred on the part of his Father but an Alien it shall discend to the Heir of the part of the Mother And altho' the Blood both of the Father and the Mother were in Mary yet if she were disabled in the Blood of her Father by his Attainder she could never intitle her self by the Blood of her Mother I have done with this Reason there remain two Principal Objections to be answered Object 1. The Father in the Case at Bar is the Fountain from whence the Blood of John and George is derived and their Consanguinity ariseth not from one to another but from their Father which is the common vinculum to them both and therefore this disability in the Parents destroys the Civil Relation of Hereditary Blood between the two Brothers I Answer First The very same Objection might be and indeed was made in Hobbies Case but prevailed not Secondly But further no man will say but that the Blood of the Father and Mother are necessary to derive Consanguinity in the Son for the Blood of the Father without the Mother is impossible to be derived to the Children and yet no man will deny that if the one or the other were Denizen born their Children should inherit one the other Thirdly But the truth is the Father and the Mother are the Blood Natural to both the Sons but it is the Law into which by their Birth or Naturalization they are translated that is the Fountain of the Civil or Hereditary Blood the Parents are the common Vinculum the Fonntain of their Blood that aliquod tertium in quo conveniunt in regno naturali but it is the Law of the Land into which by their birth or naturalization they are transplanted the Commune Vinculum that aliquod tertium in quo conveniunt in Regno Civili Object 2. But all their blood that they have is derived from their Parents and they can take no other blood but what they have from them and if that blood which the Parents transmit be stained and void of Hereditary Quality no hereditary blood can intervene between them I Answer It is true that their natural blood is derived from their Parents and as it is that that makes them Brothers Sons so it is that that makes them their blood but yet the civil qualification of their blood which makes them inheritable one to the other is from another Fountain viz. the Law of the Land and this Law finding them Legitimate untrinque conjunctos sanguine parentali naturali and so natural Brothers and finding them transplanted into the civil rights of this Kingdom by their birth here or Naturalization which is all one doth superinduce and close the natural Consanguinity with a civil hereditary Quality whereby they may inherit one the other For Instance A. Grandfather and B. his Wife both Aliens have Issue C. a Son born here who hath Issue D. a Son also born here No body can deny that C. hath all his natural blood from A. and B. and no where else nor is that blood that he hath so from them an inheritable blood yet is it unquestionable that D. shall inherit C. and D. hath no natural blood but what he hath from C. nor C. no natural blood but what he hath from A. and B. But true it is the Law doth superinduce that civil hereditary Quality upon the blood of C. by his birth in England tho' as he took it from his Father and Mother it was void of that Quality the Law of Nature made him indeed Son but it was the Law of England that gave him a capacity to be an
So of Perjury and Nusance 370 Indictment before Justices of Peace for a Non feasance ought not to conclude contra pacem 108 111 For suffering an Escape 169 Quasht for Incertainty 305 306 No Copy of the Indictment allowed in capital Crimes yet the Mirror calls it abusion 354 For Perjury extrajudicial 370 Infant See Executor A Condition and Deed obliges Infants as much as others 200 205 Intent and Intendment See Uses Verdict Ioyntenant Two Joyntenants one Grants bargains and sells all his Estate and Interest the to other this amounts to a Release and must be so pleaded 78 A Devise to two equally to be divided between them and to the Survivors of them makes a Joyntenancy upon the import of the last Words 216 227 Issue A Lease is made to commence after the Death of J. S. without Issue J. S. hath Issue and dyes and then the Issue dyes without Issue the Lease commences For Issue being nomen collectivum when ever the Issue fails the Term commences 229 Iudgment Obtained by Forgery vacated 78 So if procured by Fraud and deceipt 49 Arrested where there appears no Cause of Action 310 Warrant to confess a Judgment the Party dyes before it be confest this is a Countermand 310 Irisdictition See Sewers Judgment in an Inferiour Court reverst for want of Jurisdiction 28 Every Subject has the Liberty of removing his Suit into a Superiour Court 46 If there be several Contracts at several times for several Sums each under 40 s and altogether amount to a Sum sufficient to entitle the Superiour Court they shall be there put in Suit and not in a Court that is not of Record 65 73 In Assumpsit brought in an Inferior Court the performance of the Promise must be as well within the Jurisdiction as the Promise it self 72 Inferiour Courts ought not to award a Capias but upon Summons first returned and tho' a fault in the Process is aided by appearance yet an Action of false Imprisonment lies 220 249 Where infra Jurisdictionem is necessary to be set forth and alledged 240 243 The Liberty of the Subject is infringed by bringing him within a private Jurisdiction when the matter arises out of it 333 Action on the Case for the same 369 Iury. Where a Juror may be withdrawn 28 In case of Life and Member if the Jury cannot agree before the Judges of Assizes depart they are to be carried after them in Carts 97 Twelve necessary on a Writ of Enquiry as well as in a Venire 113 Where the Iury's eating or drinking at the charge of either Party shall avoid their Verdict and what other Actions shall be sufficient Cause to avoid it 125 Whether the Statutes requiring Jurymen to have so much Freehold extend to Corporate Towns 366 K. King THE King in bringing an Action may choose his County or wave that which he had chosen before as he may wave his Demurrer and joyn Issue 17 King and Council may disfranchise any Member of a Corporation The Walls of N. were ordered to be pulled down by King and Council à fortiori an Alderman there may be displaced upon just Cause 20 The King may stay the Proceedings and the Attorney General Enter a noli prosequi after the Jury are returned 33 Lords Spiritual and Temporal and Commons the three Estates and the King Head of all 325 Knight See Abatement L. Lancaster OF the Dutchy Court of Lancaster and its Jurisdiction 155 infra Latitat A Man may take out a Latitat before the Money is due yet the Party must not be Arrested upon it before 28 Lease See Recovery No reason to favour Long Leases By the antient Law a Lease for about 40 years was void and they are never without suspicion of Fraud 58 A Lease made to begin from the End of a Lease misrecited shall commence presently 83 A Lease without any Date specified or an impossible Date as from the 40th of September shall commence presently 137 What Act determins a Lease at Will 247 Leet The Kings Court granted to Lords of Mannours as derived out of the Town 26 Presentments may be there for the King and the Lord of the Mannor ibid. Fines in Leets where they may bedistrained for and where not 105 Presentment at a Leet quasht where the Court appears to be held above a Month after Michaelmas 107 Difference between the Stewardship of a Leet and a Court Baron 153 Libel The having a Libel in ones Lodging and not delivering it to a Magistrate was only punishable in the Star-Chamber unless the Party Maliciously published it 31 Liberties Of Returna Brevium 405. Their Vexation and Inconveniency 412 Liberties belonging to Monasteries came to the King on their Dissolution and that without the Aid of the Statute 32 H. 8. chap. 20 407 Limitations Whether the Statute of Limitations extends to bar a Promise between Merchants relating to Trade 90 Livery Livery within view where good and where not 186 London By the Custom of London a Debtor may be Arrested before the Mony is due to make him find Sureties 29 What Debts shall be Attachable by Foreign Attachments according to the Custom of London 112 113 Custom to commit Offenders for obstinately and contemptuously refusing to obey the Order of the Court of Aldermen Good 115 Whether they may Imprison a Stranger for Marrying their Orphan without License 178 Their By-Law to restrain the number of Carts Good 21 196 Of their Duty of Scavage 298 Custom to Disfranchise and commit a Freeman for speaking opprobrious Words of an Alderman Not good 327 Of their Duty of Water Baylage 351 M. Mandamus TO restore an Alderman 19 Lies not to restore a Town Clark where the Corporation have power to Grant the Office Durante beneplacito 77 82. So of a Recorder 342 Lies to admit a Deputy into an Office where the Office may be executed by Deputy 111 To swear a Churchwarden 115 267 To restore a Sexton 143 153 Lies for an Office but not for a Service ibid. Lies to an Inferiour Court to cause them to give Judgment according to a Statute 188 To restore a Common Council Man in a Corporation 302 To restore an Attorney in an Inferiour Court 331 To the Ecclesiastical Court to prove a Will 335 Misnomer When and how amendable 13 Name mistaken in the Issue if right before in the Record amendable 25 Monasteries See Liberties Pensions out of Monastery Lands where to be sued for 120 N. Naturalization OF Naturalization and Denization their General Effects and Operation 418 419 Notice Whether necessary upon a Counter bond to save harmless 36 37 Upon an Award 93 In what Cases necessary and where not 200 201 Nusance See Action Whether the erecting of a Glass-house be a Nusance 26 A Rope-Dancers Booth in the Street a Nusance and a Writ to the Sheriff awarded to prostrate the Bulding 169 O. Oath OF the Marshal of the King's Bench 65 No exception to the Oath of Allegiance that the words of
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no
