to attend and be assistant to the Iustices Sheriffs or other Ministers of the King in the doing of it 3. AT the same time it was also resolved by them all except Walmsley Fennor and Owen in the Case of one Richard Bradshaw and Robert Burton who with others lately by word entred themselves into an agreement one with another to rise and put themselves into Armes and so to go from one Gentlemans house to another and so from house to house to pull down Inclosures generally that this so appearing by their own confession or by two Witnesses according to the Statute is high Treason by the Statute of 13 Eliz. cap. 1. The words of which Statute are That if any intend to levy War against the Queen and this maliciously advisedly and expresly declare or utter by any words or sayings that this shall be high Treason For all agreed that Rebellion of Subjects against the Queen hath Rebellion of Subjects high Treason been alwaies high Treason at the Common Law for the Statute of 25 E. 3. cap. 1. is that levying of War within the Realm against the King is Treason and Rebellion is all the War which a Subject can make against the King But Walmsley and the others with him said that the Statute of 1 Mar cap. 12. 10. That if any to the number of twelve or more assemble themselves to the intent to pull down Inclosures Pales and the like with force and continuing together after proclamation according to the Statute to go away by the space of an hour or do any of the Offences mentioned in the Statute that this is Felony So that if these Actions had been Treason at the Common Law it had been to no purpose to have made it Felony And it seemed to them that the resistance ought to be with force to the Queen before that such Acts shall be said Treason But all the other Iustices agreed and so it was put in ure lately in the case of the Prentices of London that if any assemble themselves with force to alter the Laws or to set a price upon Victualls or to lay violent hands upon the Magistrate as upon the Major of London and the like and with force attempt to put it in action that this is Rebellion and Treason at Common Law and yet this Statute of 1 Mariae makes it in such a case but Felony And they put a diversity between the cases of pulling down Inclosures Pales c. comprised in the Statute of 1 Mar. for those are to be understood where diverse to the number of twelve or more pretending any or all of them to be injured in particular as by reason of their common or other Interest in the Land inclosed and the like and assembling to pull it down forcibly and not to the cases where they have a generall dislike to all manner of Inclosures and therfore the assembling in a forcible manner and with Armes to pull them down where they have any Interest wherby they were in any particular to be annoyed or grieved is not Treason but the case here tending to a generality makes the act if it had been executed to be high Treason by the câ—uâ—se of the Common Law And therfore the intention appearing as the case is here it is Treason by the Stâ—tute of 13. aforesaid Periam in some manner doubted of the principall case but to intend to rise with force to alter the Laws to set price upon any Victuals or to use force against a Magistrate for executing his Office of Iustice and the like he said that they were cleerly Treason by the Statute of 13. aforesaid if it may appear by expresse words or otherwise as the said Statute mentions for all these tend against the Queen her Crown and Dignity and therfore shall be as against the Queen her self And if it had been put in practice it had been Treason at the Common Law Here ends the LORD POPHAM'S REPORTS An addition of certain Select CASES in the time of KING JAMES and KING CHARLES Trin. 15. Jac. In the Kings Bench entred Hill Jac. Rot. 194. Brooks Case IN an Ejectione firmae brough by one Brook against Brook the Case was thus Iohn Wright a Copyholder in Fee 10 Eliz. surrendred his Land into the hands of the Lord by the hands of Tenants according to the Custom c. without saying to whose use the Surrender should be And at the next Court the said Iohn Wright was admitted Habendum to him and his Wife in Tail the remainder to the right Heirs of Iohn Wright and the Wife of Iohn Wright now Defendant was seised from the time of Where upon surrender of Copyhold land no use is limited to whole use iâ— shall be the admittance untill this day And it was objected by the Counsell of the Plaintiff that the surrender was void because no use was limitted and therfore by constitution of Law ought to be to the use of the Surrender as if a Feoffment be made and no Use limited it shall be to the Use of the Feoffor or as it is in Sir Edward Cleers Case Coke lib. 6. 18. If a Feoffment be made by one to the use of his last Will he hath the use in the mean time 2. That the admittance was not available to passe an Estate to the Wife for she was not named in the Premisses but only in the Habendum and the Office of an Habendum is to limit the Estate and not the person and therfore it is said in Throgmorten and Tracies Case in Plowd com That if one be named to take an Estate in the Habendum where he was not named at all in the Premisses this is not good But it was resolved by the whole Court for the first point that the subsequent Act shâ—ll explain the Surrender for Quando abest Provisio partis adest provisio legis And when the Copyholder accepts a new admittance the Law intends that the Surrender generally made was to such an Vse as is specified in the admittance and the Lord is only as an Instrument to convey the Estate and as it were put in trust to make such an admittance â—s he who surrenders would hâ—ve him to make And Crook Iustice said Fides adhibita fidem obligat For the second point it was also agreed by the Court that the Wife shall take by this admittance albeit she were not named in the Premisses but only in the Habendum and they agreed that in Feoffments and Grants the party that is not named in the Premisses shall not take by the Habendum and therfore Throgmorton and Tracies Case as to this point is good Law But this case of a Copyhold is like to the case of a Will or to the case of Frank-marriage in which it is sufficient to passe an Estate albeit the party be only named in the Habendum and if it should be otherwise the Estates of many Copyholders would be subverted And so they resolved that Iudg-should be
Issue a Son which selleth this Remainder and afterwards I. S. dyed this Son being his Heir notwithstanding his Sale he shall have this Remainder not his Grantee because it was not in him at the time of his Grant but by a matter which cometh Ex post facto to wit the death of his Father and afterwards Iudgment was given in the first case that the Grantee shal have the term granted to him by the Husband and that the Wife shall not have the term during this Leese Hunt Versus Gateler Mich. 34. and 35 Eliz. in Commun Banco IN a Replevin between Hunt Plaintiff and Gateler Avowant in the Common Pleas which was adjorned for difficulty into the Exchequer Chamber the Case was thus Tenant in tail Remainder in Fee he in Remainder in Vide this case Cook lib. 1. 61. by the name of Capeâ—s case Fee grants a Rent-charge in Fee out of the same Land to begin after the Estate tail determined Tenant in Tail suffer a common Recovery with a Voucher over to the use of the sayd Hunt in Fee and dyed without Issue inheritable to the intail and whether Hunt shall now hold the Land charged with the Rent was the question and after that it had long depended and was many times argued in the Common Pleas and Exchequer Chamber at Hertford Term it was at last resolved by all the Iustices and Barons unanimously that the sayd Rent charge wss gone by the Recovery although the Estate tail was expired because that he which is in is in under this Intail And therefore Popham sayd suppose thâ—t the Tenant in tail himself before the Recovery had granted a Rent charge out of the same Land or had made a Lease for yeers or had acknowledged a Statute all those had been good and to be executed against him which cometh in under the Recovery notwithstanding that the Estate tayl had been determined for want of an heir inheritable to the intail for he which recovereth cannot lay that he against whom he recovered had but an Estate in tail and if his Lease remain yet good as all agreed it did how can the Lease a Rent granted by him in the Remainder be good also for the one and the other cannot stand together and therefore all the Leases Charges or Statutes acknowledged or made by him in the Remainder are gon and avoided by the Recovery had against Tenant in tail To which opinion all the other agreed and Popham sayd further That he in the Remainder upon an Estate tail cannot by any means plead to defend his Remainder unless the Tenant will as by vouching of him and therefore shall be bound by the Act of Tenant in Tail where the Estate it self is bound as here it is by the Voucher and then they which come in by him in the Remainder by way of Lease Charge or Statute which are not so much favoured in Law as Tenant in tail himself be in better condition then he in the Remainder himself is for he in the Remainder upon an Estate tail cannot put more into the Mouth of the Lessee or Grantee to defend their Estates then he himself could have to defend his Remainder and this is the reason that such a Termer or Grantee shall never falsifie the Recovery had against Tenant in tail as the Grantee or Termer shall do which cometh in under Tenant in tail against whom the Recovery was had for there as the Tenant in tail may plead to defend his Possession and Estate so may his Termer or Grantee of a Rentcharge do for by the Demise or Grant made the Tenant in tail hath put all the Pleas into their mouthes for their Interests which he himself had to defend his Right and Possession which they may plead for the time to defend their Possessions and Rights as well as the Tenant in tail himself may do and this is the reason that such may falsifie Recoveries against their Lessors or Grantors if they be not had upon the meer right Paramount which he that cometh in by such a Remainder as before cannot do for such a one in Remainder cannot be received to defend his Right but his mouth is meerly foreclosed to do it and by the same reason are all those which come in by such men foreclosed to defend their Interests or Estates and upon this Audgement was given in the same Tearm in the common Pleas. Gibbons versus Maltyard and Martin IN an Ejectione firmae brought in the Kings Bench by John Gibbons Vide this case in Cook lib. 8. 130 Thetford Scholies case Plaintiff upon a Demise made by Edward Peacock the Son of Lands in Croxton in the County of Norfolk against Thomas Maltyard and John Martin upon a speciall verdict the case appeared to be thus to wit that Sir Richard Fulmerston Knight was seised of the sayd Lands amongst others holden in soccage in his Demesne as of Fee and being so seised by his last Will in Writing made 9 Eliz. Ordained that a Devise shall be made by his Executors that a Preacher shall be found for ever to preach the Word of God in the Church of Saint Maries in Thetford four times in the year and to have for his Labour ten shillings for every Sermon And further he devised to his Executors and their heirs certaine Lands and Tenements in Thetford aforesaid to this intent and upon this condition that they or the Survivor of them within seven years after his decease should procure of the Queens Highness to erect a free Grammar School in Thetford for ever to be had and kept in a house by them to be erected upon part of the sayd Land that they shal assure three of the said ienements for the house and Chamber of the Schoolmaster and Vsher and their Successors for ever and for the other tonement that they shall make an assurance of it for the Habitation of font poor people two men and two women for ever And for the better maintenance of the sayd Preacher Schoolmaster Vsher and Poore people he devised amongst others his sayd tenements in Croxton to his Executors for ten years for the performance of his Will and after this he devised them to Sir Edward Cleer and Frances his Wife the Daughter and Heir of the sayd Sir Richard and to the Heirs of the sayd Sir Edward upon Condition that if the sayd Sir Edward his Heires or Assignes before the end of the sayd ten years shall assure Lands or Tenements in possession to the value of five and thirty pounds a year to the sayd Executors or the Survivor of them their Heirs and Assignes or to such persons their heirs or Successors as his sayd Executors or the Survivor of them shall name or assigne for and towards the maintenance of the sayd Preacher Schoolmaster and Vsher in the sayd School house c. and for the releif of the sayd poor people in the one of the sayd houses according to the Ordinance as he
that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
the said Goodale that this Warrant was made to him After which it was agreed between the said Sir Ioh Packington Drew Woodale that the said Tho. Drew shall have but 32 l. of the said 100. marks wherupon the said Sir Iohn Packington within a year after the death of the said Ralph Woodliff paid to the said Drew Woodliff the 100. marks and presently the said Drew delivered to the said Sir John all the 100. marks but 32 l. And the Verdict stands upon this point whether the 100. marks were well paid or not And by Popham and Gawdy this was meerly a fraud which shall never prejudice a third person for if it be agreed between the Disseisee and I. S. that a stranger shall disseise the Tenant of the Land and enfeoff the said I. S. to the intent that the Disseisee shall recover against him this Recovery shall bind the said I. S. but not him who was disseised and yet he who recovered had a good Title and paramount the other but he shall not come to that to which he had good cause of Action and Title by fraudulent means to the prejudice of a third person not party to this fraud And it was said further that to pay money and take it away again presently before that it is pursed up by re-delivery is not properly a payment but rather a colour of payment And by Fennor and Popham the force of a Deed of Feoffment once effectuall cannot become void or of no effect nor the Livery therupon by such manner of words And it is not like a Bargain of Goods or an Obligation or a Lease for years which by such words may be dissolved and made to be of no force or effect because that as by the sealing a bare Contract it may be made perfect and effectuall without other circumstances so may it be defeated by such bare means without other circumstance But so it is not in case of an Inheritance or Free-hold which cannot be effectual by the bare delivery of a Deed unlesse that Livery be made therupon And all agreed that as this case is notwithstanding the Feoffment made over by the Father the money might have been paid to the Heir to perform the Condition if they had been duly paid and without Covin and that the words had been apt to have defeated the Estate But by Popham and Clench If a Feoffment be made to one upon condition In which case a Condition shall be performed to an Assignee and not to the Heir of payment of money to the Feoffee his Heirs or Assignes and the Feoffee makes a Feoffment over and dies the money ought to be paid to the Feoffee who is the Assignee and not to the Heir for there Heir is not named but in respect of the Inheritance which might be in him but here he is named as a meer stranger to it Bartons Case 3. IN a Writ of Error sued in the Kings Bench by Randall Barton upon a Fine levied at Lancaster 7 Eliz. of Land in Smithall and else where in the County of Lancaster by Robert Barton Esquire to Leven and Browndo where this Writ was brought by the said Randall as Heir in tail to the said Robert to wit Son of Ralph Brother of the said Robert The Defendant plead a Recovery in Bar therof had after the Fine in which the said Robert was vouched who vouched over the common Vouchee And by all the Court this common Recovery with such double Voucher which is the common assurance of Lands is a Bar by reason of the Voucher to every manner of right which the Vouchee or his Heir by means of him is to have to this land which is paramount the Recovery And so it is of every manner of way wherby they are otherwise to come to the Land before the Recovery And if the recovery be erroneous it remains a good Bar untill it be avoided by error But if the Recovery be void or the Voucher not warranted to be pursuing the appearance of the Tenant but precedent to it as was pretended and so no Tenant to warrant the Voucher when the Voucher was made the Recovery shall be no bar in such a case and the case here was informed to be this for the Writ of Entry bears date 1. Mart. 7 Eliz. returnable Die Lunae in 4. septimana quadragessimae propter futur and the Voucher was made in 4. septimana quadragessimae 7 Eliz. the said first day of March being the first week of this Lent 7 Eliz. And upon this it was inferred that the Tenant was not to appear untill Munday in the fourth week of Lent 8 Eliz. which is a long time after that the Voucher appeared and vouched over But by the whole Court the Original Writ shall be taken as it is written to be returnable on Munday in the fourth week of the same Lent 7 Eliz for it shall be taken as it is written shortly most beneficially that it can be to make the Recovery good And if it had been written Proxâ—me it should refer to the week before and so good And if the word Futur had been written at large Futura it also shall refer to Septimana and therfore being written briefly it shall refer as it may best do to make the Recovery good But if it had been in Quarta septimana proximae quadragessimae at large then the word Proxime shall refer to Quadragessimae because of the case But if it had been Proxima it shall refer to Septimana because also of the case But here as the case is it shall be a good reference to make the words Tunc proxima futur to shew what fourth week of Lent to wit that next ensuing the first day of March. As if a man be bound by Obligation bearing date the first day of March to pay the 10. day of March then next ensuing this shall be taken the 10. day of this March because this is next ensuing the first day Paramor versus Verrald 4. IN Trespasse of Assault and false Imprisonment by Robert Paramor against John Verrold and others supposed to be done at such a Parish and Ward in London the 20. day of May 35 Eliz The Defendants justifie by reason of an Erecution upon a Recovery in the Court of Sandwich within the Cinque-Ports Debt and traverse Absque hoc in that they were guilty in London c. The Plaintiff reply and maintain the Assault and Imprisonment as it is said and traverses Absque hoc quod habetur aliquod tale Recordum loqueâ—ae prout the Defendants have alledged Et hoc paratus est verificare per Recordum illud and upon this the Defendants demurred in Iudgment And per Curiam the Defendants plea Prima fâ—cie was good because it was a speciall manner of Iustification which cannot be pleaded and alledged to be in any other place then where it was done in the same manner as if they had justified by force of a Capias directed to the