Place assigned from whence the Venue should have come 348 350 No likelyhood of an Indifferent Tryal cause to change the Venue 365 Verdict See Assumpsit What Errors and Omissions are ayded after Verdict 34 100 108 109 114 126 Where a Special Verdict refers one Special Point to the Judgment of the Court all other matters shall be intended 118 After Verdict the Court shall admit any Intendment to make the Case good 123 Want of an averment of Levancy and Couchancy aided by a Verdict 165 Vse See Trust What Words and Considerations shall raise a Use 138 140 141 The use of a Fine or Recovery may be declared by a subsequent Deed 368 In Cases of Uses the Intention of the Parties ought to be pursued 373 374 378 Vsury The Statute against Usury expounded strictly in regard of Broakers 38 No Action of Debt lies for the Interest of Mony but it is to be recovered by Assumpsit in Damages 198 W. Wager of Law WHere admitted and where not 261 Indictment of Perjury will not lie upon an Oath in waging Law 296 Way High way and Private-way the Diversity and who shall repair 189 256 Whether an Indictment lies for stopping a Common Foot-way to a Church 208 Action on the Case for obstructing his way to his Wood 274 Wills A man cannot release a Debt by Will 39 Wills concerning the Guardianship of a Child and not to be proved in the Ecclesiastical Court but they may there prove a Will of Lands 207 Where Suits for Legacies given by Wills ought to be 233 The Effect of a Republication and Paroll Declaration 341 342 Witness See Evidence Statutes A Council Attorney or Sollicitor ought not to be examined against his Clyent because obliged to keep his Secrets 197 A Pardon of Felony though after burning in the Hand restores a man to be a Witness not so of Perjury 349 Whether a Freeman of a City may be a VVitness for that City 351 Writs A Fault in a Mean Process is aided by Appearance but if an Original should bear date on a Sunday the Appearance of the Party would not help it 7 Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE SECOND PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q. MARY while he was a JUDGE in the said COURT With the Special PLEADINGS to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in Fleetstreet MDCXCVI MVNIFICENTIA REGIA 1715 GEORGIVS D. G. MAG BR FR. ET HIB REX F. D. I. P. Sc. THE NAMES OF THE CASES IN THE SECOND PART A ADAMS v. Cross 181 Alleson v. Marsh ibid. Anonymus's 35 39 45 46 47 48 58 73 117 154 171 172 173 174 180 194 195 196 214 215 216 218 262 346 347 349 351 353 358 359 361 362 363 365 B BAiles v. Wenman 74 Barney v. Tyson 359 Bathurst 's Case 40 Baynton v. Bobbet 67 Bealy v. Sampson 90 93 Beaumont v. Weldon 155 Beversham 's Sir William Case 345 Biddulph v. Dashwood 261 Bird v. Blosse 361 Blake v. Clattie 73 Bland v. Haselrig al' 151 Blisse v. Frost 63 67 Blois Charles al' v. Dame Jane Blois and Jane Blois Infants 347 Bockenham v. Thacker 69 71 74 Bond v. Moyle 106 Bonham v. Newcomb 364 Bowyer v. Milner 57 Bracton v. Lister 84 Bright v. Addy 195 Broadhurst v. Richardson al' 349 Brown v. Rands 156 Buckler v. Millerd 107 Burchet v. Durdant 311 Bush v. Buckingham 80 83 Butler 's Sir Oliver Case 344 C CAge v. Russel 352 Carr v. Donne 189 193 Chamberlain v. Cooke 75 78 Chapman v. Flexman 286 291 Chase v. Sir James Etheridge 130 Clarke v. Peppin 97 99 Clarke v. Tucket 182 Clobberie 's Case 342 Coghill v. Freelove 209 Collet v. Collet 355 Colley v. Helyar 135 Cornwallis 's the Lord Case 38 Cooke v. Romney 173 Cramlington v. Evans and Percival 296 307 Craw v. Ramsey 1 D DAwney v. Vesey 249 Dawson v. The Sheriffs of London 84 89 Dennis v. Mazey 210 212 Dickman v. Allen 136 138 Dighton Christopher v. Bernard Greenvil 321 Dod v. Dawson 143 Dodwell the Case of and The University of Oxford 33 Dowse v. Cale 117 126 Draper Sir Thomas v. Dr. Crowther 362 E ELlis v. Yates 153 Every v. Carter 254 259 F FAgg v. Roberts al' 195 Fleet 's The Warden of the Case 154 Fowkes v. Joyce 50 G GAwden v. Draper 217 George v. Butcher 140 Godfrey v. Ward 185 Gower 's Sir Thomas Case 90 Goylmer v. Paddiston 353 Grove v. Dr. Elliot Chancellor of Sarum 41 Guldeford Major probi homines de v. Clarke 243 247 H HAnson Judith v. Liversedge 239 242 Harding 's Patrick Case 315 Harris v. Parker 249 253 270 Harrison Tho. Ux ' v. Dr. Barwell 9 Haslewood v. Mansfield 196 Haymer Vid. v. Haymer 343 Highway v. Derby 174 Hocket Ux ' v. Stegold ux ' 29 Hodges v. Waddington 360 Holland v. Lancaster 131 134 Hollis 's my Lord Case 345 Humphreys v. Bethily 198 222 K KEmp v. Cory al' 224 227 283 Killigrew v. Sawyer 79 King of Grays-Inn v. Sir Edw. Lake 28 L LAde v. Baker and Marsh 145 149 Lade v. Barker 260 266 Lawson v. Haddock 234 237 Lechmere al' v. Toplady al' 156 169 Leigh v. Ward 72 Lexington the Lord v. Clarke and his Wife 223 Littleton 's Sir Thomas Case 351 Lundy 's Colonel Case 314 M. MArks v. Nottingham 196 Marsh v. Lee 337 Mason v. Watkins 109 Massingham v. Durrant 49 Morgan v. Hunt 213 Morley v. Polhill al' 51 56 Mountague the Earl of v. The Lord Preston 170 N NEwport v. Godfrey 184 Noell v. Robinson 358 Norwood v. Woodly 193 O ONslowe 's Case 37 Otwaie 's Sir John Case 31 Oxford 's the City of Case 106 P PAge v. Kirke 36 Pawlet 's the Lord Case 366 Perrot 's Herbert Case 30 Pheasant Peter v. Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. 340 Pinager v. Gale 100 Pretious v. Robinson 173 Prynne v. Sloughter 101 104 Pyne v. Woolland 176 179 R RAgget William Vx ' v. William Clarke 364 Rashly v. Williams 59 61 Reeve 's Sir Robert Case 363
the Avowant mode forma as he hath set forth 211 The Avowant demurs generally The Plaintiff joyns 212 4. The Plaintiffs declare against three Defendants for taking and detaining their Cattel 224 One of the Defendants avows the other two make Conizance as his Bayliffs The Avowant says That the Father being seized in Fee of the third part of a certain Messuage c. of which the Locus in quo was parcel demised the same for 99 years if A. B. and C. or either of them should so long live reserving Rent That the Lessee entred That the Father being seized of the Reversion died seized and a discent to the Avowant as Heir at Law who distrained for Rent arrear 225 Super praedictam tertiam partem c. And avers That C. is still living In Bar to the Avowry the Plaintiffs Confess the seisin of the Father of one third and that J. S. was seized of the other two parts who licensed the Plaintiffs to put in their Cattel upon the Locus in quo which they did 226 The Defendants demur to the Bar. The Plaintiffs joyn in Demurrer 227 S. Scire facias 1. AGainst a Ter-tenant 101 The Judgment recited in the Writ to the Sheriffs of London The Plaintiff obtulit se at the Return The Sheriffs Return That there were no Tenants of any of the Defendants Lands at the time of the Judgment or at any time since quibus Scire fac ' possunt 101 A Testatum Scire fac ' to the Sheriff of Norfolk The Plaintiff and a Ter-tenant appear at the Return The Sheriff Returns That he had summon'd P. S. who was then Tenant of Lands which were the Defendants at the time of the Judgment and that there are no other Tenants to whom c. The Ter-tenant salvis sibi omnibus exceptionibus c. Imparls The Plaint revived continued and adjourn'd by Act of Parliament 3 Febr. 1. W. M. A further Imparlance The Plaintiff prays Execution 102 The Ter-tenant pleads in Abatement of the Writ and alledges that there are other Tenants of other Lands in Surrey belonging to the Defendant at the time of the Judgment and prays Judgment and that the Writ may be quasht The Plaintiff demurs to the Plea The Ter tenant joyns in demurrer 103 Sheriff Action against him Vid. Actions on the Case 3. Plea to his Bail Bond. Vid. Debt 5. Slander Vide Action on the Case 7. Special Verdict Vid. Trover 2. T Trespass 1. TRespass against the Defendant simûl-cum G. F. for taking Vi armis and Impounding his Cattel quousque finem fecit of 11 l c. contra pacem c. 90 The Defendant as to the Vi armis and contra pacem pleads Not guilty And as to the residue of the Trespass he pleads a Seizure by virtue of a Fieri facias out of the Common Pleas and the Sheriffs Warrant thereupon and that the Cattel were appraised at 11 l being the true Value and detain'd until the said Sum was paid to the Sheriffs Baily for the use of the said Sheriff pro deliberatione averiorum prout bene licuit which was the residue of the said Trespass absque hoc that he is guilty before or after the said taking 91 92 The Plaintiff demurs and assigns for Cause that the Traverse is ill as to Time and that the 11 l ought not to have been paid to the use of the Sheriff by the Law of the Land The Defendant joyns in Demurrer 93 2. Trespass for Assault Battery Wounding and Imprisonment 189 As to the Vi armis vulnerationem the Defendant pleads Not guilty and Issue thereupon At to the residue of the Trespass he pleads that he obtained Judgment against the Plaintiff in the Common Pleas in an Action of Indebitatus Assumpsit which Judgment was afterwards set aside and vacated but before it was vacated a Ca. sa was sued out thereupon directed to the Sheriff who made his Warrant to the Bayliff of the Liberty 190 The Bayliff takes the now Plaintiff thereupon and had him in Custody until he paid the Money quae sunt idem Resid ' Transgr ' Insult ' Imprisonat ' and Traverses that he is not guilty of any other Trespass c. The Plaintiff replies That the now Defendant then Plaintiff in the Judgment was an Attorney whose Duty is to enter Judgments fairly and honestly and that he in deceit of the Court entred the Judgment when he ought not to have done it 191 And that afterwards on the Examination and Consideration of the said Entry the said Judgment was by the said Court adjudged void ab initio 192 The now Defendant Plaintiff in the Judgment confesseth the Matter and saith that he appointed the Judgment to be duly Entred but by default of the Clerk it was entred irregularly Absque hoc that it was Entred by the said now Defendant falso fraudulenter in deceptionem Curiae ibid. The Plaintiff demurs The Defendant joyns 193 Trover 1. TRover brought by an Assignee of Commissioners of Bankrupts 63 The Declaration sets forth the Bankrupt to be possest of such and such Goods which came to the hands of the Defendant 63 That the Bankrupt exercised the Trade of a Vintner and became Indebted to several Persons That he departed from his Dwelling-House and became a Bankrupt That the Creditors Petition'd the Lord Chancellor The Commission sued out 64 The Commissioners find him a Bankrupt and make Assignment to the Plaintiff 65 A Conversion of the said Goods by the Defendant 66 The Defendant demurs to the Declaration The Plaintiff joyns in Demurrer 66 2. Against the Sheriffs of London and others for 225 l in Money numbred and divers Goods 156 The Defendants as to part of the Goods which they set forth in particular plead That the Plaintiffs formerly brought an Action of Trespass upon the Case in the Kings-Bench against the now Defendants for taking and carrying away the Goods now sued for 159 That upon Not guilty pleaded the Issue came to a Trial and the Jury found a Special Verdict 160 Which they recite at large That the Owner of the Goods became a Bankrupt That a Judgment was recovered against him for 1000 l and a Fieri facias issued out which being delivered to the Sheriffs of London they seized the Goods in Execution That after Seizure and before Sale a Prerogatie Process issued out against the Goods which is recited in haec verba 161 The Return of the said Process 163 The Goods taken by Inquisition inventoried appraised and sold and the Money delivered to the King's Debtor 164 A Commission of Bankrupts sued out The Commissioners assign to the Plaintiffs The Assignees possest And then they Conclude Si utrum super tota Materia the Defendants are guilty the Jurors know not if the Court shall adjudge them guilty they find for the Plaintiffs if not for the Defendants 165 After several Continuances the Loquela remaining sine die was revived and continued by Act of Parliament
they have been favourably Construed A Mannor in Reputation hath passed by the name of a Mannor in a Recovery Sir M. Finch's Case in Co. and in 5 Co. Dormer's Case Common Recoveries have been admitted of an Advowson All here is to be taken as one Conveyance A Deed expressing the intent may abridge the Recovery in the number of Acres 2 Co. 76. 'T is true in case of the King as that in Mo. 710. there shall be no larger Construction than the express Words import So where the Intent appears as that in Dyer 261. B. North Chief Justice Wyndham and Atkyns Scroggs absent but said by the Chief Justice to be agreed were of the same Opinion and that Common Recoveries were not to be overthrown by nice Constructions and that the Inconvenience objected against the Intent being explained by a Pocket Conveyance was the same where a man had several Lands in the same Vill that of late they have directed the Cursitors to make out Writs of Lands in Parochia They said that there was no Case express against this and that it was the stronger because found in the Verdict that he which suffered the Recovery had no Lands in the Vill and therefore must be void if not extended to the Parish Termino Paschae Anno 32 Car. II. In Communi Banco The Case of Dodwell and the University of Oxford A Prohibition was prayed to the Chancellors Court of the University of Oxford in the behalf of Dodwell who being a Townsman of Oxford was Libelled against in the said Court upon a Statute or By Law of the University made in King James's time that whoever Privilegiatus sive non privilegiatus should be taken Walking in the Streets at Nine of the Clock at Night or after having no reasonable Excuse to be allowed by the Proctor c. should forfeit 40 s c. whereof one Moiety was to go to the University and the other to the Proctor c. that should take him And that Dodwell was taken walking abroad at that Hour and being demanded a Reason thereof he refused to give any Account causa contemptus ad morum reformationem this Libel was Exhibited The Prohibition was moved for the last Term but in regard the Court observed it touched the Jurisdiction of the University on the one hand and concerned the Liberties and Rights of the Townsmen on the other hand they deferred the granting of it until they should hear Counsel on both Sides which was appointed this Term. And now sundry ancient Charters were shewn by which was granted to the University a Iurisdiction tam in Laicos quam in alios and a By-Law made above 200 years since against Night-walking with the penalty of 40 s upon the Offender and Presidents of Proceeding thereupon in the Chancellors Court and that they were as well Guardians of the Peace by Prescription as by Charter And an Act of Parliament of 13 Eliz. was shewn whereby their Jurisdictions and Priviledges and Statutes were Confirmed And altho' the Mayor hath also a Commission of the Peace yet 't is subordinate and he swears Fealty to the Chancellor Curia This Libel is grounded upon a By-Law of 7 Jac. and being subsequent to that Statute of 13 Reginae it is questionable whether warranted by it or no This By-Law and Proceeding cannot be grounded nor derive Authority from their being Guardians of the Peace by Prescription as it seems they are by 9 H 6. 44. For without Act of Parliament or express Prescription a Corporation cannot make a By Law to bind those which are not of the Body Justices of the Peace cannot ordain a Penalty for a Crime without their Jurisdiction and the Proceeding in the Chancellors Court which is according to the Civil Lawâ— cannot be warranted by the Kings Charter For no Court other than such as proceed according to Law can be unless by Prescription or Act of Parliament wherefore in regard if the University should Intitle themselves to this Jurisdiction by Prescription it were properly triable by a Jury And if upon the Act of 13 Eliz. Matter of Law might arise how for the Act might extend North Chief Justice Atkyns and Scroggs thought it was not fit they should determine those Questions upon a Motion but inclined to grant the Prohibition and propounded to the parties to agree that the Libel should be amended wherein it was grounded upon the By-Law made 7 Jacobi which being subsequent to the Act of 13 Eliz. the Merits of the Cause would not be brought before themselves to determine the Grand Points which was agreed And then the Court said that they would grant a Prohibition and let the other Plead c. For North said that they did often deny a Prohibition tho' it were a Writ ex debito Justitae where they saw no Colour for it But if any material Questions were like to arise it was proper to grant it and not to determine them upon Motion but upon pleading to the Prohibition and therein it differed from a Habeas Corpus which was to be inst aly granted because the party is in Prison but there is no such speed requisite in a Prohibition But Wyndham was against the Prohibition in the Case at Bar for he took it that the By-Law 7 Jac. was but in Confirmation of that made before and as a Renewing of it which he took to be confirmed by the Act of 13 Eliz. Nota Scroggs said that Nine of the Clock could not be held such an Hour as it should be a Crime for a Townsman to walk at no more than Three in the Afternoon Tho' for Scholars it might be reasonable to restrain them but no Reason that Townsmen should be subjected to such Rules as were proper for Scholars And upon this he much grounded his Opinion for the Prohibition Anonymus IN an Action of Trespass the Defendant pleaded That the Plaintiff was Impropriator of such a Rectory and that he was sued in the Ecclesiastical Court and by Sentence there the Profits were sequestred for the Repair of the Chancel To which the Plaintiff demurred supposing that by 31 H. 8. the Profits of Rectories Impropriate were made Lay Fee and so not subject to be sequestred by the Court Christian and therefore it was supposed that the Lay Impropriator could not sue for Tythes in the Spiritual Court. For which Cause 32 H. 3. was made to empower Lay-men to recover them and 35 H. 8. gives the Ordinary Remedy for Procurations and Synodals which was conceived had been lost by making the Rectories Lay Fee 2 Cro. 518. in Parry and Banks's Case it is Resolved that when the Rectory is in the hands of a Lay Impropriator the Ordinary cannot dissolve the Vicaridge nor in such case cannot augment the Vicaridge 2 Roll. 339. The Form of Pleading was also Objected unto As First 'T is not positively alledged that the Chancel was out of Repair but that he was Libelled against which Libel did mention only it to be