thing that is uncertain certain but shall serve as a Predict yet the words import that he had a Master and that his Master had a Cook to which all the Court agreed and Iudgment was given for the Plaintiff And another Action was brought for these words Scil. Thou hast sacrificed Thou hast sacrificed thy child to the Devill thy Child to the Devill and adjudged that the words were actionable Mich. 15. Iac. In the Kings Bench. Lee versus Brown IN an Ejectione firmae brought by Lee against Brown the Case was this Whether copyhold Lands may be intailed Tenant in Tail of Copyhâ—ld Land surrendred the same into the hands of the Lord to the use of I. S. wherupon two points did arise 1. Whether Copyhold Land be within the Statute of Donis conditionalibus so that iâ— may be intailed 2. Whether the Intail may be cuâ— off by the surrender Doderidge Iustice said as to the first point that it hath been a great doubt whether it may be intailed but the common and better opinion was that by the same Statute co-operating with the custom it may be intailed and with this agrees Heydons case in my Lord Cokes 3. Report and so was the opinion An Intail of copyhold lâ—nd nâ—t to be cut off by â—urrender unlesse by speciall custom of the Court. And for the second point their opinion also was that it could not be cut off by surrender unlesse it were by speciall custom and they directed the Iury accordingly And it was said to maintain this custom it ought to be shewn that a Formedon had been brought upon such a Surrender and Iudgment given that it doth not lye yet it was agreed that it was a strong proof of the custom that they to whose use such Surrenders had been made had enjoyed the Land against the Issues in Tail And it was said by the Counsell of the Defendant that there was a Verdict for them before in the same case which they could prove by witnesses but the Court would not allow such a proof because it was matter of Record which ought to be shewn forth In the same Term in the Common Pleas. May versus Kett. AN Action upon the Case was brought for these words viz. Thou hast Words Thou hast stoln my Corn out of my Earn stoln my Corn out of my Barn And it was moved in Arrest of Iuâ—gment because he had not said how much he had stoln and perhaps it was of small value and yet it was adjudged that the Action would lye for it is at least petit Larceny But if he had said that he had stoln his Corn generally it had not been actionable for it might have been growing and then it had been but a Trespasse The same Term in the Star Chamber Riman versus Bickley and others IOhn Riman exhibited a Bill in the Star Chamber against Thomas Bickley and Anne his Wife Dr. Thorn Mr Goulding and others Defendants the said Anne was first married to Devenish Riman the Plaintiffs Son and between them were many â—ars and disâ—greemâ—nts and the said Devenish was much given to drinking and other Vices and divers times did beat and abuse his Wife and was also jealous of the saiâ— Thomas Bickley and his Wife being at a certain time at Supper with Dr. Thorn Goulding and others spake such words as these having communication thâ—t her Husband did beat and abuse her to wit That she heard that his Father had that quality and being once whipt for it was the better ever after and that if she thought it would do her Husband any goâ—d she would willingly bestow 40 s. on some body to give him a whipping wherupon Gâ—ulding said that he would give him a Medâ—cine for his Mâ—lâ—dy and within two daies after he came in the night in womâ—ns apparrell with a Weapon under his Cloak and with a Rod and wenâ— into the House and Chamber of the said Devenish and would have whipped him and in striving together there was some hurt done on either side but Gâ—ulding not being able to effect his purpose fled and this was conceived to be by the procurement of Anne his wife And not long after Devenish fell sick and sent to his said wife for certain necessaries which she would not send him and presently after Devenish died and she refused to come to his buriall And although it were much disliked that Devenish should abuse his Wife in such uncivill manner as to strike and beat her and as Coke late chief Iustice said it is not lawfull by the Act Military for one man to strike another in the presence of Ladies yet it was resolved by the whole Court that it was a great misde meanor in the Wife and uncivill and undutifull carriage in her to do so to her Husband as they use to do to Children or fools to wit to give them the Whip and so to disgrace and take away the good name of her Husband which viz. A mans good name and his Childrens are the two things which make a man live to Posterity as was said by Sir Francis Bacon Lord keeper and the Court fiâ—ed the Wife 500 l. and it was said that Thomaâ— Bickley her noâ— Husband well deserved to pay this Fine because he was too familiar with her in the time of his Predecessor and as the Bishop of London said Devenish Rimon lay upon her hands and Thomas Bickley upon â—eâ— heart And to aggravate this matter a Letter was shown whiâ—h Devenish Rimon wrote to his Wife in which he called her Whoor and told her somwhat roundly of her faults and she wrote back to him in the Margeâ—t that he lyed and wished him to get a better Scribe for his next Lâ—â—ter for he was a Fool that wrote that wherin she called him Fool by craft And Goldings offence was accâ—vnted the greater because he was a Minister so that he was fined 500 l. also And Coke said that the course of this Court was that if any were fined who is not able to pay it Respondeat superior he that is the principall and chief agent therin must answer it for otherwise poor men might be made Instruments of great mischief who are not able to answer and the greater Offenders shall escape which the Lord Keeper confirmed And as to Doctor Thorn he was acquitted by all And the Bishop of London said that they had thought to have troad upon a Thorn and they gat a Thorn in their foot And by Coke if Devenish Rimon had died upon it it had been capitall in the Wife who procured it for it was an unlawfull Act. The same Term in the Kings Bench. Wescot versus Cotton THe case was this An Infant Executor upon an Action brought against Where an Infant Executor may declare by Attorney but not defend by Attorney but by Guardian him appeared by Attorney where he ought to appear by Guardian and it was resolved by the Court that this was Error for this
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
same time nothing works by the Livery for the reason before given by Jones For the matter of Law he conceived that the unity of possession doth not extinguish the Water-course and that for two reasons 1. For the necessity of the thing 2. From the nature of the thing being a Water-course which is a thing running 1 For the necessity and this is the reason that common appendant by the unity of possession shall not be extinguished for it is appendant to ancient Land-hide and gain arable Land which is necessary for the preservation of the Common-wealth and as in this case there is a necessity of bread so in our case there is a necessity of water And for the case of a way Distinguendum est for if it be a way which is only for easement it is extinguished by unity of possession but if it be a way of necessity as a way to Market or Church there it is not extinguished by unity of possession and accordingly was the opinion of Popham chief Iustice which I take for good Law and the case of 11 H. 7. 25. is a notable case and there a reason is given why a Gutter is not extinguished by unity of possession because it is matter of necessity 2. From the nature of water which naturally descends it is alwais current Et aut invenit aut facit viam and shall such a thing be extinguished which hath its being from the Creation Co. lib. 4. Luttrels case a Mill is a necessary thing and if I purchase the Land upon which the streams goes which runs to this Mill and afterwards I alien the Mill the Water-course remains So if a man hath a Dye-house and there is a water running to it and afterwards he purchase the Land upon which the water is current and sell it yet he shall have the Water-course Dyer Dame Browns case and the principall case in Luttrels case a Fulling-mill made a Water-mill this shall not alter the nature of the Mill but yet it remains a Mill so the water hath its course notwithstanding the unity and he concluded for the Plaintiff Crew chief Iustice I agree that the Declaration is good and also that the Bar is good for the manner but for the matter in Law I conceive that it is not good In our Law every case hath its stand or fall from a particular reason or circumstance For a Warren and Tithes they are not extinguished by unity because they are things collaterall to the Land And for the case of 13 Eliz. in Dyer of an Inclosure I conceive that by the unity the Inclosure is destroyed for the Prescription was interrupted and in Day and Drakes case 3 Jac. in this Court it was adjudged that in the same case the Prescription was gone It may be resembled to the case of Homage Ancestrell 57 E. 3. Fitzherbert Nusans And for our case it is not like to the cases of Common or a Way because the Water-course is a thing naturall and therfore by unity it shal not be discharged also there is a linement out of which every man shall have a benefit and therfore he concluded that Iudgment should be given for the Plaintiff And Iudgment was commanded to be entred for the Plaintiff The same Term in the same Court. Welden versus Vesey AN action of Debt was brought by Welden Sheriff of the City of Coventry against Vesey upon the Statute of 29 Eliz. cap. 4. and declares that it is provided by this Statute that no Sheriff or Minister c. shall take for an execution if the summ doth not exceed 100 l. but 12 d. for every 20 s. and being above the summ of 100 l. 6 d. for every 20 s. and shews that wheras the said Vesey had judgment against one in an action of Debt that the Plaintiff by virtue of a Capias directed to him took the body of the said person condemned and that it was delivered to the Plaintiff and that he for levying of the money had brought this action The Defendant by way of Bar saith that it is provided by this act that it shall not extend to Executions in Towns Corporate and that this was within Coventry and so demurred upon the Declaration And Whitwick argued for the Plaintiff two things are considerable in this case 1. Whether where the summ exceeds 100 l. the Sheriff shall have 12 d. for every 20 s. of the 100 l. and 6 d. for that which is over or 6 d. only for every 20 s. for all the summ 2. Whether this Statute extend to Iudgments in Towns Corporate For the first the letter of the Statute is cleer that he shall have 12 d. for the first 100 l. and 6 d. for the residue for the Statute is that if it be above 100 l. Whether a Sheriff or c. shall have 12 d. in the pound for the first 100 l. and 6 d. for the rest upon an Execution that he shall have but 6 d. therfore if it be under a 100 l. he shall have 12 d. for every 20 s. And the meaning of the Statute is plain also for otherwise the Sheriff shall have a lesser Fee where it is above a 100 l. as where it is a 199 l. then he shall have for 100 l. but this was not the intent of the Statute but the greater the Execution the greater the Fee It was adjudged in one Gores case 10 Jac. that an action of Debt lies upon this Law Pasch 14 Jac. Rot. 351. Brole and Tumblerson Sheriffs of the City of London brought Dabt against Nathanael Michell for execution of 400 l. for 12 l. 10 s. scil 5 l. for the first 100 l. and 6 d. for every 20 1. after But I confesse that the principall question there was whether an action of Debt lies for the money and it was resolved that it did and Iudgment was given for the Plaintiff 2. To the Proviso that this doth not extend to Fees in a Town Corporate whether this extend to executions which go out of Iudgments in this Court or in the Common Pleas into Towns Corporate The Statute shews that before that time the Sheriff had taken great Fees which the Parliament considering restrained them to a certainty The words of the Proviso are generall Provided that this Act shall not extend to any Fees to be taken for any Execution within any City or Town Corporate and although the words be generall yet the exposition shall be according to reason as it is said in Fulmerston and Stewards case in Plow Expesition shal be made against the words if the words be against reason 5 H. 7. 7 38 H. 3. Broo. Livery 6. The King shall have primer Seisen of all Lands of his Tenant which he holds of him in Capite but if one holds of the King in Capite in Socage he shall pay no primer Seisen to the King and this Statute shall have this intendment that this Proviso shall extend only to Executions upon Iudgments
Law or meerly of another nature then the Rent it self with which it is conjoyned by the word or then it is erroneous for albeit a common Recovery be now a common assurance of Land past by the assent of parties and therfore hath another conservation then that which passeth by pretence of Title yet we are not to omit grosse absurdities in such common Recoveries as to demand an acre of Land or Wood in the Mannor of Sale or Dale or black acre or white acre these are not good in common Recoveries because there is no certainty in the demand which of them the party is to recover which kind of absurdity is not to be admitted in these Recoveries for this is but a meer ignorance in the Law and the Ministers of it And to this Gawdy and the other Justices agreed but they sayd that a Pension issuing and a Rent shall be taken for all one for if a man grant a Pension of 20 s. a year issuing out of the Mannor of D. or of the Rectory of S these are Rents issuing out of them and if the demand had been of an annuall Rent or Annuity of 20 s. a year issuing out of the Rectory this had been good To which Popham agreed and yet sayd if it had been an annuall Rent of 20 s. c. or of an Annuity of 20 s. it had nof been good because that the word issuing is not referred to the Annuity but to the Rent only and therfore are meerly generall and not as the same but if the demand were of an annuity rent or payment of 20 s. issuing out of a Rectory it is good for this is but one and the same Then it was alledged that notwithstanding that which appears to the Court it cannot be taken that this was a common Recovery for upon the assignment of the Error it is not averred that it was a common Recovery to which Popham said that common Recoveries are such common Assurances to all persons that are well known to all and especially to us that they need not be averred for they are known by certain Marks to wit by the voluntary entry into the Warranty the common Voucher and the like And at last they all agreed that the Iudgment shall be affirmed 2. In Wast by Thomas Haydock against Richard Warnford the case was this One Michael Dennis was seised in his Demesne as of Fee of the third part of a Messuage and of certain Lands in Bury Blunsden in the County of Wilts and being so seised the last of April 9 â—liz demised them to Susan Warnford for 41. years from the Feast of S. Michael the Arch-angel then next ensuing who assigned this over to Richard Warnford after which the said Michael Dennis by bargain and sale enrolled according to the Statute conveyed the Reversion to John Simborn Esquire and his Heirs the said Iohn being then seised of another third part therof in his Demesne as of Fee after which to wit the first day of Iune 17 Eliz. the said Iohn Simborn demised the said third part which was his before his said purchase to the said Richard Warnford for 21 years then next ensuing and afterwards the said Iohn Simborn died seised of the Reversion of the said two parts and this descended to Barnaby Simborn his Son and next Heir who the 20 of Iune 28 Eliz. by bargain and sale enrolled according to the Statute conveyed be Reversion of the said two parts to the said Thomas Haydock and his Heirs after which the said Richard Warnford committed Wast in the said house wherupon the said Thomas Haydock brought an action of Wast against him according to the said two severall Leases and assigned the Wast in suffering the Hall of the price of 20 l. a Kitchin of the price of 20 l. and so of other things to be uncovered wherby the great Timber of them became rotten and so became ruinous to the disinherison of the Plaintiff and upon a Nihil dicit a Writ was awarded to enquire of Damages in which it was comprised that the Sheriff shall go to the place wasted and there enquire of the said Damages who returned an inquisition taken therof at Bury Blunsden without making mention that he went to the place wasted and that it was taken there wherupon Iudgment was given in the common Bench that the said Plaintiff shall recover his Seisin against the Defendant of the said places wasted with their Appurtenances Per visum Iurator Inquisitionis predict damna sua occasione vastâ— in eisdem locis in triplo secunâ—uÌ„ formam statuti c. And upon this a Writ of Error was brought in the Kings Bench and there by all the Iustices it was agreed that it was but Surplusage to comprehend in the Writ of enquiry of Damages that the Sheriff shall go to the place wasted and there enquire of the Damages in as much as by the not denying therof the Wast is acknowledged and therfore he need not go to the place wasted But where a Writ is awarded to enquire of the Wast upon default made at the grand Distresse there by the Statute of West 2. cap. 24. the Sheriff ought to go in person to the place Wasted and enquire of the Wast done and therfore in that case it is needfull to have the clause in it that the Sheriff shall go to the place wasted and there enquire of it for by the view the Wast may be the better known to them but where the Wast is acknowledged as here that clause need not and albeit it be comprehended in the Writ yet the Sheriff is not therby bound to go to the place wasted and to enquire there but he may do it at any place within his Bayliwick where he will and therfore it is no error in this point And they agreed also that the Wast is well assigned in the entire Hall c. although the Action were brought but upon the Demises of two third parts of it and it cannot be done in these parts but that it is done in the whole and also it cannot be done in the whole but that it is also done in the three parts but yet the doing therof is not to the disinheritance of the Plaintiff but in these two third parts and therfore no error in this manner of assigning of the Wast And they also agreed that the Action is well brought upon these severall Demises because neither the interest of the Term nor of the Inheritance was severed nor divided to severall persons at the time of the doing of the Wast but the two Terms in the one to wit in Warnford and the Inheritance of these immediatly in the other to wit in Haydock And by Popham also the thing in which the Wast is assigned is one and the same thing and not diverse to wit a Messuage and therfore by Brudnell and Pollard 14 H. 8. 10. if severall Demises are made of one and the same Messuage by one and the same person as
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
Defendant had nothing to do there the Defendant shall be excused But here it is expresly alledged that it fell by the weight put upon it which ought to be answered As if a man take an Estate for life or years in a ruinous house if he pull it down he shall be charged in Wast but if it fall of it self he shall be excused in Wast so there is a diversity where default is in the party and where not so here the Defendant ought to have taken good care that he did not put upon such a ruinous floor more then it might well bear if it would not bear any thing he ought not to put any thing into it to the prejudice of a third person and if he does he shall answer to the party his damages Collard versus Collard 5. IN an Ejectione firmae brought by Constantine Collard against Richard Collard the case appeared to be this Thomas Collard was seised in his Demesne as of Fee of Lands in Winkle in the County of Devon called the Barton of Southcote And having two Sons to wit Eustace the eldest and Richard the now Defendant the youngest and the eldest being to be married the said Thomas in consideration of this marriage being upon the said Barton said these words Eustace stand forth I do here reserving an Estate for my own life and my wives life give unto thee and thy Heirs for ever these my Lands and Barton of Southcote after which the said Thomas enfeoffed his youngest Son of Barton with warranty from him and his Heirs the eldest Son enter and let it to the Plaintiff upon whom the Defendant re-enter upon which re-entry the Action was brought and upon a speciall Verdict all this matter appeared But it was not found by the Verdict that the said Thomas Collard the Father was dead and therfore the Warranty was not any thing in the Case And it was moved by Heale that the Plaintiff ought to be barred because it did not passe by way of Estate in as much as a man cannot passe a Freehold of a Land from himself to begin at a time to come and by it to create a particular Estate to himself and in use it cannot passe because that by a bare parole and Vse cannot be raised and by giving my Land to my Son Cosin and the like nothing will passe without Livery for there is not consideration to raise an Vse Fennor The words shall be taken as if he had said here I give you this Barton reserving an Estate for my life although the words of reservation have priority in their time from the speaking of them because a reservation cannot be but out of a thing granted and therfore the reservation shall be utterly void or otherwise ought to be taken according to their proper nature to wit to be in their operation subsequent and so shall not hurt the Grant and therfore are not to be compared to the case where a man grant that after the death of I. S. or after his own death a stranger shall have his Land which Popham granted And Fennor said further that these words being spoken upon the Land as before amount to a Livery Gawdy said That the words as they are spoken amount to a Livery if the words are sufficient to passe the Estate but he conceived that the words are not sufficient to make the Estate to passe to the said Eustace because his intent appeareth that Eustace was not to have the Land untill after the death of him and his wife and therfore of the same effect as if he had granted the Land to the said Eustace after his death and as an Vse it cannot passe because by a bare word an Vse cannot be raised as appeareth in divers Reports Mich. 12 13 Eliz. which is a good case to this purpose But to say generally that an Vse cannot be raised or charged upon a perfect Contract by words upon good consideration cannot be Law and therfore it is to be considered what the Law was before the Statute of 27 H. 8. And I thinke that none will deny but that by grant of Land for money before this Statute an Vse was raised out of the same Land for a bargain and sale of Land for money and a grant of Land for money is all one and no difference between them And is not a grant of Land made in consideration of marriage of my Son and Daughter as valuable as a grant of it for money It is cleer that it is and much more valuable as my blood is more valuable to me then my money and therfore it is absurd to say that the consideration of money raise or change an Vse at Common Law and not such a consideration of marriage And in such a case at Common Law there was not any diversity that the party who so grant or hargain for the one or the other considerations was fâ—ised of the Land granted or bargained in use or possession but that the Vse by the Contract was transferred according to the bargain in both cases where there is a consideration And where through all the Law shall it be seen that of any thing which might passe by contract there need any other thing then the words which make the contract as writing or the like testifying it And that the Law was so it appeareth by the Statute of Inrolements of bargains and sales of Land made 27 H. 8. which enacts that no Freehold nor Vse therof shall passe by bargain and sale only unlesse it be by deed indented and enrolled according to the Statute Ergo if this Statute had not been it had passed by the bargain and sale by bare words and in as much as the Statute enacts this in case of bargain and sale only the other cases as this case here are as it was before at Common Law And by an exception at the end of the same Statute London is as it was at Common Law and therfore now Lands may passe there at this day by bargain and sale by word without deed for it is out of the Statute And how can we say that the Statute of Vses does any thing to alter the Common Law in this point by any intent of the makers therof wheras at the same Parliament they made an especiall Law in the case of bargain and sale of Lands And at this day for the Lands in London notwithstanding the Statute of Vses the Law hath been put in practice and alwaies holden as to the Lands there to be good if sold by bare Parole as it were at Common Law And I have heard it reported by Manwood late chief Baron of the Exchequer that it was in question in the time of King Edw. the 6th whether the use of a Freehold of Land will passe upon a Contract by Parole without Deed in consideration of marriage upon which all the then Iustices were assembled upon a doubt rising in a case hapning in the Star-chamber and then
to the use of Dennis May his Son and Heir apparant and his Heirs upon condition that the said Dennis and his Heirs should pay to one Petronell Martin for his life an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell to begin upon the death of the said Thomas And upon condition also that the said Thomas upon the payment of 10 s. by him to the said Feoffees or any of them c. might re-enter After which the said Thomas May and Dennis by their Deed dated 30. May 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid and therupon re-entred into the Land and enfeoffed a stranger And whether by this the Rent were defeated was the question And it was mooved by Coke Attorney-generall that it was not but that in respect that he joyned in the part it shall enure against the said Thomas by way of confirmation which shall bind him as well against this matter of Condition as it shall do against any Right which the said Thomas otherwise had And therfoâ—e by Littleton If a Disseisor make a Lease for years or grant a Rent-charge and the Disseisor confirm them and afterwards re-enters albeit Lit. there makes a Quaere of it yet Cook said That the Disseisor should not avoid the Charge or Lease which was granted by the whole Court And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition and afterwards is bound in a Statute upon which Execution is sued and afterwards he re-enter for the Condition broken he shall not avoid the Execution no more the Rent here Fennor agreed with Cook and said further That in as much as every one who hath Title and Interest have joyned in the Grant it remains perpetually good And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory being confirmed by the Patron and Ordinary it shall be good in perpetuity and yet the Parson alone could not have charged it and the Patron and Ordinary have no Interest to charge it but in as much as all who have to intermeddle therin are parties to it or have given their assent to it it sufficeth Gawdy was of the same opinion and said That there is no Land but by some means or other it might be charged and therfore if Tenant for life grant a Rent-charge in Fee and he in the Reversion confirm the Grant per Littleton the Grant is good in property so here To which Clench also assented but Popham said That by the entry for the Condition the Charge is defeated And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation to what effect a Confirmation shall enure and this is to bind the right of him who makes the Confirmation but not to alter the nature of the Estate of him to whom the Confirmation is made And therfore in the case of a grant of a Rent-charge by the Disseisor which is confirmed by the Demisee the reason why the Confirmation shall make this good is because that as the Disseisee hath right to defeat the right and the Estate of the Disseisor by his Regresse in the same manner hath he right therby to avoid a Charge or a Lease granted by the Disseisor which Right for the time may be bound by his confirmation But when a man hath an Estate upon condition although the Feoffor or his Heirs confirm this Estate yet by this the Estate is not altered as to the Condition but it alwaies remaineth and therfore Nihil operatur by such a confirmation to prejudice the Condition And so there is a great diversity when hewho confirmeth hath right to the Land and where but a Condition in the Land And by him if a Feoffee upon condition make a Feoffment over or a Lease for life or years every one of these have their Estates subject to the Condition and therfore by a Confirmation made to them none can be excluded from the Condition And the same reason is in case of a Rent granted by a Feoffor upon Condition it is also subject to the Condition and therfore not excluded from it by the Confirmation as it shall be in case of a Right And to prove this diversity suppose there be Grand-father Father and Son the Father disseise the Grand-father and makes a Feoffment upon Condition and dies after which the Grand-father dies now the Son confirms the Estate of the Feoffee by this he hath excluded himself from the Right which descended to him by his Grand-father but not to the Condition which descended to him from his Father And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet for the principall Case upon the Case moved there by Popham this Term And as the case is it would have made a good question upon the Statute of Fraudulent Conveyances if the Avowry had been made as by the grant of Thomas May in as much as the Estate made to the use of Dennis was defeasable at the pleasure of the said Thomas in as much as it was made by the Tenant of the Land as well as by him who made the Conveyance which is to be judged fraudulent upon the Statute But this as the pleading was cannot come in question in this case And afterwards by the opinion of other three Iudges Iudgment was given that the Grant should bind the said Thomas May and his Feoffees after him notwithstanding his regresse made by the Condition in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation And by Gawdy If a Feoffee upon Condition make a Feoffment over and the first Feoffor confirm the Estate of the last Feoffee he shall hold the Land discharged of the Condition because his Feoffment was made absolutely without any Condition expressed in his Feoffment But Popham denied this as it appeareth by Littleton Tit. Descents because he hath his Estate subject to the same Condition and in the same manner as his Feoffor hath it into whomsoever hands it hapneth to come and therfore the Confirmation shall not discharge the Condition but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition Morgans Case 7. RObert Morgan Esquire being seised in his Demesne as of Fee of certain Lands called Wanster Tenements in Socage having Issue John his eldest Son Christopher his second Son and William his youngest Son by his last Will in writing demised to the said Christopher and William thus viz. Ioyntly and severally for their lives so that neither of them stall alienate the Lands and if they do that they shall remain to his Heirs Robert the Father
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