ann ' For 21 years extunc ê“x ' sequen ' plenar ' complend ' finiend ' Virtute cujus dimissionis praedictus Johan ' in TenÌ„ta praed ' cum pertinen ' Lessee enters intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' idem Johannes postea scilicet decimo die Augusti Anno Domini millesimo sexcentesimo octogesimo secundo apud Grancester praedictam dimisit ad firmam tradidit eidem Roberto Dickman Tenementa praedicta cum pertinen ' habend ' occupand ' And Demised to the Plaintiff eidem Roberto Assign ' suis a Festo Sancti Michaelis ArcÌ„hi tunc ê“x ' sequen ' usque plenum finem terminum sex annorum extunc ê“px ' sequen ' plenar ' For six years complend ' finiend ' virtute cujus dimissionis idem Robertus in crastino dicti Festi Sancti Michaelis Arch ' Anno Domini milesimo sexcentesimo octogesimo secundo supradicto in Tenementa praedicta cum pertinen ' intravit fuit inde possessionat ' The Lessee Enters usque finem expirationem ejusdem termini praedictus tamen Abrahamus praemissorum non ignarus sed machinans fraudulenter intendens ipsum Robertum minus rite praegravare ac eum de faldagio praedicto ut praefertur habend ' impedire ac de prosicuo commoditate inde totaliter deprivare diu ante finem termini praedicti ult ' mentionat ' scilicet primo die Maii Anno Regni Domini Jacobi secundi nuper Regis Angliae tertio Oves videlicet ducent ' Oves ipsius Abrahami in Communes Campos de Grancester praed ' ibidem depasturand ' The Cause of Action posuit Oves ibidem eun ' depascend ' extunc usque decimum diem Septembris tunc ê“x ' sequen ' existen ' ante finem termini praedicti ult ' mentionat ' custodivit continuavit sed Oves ill ' in aut super praedictas centum sexaginta acras terrae arrabilis ipsius Roberti vel in aut super aliquam inde parcellam minime faldavit sicut ipse debuisset nec permisit ipsum Robertum habere beneficium faldagii earun-praedicto Abrahamo duran ' eodem termino non existen ' tenen ' For not Folding his Sheep according to Custom sive occupatore aliquorum messuag ' sive terrarum in Villa de Coton praed ' de quibus tenen ' sive occupator ' inde ê“ tempore existen ' a tempore cujus contrarii memoria hominum non existit usi fuer ' intercoicÌ„are Causa vicinagii in praedictis Communibus Campis de Grancester praedict ' cum Ovibus suis praedict ' ut praefertur per quod idem Robertus ê“ficuum advantagium faldagii Ovium praedictorum super praedictas centum sexaginta acras terrae arabil ' quibus ipse gaudere debuisset ê‘ tempus illud omnino ê‘didit amisit ad dampnum ipsius Roberti quadraginta librarum inde ê“duc ' Sectam c. Per quod the Plaintiff lost the benefit of Foldage Et praedictus Abrahamus per Richardum Pyke Attorn ' suum ven ' defend ' vim injur ' quando c. Not Guilty pleaded Et dic ' qd ' ipse in nullo est culpabilis de pÌ„missis praedictis suê‘ius ei imposit ' ê“ut praedictus Robertus su ê‘ius versus eum queritur Et de hic pon ' se suê‘ Patriam Et praedictus Robertus similiter Ideo praecept ' est Vic' qd ' venire fac ' hic a die Sanct ' Trin ' in tres septimanas duodecim c. ê‘ quos c. Et qui nec c. ad recogn ' c. quia tam c. Dickman versus Allen. IN an Action upon the Case the Defendant declared That the Provost and Scholars of Kings College in Cambridge were seised in Fee in jure Collegii of a Messuage in Grancester in Cambridge and 160 Acres of Arable Land lying in the Common Fields of Grancester aforesaid and the said Provost c. and all those whose Estate they have in the Tenements aforesaid have time whereof c. for themselves their Farmers and Tenants of the said Tenements libertatem Foldagii Anglicè Foldage omnium Ovium except c. euntium depascentium infra Communes Campos Territoria de Grancester praed ' super praed ' centum sexaginta Acras Terrae ê‘cipiend ' foldand ' tanquam ad praed ' Tenement ' ê‘ertinent ' and then sets forth a Lease made by the Provost and Scholars to Sir John Witwrong of the said Messuage and 160 Acres for 20 years which said Sir John let them to the Plaintiff for six years by virtue whereof the Plaintiff entred and was possessed and the said Defendant Praemissorum non ignarus did put 200 Sheep into the Common Fields of Grancester aforesaid and there kept and depastured them for a certain time sed Oves illas in aut super praed ' centum sexaginta Acras Terrae Arab ' ipsius Quer ' vel in aut super aliquam inde parcell ' minime foldavit sicut ipse debuisset nec permisit ipsum Querentem habere beneficium faldagii earundem and shews how the Defendant was not within exception by which the Plaintiff lost the profit of the Foldage c. and laid it to his damage of 40 l The Defendant pleaded not guilty and a Verdict was for the Plaintiff And it was moved in Arrest of Iudgment that the Plaintiff had not in his Declaration set forth a sufficient Cause of Action for he saith that the Defendant had not folded his Sheep upon the 160 Acres as he ought and it is not set forth that the Custom was for the Owner of the Sheep to bring his Sheep to fold them upon the said Lands But it was objected on the Plaintiffs part that the word Foldagium did imply as much and it was the usage in Norfolk and Suffolk for the Owner of the Sheep to put his Sheep into the Lords Land and fold them there for which the Lord provided Hurdles and prepared the Fold to receive them and of this Faldagium a Fine was levied of inter al' as is reported in 1 Ed. 3. fo 2. and the usage in Norfolk and Suffolk is there mentioned And it was said in a Possessory Action 't is enough to say sicut debuit without setting forth any particular Custom or Prescription And Dent and Olivers Case was cited 2 Cro. 122. where an Action was brought for disturbing of him in taking of Toll ad Feriam ipsius le Plaintiff spectan ' and it was moved after Verdict that he made no Title by Prescription or Custom to the Toll and it was held by the Court to be sufficient in a possessory Action to say ad Feriam suam spectant ' So also in an Action for stopping of a way belonging to his House without setting forth any Prescription between St. John and Moody a
Ground tanquam ad Mesuag ' praed ' spectant ' pertinent ' de jure habere debet and that the Defendant stopped it up ad damnum c. The Defendant pleaded a frivolous Plea to which there was a Demurrer It was Objected on the Defendant's part that the Declaration was insufficient because the Plaintiff did not prescribe for the Way nor otherwise entitle himself to it than by a possession of the Messuage and that he had and ought to have a Way to the said Messuage belonging And a difference was taken between this and Dent and Oliver's Case 2 Cro. 43. where one alledged himself to be seised in Fee of a Mannor and had a Fair there and that the Defendant disturbed him to take Toll And in 2 Cro. Stackman and West there is a Prescription laid in the Dean and Chapter who had the Fee for the Way But it was Objected That a Corporation could not prescribe in a Que Estate but it was held well being but inducement to the Action And the Court here held the Declaration sufficient being but a possessory Action And a Case was said to be so Adjudged in this Court between the same parties Anno primo Jacobi secundi Vide the Case of Saint John and Moody upon the like Point Woodward al' versus Fox IN an Indebitat ' Assumpsit for 200 l for so much Money received by the Defendant for the use of the Plaintiffs The Defendant pleaded Non assumpsit and upon that a Special Verdict was found That in the Year 1681. before the Promise supposed c. John Hammond was and yet is Archdeacon of Huntington within the Diocess of Lincoln and that the Bishop of Lincoln is Patron of the Archdeaconry and that the Office of Register of the Court of Archdeaconry was time out of mind grantable by the Archdeacon for the Term of three Lives and that the said John Hammond in the said Year 1681. for 100 l sold and granted to Simon Michael and John Juce for their Lives the said Office of Register it being an Office concerning the administration of Justice and that by Colour thereof they enjoyed the Office till Juce died which was in 1687. and soon after in the same year the said Simon Michael died in the possession of the said Office and that Hammond was no ways Convicted of selling the said Office upon any prosecution at Law or otherwise And they further said That Thomas Bishop of Lincoln in the said Year 1687. after the Death of Juce and some time before the Death of Michael granted the said Office of Register to the Defendant Fox and set forth the Grant in haec verba which mentioned the said Registers Office to be void by the Statute of the 5 6 Ed. 6. against Sale of Offices and that thereupon it belonged to the said Bishop to grant the said Office by virtue of which the said Fox became seised of the said Office prout lex postulat And they find afterwards that in the same Year that Juce and Michael died Hammond being Archdeacon as aforesaid granted the said Office to the Plaintiffs Woodward Masters and Gilbert for their Lives and that they entred upon the said Office and became seised thereof ê“ut lex postulat And they find that the Bishops Grant was Afterwards Confirmed by the Dean and Chapter and they find that afterwards viz. the 22 of Octob. Anno regni Willielmi Mariae primo the said King and Queen their Letters Patents under the Great Seal reciting that the said Office appertained to Their Majesties to grant by the said Statute of Edward the 6th did grant the said Office of Register to the said Plaintiffs Woodward Masters and Gilbert for their Lives and that by virtue thereof they entred upon and exercised the said Office and received divers Fees and Profits thereunto belonging and that the Defendant having notice thereof did take divers Fees and Profits of the said Office amounting to 30 l claiming them to his own use c. and if upon the whole Matter c. Vpon this Special Verdict there were these Points moved The first Point was Whether this Office of Register could be granted for Lives This was not much insisted on by the Defendants Council it having been usually granted and so found by the Verdict 3 Cro. Young and Fowler 's Case a Grant in Reversion of the Registers Office was allowed being warranted by Usage and so in 3 Cro. Young and Stoel But unless there have been such Vsage 't is not grantable in Reversion Vide 3 Cro. Walker and Sir John Lamb. The second Point was Whether the Grant of this Office in Consideration of Money is void by the Statute of the 5th and 6th of Edward the 6th against Sale of Offices That Point was also waved it being Resolved in Dr. Trevor's Case 12 Co. 78. 2 Cro. 269. forasmuch as it concerned Administration of Justice The third Point was That the Statute of 5 Ed. 6. Enacting That the person who takes any Money for any Office shall lose and forfeit all his Right to any such Office c. Whether the King or the Bishop shall take advantage of this Forfeiture in regard the Statute doth not express who shall dispose of the Office in such case Co. Lit. 159. a. And it was said on the part of the Plaintiff That when a Statute gives a Forfeiture and not said to whom the King shall have it 11 Co. 60. a. unless there be a particular party grieved as upon the Statute of 2 Ed. 6. of Tythes and yet it was for some time before it was setled that the Parson should have the treble Value in that Case And this agrees with the Reason of the Common Law things that are nullius in bonis the King shall have them as extra Parochial Tythes 11 H. 4. 17. Vid. 5. Co. in Sir Henry Constable's Case The Soil of Navigable Rivers and derelict Lands was with this difference If the Sea leaves the Land gradatim and for but a little quantity the Owner of the Land shall have it but if in a great quantity at a time it goes to the King Davis Rep. 5. 6. Vid. Siderfin 86. Dyer 126. 'T is true at the Common Law where a person hath an Interest in that which is Forfeited he shall have the benefit of it as if a Park-keeper forfeit it shall go to the Owner of the Park And in Sir John Breon's Case Bridgm. 27. where the Earl of Lancaster gave License to make a Park in his Forest and the party forfeited his Office the Earl had the advantage of it In those cases the thing is forfeited to him from whom it was granted as a Copyholder forfeits to his Lord and Tenant for Life to him in Reversion but here the Bishop hath nothing to do with the Office of Register he cannot dispose of it in the time of Vacancy of the Archdeaconry The Verdict finds that his Office is to Register the Acts in the