35 E. Rot. 258. And Popham said further in this case that to erect an Hospitall by the name of an Hospitall in the County of S. or in the Bishopprick of B. and the like is not good because he is bound to a place too large and incertain But a Colledge erected in Accademia Cantabrig or Oxon. is good and sâ—me are so founded because it tends but to a particular place as a City Town c. King versus Bery and Palmer 2. IN an Ejectione firmae brought by William King against John Bery and William Palmer Defendants for two Messuages and certain Lands in Halstead in the County of Leicester upon a Demise alledged to be made by Dorothy Pool and Robert Smith the case upon a speciall Verdict was this The said Dorothy was Tenant for life of the said Tenants the Remainder over to the said Robert Smith and his Heirs and they being so seised made the Lease in the Declaration upon which the Action was brought And per curiam the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration for although they joyned in the Demise yet during the life of the said Dorothy it is her Demise and not the Demise of the said Robert Smith but as his confirmation for that time for he hath nothing to do to meddle with the Land during the life of the said Dorothy but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith and not before because untill this time Smith hath nothing to do to meddle with the Land And in a more strong case If Tenant for life and he in the Reversion in Fee make a Gift in tail for the life of Tenant for life it shall be said to be his Gift but after his death it shall be said the Gift of him in the Reversion and if the Estate tail had expired during the life of the said Tenant for life he shall have the Land again in his former Estate and there shal be no forfeiture in the case because he in the Reversion of the immediate Estate of Inheritance had joyned in it and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33 34 Eliz. Rot. And the Judgment is entred Hill 34. Eliz. Ret. 72. 3. In this Term I hapned to see a Case agreed by the Iustices in 3. 4. Eliz. which was this If a man make a Lease of two Barns rendring Rent and for default of payment a Re-entry if the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and none be there to pay it that yet the Lessor cannot enter for the Condition broken because there was no default in the Tenant he being at one for it was not possible for him to be at both places together And upon this Case now remembred to the Iustices Popham Walmesley and Fennor said That perhaps also the Tenant had not money sufficient to have been ready to have paid it at either of the said places but it is sufficient for him to have and provide one Rent which cannot be at two places together And by the Case reported here also If Lands and Woods are demised together the Rent ought to be demanded at the Land and not the Woood because the Land is the more worthy thing and also more open then the Wood And therfore by the three Iustices aforesaid Rent ought not to be demanded in any private place of a Close as amongst Bushes in a Pit or the like nor in the open and most usuall passage therof as at a Stile Gate and the like 4. Vpon a Prohibition sued out of the Kings Bench the Case appeared to be this The late Lord Rich Father to the now Lord Rich devised to his Daughter for her advancement in marriage 1500. upon condition that she marry with the consent of certain friends and deviseth further that if his Goods and Chattels are not sufficient to pay his Debts and Legacies that then there shall be 200 l. a year of his Lands sold to supply it and dies making the now Lord Rich his Executor his Goods and Chattels not being sufficient to pay the Debts of the Testator as was averred the said Daughter married with a Husband against the will of those who were put in trust to give their assents and the Husband and the Wife sued in the Spirituall Court for the Legacy And it was surmised that they would not allow the proofs of the said now Lord Rich exhihited to prove the payment of the Debts of his Testator and further that they would charge him for the sale of the Land upon which matter the Prohibition was granted to the Delegates before whom the matter depended and now consultation was prayed in the case Vpon which it was affirmed by a Doctor of the Civill Law that they will allow the proofs for the payment of the Debts according to our Law and that the Legacy shall not be paid untill the Debs are satisfied But he said that by the Law if the Executor do not exhibit his Inventory but neglect it for a year or more that then if any omission or default be in the true value of the Inventory exhibited that then such on Executor for this default shall pay all the Legacies of his Testator of what value soever they are not respecting the Debts or the value of the Goods or Chattels how small soever the omission or default be in the Inventory And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator and that in the Inventory exhibited the values of every thing were found to be too small and therfore to be charged by their Law albeit he hath not Goods and Chattels sufficient of the Testators To which it was answered that this was quite without reason for by such means every Subject of the Realm may be utterly defeated if he take upon him the charge of an Executorship And if this shall be admitted no man will take upon him the Execution of the Will of any and by such a means none will have their Wills performed which shall be too inconvenient And they said further that in as much as Debts are to be proved by the Common Law of the Realm those of the Ecclesiasticall Courts ought to admit in the proof therof such proofs as our Law allows and not according to the precisenesse of their Law And although by their Law such a Condition as before being annexed to a Legacy is void because that marriage oughr to be free without Coercion yet where we are to judge upon the point as we are here if the Execution happen to be charged because of the sale of Land and for
wit the 6th day of July in the same 6th year by his Deed of the same date the said Christopher enfeoffed the said Sir John Chichester and his Heirs of the said Mannor and by the same Deed warranted it for him and his Heirs to the said Sir John Chichester and his Heirs wherupon the said Sir John Chichester entred into the said Mannor after which to wit the first day of October 12 Eliz. the said Christopher died after which the 7th day of November 13 Eliz. the said Stretchley Chudleigh died without Issue of his body And after the death of the said Sir Richard Chudleigh to wit the 6th day of September 7 Eliz. the said Sir John Chichester enfeoffed one Philip Chichester and his Heirs of the said Mannor to the use of the said Philip and his Heirs And the said Close being Copyhold and Customary Land of the said Mannor demisable by the Lord of the same Mannor or his Steward for the time being for life or lives by Copy of Court-roll according to the custom of the said Mannor The said Philip at a Court holden at the said Mannor for the said Mannor the 8th day of December 15 Eliz. by Copy of Court-roll granted the said Close to the said John Frain for Term of his life according to the custom of the said Mannor after which to wit the 11th day of March 28 Eliz. the said John Chudleigh being now Heir to the said Christopher enfeoffed the said William Dillon of the said Mannor to have and to hold to him and his Heirs to the use of the said William and his Heirs for ever wherby he entred and was seised untill the said John Fraine entred into the said Close upon him the 8th day of February 30 Eliz. upon which entry of the said Fraine this Action is brought And for difficulty of the case it was adjourned into the Exchequer Chamber before all the Iustices and Barons of the Exchequer And there it was agreed by all that a Warranty descending upon an Infant shall not bind him in case that the entry of the Infant be lawfull into the Land to which the Warranty is united But the Infant ought in such a case to look well that he do not suffer a descent of the Land after his full age before he hath made his re-entry for then the Warranty when he is to have an Action for the Land shall bind him And they agreed also that a Copyhold granted by a Disseisor or any other who hath the Mannor of which it is parcel by wrong shall be avoided by the Disseisee or any other who hath right to the Mannor by his entry or recovery of the Mannor And so by Popham it was agreed by the Iustices in the case of the Manner of Hasselbury Brian in the County of Dorset between Henry late Earl of Arundell and Henry late Earl of Northumberland but then he said that it was agreed that admittance upon surrenders of Copyholders in Fee to the use of another or if an Heir in case of a Descent of a Copyhold were good being made by a Disseisor of a Mannor or any other who hath it by Tort because these are acts of necessity and for the benefit of a stranger to wit of him who is to have the Land by the surrender or of the Heir And also Grants made by Copy by the Feoffee upon condition of a Mannor before the Condition broken are good because he was lawfull Dominus pro tempore And for the matter upon the Statute of 27 H. 8. what shall become of this future use â—imited to the first second and other Issues Males not in Esse at the time of the Feoffment Ewens Owen Bateman and Fennor said That an Use at Common Law is Use what it is no other then a confidence which one person puts in another for a confidence cannot be in Land or other dead thing but ought alwaies to be in such a thing which hath understanding of the trust put in him which cannot be no other then such a one who hâ—th reason and understanding to perform what the other hath committed to him which confidence shall bind but in privity and yet the confidence is in respect of the Land but every one who hath the Land is not bound to the confidence but in privity shall be said to be in the Heir and the Feoffee who hath knowledge of the confidence and in him who cometh to the Land by Feoffâ—ent without consideration albeit he hath no knowledge therof and yet every Feoffee is not bound although he hath knowledge of the confidence as an Alien Person Attaint and the like not the King he shall not be seised to anothers use because he is not compellable to perform the confidence nor a Corporation because it is a dead body although it consist of naturall persons and in this dead body a confidence cannot be put but in bodies naturall And this was the Common Law before the Statute of 27 H. 8. Then the Letter of the Statute is not to execute any Vse before that it hapneth to be an Vse in Esse for the words are Where any person is seised to the use of any other person that in such a case he who hath the Vse shall have the same Estate in the Land which he had before in the Vse Ergo by the very letter of the Law he ought to have an Estate in the Vse and there ought to be a person to have the Vse before the Statute intends to execute any possession to the Vse for the words are expresse that in every such case he shall have it therfore not another And therfore the Statute had purpose to execute the Vses in possession Reversion or Remainder presently upon the conveyance made to the Vses But for the future Vses which were to be raised at a time to come upon any contingent as to the Infants here not being then born the Statute never intended to execute such Vses untill they happen to have their beeing and in the mean time to leave them as they were at Common Law without medling with or altering of them in any manner untill this time and if before this time the root out of which these contingent Vses ought to spring be defeated the Vse for this is utterly destroyed and shall never afterwards have his being as here by the Feoffment made by the said Sir John Saintleger and his Co-feoffees who then were but as Tenements pur auter vie to wit for the life of Christopher and which was a forfeiture of their Estate and for which Oliver Chudleigh might have entred it being before that the said Strechley or John Chudleigh were born the privity of them from Estate being the root out of which this future use ought to have risen is gone and destroyed and therfore the Contingent Vses utterly therby overthrown As if before the Statute of 27 H. 8. Tenant for life had been the remainder over in Fee to an Vse
If the Tenant for life had made a Feoffment in Fee and he in the Remainder had released to the Feoffee the Vse had been gone for ever so in all these cases of contingent Vses at this day for he who cometh to the possession of Land by Disseisin or wrong done to the Possessor who is seised to anothers use shall never be seised to anothers use And the case being so that it is out of the letter of the Statute to execute such contingent Vses it is more strong for them out of the meaning of the Statute to execute then before they happen to be in Esse for this shall be to make all mischiefs comprehended in the Preamble of this Statute and against which the Statute intended to provide sufficient remedy in a worse mischief then they were before the making of the same Statute and this shall be but a perverse instruction of the Statute And they said that the subtleties used from time to time by means of those Vses to the great deceit and trouble of the people were the cause of the making of this Statute 27 H. 8. and by all the Statutes formerly made touching Vses it appeareth that they were all taken to be grounded upon fraudulent and crafty devises and therfore this Law had no great purpose to favour them but a Fortiorari not to make them in worse case by means of the Statute then they were before and therfore it shall not be taken that the Vse is executed by the Statute which stands upon a contingency of which a greater mischief will ensue then there was in such a case before the Statute and therfore by the Feoffment made in the interim before the birth of the Infants which otherwise ought to have preserved the Vse this Vse was utterly destroyed and although the Feoffee of Christopher had notice of the Vse yet this doth not now help in the case because the Feoffment did wrong to the Estate first setled which was subject to the Vse and extinct in the same possibility which had been otherwise in the Feoffees to have given livelyhood to the said Contingent Vse And therfore the Iudgment by them ought to be that the Plaintiff shall be barred Walmesley That the great mischief which was at Common Law upon these Feoffments to Uses was that none could know upon the occupation of the Land who was true Owner of the Land for Cestay que Vse was the Pernor of the Profits but in whom the Freehold or Inheritance of the Land was there were not many which knew wherby great mischief came to the assurances which men had of Land which they purchased and by it men knew not against whom to bring their Actions to recover their Rights and by it Wives lost their Dowers Husbands their Tenancy by the Curtesie Lords their Escheats Wardships and the like And this mischief hapned by reason that one had the profit and another the estate of the Land And the Statute was made to put the Land and the Estate quite out of the Feoffee who before did not meddle with the Land to Cestay que Use who before had but the occupation and profits of the Land and to this intent the letter of the Law serves very well which sayes that the Estate of the Feoffee shall be cleerly in Cestuy que Use and therfore nothing by the intent and letter of the Law is now to remain in the Feoffee no more then a Scintilla juris nemor'd in Brents Case in my Lord Dyer Eliz. and the whole Estate in the interim untill the contingent happen shall be in them who have their Vses in Esse and when the Contingent happen the Statute gives place to this Contingent Vse and by the execution therof comes between the Estates before executed and as out of these by the Statute but nothing is now after the Statute in the Feoffees for the purpose of the Statute was as I have said to take away all from the Feoffee for all was devested from him because that betwixt the Feoffor the Feoffee was all the fraud before the Statute and the very letter of the Statute is to extinguish and extirpate the assurances fraudulently made which was alwaies by reason of assurances made between the Estate of the Land in one and the possession therof in another and to cause that now that the Estate shall be to the use where the occupation was before And this Statute was not made to extinguish or discredit Vses but to advance them as by bringing the very Estate in possession to the Vse and by it the trust now taken from all others who were trusted with it before so the Statute doth not condemn the uses but the fraud which was by reason of them before And the Statute being that the Estate Right and Title of the Feoffees shall go to the uses therfore nothing remaineth in the Feoffees but all by authority of Parliament adjudged to be in Cestay que use which is the highest Iudgment that can be given in any Court and the words Stand and be seised at any time refer as well to the future as present uses and the Statute intended as well to help the uses which shall be upon any Contingent as those which are at present for a future or contingent Vse is to be said an Vse according to its nature or quality and it shall be executed according to its quality when it happen And the words are that the Estate which was in the Feoffee shall be in Cestay que use and not the Estate which is and therfore when the use hapneth to be in an instant the Estate which at the first Livery was in the Feoffee to this use shall now be executed in possession to this contingent use albeit it self was altogether executed as I said before in the Vses which were in Esse and if so it followeth that nothing which is done in the mean time by the Feoffee or can be done by any other can prejudice or hurt the execution of this Vse in contingency when the contingency happen And for the case of Brook 30 H. 8. it is plain in paint which is this A Covenant with B. that if B. enfeoff him of three acres of Land in D. that then the said A. and his Heirs and all others seised of such Lands shall stand therof seised to the use of the said B. and his Heirs after which A enfeoffed a stranger of this Land after which B. enfeoffed the said A of the said three acres now the use shall be to the said B. and his Heirs of the said other Land for the Statute so binds the Land to this Contingency when it happens that by no means it can be defeated and this is the cause that Leases made by force of Provisoes comprised in assurances are good and cannot be avoided for the Interests to these Leases is wrought by the first Livery and the Statute atd therfore upon the matter I conceive that Judgment ought
to be given for the Plaintiff Gawdy conceived that it is executed by the intent but not by the letter of the Statute for the purpose was to remove all the Estate from the Feoffee and to put it in Cestay que use wholly to wit in possessions to the Vses which were in Esse and in aleyance as to the Vses which were to come and contingent and now by the same Statute the contingency of the possession shal go in licence of the contingent Vse and now an Vse limited to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. shall be in the same manner as if Land at this day had been letten to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. and not otherwise for the quality which he had in the Vse the same by the very letter of the Statute he shall now have in the possession and Estate of the Land and the Statute is not to undo any Vse but to transfer an Estate in the Land to the Vse But he said That by the Feoffment made to Christopher the Contingent remainder which was devested in Stretchly and Iohn Chudleigh depending upon the Estate which Sir Iohn Saintleger and his Co-feoffees had for the life of Christopher is utterly gone and destroyed in the same manner as where a Lease is made for life the remainder to the right Heirs of I. S. or to the Heirs of the body of I S. if the Tenant for life dies or aliens wherby he makes a forfeiture and determines his Estate in the life of the said I. S. his Heir shall never have the Land by the remainder afterwards because he was not in Esse as an Heir at the time when the Estate ended for there cannot be a remainder without a particular Estate neither can it stand or be preserved And as in this case without a particular Estate of Free-hold a Remainder cannot be no more in the case now in question being now become by means of the Statute as if it had been an Estate executed in possession and for this cause only he conceived that Judgment ought to be given against the Plaintiff And Clench agreed with this opinion in all and both of them agreed if there be none to take the Vse according to the limitation at the time when it falleth to be in Possessions that he shall never take it although it happen to be in Esse afterwards Clark said that Uses were not at Common Law but grew by sufferance of time as appeareth by the words of the Statute it self and the mischief and subtlety which was before this Statute was not in the Fine Feoffment or other Assurances of Land but by means oâ— the Uses limitted therupon contrary to that which was used in the ancient course oâ— the Common Law and the Statute was made to reduce the Common Law to its ancient force and course and therfore ought to conceive such a construction as may agree with the purpose of the makers of the Statute and therfore the best construction of this Statute is not to execute other manner of Uses but in some cases to extinguish them as where it is such as will make the case in as ill or worse condition then it was before the making of the Statute It hath been agreed by all that the Statute doth not execute any Use which was suspended at the time of the making of the Statute as by reason of a Disseisor or the like hapning before and if it doth not execute the Use which is in suspence for the right which he had in the Use how can it execute the Use which hath not any being for in such cases of Infants not born as here untill they be in Rerum natura the Use cannot have any being And in the same manner in all cases where the Vse is not to rise but upon a future contingent And what good shall this Statute do if these leaping Vses shall arise without being impeached Nothing but alwaies nourish a Viper in the bosom of the Law which is quite against the intent of the makers of the Statute The Law was made to preserve peace amongst the Subjects and to assure their Possessions as many other Statutes did that were made about this time as the Statutes of Fines Wills and others But if the exposition of this Statute shall be as the other side hath taken it it will make the confusion which will happen therupon intollerable and much worse then it was before the Statute was made and as Walsh said if no assurance can be made to be forcible against such a contingent Use this will make it worse then it was before And hesaid that it was not to be compared to the interest of Lands to begin at a time to come nor to the case where a man devise that his Land shal be sold in which case be shall not be impeached by any manner of assurance to be made in the mean time by the Heir and the reason is because the Vendee takes by the Will under the Estate of the Heir and not by the sale and therfore upon the matter he conceived that the Plaintiff ought to be barred Periam said that Uses were at Common Law and to prove it he vouched 24 H. 8. abridged in Brook And he said that there have been alwaies trusts Ergo Uses ab initio but they had not such estimation at the beginning as they have had by continuance of time and so it was of Copyholds And these Uses at Common Law bind but in privity according to the trust but do not bind in the possession of him who cometh to the Land in the Post But now by the Statute all trusts are gone and the Estate of the Land it self transferred to the Use and now the Use guides the Land and not the Land the Use And the Statute did not intend to destroy any Use but to bring it back to the Possession according to the course of the common Law and to avoid the fraud And as before the Statute the Use it self in such a case of Contingency was in obeyance for the time so now the Estate it self is in obeyance by the Statute which wills that he shall now have an Estate in the Land it self of such a quality as he had before in the Use for the Statute puts all cleerly out of the Feoffees and it is not inconvenient to have a Possession so to a Contingent Use and if it had not been in the words of the Statute yet as hath been sayd it shall be so taken by the intent of the Statute for it never was the intent of the makers of the Statute to do wrong to any by means of the Statute And therfore he put the case of Cramner who made a Feoffment to the use of himself for his life and after his decease to the use
of his Executors for years this Estate for years is not now vested in any because a man cannot have an Executor during his life and yet it remains as in the custody of the Law untill there are Executors to take it And he said that the case of the Lady Bray was as strong to prove the case in question to be at he takes it which cannot be answered for if she had married with the Lord Bray by the assent of the Councell assigned for it according to the agreement she had taken an Estate by the Contingency but in as much as she did not do it it was otherwise And we are to consider well what we do in this case it is a Tree the branches wherof over-shadow all the Possessions of the Realm in effect for the Estates and Leases in manner of all stand upon those assurances to Uses and to pull up such a Tree by the roots is to put all the Realm in a confusion and therfore if there be any mischief therin it is better to help it by Parliament then to alter it by Judgment And so upon the whole matter I conceive that Judgment ought to be given for the Plaintiff Anderson That an Use was not at Common Law for the Common Law had no respect to it but to the Feoffee and it was the person who by the Law had any thing to do in the Land and not Cestay que Vse for he might punish Cestay que Vse for his medling with the Land and Cestay que Vse had no remedy against him by no means But by Suboepna in the Court of Conscience And further an Vse being limited to another in Fee no Vse can be limited further therupon for any Estate And it hath been well sayd that the letter of the Statute of 27 H. 8. did not tend to execute this Vse which was not in Esse and for the intent therof that it did not tend to execute any contingent Vse untill that it happen which is proved by the case that an Estate for years being assigned over or granted to an Vse the Vse of this is not executed by the Statute of 27 H. 8. as it was agreed about 27 Eliz. and what was the reason in the case but because there was not any Seisin in the Vse but only a possession to the Vse wherby the words of the Statute are much to be regarded And here how can there be a Seissin to the Vse which is not it cannot be and therfore for the like reason as in the other case it is never executed nor shall be removed by means of such an Vse untill it hapneth to be an Vse in Esse And for Brents Case I have alwaies taken the better opinion to be that the Wife cannot take in the case for the mean disturbance notwithstanding the Iudgment which is entred therupon which was by assent of the parties and given only upon a default made after an Adjournment upon the Demurrer for he said that he had viewed the Roll therof on purpose and if it be that such a Contingent Vse be not executed untill it hapneth to be in Esse here it appeareth that by the Feoffment Christopher is in of another Estate which was not subject to the Vse because he is in by forfeiture and wrong made to this Estate and therfore not bound to the Vse in Contingency although he made it without consideration and although he had notice of this contingent Vse and therfore this contingent Vse utterly defeated before it had any being But in all the Cases put on the other side it doth not appear that there was any thing done in disturbance of these mediate uses before they hapned and therfore not to be compared to this case wherby he conceived that the Plaintiff ought to be barred Popham said That in as much as the manner of assurance made by Sir Richard Chudleigh may seem strange and in some manner to touch the reputation of the said Sir Richard who was a grave and honest Gentleman to those who heare it and do not know the reason why he did it which I remember to be this as I have heard to wit That the said Christopher had killed one Buller a Gentleman of good reputation wherupon he fled into France and the said Sir Richard doubting what would become of his Estate if he should dye before he had setled his Land and yet having a desire to have power to undo the assurance which he purposed to make if he pleased his Councell then thought the best way to make and devise the assurance so that such an Estate of Inheritance might therby be in him which could not descend to the said Christopher and yet such that he might therby undo the assurance made by the Recovery when he pleased and yet such also as should never take effect in any of the Issues of his other Wives to the prejudice of his right Wives because he never had a purpose to marry with any of these Wives And to that which hath been touched by Periam That this Limitation first made is a Fee-simple in Sir Richard I conceive cleerly the contrary For if it should be so then no Vse could be limited over upon this Fee-simple as hath been said before and therfore all the remainder of the Case had been to no end but he said that it was an Estate-tail speciall in Sir Richard and denied the opinion of Ay scough taken so in 20 H. 6. and this by reason of the Statute of Donis conditionalibus which wills Quod voluntas donatoris secundum formam doni in charta doni manifeste expressam de caetero observetur And here it is expresse that the Heirs of Sir Richard begotten upon any of the said Wives shall have the Land and therby it shall be understood that his Heirs shall be intended by common intendment the Heirs by him To which opinion Anderson agreed And for the matter Popham conceived cleerly that there was not any such use at Common Law as we commonly call an use and yet he acknowledged there were alwaies trusts at Common Law but every trust is not to be said an use for none will doubt but that a tâ—ust may be and is many times put in others at this day as upon puâ—chaseâ— made in other mens names and assurances also upon trust and yet we will not say that this is an use and without doubt such trusts were at Common Law but not the uses aforesaid and the reason that moved him to take the Law to be so was that he had not seen any ancient record Statute or Book of Law nor any writing before the time of Ed. 3. which made any mention of this word use and if it had been at Common Law without doubt as they said some mention would have been made therof The reasons which are alledged in 27. H. 8. and in the case vouched 24. H. 8. that a trust was at Common Law is by the one of them
the Causa Matrimonii prolocuti which as they pretend ought to prove that there was a trust at Common Law And the other the Statute of Marlbridge that the Lord in case of Wards against Feoffments made by Collusion which Feoffments they alledge prove that a trust then was To which it was said that the gift made by a woman to another to the intent that he shal marry her hath in it a Condition more properly implied to wit that if he doe not marry her that she shall have her land back againe for which the Common Law gives her remedy by the Action aforesaid for if it had been but a trust no remedy had been by the Common Law And for the Statute of Marlbridge the contrary therunto is manifestly proved for the Statute speaks but of Feoffments made to Heirs apparants or upon Condition or to the intent to enffeoff the Heir at his full age or the like in which cases the use alwayes goes with the Possessions and is not to the Feffor And the Statute of 4. H. 7. was made in vaine which gives the Wardship of Cestuy que use where no Will is declared which had not been needfull if Feoffments within the Statute of Marlbridge had been said to have been to Uses And without doubt if those who made the Statute of Marlbridge had then had knowledge of these Feoffments to Uses which were so mischievous and more then the other Feoffments by Collusion they then would have provided remedy for these cases of Uses Also the Statute de Religiosis ordains that Nec arte nec ingenio Lands shal not be conveyed in Mortmain and therby it was conceived that a full provision had been made against these Mortmains and yet in 15 Rich. 2. Provision was made against Uses conveyed in Mortmain to Religious or other Corporations of which they took the Profits And without doubt those who were so precise in the making of the Statute of Religiosis against Mortmains would also have made provision for the uses if they had then been known But to cleer this point without all controversie the Statute it self of uses 27 H. 8. makes it plain which saith expresly that by the Common Law of the Realm Lands or Tenements ought not to passe from one to another without solemn Livery matter of Record or writing and that these Feoffments to uses were Errors used and accustomed within the Realm to the Subversion of the ancient Laws therfore it stands not with the ancient Common Law of the Realm as all the Parliment took it which is more to be regarded then any Book vouched But see how and when they began and crept in at Common Law and it shall be easily perceived as it hath been well said by some of those who argued to this point at the beginning that they began by two means to wit by fraud and by fear And he said that the first Book which he had seen in all the Books of the Law which tend to an use is the case of 8. Assise which makes mention that the Counsee of a Fine entred into the Land in the right of another which is to be taken to anothers use And in the Quadragessimâ—s of Edw. 3. mention is made of the Feoffees of the Lord Burglash who sued to the King by petition and by the Statute of 50 Ed. 3. cap. 6. mention is made that divers gave their Lands to their Friends to have the profits and afterwards fled to priviledged places and lived there to the hinderance of their Creditors And therfore it was provided that in such a case execution shall be made as if no such assurance had been made And by 2 Rich. 2. these are called Feoffments to uses and made by craft to deceive Creditors and there is the first mention which is made in any Statute of the word Use So fraud hath been alwaies the chief foundation of these Vses yet in time they began to have some credit in the Law And this was when men saw that the Court of Conscience gave remedy in these cases against such who had not the conscience themselves to perform the trust put in them and to take away the danger which hapned to an infinite number of good Subjects upon the Garboyls which hapned between the time of E. 3. and that of King H. 7. caused that in effect all the Possessions of the Realm were put in Feoffments to uses And the first case in the Law which speaks of this word Use which he ever saw was as he said in 5 H. 4. And in the like case by Gascoign 7 H. 4. no remedy is given by the Law for Cestay que use and afterwards it crept into the Law as appeareth yet as an Error of long time used And if before the Statute of 27 H 8. a Lease had been made for life the remainder in Fee to the use of B. for life the remainder to the use of the first Son of the said B. and so further as here If the Tenant for life had made a Feoffment in Fee to a stranger and had not given the stranger notice of the Use and all this were without consideration and afterwards he in the Remainder in Fee to the Use had released all his Right to the said stranger every one of them had been hereby without remedy for their Uses Were the Son of B. born before or after this wrong done So if it were at Common Law before this Statute as hath been weâ—l said and the Law being so before this Statute then he said it was to be seen what was to be done in the case after the Statute which will stand altogether upon this what will become of these contingent Vses to the Sons not born at the time of the said Feoffment made by Sir John Saintleger and his Co-feoffees by this Statute of 27 H. 8. and it seems to him cleerly that no possession is executed to any contingent use by this Statute untill it comes in being and that as the case is here and in some other speciall cases it shall never be executed And one cause why such a contingent Vse shall not be executed is because it doth not stand with the letter of the Law but rather is against the letter Another cause is because it is utterly against the intent of the Law to execute it as the case is here It doth not stand with the Letter of the Statute for this is Where any person or persons stand seised to the use of any other person or persons c. And it is cleer that none can stand seised to the use of him who is not neither can he who is not in rerum natura have any use therfore the case here doth not stand with the letter of the Statute to be now executed And further the words following are that in every such case every person who hath such an Use in Fee-simples Fee-tail for life for years c. or otherwise in Remainder or