and that Isaack Knight his Executor took a Capias thereupon out of the Common-Pleas Now it being a Statute-Merchant it ought first to have been certified into the Chancery and from thence a Capias should be issued out Returnable in the Court of Common-Pleas And so the Statute of Acton Burnel 30 Ed. 3. Enacts and so is Fitz. N.B. 130. whereas here the Capias goes out of the Common Pleas and for ought appears was the first step towards the execution of this Statute for it doth not appear that it was ever certified or that the Court had any Record before them to award this Capias upon and so the Execution is quite in another manner than the Statute provides and in a new Case introduced by the Statute and therefore it seems to be void and if so then the Statute of Knight could not be assigned so as to pass the Interest of it to Edward Lewis and the Fines will have no effect upon it and indeed it puts it clean out-of the Case before us as if it had never been acknowledged and the Interest of that Statute must be still in the Executor of Knight But then admitting it to have been extended and consequently well assigned together with Gerrard's Statute to Edward Lewis if so I take it to be drowned in Gerrard's Extent As to that the Case is no more than this that after the Statute is extended there comes another Extent upon a puisne Statute for 't is found that Gerrard's Statute was extended after Knight's Statute whether the Estate by Extent upon the puisne Statute be in the nature of a Reversional Interest for if so then when the Interest of the first Extent and the latter comes into one person the first must be drowned for an Estate for years or other Chattel Interest will merge in a Chattel in Reversion that is immediately expectant And that is Hughes and Robotham's Case in the 1 Cro. 302. pl. 32. If a Lease for years be made and then the Reversion is granted for years with Attornment the Lessee may surrender to the Grantee and the Term will drown in the Reversion for years To which it is Objected That an Extent is rather in the nature of a Charge upon the Land than an Interest or Estate in the Land it self In the Case of Haydon and Vavasor versus Smith in Mo. 662. an Extent is thus described that it is onus reale inhaerens gremio liberi tenementi tout temps Executory as the words of that Book are If the Tenant by an Extent purchase the Inheritance of part of the Lands extended the whole falls So a release of the Debt will immediately determine the Extent and it has been compared to one that enters into Lands by virtue of a power to hold until the arrear of Rent is satisfied It is true an Extent is an Execution given by the Statute Law for the satisfaction of a Debt and therefore the release of the Debt must determine the Estate by Extent because the Foundation of it is removed and so if the Inheritance of part of the Land extended comes to the Conusee it destroys the whole Extent whereas if a Lessee for years purchaseth the Reversion of part the Lease holds for the rest But in case of an Extent if it should be so the Conusee would hold the residue of the Land longer because the Profits that should go in satisfaction of the Debt must be less and this would be to the wrong of him in the Reversion But in other respects an Extent makes an Estate in the Land and hath all the properties and Incidents of and to an Estate and doth in no sort resemble such an Interest as is only a Charge upon the Land An Interest by Extent is a new Species of an Estate introduced by Statute Law Our Books say that 't is an Estate treated in imitation of a Freehold and quasi a Freehold but no Book can be produced that says that 't is quasi an Estate The Statute of 27 Ed. 3. cap. 9. Enacts That he to whom the Debt is due shall have an Estate of Freehold in the Lands and the Statute of 13 Ed. 1. de Morcatoribus say That he shall have Seisin of all the Lands and Tenements When a Statute is extended it turns the Estate of the Conisor into a Reversion and so are the express words in Co. 1 Inst 250. b. and so the Objection That he does not hold by Fealty is answered and there are no Tenures that are to no purpose but he that enters by virtue of a power to hold till satisfied an Arrear of Rent he leaves the whole Estate in the Owner of the Land and not a Reversion only If a Lease for years be made reserving Rent and then the Lessor acknowledge a Statute which is extended the Conisee after the Extent shall have an Action of Debt for the Rent and distrain and avow for the Rent as in Bro. tit Stat. Merch. 44. and Noy fo 74. but he that enters by a Power to hold for an Arrear of Rent shall not He in Reversion may release to the Tenant by Extent which will drown the Interest and emerge his Estate according as it is limited in the Release Co. 1 Inst 270. b. 273. Tenant by Statute may forfeit by making a Feoffment Mo. 663. He is to Attorn to the grant of the Reversion 1 Roll. 293. and is liable to a Quid juris clamat 7 H. 4. 19. b. Tenant by Extent may surrender to him in Reversion 4 Co. 82. Corbet's Case therefore these Cases are to shew That an Extended Interest makes an Estate in the Lands as much as any Demise or Lease And I take it the consequence of that is That when an Estate by Extent is evicted by an Extent upon a prior Statute as Elwaies and Burroughs Extent was by the Extent of Knight's Statute or where the prior Statute is first extended and then a Statute of later date is extended as Gerrard's Statute is found to be extended after the Extent upon Knight's Statute In both these Cases the Extent upon the puisne Statute will be in the nature of a Reversional Interest A Reversion is every where thus described viz. An Estate to take effect in possession after another Estate determined 'T is not in nature of a future Interest as a Term for years limited to commence after the end of a former Term for such an one shall not have the Rent upon a former Lease as I have shewn before but he that extends upon a Lessee for years shall for the Liberate gives a present Interest to hold ut liberum tenementum but indeed cannot take effect in possession by reason of a prior Extent or by prior Title And this is the very case of a Reversion which is an actual present Interest tho' it be to take effect in possession after another Estate Now I conceive it will plainly follow from this That Knight's Statute is drowned in Gerrard's
to be done where there has been only a right of Action as in Sawle and Clerke's Case in Jones 211. and Cro. Car. where the Case as to this Point is to this effect A Remainder upon an Estate Tail was divested by the Fine of Tenant in Tail who had made an Estate for Life warranted by the Statute and died without Issue He in the Remainder was barred from bringing a Formedon in the life of the Tenant for Life within Five years after the Fine and had not a new Five years after the death of Tenant for Life tho' he could not Enter in the life of the Tenant for Life And the Reason given in Crook's Reports is because he had no other Right after the Death of the Tenant for Life than he had before and this plainly distinguisheth that and the Case at the Bar from the Cases that have been cited of June and Smye's Case in the 1 Cro. 219. and Laund and Tucker 254. for there the Fine was Levied by the particular Tenant which was a Forfeiture which he in Reversion might choose whether he would take advantage of and as the case might be it would be to his prejudice to take advantage of it where the particular Tenant has charged the Land and therefore if he would he should have Five years after the Estate determined to claim as of his Reversion which is another distinct Right from that of the Forfeiture And this was the standing difference that made the distinction where there should be a new Five years given to him in Reversion after the particular Estate determined and where not as we see in Margaret Podgers Case in the 9 Co. 106. If the Tenant for years were ousted and a Fine levied by the Disseisor he in the Reversion was bound by the first Five years Non-claim because tho' he could not enter as if the Estate for years had been determined or as in the Cases before of the Forfeiture yet he might have immediately brought an Assize with which Sawl and Clarke's Case exactly agrees and goes upon the same Reason As for Freeman's Case the Resolution goes wholly upon the Circumstances of Fraud appearing in the Case the principal of which was That the Lessee continued in possession and paid the Rent I confess they have gone a little further of late and now it is taken That he in Reversion shall have Five years after the Term is ended by effluction of Time tho' there were no Forfeiture incurred at the Levying of the Fine Nor no such plain Circumstances of Fraud as appears in Fermer's Case and the Case put before and cited out of Margaret Podgers Case is not held to be Law The contrary whereof is taken to have been