time to come and therfore by this exposition much more to the disinherison of the Heir then it was before the making of this Statute And which is more mischievous if a Feme putein happen to be in such a house who happen to have Children in Adultery these Bastards shall have the Land against the will of the Father to the utter disinherison of the true Heirs and against the intent of him who made the limitation by which we may see the just Judgment of of God upon these who attempt by humane pollicy to circumvent the divine providence of God for the time to come and of this also I have seen an example And now to the mischief that men do not know against whom to bring their Actions to sue for their Rights and it is cleer that now by such an exposition they shall be now in much worse condition then they were before for before the Action was given against him who received the Profits which is now gone by this Statute in the cases of Free-hold and therfore if the other exposition shall hold place it is cleer that untill the Statute of 13 Eliz. men might have been by means of this Statute put out of all remedy to recover their rights by any manner of Action as some put it in practice as to make Feoffments to the use of the Feoffor and his Heirs untill any intend to bring an Action against him for this Land and then over to others upon the like limâ—tation with a Proviso to make it void at his pleasure and the like and what mischief shall then be for the time upon such an exposition such that Justice therby cannot be done to the Subject and what an absurdity shall it be to say that such an Exposition can stand with the intent of the Makers of the Law And to that which hath been argued on the other side and first to that which was said by Walmsley That the Right Estate and Possession is wholly out of the Feoffee and vested to the Vses which have their beeing by the Statute and that upon the Contingents hapning their Estates uncouple and give place to the contingent Vse then executed and that the execution therof shall be by a Possession dâ—awn to it out of the Possession which was before executed by the Statute in another I say that this Statute can by no means have such an exposition for this is as much as to say that an Vse may arise upon an Vse contrary to what is adjudged 36 H. 8. That a Bargain and Sale by a Deed indented and enrolled cannot be at this day of Land to one to the Vse of another And if a man enfeoff another to the use of I. S. and his Heirs and if I. N. pay such a summ that then the said I. S. and his Heirs shall be seised of the same Land to the use of the said I. N. and the Heirs of his body I. â— paies the money yet the Vse doth not rise out of the Possession of the said I. S. But if it had been that upon the payment the first Feoffee and his Heirs shall stand seised to the use of the said I. N. and the Heirs of his body it shall be otherwise therfore somthing remains to the first Feoffee in the Judgment of the Law And I remember that when I was a Counsellor at Law in the time of the Lord Dyer where a Feoffment was made to the Vse of one for life with Remainders over with restraint to alien and with power given to Tenant for life to make Leases for one and twenty years or three lives it was much doubted whether this power so limited to him without words in the Assurance that the Feoffee and his Heirs shall stand seised to these Vses shall be good to make such Leases or not And therfore suppose that a man bargains and sells Land to one for his life by Deed indented and inrolled and make therin a Proviso that the Tenant for life may make such Leases this is to no purpose as to power to make a Lease but the strongest case which he put was that of 30 H. 8. which I agreed to be Law as it is there put whether it were before or after the Statute of 27 H 8. for it is not there put that the Feoffment was made upon any consideration to the stranger in which case although he had no notice of the first Covenant yet in such a case he shall take the Possession subject to the Vse to which it was bound by the present Covenant But if you consider the case well you shall see that it was a case before the Statute for it followeth presently in the same case that it is there said that it is not like the case where the Feoffees in Vse fell the Land to one who hath no notice of the first Vse wherby it appeareth that it was a case before the Statute for otherwise there had been no cause to have spoken then of the Feoffees to an Vse and by the same it appeareth if the Covenantor had bargained and sold the Land to another the same Vse had never risen upon the Covenant and therfore it is cleer against the Law that the Possession shall be bound wâ—th such an Vse in whosoevers hand it comes And to that which Peâ—â—am said in the case of these Contingent Vses they shall now by the Statute be in the same degree as if Land it self had been so conveyed and that now the Land shall be in Contingency in stead of the Vse and that by such manner it shall be executed and that by such means all is utterly out of the Feoffees because the Statute was made to determine all â—â—â—ter of trust to be hereafter reposed in any Feoffee this is well spoken but not well proved for as I have said before it is an exposition quite contrary to the letter and intention of the Law And I agree as hath been said if there be none to take the Use at the time that it falleth to be in possession according to the limitation that he shall never take it afterwards no more of an Use upon the Statute then of â—n Use at Common Law As if an Use be limitted for life the remainder to the right Heirs of I. S. if the Estate for life be determined in the life of I S. the remainder shall never vest afterwards in the right Heirs of I. S. no more then if an Estate had been so made But this makes for me to wit that the Estate upon the Uses executed by the Statute shall be of the same condition as Estates in possession were at Common Law and that they being executed ought also to be such of which the Common Law makes allowance And by way of argument I agree for the time that it is as hath been said by them who maintain that an Use may be in suspence as to that which is an Use in its proper nature for it is
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
in his custody and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff but would hâ—ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody but the new Sheriff refused to receive him unlesse Dabridgecourt would deliver him into the common Gaol of the County which was in the Town of Warwick wherupon afterwards the Prisoner escaped And Dabridgecourt was charged with this Escape and not the new Sheriff for he is not compellable to take the Prisoners of the delivery of the old Sheriff but in the common Goal of the County and the old Sheriff remains chargeable with the Prisoner untill he be lawfully discharged of him and if the Sheriff dies the party shall be rather at a prejudice then the new Sheriff without cause charged with him And in such a case the party who sued the execution may help himself to wit by the remaining of the body by a Corpus cum causa wherby he may be brought to be duly in execution and this under a due Officer And Anderson Periam and other Iustices were also of opinion that the said Skinner and Catcher are to be charged with the escape in the principall case wherupon Iudgment was given for the Plaintiff which was entred Hillar 34 Eliz. Rot. 169. in the B. R. Fulwood versus Ward 2. IN a Writ of Annuity brought in the Common Pleas by George Fulwood Plaintiff against William Ward Defendant the Case was thus The Queen was seised of a Barn and Tithes of Stretton in the County of Stafford for the life of the Lord Paget and being so seised demised it by Letters Patents dated 21. June 29 Eliz. to the said William Ward for 21. years wherupon the said Ward by Writing dated 30. Iune 29 Eliz. granted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing payable yearly upon the 8. day of November with clause of Distresse The Lord Paget died the first day of March 32 Eliz. and for the Arrearages after his death the Plaintiff brought this Writ of Annuity and for the difficulty therof in the Common Pleas the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet where it was agreed by Walmsley Fennor and Owen that the Annuity was gone by the determination â—â— his Estate in the Land who made the Grant for they said that presently upon the Grant made as before it was a Rent-charge for by such a Rent granted in Fee the Fee shall be in his Heirs albeit the Grantee dies before any Election made and such a Rent is payable from the beginning at the Land as appeareth by 12 E. 4. And by grant of Omnia terras tenementa hereditamenta such â— Rent will passe ergo it is a Rent-charge and not an Annuity untill the Election made and by the determination therof in the nature of a Rent the Election is gone as by Babington and Martin 9 H. 6. by the recovery of Lâ—nd charged with such a Rent by elder Title the Annuity is gone as it seeâ—s by their opinion and by them and by Littleton upon a Rent-charg◠〈◊〉 with Proviso that he shall not charge the person of the Grantor 〈…〉 exclude the charge of the person which proves that the Land is charâ—â—â— Originally and not the person for otherwise the Proviso would be void for the repugnancy And if so whensoever the Land is discharged as by 〈…〉 â—â—â—cent or the like the person therby is also discharged and therfore â—he Iuâ—gment here shall be that the Plaintiff shall be barred But by the chief Iustices chief Baron and all the other Iustices and Barons the Plaintiff ought to have Iudgment in this case to recover the Annuity for the Law gives him at the beginning an Election to have it as a Rent or an Annuity which matter of election shall not be taken from him but by his own Deed and folly as in case where he purchase part of the land charged in which case by his own Act he hath excluded himself of his Election But if a Feoffee upon condition grant a Rent-charge and presently break the Condition wherupon the Feoffor re-enter shall not the Feoffee be charged by Writ of Annuity surely it shall be against all reason that he by his own act without any folly of the Grantee shall exclude the Grantee of his Election which the Law gives at the beginning And they denied the opinion of 9 H. 6. to be Law But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the Disseisen by his re-entry before the Annuity brought the Annuity is gone for this was his own act yet in effect all of them agreed that Prima facie it shall be taken as a Rent-charge of which the Wife shall be endowed as hath been said which passe by grant of Omnia hereditamenta and which is payable at the Land but the reason is because it is expresly granted out of the Land and also for the presumption of Law that it is more beneficiall for the Grantee to have it in such a degree then in the other But neither the presumption of Law nor the expresse Grant therof as a Rent shall not take away from the Grantee the benefit of his Election where no default was in him but that upon his Election he may make it to be otherwise as ab initio And therfore by Popham If a Rent-charge be granted in tail the Grantee may bring a Writ of Annuity and therby prejudice his Issue because that then it shall not be taken to be an Intail but as a Fee-simple conditionall ab initio And if a Termer for two years grant a Rent-charge in fee this as to the Land is but a Rent charge for two years and if he avow for it upon the determination of the Term the Rent is gone but by way of Annuity it remains for ever if it be granted for him and his Heirs and assets descend from him who granted it And if a Rent-charge be granted in fee and doth not say for him and his Heirs if the Grantee brings his Writ of Annuity the Heir shall never be charged therwith yet if he had taken it as a Rent-charge the Land had been charged with it in perpetuity And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good is because the person is not expresly charged by such a Grant but by operation of Law But in such a case a Proviso that he shall not charge his Land is meerly void for the repugnancy because there the Land is expresly charged by precised words and therfore if it be expresly comprised in such a Grant that the Grantee may charge the Land or the person of the
by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
Living And Mountague chief Iustice said that this word Bribing doth not import that he took a Bribe and therfore this word and all the other words but corrupted Knave are idle but these words impeacheth him in his Office for it hath reference to that and therfore is actionable And Iudgment was given accordingly The same Term in the same Court Sir Baptist Hickes Case in the Star Chamber SIr Baptist Hickes having done divers Pions and Charitable Acts to wit had founded at Camden in Glocestershire an Hospitall for twelve poor and impotent men and women and had made in the same Town a new Bell tunable to others a new Pulpit and adorned it with a Cushion and Cloath and had bestowed cost on the Sessions House in Middlesex c. one Austin Garret a Copyholder of his Mannor of Camden out of private malice had framed and writ a malicious and invective Letter to him in which in an ironicall and deriding manner he said that the said Sir Baptist had done these charitable works as the proud Pharisee for vain-glory and oftentation and to have popular applause and further in approâ—rtous manner taxed him with divers other unlawfull Acts And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law for he cannot prove his case to wit the publishing of it but because Where a private Letter is punishable as a Libell it tends to the breach of the Peace it is punishable in this Court and the rather in this case because it tends to a publike wrong for if it should be unpunished it would not only deter and discourage Sir Baptist from doing such good Acts but other men also who are well disposed in such cases and therfore as the Arch-bishop observed this was a wrong 1. To Piety in respect of the cost bestowed on the Church 2. To charity in regard of the Hospitall 3. To Iustice in consideration of the Session House and these things were the more commendable in Sir Baptist because he did them in his life time For as Mountague chief Iustice observed they who do such acts by their Will do shew that they have no will to do them for they cannot keep their Goods any longer And he only took a diversity where such a Letter concerns publike matter as they did or private in which case it is not punishable But the Lord Coke said that it was the opinion of the Iudges in the Lord Treasurers case when he was Attorney that such a private Letter was punishable in this Court and therupon he had instructions to exhibit an Information but the Lord Treasurer Jacens in extremis was content to pardon him and so it was resolved between Wooton and Edwards And Sir Francis Bacon Lord Chancellor said that the reason why such a private Letter shall be punished is because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice and for fear that the other party would publish it so that this compulsary publication shall be deemed a publication in the Delinquent and in this case the party was fined at 500 l. The same Term in the same Court. Bernard versus Beale AN Action upon the case was brought for these words viz. That the Words That the Plaintiff had two Bastards 36. yeaâ—s since Plaintiff had two Bastards 36. years ago upon the report wherof he was in danger to have been divorced And it was resolved that for Defamation there was no remedy but in the Spirituall Court if he had no temporall lesse therby and therfore it is not sufficient to ground an Action to say that he was in danger to be diverced but thâ—t he was De facto divorced or that he wâ—s to have a presentment in marriage as it is in Anne Devies case Co. lib. 4. The same Term in the same Court. Brabin and Tradums Case THe Case was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church wherupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his A Prohibition for a Seat in the Church Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the person but to the house for otherwise when the person goes out of the Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabola In the same Term in the same Court. Fulcher versus Griffin THe Parson of D. covenanted with one of his Parishoners that he should A Parson covenant that his Parishoners shall pay no Tithes pay no Tithes for which the Parishoner covenanted to pay to the Parson an annuall summ of money and afterwards the Tithes not being paid the Parson sued him in the Court Christian and the other prayed a Prohibition And it was agreed that if no interest of Tithes passe but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this case was that this was a bare Covenant and that no interest in the Tithes passe The custody of a Copyholder that was a Lunatick was committed to Darcies case in the Common Pleas. I. S. and for Trespasse done upon his Land it was demanded of the Court in whose name J. S. should bring the action and their opinion was that it should be in the name of the Lunatick Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case THe Earl of Northumberland being seised of the Mannor of Thistleworth in which he had a Leet to be holden twice a year to wit within a moneth after Easter and a moneth after Michaelmas and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet which was presented at the Leet for a common Nusance for which Devell was amerced 40 s. and was commanded to remove it upon pain of 10 l. for the which a Distresse was taken by Henry Sanders and others as Bailiffs to the said Earl wherupon Devell brought a Replevin and they made Avowry and justified as Bayliffs and prescribed that they used to make by-laws to redresse common Nusances and also prescribed in the Distresse And the point in question was whether the new erecting of a Dove-coat by a Free-holder were a common Nusance punishable Whether the erecting of a Dove-coat be a common Nusance in the Leet And it was resolved by the whole Court upon
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
Execution shall be sued against him as Ter-tenant 2. There is not any lien as Heir for the Iudgment doth not mention the Heir and therfore he cannot be charged unlesse he be expresly bound and in the Record of the Recovery it doth not appear that the first lien shall bind the Heir for he declares that he bound himself and not that he bound himself and his Heirs 3. If the Heir were bound in the Obligation so that he were once bound as Heir yet the Iudgment determines the specialty so that now he is not bound and in the Iudgment the Heir is not mentioned as in 10 H. 4. 21. 24. If an Abbot contract to the use of the house without consent of the Covent this shall bind if he dies but if he takes an Obligation of the Abbot and then he dies this shall not bind the house for the Contract is determined by the Obligation and this is the reason that in the time of E. 3. in a recovery upon debt the Obligation was cancelled 4. Here he cannot be charged as Heir for it appeareth by the Record Where a debt is recorded upon bond the Obligation was cancelled that his Father is living for it is brought against him as Heir apparant which he cannot be but during the life of his Father And as to the objection that in this case he shall have his age and therfore shall be charged as Heir Non sequitur for if execution be sued against the Heir of a Purchasor he shall have his age and yet he is not Heir neither can charged as Heir to the Conusor But because it is a rule in Law that the Heir which hath by discent shall not answer where his Inheritance may be charged during his Nonage Whitlock to the same intent because the Heir is not charged here as Heir but as Ter-tenant wherby his false Plea shall not hurt him with which Jones also agreed and said that he here considered three things 1. That the lien of the Ancestor binds the Heir 2. How the Heir shall behave himself in pleading 3. Our point in question For the first there are two things requisite to bind one as Heir 1. A lien expresse for if one bind himself and not his Heir this shall not bind his Heir in any case 2. A discent of Inheritance for without this he shall not be bound by the act of his Ancestor and he is bound no longer then Assets discend for he alien before the Writ purchased the lien is gone 2. He ought to behave himself truly and plead truly and confesse the assets discended to him when debt is brought against him as heir otherwise his own Lands shall be charged with the debt as it is in Pepys case in Plow Com. But where it is said in Pepys case that upon a Nihil dicit or Non sum informatum c. If the Iudgment passe upon them that it shall be generall I am not of that opinion for the common experience of the Courts is that such a generall Iudgment shall not be given against the Heir unlesse it be upon a false plea pleaded with which agrees Lawsons case Dyer 81. and Henninghams case Dyer 344. where the Iudgment passed by Nihil dicit so that the saying in Plow 440. a. that what way soever the Heir be condemned in debt if he do not confesse the Assets c. that it shall be his proper debt is not now taken for Law And I also hâ—ld that if the Heir plead falsly and there is found more Assets Where upon a false plea by an Heir the Plaintiff may elect to take the Assets in execution or an Elegit of all his Land that yet it is in the election of the Plaintiff to charge him and to take execution of the Assets only or to take an Elegit of all his Land and he is not bound to take an Elegit of all his Land in this case for otherwise this inconvenience may arise If the Heir hath a 100. acres by discent and two by purchâ—se if upon the false Plea of the Heir the Plaintiff cannot have any other execution but an Eligit of the Moyety of his Lands then he by this is prejudiced for otherwise he might have all he Assets in execution and so the Heir by this way shall take advantage of his false plea. 3. He held as Whitlock before and for the same reason Doderidge Iustice How the Heir shall be bâ—und by the act of his Father is worthy of consideration upon which Prima facie the Books seem to disagree but being well considered accord with excellent harmony I have considered this case it was moved at Reading Term and because my Notes are not here I will speak more briefly and will consider 1. Hâ—w an Heir shall be charged upon the Obligation of his Father and as to that in debt against an Heir he is charged as Heir so that at this day it is taken as his proper debt wherby the Writ is in the Debet and Detinet How an Heir shall be charged upon the Obligation of his Father but in the Detinet only against Executors But in former time from the 18. of Ed. 2. till 7 H. 4. if an Executor had Assets the Heir was not chargable but in 7 H. 4. the Law changed in this point for now it is accounted his own debt and debt will lye against his Executor as it is said in Plow Com and so against the Heirs of the Heir to many generations albeit of this Plowden makes a doubt and his plea that he had nothing at the day of the Writ purchased nor ever after is good for if he alien the Assets he is discharged of the debt in regard he is not to wait the action of the Obligee 2. The Heir shall be châ—â—ged upon or Recognisance not as Heir but as Ter-tenant for he is not bound in the Recognisance but only the Conusor grant that the debt shall be levied of all his Lands and Tenements but not against his Heirs And here he is not meerly as Ter-tenant for he shall not have contribution agâ—â—st â—her ter-Ter-tenants but only against those who are Heirs as himself is but to all other intents he is Ter-tenant and so charged Why an Heir is not chargable for debt after he hath fold the assets as 32 E. 3. and 27 H. 6. aâ—â— 3. That upon a Iudgment as our case is the Heir shall be charged as Ter-tenant and not otherwise The Book which hath been cited viz 33 E. 3. Execution 162. is expresse in the point the broken years of Fitzherbert are obsâ—urely reported but by comparing of cases it will appear to be our case exâ—resly 4. That albeit an Heir shall be charged upon the Obligation of his Ancestor where he is particularly bound yet upon his false plea no execution shall be but upon the assets So it seems to me that in the principall case the Iudgment shall be speciall and it seems to be a
very plain case Crew chief Iustice agreed and in his argument he affirmed what Jones said that a generall Iudgment shall not be given against the Heir if he do not plead falsly that he hath no Assets and not upon Nihil dicit And so Iudgment was given that the Plaintiff shall have Execution of the Moyety of the Lands discended to the Defendant and so note the diversity of debt against the Heir and Scire facias against the Heir Dickenson versus Greenhow Hill 1. Car. In the Kings Bench Intr. Hill 18. Jac. Rot. 189. IN an Attachment upon a Prohibition the Plaintiff declared that where Robert the last Abbot of Cokersham in Lancashire was seised in Fee of three acres of Land parcel of his Monastery and that the Abbot and his Com-monks and all the Predecessors of the Abbot were time out of mind of the order and rule of Praemonstratenses and that the order of Praemonstratenses and all Monks therof were time out of mind discharged of payment of tithes for their Lands and Tenements Quamdiu manibus propriis aut sumptubus excolâ—bant And that the said Abbot and all his Predecessors time out of mind had holden the said three acres discharged of payment of Tithes Quamdiu c. and so held them untill the dissolution of the Monastery and shew the surrender to H. 8. and the Statute of 31 H. 8 by force wherof H. 8. was seised and held them discharged and from him derive them to E. 6. and from E. 6. to Queen Mary and from her to Queen Elizabeth and from her in the 42. year of her Raign to Wagstaff and from him by mean conveyances to Dickenson the Plaintiff Quorum pretextu he was seised and enjoyed them in Propria manurantia and shew the Statute of 2 E. 6. cap. 15. wherby it is enacted that Tithes shall be paid as usually they were c. Quorum pretextu the Plaintiff held the three acres discharged of Tithes and that notwithstanding and against the Prohibition the Defendant did draw him into Plea for them in Court Christian and the Iudge therof held plea and the Defendant did there prosecute him to the disinherison of the Crown And upon this the Defendant demurred and prayed a consultation And Sir John Davies the Kings Serjeant argued for the Defendant that a Consultation should be granted because that his matter of discharge is double 1. His Priviledge 2. The prescription and if either of them will not help him then he ought to be charged For the Priviledge he took it that the Praemonstratenses never had such a priviledge It is a Maxime in Law All Lands chargable with Tithes that all persons ought to pay Tithes and all Lands shall be charged with them of common right but also there are divers discharges of them and allowed by our Law as is manifest by the orders of Templers Hospitalers and Cistertians which discharges our Law allows and these are 1. By prescription 2. By reall composition 3. By priviledge obtained and that by two wais 1. Either by the Bull of the Pope for he taking upon himself to be the great Dispensâ—r and Steward of the Church took upon him to discharge them but this as it is holden by the Canon he could not absolutely do but might divert them to a Clergy-man or grant to another to hold them by way of retainer and this ought to be to a Clergy-man also Or 2. By a generall Counsell for some orders were discharged by generall Counsels So some obtained Priviledges by the Popes Bulls which are his Patents some by Counsels which are as his Statutes and Decrees were as Iudgments but yet none of them had ever any force in our Law nor did bind us in England more then voluntarily retained and approved by usage and custom for as it is said in 11 H 4. the Pope cannot alter the Law of England and this is evident for in all cases where the Bulls or Constitutions of the Pope crosse the Law of the Land they have alwaies been rejected The Popes Bulls of four sorts as for instance 1 In the Bulls which are of four sorts 1. Of Provision 2. Of Citation 3. Of Exemption And 4. Of Excommunication And as for those of Excommunication it appeareth that it was Treason at Common Law and that the Treasurer did kneel to E. 2. for one who brought them in and in the perpetuall course of the Books afterwards they have alwaies been disallowed in Pleas. So his Bulls of Citation before the Statute of Provision was a hainous offence and so are Bulls of Provision and Exemption For his Canons where they were against the Law they were neglected It appeareth by the Canon Quod nullus capiat beneficium a Laico and yet notwithstanding continued long after for Benefices and does yet for Bishopricks that the Clergy shall take them from the King and a lay-hand And also there is a Canon for exemption of Clarks out of temporall Iurisdiction but yet as Brain saith 10 H. 7. 18. it was never observed here So the Canon saith that the time of the Laps shall be accounted Per septimanas but our Law not regarding this saith that it shall be accounted Per menses in the Calender as it is expresly adjudged in 5 E. 3. Rot. 100. Rot. claus in turri And there is a great reason for it as it is in 29 H. 3. memb 5. in turri It is not necessary for Bishops of England to go to generall Councells so as in Parliament those that do not â—end Knights or Burgesses shall not be bound by Statutes And the Counsels of Lyons of Bigamis c. are expounded by Statutes how they shal be taken so that it they have a Priviledge as in truth they have by the Popes Bulls if it were not allowed in England they are not of force to priviledge them against the Common Law of the Land for payment of Tithes but this was never here allowed And now for the Prescription this cannot help them for Monks are not of Evangelicall Priesthood to wit capable of Tithes in the Pernamy but meerly Lay-men and then as the Bishop of Winchesters case is they cannot prescribe in non decimando And Bede saith of them that they are Merè laici so that if their Priviledge were allowed their Prescription will not help them The priviledge of Praemonstratenses was by the Counsell generall of for their discharge which denies that all religious persons should be discharged of Tithes of Lands in their own hands Quamdiu c. But afterwards Adrian restrained it to Templars Hospitalars and Cistertians omitting the Praemonstratenses and the decree of Adrian was received also wherby the Law took notice of the discharge of the said three Orders True it is that the Praemonstratenses have a Bull of Pope Innocent the third of discharge and as large liberties as the Cistertians but they never put this in ure And it seems 1. That there were of them 29. Abbots