Resolved in Folley and Tancred's Case in the 24 Car. 2. and I do not intend to shake the Authority of that Case but admit it to be good in Law yet I crave leave to observe That it is a Resolution carried beyond the words of the Statute for the Right is not pursued within Five years next after it first came For it is agreed in Fermer's Case fo 79. that there the Construction was against the Letter of the Statute and I must say it is a Construction by Equity which is a little extraordinary to weaken the force of a Statute which was made for the quieting of mens Possessions and to add force to Fines which were of so great regard in Law and especially to make a Construction by Equity contrary to the Reason of the Common Law which took no care of a future Right at all for he in the Reversion in case of a Fine Levied at the Common Law depended wholly upon the Entry or Claim of the particular Tenant and in default of that lost his Estate as in the 1 Inst 262. b. and in Plowden's Commentaries in Stowell's Case I say again I do not design by this to oppose any Case that hath been setled But I confess I should not have gone so far if I had not been led by Authority and am not willing to go a step further And now I shall endeavor to shew that this Case goes a great deal further and would be a greater strain upon the Statute than yet has been And First I Observe that upon all or most of the Cases of a Fine where there has been an Estate for Life or Years in being at the time of the Fine that the Possession has held still in the particular Tenant so that he in Reversion had no reason to suspect any Fine or other thing done upon the Estate there being no alteration of the Possession And this agrees somewhat with the Reason of the Common Law in case of a Fine Executory he that had Right was not bound to claim till there were an Execution of the Fine and Transmutation of the Possession thereupon as in Plowden's Commentaries 257. b. in Stowell's Case But here it is found that the Conusor and not the Conusees or the Tenants by Extent or either of them were in possession so that the Land being in the possession of a Wrong-doer they which had Right ought to have watched and might well suspect that Fines should be Levied to the prejudice of their respective Rights It is said in Fermer's Case If a meer Wrong-doer having got the Possession levieth a Fine on purpose to bind the Right this shall bind notwithstanding his unjust Design But the Differences that I chiefly rely upon to distinguish the Case before us from the Cases of Reversions upon Estates for Life and Years or the like particular Estates are these 1. That in those Estates there is either by an express Limitation of the Parties or an operation of Law a certain and particular Term or End of the Estate which until it happens it has not its proper determination which an Estate by Extent has not I know it is has been much insisted on that the natural and proper determination of an Extent is satisfaction by a perception of Profits according to the extended Value whereas I cannot see but a release of the Debt or satisfaction by a sudden Accident is as properly a determination of the Extent as if it were run out by perception of Profits according to the extended Value For when the first Extent is out of the way the second is immediately to take place or why this acknowledging Satisfactoin on Record should be the natural and proper determination of the Extent more than a Release of the Debt by the Conusee or destroying of it by a Fine which is an higher Record than the Statute or the Entry of Satisfaction acknowledged thereupon 2. To let him that has the Reversion upon an Estate by Extent have Five years to claim after the first Extent run out by perception of Profits or Satisfaction acknowledged is to let in a Claim after an Estate that no man can see to the end of For when it shall be satisfied by the Profits no man can tell and can
his Bill to have the Land Conveyed according to the Agreement above But for the Defendants it was much insisted upon that this being to settle the Lands in case Thomas should dye without Issue it should not be regarded in this Court for the Execution of a Trust of a Remainder or Reversion in Fee upon an Estate Tail shall not be compelled because it is subject to be destroyed by the Tenant in Tail as here Thomas might have done in case he had made a Settlement according to the import of that Writing who therefore could not have been compelled himself to have executed this Agreement But the Lord Chancellor Fynch Decreed the Land for the Plaintiff because it was proved that the Marriage with the Plaintiffs Wife was in expectation of the performance of this Agreement and he was obliged to have left the Land to the Plaintiff if he had had no Issue Termino Sanctae Trinitatis Anno 34 Car. II. In Cancellaria Collet versus Collet WIlliam Fox having three Daughters Mary Elizabeth and Martha the two latter being Married and the first a Widow by his Will devised in these Words Viz. I give unto Martha my Daughter the Sum of 400 l to be paid unto her by my Executors within one year next after my decease But I will and my desire is that Cornelius Collet the Husband of Martha upon the payment of the said 400 l shall give such Security as my Executors shall approve of that the said 400 l shall be laid out within 18 Months next after my decease and purchase an Estate of that value to be setled and assured upon her the said Martha and the Heirs of her Body lawfully begotten And in the Close of his Will were these words following Viz. I Will That after my Debts which I shall owe at the time of my Decease and my Funeral Expences and the Probat of this my Will be discharged then I do give all the rest of my Personal Estate Unbequeathed to purchase an Estate near of as good value as the same Personal Estate shall amount unto within one year next after my my decease Which said Estate so to be purchased I Will shall be setled and assured unto and upon my said three Daughters Mary Elizabeth and Martha and the Heirs of their respective Bodies lawfully begotten for ever or otherwise my said Daughter Mary and the Husbands of my said two other Daughters Elizabeth and Martha shall for such Moneys as they shall receive of my said Executors for the Overplus of my Personal Estate enter into one or more Bonds in the double Sum of Money as each part shall amount unto the same being to be divided into three parts unto my said Executors within 18 Months next after my decease to settle and assure such part or Sum of Money as each of them shall receive and have by this my Will for the Overplus of my Personal Estate unto and upon the Child and Children of my said Daughters Mary Elizabeth and Martha part and part alike Martha the Wife of Cornelius Collet died within six Months after the Testator leaving Issue only a Daughter who died within four Months after the Mother the other two Sisters surviving Cornelius Collet took out Letters of Administration both to Martha his Wife and likewise to his Daughter the Four hundred Pounds and likewise the Overplus of the Personal Estate being unpaid or disposed of Cornelius Collet preferred his Bill against the Executors and the surviving Sisters and thereby demanded the 400 l and likewise a third part of the Overplus which amounted unto 700 l And the Cause came to be heard before the Lord Chancellor upon Bill and Answer who Decreed the 400 l to the Plaintiff but as to the Surplus of the Estate the Bill was dismissed altho ' it was much insisted upon for the Plaintiff that he might have given Bond to secure the Surplus for his Child and so from the Child it would have come to him as Administrator But seeing that no Interest could vest in the Child till the Election were determined it not being material as to this Point whether the Executors or the Husband aâ— the Election the Father could not claim it as Administrator to the Child And then if the Money had been laid out in Land and the Settlement according to the direction of the Will the Husband would have had no benefit for there would have been a Ioynt Estate for Life in the Daughters with several Inheritances and no severance of the Ioynture by the Marriage and having Issue Co. Inst and so no Tenant by the Courtesie Therefore as to the Surplusage the Bill was Decreed to be dismissed Note As to the 400 l the Order of my Lord Chancellor was That Interest should be paid for it from the time of bringing the Bill Termino Sancti Michaelis Anno 34 Car. II. In Cancellaria West versus The Lord Delaware WEST Heir apparent of the Lord Delaware Exhibited his Bill against the said Lord setting forth That upon a Marriage agreed to be had between him and the Daughter of one Mr. Huddleston with whom he was to have 10000 l Portion The Lord his Father Articled to settle Lands of such yearly value for the Wives Ioynture for their maintenance and the Heirs of their Bodies c. That the Wife being now dead and without Issue and no Settlement made the Bill prayed an Execution of the Articles and a discovery of what Incumbrances there were upon the Lands to be setled To this the Lord Delaware Answered That he never intended to settle Lands but for the Wives Ioynture only and that the Plaintiff her Husband was not named in the Articles and so was Advised He need make no Settlement and upon that Reason the Plaintiff could not require him to discover Incumbrances An Exception being taken to the Answer for that it did not discover any thing touching Incumbrances it was Argued before my Lord and for the Defendant it was alledged That by the Course of the Court the time of the Discovery should be when the other Point was determined for if that be for the Defendant then no Discovery can be required but if otherwise that then the Defendant shall be put to answer Interrogatories as is usual in Cases of like nature And it cannot be Objected That the Estate may be charged with Incumbrances since the Bill because they will be of no avail On the other side it was said That this would create great delay for upon the discovery of Incumbrances other parties must be made to the Bill and therefore this Case differed from the Case of Account which concerns the Defendant himself only but the Question now is only for the making proper Parties The Court Ordered That a further Answer should be made Nota If a man deviseth that such a Sum of Money shall be paid out of the Profits of his Lands and the Profits will not amount to the Sum in such case the Land
Covenant there was therein to exclude from Redemption such Covenant would not be regarded in this Court and that the Person to whom the Conveyance was made might have had a Bill in the life time of him that Conveyed to have a time set for the payment of the Mony or otherwise to be foreclosed But my Lord Keeper dismissed the Bill For he said in a common Mortgage such Covenant to restrain Redemption should not be regarded but this was made with an Intention of a Settlement of his Estate besides the Consideration of the Mony paid And he denied that he could have been by the Decree of this Court limited to any time for payment of the Mony for this Court cannot shorten the time that is given by express Covenant and Agreement of the parties but when that time is past then the Practice is to foreclose Nota This Dismission was afterwards in the Parliament held 1 2 W. M. affirmed Nota If a man makes a Voluntary Conveyance and there be a defect in it so as it cannot operate at Law this Court will not Decree an Execution thereof But sometimes it has been Decreed where it is intended a provision for younger Children The Lord Salisbury's Case MY Lord Salisbury married the Daughter of one Bennet who had two Daughters and bequeathed by his Will to each of them 20000l provided that if they or either of them married before the Age of Sixteen or if that the Marriage were without the Consent of such persons that they should lose 10000 l of the Portion and that the 10000 l should go to his other Children The Case was thus The Lord Salisbury married with one of the Daughters under the Age of 16. but with the Consent of all the parties It was urged That it being with Consent it might be at any Age. But my Lord Keeper was of Opinion that both parts must be observed Anonymus IN a Covenant to stand seised to the use of A. for life and after to two equally to be divided and to their Heirs and Assigns for ever My Lord Keeper declared his Opinion that the Inheritance was in Common as well as the Estate for life He said that it had been held that where the words were to two equally divided that should be in Common otherwise if the words were equally to be divided but since taken to be all one Nay a Devise to two equally will be in Common Here there shall not be such a Construction as to make one kind of Estate for life and another of the Inheritance and Survivorship is not favoured in prejudice of an Heir Note That if a Bill be Exhibited for the Examining of Witnesses in perpetuam rei memoriam if the Plaintiff therein prays Relief the Bill shall be dismissed Termino Paschae Anno 1 Jac. II. In Cancellaria The Lord Pawlett's Case THe Lord Pawlett had made a Settlement of his Estate and had by the Deed charged his Lands with the payment of 4000 l apiece to be paid to his two Daughters at their respective Ages of 21 years or days of Marriage and reserved to himself a Power of otherwise ordering it by his Will And by his Will in Writing made at the same time or within a day after devised by these words viz. I give and bequeath to my two Daughters by name 4000 l apiece to be respectively paid unto them for their Portions in such manner as I have provided by the said Settlement and mentioned that he would be understood to mean only one 4000 l to each of his said Daughters and appointed to each of the Daughters 100 l per annum for Maintenance It hapned one of the Daughters died before Marriage or the Age of 21 years and my Lady Pawlett the Mother of the Daughters took out Letters of Administration to the Daughter that died and preferred a Bill against the Trustees for the 4000 l and the Heir to whom the benefit of the Lands after the Mony raised was appointed The Question solely was Whether this Mony should go to the Administratrix or the Land be discharged thereof and accrue to the benefit of the Heir It was agreed on all hands that if this had been a Legacy or a Sum of Mony bequeathed by the Will altho' the party had died before the Age of 21 or Marriage the Administrator should have had it and that is the Practice in the Ecclesiastical Court in case of Legacies The Legatee in such case is taken to have a present Interest tho' the time of payment be future My Lord Keeper mentioned the Reason to be because it Charges the Personal Estate which is in being at the time of the Testator's death and if the Legacy should by such an accident be discharged it would turn to the benefit of the Executors whereas the Testator did not probably so intend it And further it has been Ruled That altho' a Sum of Mony be devised out of Lands to be so paid at a future day the Death of the Legatee doth not lose it Tho' my Lord Keeper did not seem satisfied with the Reason of that Case but it having been so Decreed it was not good to vary to avoid Arbitrariness and Incertainties But here this Sum of Mony is appointed to be paid by the Deed and is a Trust charged upon Lands and Trusts are governed by the Intention of the party and that the Personal Estate is not Charged and this Sum of Mony doth not lye in demand by a Suit as where a Legacy is devised but only a Bill may be preferred to have the Trusts performed And tho' it was much insisted on for the Plaintiff that here the Will bequeaths this Mony yet that refers to the Deed and orders it to be paid in such manner as was thereby appointed And it was said to be the same with the Case of Bond and Richardson which was lately by my Lord Keeper thus Decreed being a Sum of Mony charged to be paid out of Land at such an Age. If a Settlement were made and Lands charged with such Sums of Mony as a Will should declare there the Will would be but Declarative and not Operative Termino Sancti Hillarij Anno 1 2 Jac. II. In Cancellaria Frances Whitmore Vid ' Plaintiff versus Weld al' Defendants THe Case as it was drawn up upon Reference thereof by my Lord Keeper to the Judges of the Common Pleas for their Opinion was thus Viz. On the 18th of January 1675. William Whitmore the Elder taking notice that he had setled the major part of his Lands by Deed and being possessed of a very great Personal Estate in Mortgages Jewels Plate Bonds and other Goods and Chattels amounting in the whole to a very great Sum by Will in Writing devised several Legacies and after Wills in this manner Viz. The surplusage of my Personal Estate my Debts Legacies and Funeral Charges being paid and satisfied I give unto the Right Honourable William Earl of Craven for
the use of my only Son William Whitmore and his Heirs lawfully desscended from his Body and for the use of the Issue Male and Issue Female discended from the Body of my Sister Elizabeth Weld deceased Margaret Kemes and Anne Robinson in case that my only Son William Whitmore should decease in his Minority without Issue lawfully descended from his Body I nominate and appoint my only Son William Whitmore Executor of my last Will and Testament I nominate and appoint the Right Honourable William Earl of Craven during the Minority of my only Son William Whitmore Executor of my last Will and Testament I commit the Education and Tuition of my only Son William Whitmore unto the Care of the Right Honourable the Earl of Craven On the 5th of August 1678 the Testator died his Son being then about the Age of 13 years The Earl of Craven proved the Will William Whitmore the Son made his Will in Writing and thereby Devised to Frances his Wife all his Estate real and personal and makes her sole Executrix and about the 2d of August died without Issue being above the Age of 18 years and under the Age of 21 years not having proved his Father's Will The Will of William Whitmore the elder is duly proved by Frances The Question was Whether Frances Whitmore the Executrix of William Whitmore the Son be well Entituled to the surplusage of the Personal Estate of William Whitmore the Father or the Discendants of the Sisters Vpon hearing of this Cause a Case was made ut ante and referred by the late Lord Keeper North to the Judges of the Common Pleas who were divided in Opinion but made no Certificate thereof the Reference being determined by his Death And afterwards by Order it came to be heard before the Lord Chancellor Jefferies who upon Hearing of the Counsel of both sides Decreed it for Frances Whitmore the Complainant for that the Executorship of my Lord Craven determined at the Age of 17 years of William Whitmore the Son and then the Surplusage became an Interest vested in him and could not be devised over And his Lordship seemed to be of Opinion That Minority in the Clause wherein the Devise over was should be understood to determine at the same time as in the Clause of Executorship A TABLE OF THE Principal Points Argued and Resolved in the SECOND PART OF THESE REPORTS A Acceptance See Surrender Action TORTS in their Nature are several so one Defendant of many may be found Guilty and the other Not guilty but 't is not so in Actions grounded upon Contracts p. 151 Action upon the Case See Assumpsit Outlawry Action lies against the Mayor of London for not granting a Poll upon a double Election 25 The Law gives an Action for but a possibility of Damage as for calling an Heir apparent Bastard c. 26 27 Where an Officer does any thing against or refuses to do the Duty of his place whereby Damage accrues to the party Action lies 26 But it lies not against a Lord of a Mannor for refusing to admit a Copyholder 27 Against a Common Carryer for losing Goods delivered and Carriage paid for 78 Against Bayliffs for levying Money by pretence of a Fieri facias 93 For not Folding his Sheep upon the Plaintiffs Land whereby the Plaintiff lost the benefit of Foldage 138 For the Profit of an Office not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for Damage to shew the Profit of the Office Communibus Annis 171 In an Action for not Grinding at his Mill what shall be a sufficient Setting forth of the Custom 292 Action upon the Case for Slander Writ in a Letter of a Lawyer He will give Vexations and ill Counsel and stir up a Suit and milk your Purse and fill his own large Pockets Actionable 28 Anciently no Action for Words unless the Slander concerned Life ibid. Of one who had been a Member of Parliament Your Master is a Papist when he is at home he goes to Church but when he is at London he goos to Mass Sir J.C. and he were both Pensioners at the time of the Long Parliament Actionable 265 To say of a Man that had been in an Office that he had behaved himself corruptly in it Actionable 266 Administration In an Action against an Administrator it is necessary to set forth that Administration was committed to him tho' not to say by whom 84 Administrator shall be charged for Rent after the Assignment of the Testator's Term 209 Admiralty Marriners as well Officers as Common Seamen may sue for Wages in the Court of Admiralty and some only may sue there as well as when all joyn 181 If the Suit be there against some of the Part-owners the Course is not to charge them with the whole but according to their proportionable parts ibid. Advowson Presentation by Turns among Parceners whether an Usurpation in a Turn puts all out of Possession or only one 39 Age. See Devise Executor Amendment See Distress Scire facias Writs Habere facias instead of Liberari facias and inquirat instead of inquirant amendable upon Motion because in a Judicial Writ 171 Arbitrament Award See Vmpire No place mention'd where the Award was made naught 72 Whether Arbitrators having Power to name an Umpire may name a second if the first refuses 114 Submissions to Awards favourably construed because they tend to the end of Controversies 115 Where an Award that seems all on one side may be good 222 Award may be by Word of Mouth and he which sets forth such Parol Award is not tyed to strictness of Words but 't is sufficient to shew the effect and substance of what was Awarded 242 Award to pay the Charges of a Suit good tho' the Sum is uncertain for it may be easily reduced to certainty 243 Where Money is awarded to be paid to J. S. and no mention made of his Executors yet in case that he dies before the Money shall be paid to his Executors for an Award creates a Duty and the Executor shall release where the Testator was awarded so to do 249 Assent See Executor Assent of a Purchaser vest the Estate in him tho' he cannot have an Action of Trespass before Entry 205 Assigns Where a man covenants for himself and his Assigns to permit if a Breach be laid in the Assigns this Covenant shall relate only to the Assigns after the Deed was made and not before 278 Assumpsit J. S. being indebted to the Plaintiff and the Defendant to J. S. the Defendant promises that if he would procure an Order from J. S. he would pay him Action good after the Order procured 71 74 If Four be sued in an Assumpsit and they plead Non assumpsit infra sex annos and the Jury find that one did assume infra sex annos but not the rest the Plaintiff cannot have Judgment 151 Indebitatus Assumpsit brought for Money won at a Play called
See Rent IF part of a Debt upon Bond be received and an Acquittance given before the Action it is a Bar only of so much as was received but if after the Action brought it seems it may be pleaded in bar to the Whole 135 Whether an Action of Debt may be brought upon a Judgment pending a Writ of Error and whether the Defendant in such Action ought to Demur or plead Specially 261 A Consideration creates a Debt tho' that Debt be not reduced to a certain Sum as in the case of a Quantum meruit 282 Debt secured is Payment in Law 358 Devise See Tail Vse Of implicit Devises and where Lands shall pass by Implication in a Will and where not 56 57 A Reversion shall pass in a Will by the Words All my Hereditaments 286 Whether Money in the Court of Orphans be devisable 340 If Money be devised to one to be paid at his Age of 21 years if the Party dies before it shall go to his Executors but if Money be bequeathed to one at his Age of 21 years and he dies before the Money is lost 242 366 Where a Sum of Money is devised to a Child at such an Age it shall have the Interest in the mean time rather than the Executor shall swallow it especially when no Maintenance is otherwise provided 346 Devise to J.S. at the Age of 21 and if J.S. dies before 21 then to A A. dies after J. S. dies under 21 the Administrator of A. shall have it 347 If Lands be devised for payment of Debts and Legacies the Personal Estate shall notwithstanding as far as it will go by apply'd to the payment of Debts c. and the Land only make up the Residue 349 Where an Administrator shall have an Estate devised to an Infant and where not 355 356 A Sum of Money devised to be raised out of the Profits of his Lands the Profits will not amount to the Sum the Land may be sold 357 Diversity where a Child's Portion is devised out of Personal Estate and where to be raised out of Land 366 367 Distress Whether a Drover's Cattel put into a Ground belonging to a Common-Inn upon the Road to London may be distrained for Rent due from the Innkeeper 50 Leave given to mend the Conisans upon a Distress after a Demurrer paying Costs 142 A Distress may not be sever'd as Horses out of a Cart and therefore in some Cases a Distress of great Value may be taken for a small matter because not severable 183 Where one holds a Third part of certain Land and another two Third parts of the same Land undivided he who hath the One part cannot distrain the Cartel which were put in by Licence of him who hath the two Parts 228 283 E Ecclesiastical Court See Marriage WHether the Ecclesiastical Court may proceed against Conventicles or whether they be punishable only at the Common Law 41. They may 44 The legal Method of Proceedings in the Ecclesiastical Courts 42 43 The Proceeding ex Officio 43 A Suit may be tryed in the Ecclesiastical Court upon a Prescription to Repair the Chancel so also for a Modus Decimandi 239 Ecclesiastical Persons A Curate incapable of taking an Estate devised in Succession for want of being Incorporate but the Heir of the Devisee shall hold the Estate in Trust for the Curate for the time being 349 Ejectment In Ejectment the Declaration of Michaelmass Term and the Demise laid 30 of October after the Term began 174 Elegit See Execution Enrolment A Deed where the Grant is exprest to be in Consideration of Natural Affection as well as Money need not be Enrolled but the Land will pass by way of Covenant to stand seised 150 Error See Debt Essoine Where several Tenants in a Real Action may be Essoigned severally 57 Regularly Proceedings in an Essoine in Dower 117 Estate What Words shall create a Tenancy in Common 265 266 Evidence See Action on the Case Chancery Exchange Bills of Exchange have the same Effect between others as between Merchants and a Gentleman shall not avoid the Effect by pleading He is no Merchant 295 310 The Custom of Bills of Exchange 307 310 Execution How the Sheriff ought to behave himself in Executing a Fieri facias 94 95 Whether Money paid for Goods taken upon a Fieri facias is properly paid to the use of the Sheriff or Plaintiff ibid. A Fieri facias was executed after the Party was dead upon the Goods in the hands of the Executor but Teste before tho' not delivered to the Sheriff till after This was a good Execution at the Common Law but quaere since the Statute of 29 Car. 2. cap. 3. 218 An Extent upon an Elegit being satisfied by perception of Profits he in Reversion may enter 336 Executor See Award Rent Waver And Executor may detain for a Debt due upon a simple Contract against a Debt grounded upon a Devastavit 40 Whether the Executor of a Bishop may bring an Action of Covenant for breach of a Real Covenant relating to Lands of the Bishoprick 56 Where a Woman disposes of Goods as Executrix in her own wrong if she takes Administration afterwards tho' before the Writ brought this will not hinder the Plaintiff from charging her as Executrix in her own wrong 180 An Executor in his own wrong cannot retain ibid. The Mother Executrix shall not discount for Maintenance and Education out of the Money left by the Father for the Mother ought to maintain the Child But Money paid for binding him Apprentice may be discounted 353 After an Executor assents to a Legacy he shall never bring it back again to pay Debts Secus where he is sued and pays by Decree in Chancery there the Legatee shall refund 358 Where an Executor pays a Debt upon a Simple Contract there shall be no refunding to a Creditor of a higher nature Vid. Legacy 360 Money decreed in Chancery to the Executor of an Administrator do bonis non and not the second Administrator de bonis non where no Debts appeared of the first Intestate 362 Minority as to Executorship determines at the Age of 17 and then a Personal Estate devised to such Executor vests in him 368 Exposition of Words Faldagium 139 The force of these Words in forma praedicta 215 F Fieri facias See Execution Fine WHere and how a Fine levied by a Feme-Covert shall be set aside and where the Commissioner who took it may be fined by the Court 30 A Fine acknowledged before the Revolution and Writ of Covenant sued out after allowed good 47 48 A Right to an Estate by Extent barr'd by a Fine and Non-claim 329. So also the Right to a Term for years ibid. Secus where a Statute is assigned in Trust to wait upon the Inheritance 330 Fine Customary What Customary Fine between Lord and Tenant shall be allow'd good upon Alienation 134 135 Forfeiture See Office Generally where a Statute gives a Forfeiture and not said to
Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being