Abbys and yet their priviledge is not mentioned in all the Books as the Cistertians is 2. They complained to Gregory the nineth that they were not suffered to put it in ure and notwithstanding this complaint and command of the Pope to the Clergy to allow them this priviledge yet 24 H. 3. Complaint was made against them in Parliament for claiming this priviledge But the Statute of 2 H. 4. cap. 4. put this cut of doubt for this put the Cistertians in a premunire for purchasing and putting in execution Bulls of exemption of their Lands purchased afterwards Now if the Praemonstratenses had the same priviledge they should not have been omitted â—ut of this Statute then comes the Statute of 7 H. 4. cap. 6. which terrifies all from putting in execution Bulls of Exemption of their Lands not put in execution before upon which it is not to be presumed that it was put in execution afterwards But admit that the Praemonstratenses had this priviledge I say that the Plaintiff hath not applied this priviledge to himself for he hath not averred in fact that at the time c. Propriis manibus excolebat nec ad firman demitâ—ebat And this he ought to have done if he would take advantage of the priviledge as in Dickensons case Novel lib. intr 542. there it is expresly alledged in the like case as ours is here and where the same priviledge as here is claimed Quod manibus propriis excolebat True it is that it is said here that after the Feoffment to him made he was seised Et gavisus fuit in propria manutenor but he doth not say that at the time of the Tithes due gavisus fuit c. as he ought expresly to have done as appeareth by other cases If one prescribe to have common in arable Land when the Corn is reaped or in Meadow where the Hay is carried away and justifie by reason therof he ought to aver that the Corn or Hay was carried away when he put in his Cattell otherwise he hath not applied the prescription to himself So if one justifie for Common Quandocunque audia sua jerint he ought to aver that his Cattell then went in the place where c. as 17 Ass 7. So if the King pardon all but those who adhere to M. he who plead it ought to aver that he did not adhere to M. so here the priviledge is Quamdiu propriis manibus c. and therfore at the time he ought to aver that he had it propriis manibus c. Also where upon the surrender to H. 8. and the Statute they conclude that the Queen held it discharged this cannot be for this ought to be in such manner as the Abbot held it discharged but this was quamdiu c. and the King cannot be bound to such an unbeseeming condition and therfore he shall hold it dischâ—rged Like to the case where the Abbey hath the presentation and another the nomination the Abbey surrender he who hath the nomination shall have all for the King shall not present for him it being a thing undecent for his Majesty and so he concluded for the Defendant Banks contra 1. That it is a good cause of Prohibition 2. That it is well applied to us 1. That the order of Praemonstratenses is discharged of Tithes that they had once this priviledge hath been allowed by the other party by the Bulls of the Pope and that it was allowed and taken notice of he proved by this that this Bull was confirmed by King John in the 24. year of his Raign the Charter wherof he said he had under Seal and 22 E. 1. membran 5. there were 26. Abbeys of this order and the King took them all into his protection with their Immunities and 22 Rich. 2. John de Gant having Jura Regalia in Lancashire where the Abbey is confirmed to them this Bull and also this hath been divers times allowed and decreed to them in Court Christian for suit of Tithes as in the case of the Abbey of Bigham which was of the same order And as to that which was objected that if the Praemonstratenses had such a priviledge as the Castertians in 2 H. 4. that the like provision would have been against them As to this I answer that such a provision is not against the Templars nor Hospitalars and yet they have such a priviledge 2. It may be that they never enlarged their priviledged above their grant And for the Statute of 7 H. 4. our Priviledge was not then new and it was afterwards allowed in 22 R. 2. And also I conceive that if the Abbey were discharged at the time of the dissolution although not De jure yet this is a sufficient discharge within the Statute of 31 H. 8. as it is taken Co. lib. 11. 14. 2. I hold that they may here prescribe to be discharged of Tithes because they are Spiritual persons and capable of cure of Souls and capable of tithes in Pernamy as if an Appropriation be made to them 3. It is not now to be argued whether they have such a priviledge for they have demurred which is a confession of all matters in Fait c. 4. If there be a matter wherupon the Prohibition may be grounded it will serve vide Dyer 170 171. Co. lib. 11. 10. And 5. The priviledge is well applied because it is shewn that they were once discharged 6. He needs not to shew how he is discharged 22 E. 4. 4. 5 E. 4. 8. 20 E. 4. 15. Also the discharges are temps dont c. and therfore not pleadable so he prayed that the Prohibition might stand Pasch 1. Car. In the Kings Bench. Bowry versus Wallington NOte that in this case upon the Statute of 50 E. 3. 4. it was agreed by the Court that if there be a Suit in the Ecclestasticall Court and a Prohibition awarded and afterwards Consultation granted that upon the same Libell no Prohibition shall be granted again but if there be an Appeal in this case then a Prohibition may be granted but with these differences 1. If he who appeals pray the Prohibition there he shall not have it for then Suits shall be deferred in infinitum in the Ecclesiasticall Courts Where severall Prohibitions may be granted in the same case and where not 2. If the Prohibition and Consultation were upon the body of the matter and the substance of it for otherwise he shall be put many times to try the same matter which is full of vexation And the case was moved again and argued by Noy which was thus Wallington livelled in the Ecclesiasticall Court against Bowry for tithes of Wool and Lamb and Bowry upon suggestion of a Modus derimandi obtained a Prohibition and had an Attachment and declared upon it and are at Issue upon the Modus which is found for the Defendant and Consultation granted wherupon Iudgment was given in the Ecclesiasticall Court against Bowry upon which Bowry appealled and prayed a new
provided that if the Rent upon the second Lease be arrear that the Lessor may enter the first Lessee surrender a Rent-day incur the second Lessee doth not pay the Rent the Lessor shall not enter for a Forfeiture because the first Lease determined by an act which lies properly in the Conusance of the Lessor and because he was to take advantage by it he ought to have given notice therof to the Lessee and here he might have well given notice to the Defendant for it lies properly in the Conusance of the Plaintiff The second Objection was that here was an implied notice because the Marriage was at the instance of the Defendant which implies a notice Vnder favour this is no notice for this is before the marriage but if no notice be given after the marriage then there is no notice But by Serjeant Davies there is a sufficient implication and there is no need of notice in our case and see Co. lib. 8. Francis his case where they ought to take notice at their perill and a marriage is an Ecclesiasticall Iudgment of which he ought to take notice and he was interrupted for all the Iustices went to the Parliament And divers Presidents were cited that there need no notice to be given in this case And it was agreed that Iudgment should be given for the Plaintiff And in Trinity Term next following Iudgment was accordingly given for the Plaintiff The same Term in the same Court Sir George Reynolls Case SIr George Reynoll Marshall of the Marshalsey of the Kings Bench What Bonds a Sheriff or Marshall maâ— take â—rought Debt upon a Bond the Condition wherof was that the Defendant shall be a true Prisoner and it was doubted whether the Bond were within the Statute of 23 H. 6 cap. 10. Doderidge It is not to be understood by this Statute that a Sheriff Gaâ—ler or Marshall shall take no Bond for if the Marshall hath a man in execucution and fear that he will escape and he takes Bond of him this Bond is good Jones The intent of the Statute that the Sheriff or Marshall shall not suffer Prisoners to go at large for that is within the Statute And it was ruled in the Kings Bench that the Marshalsey should be enlarged Within the Rules of Bâ— what it is and this shall be called within the Rule and if the Marshall take a Band to tarry there it is good but if he suffer him to go at large it is not good The same Term in the same Court Sury versus Albon Pigot and three other Defendants Intr. Hill 1. Car. Rot. 1. 24. IN an action upon the case for stopping his Water-course the Plaintiff declares that 14. Octob. 22. Jac. he was possessed of the Rectory of M. in Barkshire of which a Curtilage was parcell and that in this Curtilage is and hath been time out of mind a watering place for the watering of the Cattell of the Plaintiff and others and for other necessary uses and that a certain Watercourse had time out of mind flowed from Mildford stream to this Curtilage and that this water filled the said Pond and further that the Defendant well knowing this and intending to dam up the said Watering-course built a stone Wall therupon wherby the Water-course was stopt up to the Plaintiffs damage of 20 l. and this was laid with a Continuando The Defendant plead that 3 H. 8. the said H. 8. was seised of the Mannor of c. and of the said Rectory in his Demesne as of Fee and of a certain peece of Land called the Hopyard lying between the said watering-place and the said stream and by his Letters Patents granted this to Wiliam Box and his Heirs by virtue wherof he was seised Francis Searles entred upon him and was seised and enfeoffed Pigot 20 Jac. by virtue wherof of he was seised c. and the three others justifie as Servants to Pigot that they the said day and year filled up the said Water-course as it was lawfull for them to do and Whether unity of possession in severall lands shal destroy a Water course that this is the same Trespasse c. The Plaintiff demurs And the question is whether the unity of possession of all in H. 8. hath extinguished the Water-course And by Dorrell for the Plaintiff if it were of a Common it is cleer that it is destroyed because Common ought to be in another mans Land but not in our case for if one prescribe to have Warren if he purchase the Land yet he shall have Warren 11 H. 7. 25. there are two houses and the one prescribe that the other shall mend the Gutter and afterwards they come to the hands of one man and then he alien one of them this unity shall destroy the mending of the Gutter Berd for the Defendant that the unity hath destroyed the custom 21 E. 3. 2. A way is but an easement yet by the purchase of the Land the way is extinguished and also the watering-course is not only an casement but a profit or Prender and he cited Dyer 295. in case of an Inclosure that the Inclosure is extinguished but there is made a quaere and he cited 38 Eliz. in C. B. an opinion that by purchase of a Close the Inclosure is extinguished a fortiori here because it is a profit And for the case of 11 H. 7. it is by the custom of London but there is no custom in our case and the case of a Warren is not like to our case because a man may have Warren in his own Soil And in Michaelmas Term next the case was argued again by Barkesdale for the Plaintiff that the unity of possession in H. 8. had not extinguished the Water-course and that the Terminus ad quem and the Medium also being in one had not distinguished nor destroyed it And 1 Col lib. 4. 26. Benedicta est expositio quando res redimitur a distructione The Law will not destroy things but the Law will somtimes suffer a fiction which is nothing in rerum natura ut res magis valeat I confesse that profit apprender as Common or Rent is extinguished by unity of possession for Common it appeareth in 4 E. 3. and Co. lib. 4. Terringhams case And for Rent it appeareth in 4 H. 4. 7. and in 21 E. 3. 2. it appeareth that a way is extinguished by unity of possession 3 H. 6. 31. Brook Nusance 11. for it is repugnant for a man to have a way upon his own Land But I conceive that our case differs from the case of a way and that for this reason where the thing hath a being and existence notwithstanding the unity there it is not destroyed by the unity but the Water-course hath a being notwithstanding the unity ergo c. I will prove the major proposition by these cases 35 H. 6. 55 56. Where a Warren is not extinct by a Feoffment of the Land for I may hawk and hunt in my
put in Bracton lib 4. 221. These are called Servitutes as jus eundi fodendi hauriendi c. sunt servitutes quas praedia ex quibus exunt aliis praediis debent and are called Servitutes praediales and this began by private right to wit by grant or prescription A way or common shall be extinguished because they are part of the profits of the Land and the same Law is of Fishings also but in our case the water-course doth not begin by the consent of parties nor by prescription but Ex jure naturae and therfore shall not be extinguished by unity A Warren is not extinguished by unity because a man may have a Warren in his own Land and in the case of 11 H. 7. the Gutter was not extinguished only by the unity of possession but there also appeareth in the case that the Pipes were destroyed wherby it could not be revived and although the Book of 13 Eliz. Dyer 295. Two Closes adjoyn together the one being by prescription bound to a Fence the owner of the one purchase the other dies having issue two Daughters who make partition it is a quaere whether the inclosure be revived yet I conceive cleerly that by unity of the possession the Inclosure is destroyed for fencing is not naturall but comes by industry of men and therfore by the unity it shall be gone and so briefly with this diversity he concluded that where the thing hath its being by prescription unity will extinguish it but where the thing hath its being Ex jure naturae it shall not be extinguished and therfore the Plaintiff ought to have Iudgment Jones Iustice agreed that the Declaration is good and that the Bar also is good in manner but for the matter in Law it is not good As to the first exception to the Declaration I conceive it is good albeit there wants a prescription and this is the ordinary of pleading as appears in Co. lib. 4 Luttrels case and in all the presidents before cited 2. For the exception Vi armis he conceived this difference where the act is a Trespasse and a Nusance there it may be laid to be Vi armis but if it be a Nusance only and not a Trespasse it is otherwise as if I have a way over another mans Land if a stranger dig in the Land so aâ— I cannot have the way now because it is a Trespasse to the Owner of the Soil in my action upon the case against a stranger I may have Vi armis but if the owner stop the way there Vi armis shall not be in my action upon the case For the third exception because he both not say Ad Rectoriam spectandum but I conceive that it shall be intended ad Rectoriam impropriat and so it appeareth 4. Where it is said Watering-course for his Tenants I conceive it is good enough being in an action upon the case where damages only are to be recovered That the Bar also is good in form for although the Tenant here be a Disseisor yet it is a good Bar for it matters not whether he hath a Title or no if the Water-course be extinct by the unity for the matter in Law he conceived that the unity of possession had not extinguished the Water-course A man hath things out of another mans Land either by grant as a Seigniory Rent Common c. and these are distinguished by unity c. and the reason is because one who hath interest as Owner of the Land cannot have a particular interest in the same Land also Or by prescription and those things are extinguished by unity of possession also and not only for the first reason because he is Owner of the Land and so cannot have a particular interest in the same Land also but also because that by the unity the prescription fail And for the case in Dyer 13 Eliz. I conceive that by the unity the inclosure is gone and so it was resolved in 37 Eliz. for every one is not bound to inclose For the case of the way I will suspend my opinion concerning it because Clark and Lambs case is now depending touching it in the same point But now for our case it differs from the other cases for the prescription here is in another manner then is made for Common for it shall be pleaded either as appendant or appurtenant but Currere solebat is only in this pleading for here no interest is claimed but in the other cases an interest is claimed In this case the Land remains as it was before and therfore the unity will not extinguish it and if such a unity by construction of Law should extinguish Water-courses it would be too dangerous for suppose that a man hath a Water-course from Thames to his house in Lambeth if he purchase a parcell of Land in Hendley now because that the Thames come by the same Land his Water-course shall be extinguished Also suppose that the Water-course after it hath been in the Curtilage of the Plaintiff goes into another Curtilage is it reason that by this unity the second man shall lose his Water-course without doubt it is unreasonable And the case of 11 H. 7. of the Gutter warrants this opinion and therfore the Plaintiff ought to have Iudgment Doderidge Iustice I conceive no great difficulty in the case for the exceptions to the Declarations they are not materiall 1. That there wants Prescription or Custom I conceive that it is good enough for here are the words of Currere solebat consuevit and Consuevit is a good word for a Custom 2. That a Lay-man cannot have a Parsonage true it is that a Lay-man cannot be a Parson but he may have a Parsonage for he may be Lessee of it which appeareth many times in our Books 3. That it is not alledged to be Vi armis this is the most colourable exception and the case and rule cited out of Co. lib. 9. the Earl of Shrewsburies case is good Law but it is impossible to plead Vi armis in this case for the unity was in H. 8. and the wrong is supposed after the severance and it is supposed to be done by the Owner of the Land and a man cannot do a thing upon his own Land Vi armis 4. Because it is not alledged to be an ancient Rectory I conceive it need not because the Law presumes all Rectories to be ancient the Patronages wherof are gained Ratione fundi fundationis vel dotationis 5. Because he doth not say that Pertinet ad Rectoriam But he hath said a thing which amounts to as much for it is said that in the Rectory was a certain Curtilage in which there is a Watering-pond and the Curtilage is part of the house and therfore he need not say that it belongs to the house For the Bar I conceive that it is good for the Mannor A man makes a Feoffment of Land the Owner of the Land being present at the
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS